By Robert Blecker

When the U.S. Supreme Court upheld the standard lethal injection protocol as constitutional, death penalty opponents still held out hope that individual judges might take it upon themselves to block executions because of the remote possibility that in a “botched execution” the second drug, a paralytic agent, might block the condemned from showing the pain he actually felt. And so it seemed, for a moment, in Tennessee.

Let’s reconsider what we do by embracing lethal injection as our goal. By definition “punishment” and “pain” have been inseparably connected. Those who advocate “painless punishment’’ call for contradiction. Punishment to be punishment must be painful.

These past few centuries, however, punishment morphed into something that denies its own nature. Electrocution and gas replaced hanging, by and large to avoid pain. Then lethal injection replaced them both, to end all pain. At every opportunity we banished pain from our sight. It and punishment largely became an abstraction.

Death penalty opponents often attack as sadistic a painful punishment of death. We ought never inflict pain for the sake of the past; victims are dead and cannot be brought back to life, they insist.

Rejecting this, we retributivists keep covenants with the past. Giving a person “a taste of her own medicine” — seems just. Pain inflicted upon the killer cannot erase the harm, but it can help restore a moral balance.

Critics commonly equate retribution with revenge. But retribution is not simply revenge. Retributively, society intentionally inflicts pain and suffering on criminals because and to the extent they deserve it. But only to the extent they deserve it.

The Eighth Amendment unquestionably outlaws torture as cruel and unusual punishment. It outlaws all grossly disproportionate punishment. We might insist that a painless death for a mass-murdering rapist child killer, so much less than deserved, would be wildly disproportionate to the gravity of the crime.

Some states and judges move us toward a single lethal dose of anesthetic, rendering the condemned unconscious and impervious to pain. But, without the paralytic agent, dying quivers may give a false appearance of pain. On the other hand, an improperly administered anesthetic followed by the paralytic will produce but mask real pain that the condemned could not express.

Lethal injection’s most pernicious false appearance, the medical illusion, damns it if nothing else does. The condemned dies in a gurney, wrapped in sheets with an IV in his veins, surrounded by close kin, monitored by medical devices. In this, we obliterate the last clear line between treating the sick and punishing the heinous. How we kill those we condemn should in no way resemble how we kill those we love.

So in the end, I, too, condemn lethal injection, not because it possibly causes pain, but because it certainly causes confusion, merging punishment and treatment, arbitrarily severing crime from punishment and pain from justice.

Robert Blecker is a criminal law professor at New York Law School.

http://blogs.tennessean.com/opinion/...avoiding-pain/