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35 Fordham Urb. L.J. 969 (2008)
Killing Them Softly: Mediations on a Painful Punishment of Death

handle is hein.journals/frdurb35 and id is 977 raw text is: KILLING THEM SOFTLY: MEDITATIONS ON A PAINFUL PUNISHMENT OF DEATH Robert Blecker* THE CURRENT CONTROVERSY: A FRAGMENT Controversy continues to swirl around lethal injection. Oppo- nents emphasize the real risk of ill-trained corrections personnel botching executions and turning capital punishment into official rituals of torture-inhumane and unconstitutional. Worse, pancuronium, a paralytic agent, masks the real agony of the con- demned who appears to die in peace without pain. Supporters counter that although some risk of unintended pain remains, when administered properly by physicians or other trained personnel, le- thal injection produces a quick, painless, and constitutional death. A de facto national moratorium on executions occurred while the Supreme Court considered the constitutionality of lethal injec- tion in Baze v. Rees.' Of course, many opponents of lethal injec- tion simply detest the death penalty itself, however administered seizing on the remote but real possibility of a state-administered, painful execution to oppose lethal injection, and every other method as unconstitutionally cruel and unusual punishment.'2 Others reject the death penalty, fearing that states will execute the innocent or be spurred by racist motives. Some admit that mon- sters may deserve a painful death, if only the government could be trusted to determine who and how. Still others, while opposing the death penalty itself, may recognize that rightful punishment must be painful in order to be punishment. Some critics point out, however, that people are largely driven to destructive acts by forces outside their control or beyond their re- sponsibility. Public safety may require us to incapacitate, and those confined may feel uncomfortable. But, they insist, we always punish most reluctantly, and treat civilly those who threaten us un- til we can cure or rehabilitate and then release them, all this time * Robert Blecker is Professor of Law at New York Law School. Edward Carly, Dr. Mark Heath, and Michelle Witten provided thoughtful critiques. Ms. Witten and Bradley Gottfried assisted with research. 1. Ed Stoddard, Execution Moratorium Takes Hold, REUTERS, Nov. 1, 2007. 2. U.S. CONST. amend. VIII.

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