evolving standards of decency - State v. Mata...

last week the nebraska supreme court issued a decision in State v. Mata, 275 Neb. 1 (2008), and took a step closer to bringing the united states up to par with the remainder of the "civilized" world that has recognized that capital punishment is not becoming of an advanced people. the Mata Court found electrocution to be unconstitutional under nebraska's cruel and unusual punishment clause with language that may set the stage for the downfall of other torturous methods of execution, such as lethal injection (a method which would result in felony charges if used upon a pet).

initially, the Court reminded its audience that it was not, and could not, decide the constitutionality of electrocution under the federal constitution. however, it noted the supreme's decisions upholding the constitutionality of electrocution were based upon assumptions of a lower court which relied on "untested science from 1890." interestingly, the supremes have used much the same methodology in upholding just about everything wrong with the capital punishment system - new methods of state sanctioned murder, jury selection processes which unfairly tilt the playing field, reliance on uninformed opinion and a dismissal of scientific evidence...perhaps a sign that the states may begin to have the balls to buck the big boys for their failure to follow lofty language with proper action.

the Mata Court began by setting forth some of the old standards of 8th amendment jurisprudence (the nebraska cruel and unusual punishment clause mimics the 8th and so this was their starting point). the basic rule - death itself is not cruel within the meaning of the clause, cruel "implies there is something inhuman and barbarous, something more than the mere extinguishment of life." (I, for one, and not quite sure that the human race has figured out a way to kill each other in a way that is "the mere extinguishment of life" beyond natural death in one's sleep - and so I still am trying to figure out how any method of capital punishment is constitutional, even if, in theory, death itself is not per se unconstitutional...but then I have a human heart beating in me).

the traditional humanity of modern anglo-american law forbids the infliction of unneceessary pain in the execution of the death sentence and cruelty inherent in the execution method itself. the execution shall be so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that of death itself. capital punishment must not involve the unnecessary and wanton infliction of pain.

although it was originally determined to be the most humane way possible of killing another human being, the Court noted that the cruel and unusual punishment clause may acquire meaning "as public opinion becomes enlightened by a humane justice." in quoting the supreme court, it declared that the taking of human life by unnecessarily cruel means "shocks the most fundamental instincts of civilized man. it should not be possible under the constitutional procedure of a self-governing people."

this basic rule of thumb, that methods of murder must uphold the dignity of man and not cause unnecessary torture or lingering death, became the foundation for the opinion as the Court set forth a three prong test: (1) a substantial risk of unnecessary suffering and wanton pain; (2) evolving standards of decency that mark a mature society; and (3) minimization of physical violence and mutilation of the body.

the Court then went on to refute the uninformed decisions of years past that upheld electrocution - decisions which assumed that electrocution was an instantaneous and painless method of inflicting death without any actual science on the physiological effects of electrocution on the human body. (again, these same assumptions have been made in connection with lethal injection - as the Court stated, lethal injection has replaced electrocution as being universally recognized as the most humane method of execution, least apt to cause unnecessary pain - the same things once said about electrocution). it noted the excruciating pain felt by shock victims that have survived, intolerable pain due to over-active nerves, intense muscle contractions strong enough to snap bones, severe burns of prisoners, loose skin from interior burns, a number of documented cases in which prisoners remained alive after the shock, etc. the vast evidence gathered by experts showed the court that "prisoners will be tortured during electrocutions" despite the state's erroneous assumption that death would be quick. in a rather telling remark the Court pointed to the trial court's ruling casting doubt on the government's assumptions because if "the state's explanation of the logic of the mechanisms of electrocution and its merit as a means of executing the death penalty are true, it is hard to understand why virtually all of the world has abandoned the practice except nebraska." (similarly - if capital punishment itself actually had merit as a crime control method, one wonders why the entire civilized world has abandoned the practice except the united states).

once again, the Court pointed out that past assumptions about electrocution - namely that death and loss of consciousness was instantaneous and painless - have been refuted by science. rather, electrocution "unquestionably inflicts intolerable pain unnecessary to cause death." and in one of my favorite lines in the opinion - a refutation of the state's claim that 15 to 30 seconds of suffering is permissible - the Court stated "fifteen to thirty seconds is not a blink in time when a human being is electrically on fire. we reject the state's argument that this is a permissible length of time to inflict gruesome pain. it is akin to arguing that burning a prisoner at the stake would be acceptable if we could be assured that smoke inhalation would render him unconscious within 15 to 30 seconds." once again - many experts believe lethal injection has the same effect, excruciating pain from a person being internally on fire until they finally succomb - which makes one wonder how lethal injenction will fare in nebraska, if it makes it out of the supreme court.

it should be recognized that much of the same logic concerning the methodology and merit of lethal injection has been offered with little to no scientific support. it is extremely easy to see this opinion issued with simply replacing "electrocution" with "lethal injection" - and perhaps, eventually capital punishment itself. afterall, as the Mata Court reminded us, "the early assumptions about an instantaneous and painless death [by electrocution] were simply incorrect." for years we have assumed that prisoners are immediately knocked out by lethal injection and thus do not feel the excruciating pain of being chemically burned throughout their insides, only to slowly begin to realize that these assumptions may very well be very mistaken. it is no mistake that as our standards of decency evolve around a recognition of the dignity of man that more and more methods of murdering our fellow man are seen as unconstitutional and immoral - afterall, it is difficult to apply moral absolutes to others without applying them to ourselves - and when we do, the logic of killing people to show that killing people is wrong, the logic of death in support of a culture of life is undefendable.

while it seems like a no brainer to those of us that believe in a culture of life (oddly how the ones that toot their own horns about how they support a culture of life prove it by killing people), cases like this are a huge step. unfortunately, the supremes haven't seemed to have the gonads to do what is right in the face of legislative opposition since thurgood left the bench - and it will take more lower courts and state legislatures to take the step before the supremes do what all other advanced societies accomplished long ago and abolish capital punishment once and for all.

we may well be the ones to set this world on its ear - we may well be the ones...if not, then why are we here?