The Keyword Is: AND! Or, in the Alternative: Why “Cruel and Unusual” Still Is Not the Same as a Bad I.V. Stick

praemissum

What does the term “cruel and unusual” mean to you? Should it have to be cruel and unusual or can it be either cruel or unusual? Can the death penalty ever be carried out in a manner that is not cruel?

responsum

The term cruel and unusual (as in punishment) immediately makes me think of a diptych by Gerard David titled The Judgment of Cambyses / The Flaying of Sisamnes. I am not sure how much of this story is true, but there are definitely many works of art created based upon it. The one that I am most familiar with is this one by David. It is a gorgeous, two-panel painting. On the left side, we see a man sitting upon a throne or a very ornate chair. On the right, we see what could be considered a medical procedure. That is, until you know the story of Sisamnes.

Sisamnes was a judge in the court of Cambyses II, King of Persia. The King found out that Sisamnes was taking bribes for verdicts, and he was not pleased. He ordered Sisamnes to be flayed alive. That, in itself, is not what makes this punishment remarkable. What makes it profound is what the King did afterward. He had the judge’s hide tanned and turned into leather. Then he had his master craftsmen upholster the very chair that Sisamnes once presided from using his own skin.

To further drive the point home, the King appointed Otanes, Sisamnes’s son, to the judgeship and required him to conduct court from that same throne.

That is cruel and unusual punishment, even by ancient standards. So, when I hear people trying to apply the concepts of cruel and unusual punishment to the death penalty, I take pause. There is nothing unusual about the death penalty, and its cruelty is debatable depending on method and mindset. Sure, it is very lex talionis. But why not?

Moreover, according to the Eighth Amendment, the punishment must be both cruel and unusual. There is not an “and/or” printed in the Constitution regarding this clause, which reminds me of an incident where a judge had to be reminded that the verb in question was shall, not may. Words matter. The framers chose their language with intent. Had the clause meant that cruelty or unusualness alone would suffice, the Amendment would have used “or” or even “and/or.” (That’s excessive. I apologize.)

I guess that is to say that yes, the death penalty can be accomplished in non-cruel and non-unusual ways. There are several options for a quick and painless death that have been used for centuries. Flaying someone while they are alive is not one of them, but an inability to find a functional intravenous pathway for a lethal dose of sodium pentathol is not cruel or unusual.

When answering this question, I was curious whether anyone had ever survived the application of any form of death penalty. I recalled seeing something like that in a sci-fi show called Torchwood, but wondered if it had ever happened in real life. Turns out, no—not really.

I found an article from the Death Penalty Information Center. At first, I thought, “Oh no, I have to completely re-think my answer.” But as I kept reading, I realized that the article’s tone was exaggerated and borderline hysterical. These allegedly botched executions? They were not botched in the sense of someone being flayed alive or electrocuted several times without success. They were classified as botched because the medical team couldn’t find a vein.

I have been stabbed with needles a billion times over my lifetime. Major medical establishments still miss my veins. They often have to call in the PICC team—basically the pros for old, hard-stick patients. So I do not have a ton of empathy if, during an execution, it takes a few tries to find a vein. That is not botched. That is just real life.

None of this is to say that bureaucrats and badge-holders of the law do not regularly violate the Eighth Amendment, and all the others, for that matter. These kind of atrocities are becoming commonplace. They are happening right here in Oklahoma, all the time. King Cambyses would not be pleased.

Footnotes:

1. As Lethal Injection Turns Forty, States Botch a Record Number of Executions. Death Penalty Information Center, 2022. https://deathpenaltyinfo.org/as-lethal-injection-t…
2. David, Gerard. The Judgment of Cambyses, 1498. Groeningemuseum, Bruges.