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The Failed Experiment

You brush up against a lot of weird stuff in the course of child rearing, but one phenomenon that always had me scratching my head was the parents who hit their kids to teach them that hitting was a bad thing.

In their defense, they had a civic model for that kind of bizarre circular reasoning. Americans still live in one of the few countries that kill people to make clear what a terrible thing killing people is.

Hardly any other civilized place does this anymore. In the past three decades, the number of nations that have abolished the death penalty has risen from 16 to 86. Last year four countries accounted for nearly all executions worldwide: China, Iran, Saudi Arabia and the United States.

As my Irish grandmother used to say, you're known by the company you keep.

Last week the Supreme Court agreed to cogitate once more about capital punishment, a boomerang the justices find coming back at them time and time again. This new case is about the way lethal injection is administered. The argument is that even though one drug anesthetizes, a second paralyzes and a third stops the heart, the first is not sufficient to mitigate the pain and the second makes the inmate appear peaceful when he is in agony.

In other words, the case is about whether being put to death hurts. Passing judgment on this particular issue is the equivalent of diagramming an ungrammatical sentence.

Much of the debate about the death penalty since it reared its ugly head again in the '70s has been about whether it is disproportionately meted out to poor minorities, whether it should be permitted for juvenile offenders, whether various methods constitute cruel and unusual punishment. Most of these discussions are designed not to examine underlying deep moral issues but to allow Americans to continue to put people to death and still feel good about themselves.

That's become increasingly difficult. At the same time the court decided to revisit lethal injection, the justices agreed to a federal hearing in the case of a man who has spent 20 years on death row. He was convicted of raping and murdering a neighbor. The prosecution said his semen was found on the dead woman. New DNA tests show that the semen was instead that of her husband, who witnesses say had drunkenly confessed to the murder.

This is just one of a long line of such cases. Accusers recant, guilty parties confess, the lab makes a match that wasn't possible before. Since 1976, more than a thousand men and women have been executed in the United States. But during that same period more than 123 death-row inmates have been exonerated. That's a terrible statistical average. Put another way, more than 123 individuals truly guilty of savage crimes were walking free while someone else sat waiting on death row. And most, if not all, of those death-row inmates would have been wrongly executed if not for the lengthy appeals process death-penalty advocates like to decry.

Some years ago the execution of a woman named Karla Faye Tucker in Texas got a lot of attention. She had been found guilty of a particularly heinous double murder involving a pickax. But in jail she had a religious conversion so transformative that she referred to the place where she was held as "life row."

When Tucker was put to death, there was a mob scene outside the prison. Some of those who gathered there were opponents of the death penalty. Some wanted the execution to proceed. And some of the latter group danced and laughed and cheered and acted as though they were at the Super Bowl and their team had just scored a touchdown. They did everything but sell funnel cakes. If they had lived 300 years earlier, they would have happily paraded through cobbled streets with Karla Faye's head on a pike.

Most people who support capital punishment can't be counted as members of that sorry fringe mob. But this is one of those issues where there isn't really a middle ground. Just because the electric chair has been phased out doesn't mean civilization has prevailed; it only means that people didn't like how reports of a convicted man's head bursting into flame made them feel about what they were doing. In judicial terms, Justice Harry Blackmun concluded in 1994 that all it came down to was figuring out how to "tinker with the machinery of death."

And he was officially finished with it, writing: "Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed." The question isn't whether executions can be made painless: it's whether they're wrong. Everything else is just quibbling. And most of the quibbling simply boils down to trying to make the wrong seem right.

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