TEXAS ANNOUNCES "WORLD WAR I THEME" FOR UPCOMING EXECUTIONS

TEXAS TALK

By : Mr. Brad Livingston, Executive Director, Texas State Criminal Justice Agency (Austin)(2005-present); Former Chief Financial Officer, Texas Board of Criminal Justice (1997-2001); Former Deputy Director, Financial Services Division, Texas Department of Criminal Justice (1997-2001); Accounting Expert; Christian.

Here in Texas, capital punishment works. We are not afraid to swiftly execute offenders. Our prosecutors, judges, legislators and administrators are all on the same page on this: We don't have mercy for killers, rapists, drug dealers and thugs. So we get them out of the community in the surest possible way we can: By lethally injecting them after a couple pointless appeals.

Our State criminal justice system is the best in the Nation because Texans support it. Criminal justice doesn't work without strong backing from the community. Thankfully, our system is both effective and efficient because every Texan knows where criminals belong: Strapped to a gurney in the Huntsville death house. Here at the Corrections Department, we think like Texans. We don't forgive and forget. We inject first and ask questions later.

Capital punishment works in Texas because it brings our community together. Texans love a good execution. Although we do not hang people in public like we did in the old days, we nonetheless widely publicize our executions "21st century style." Texans can stay current with day-to-day executions by logging into our "Executed Offender" database. See http://www.tdcj.state.tx.us/stat/executedoffenders.htm. That site provides accurate information about offenders who got their judicially-prescribed dose of potassium bromide. It shows their faces. It describes their crimes. It tells you what they said before they bought the farm. It even tells you what they had for dinner before taking a mosey down the death chamber. Basically, if you want to hear about the latest about executed offenders in Texas, just click on the link and you will get the whole story. Enjoy!

We are committed to bringing Texans a satisfactory capital punishment experience that is both invigorating and entertaining. At the same time, we must note that executions are not cheap. Although the State provides executions free of charge, our capital punishment delivery system has historically operated at a loss. We recently made that fact known to Texans in a local television broadcast. To our great relief, we found that millions of Texans were willing to pay a price to watch a good execution. We even received substantial voluntary donations from private citizens. Those donations defrayed our costs. As Director of the Texas Department of Criminal Justice, I can assure you that Texas will always give you the executions you expect and deserve.

We are thankful that Texans support our criminal justice system. We also know that many Texans wish to directly participate in future executions. We have received many letters from victims' family members requesting the opportunity to push the button that releases chemicals into the offender's bloodstream. Other citizens have requested introducing some new execution methods "just to spruce things up a little bit." Still others have petitioned for larger spectator venues to accommodate all the people who want to see an offender die.

In response to these queries--and to reward Texans for their support--we have decided implement some positive changes to our capital punishment delivery system. Effective immediately, we hereby designate 2010 the year for "World War I Fun" in the Texas criminal justice department. Until further notice, we will execute offenders with vintage World War I weapons. Additionally, we will allow victims' families to directly participate in the execution for a small administrative fee. We believe that this program will bring Texans even closer together, while at the same time teaching a valuable history lesson about World War I. It will give families the chance to take personal revenge on offenders, deter future misconduct and raise funds for the State. In sum, we believe that "World War I Fun" is a "win-win" for both Texans and Texas.

But we need your support to make "World War I Fun" work. To that end, we would like to introduce the various new execution methods available under our new program. If you are a crime victim or a crime victim's relative, carefully review this information to determine which method best suits your needs and your budget. Although we wish we could allow every crime victim to choose the most expensive execution method, we must always observe budgetary constraints. For that reason, we list execution methods in ascending order of price.

1. TRENCH SHOVEL - $50 per execution

Get back at your girlfriend's murderer with this trusty old steel spade. For just $50, you can grab this vintage 1917 shovel and smash that convicted varmint to your heart's content. Notice that the shovel has a sharp edge as well as a flat surface. It also has a good heft for crushing skulls or severing arteries. At just $50 per execution, the trench shovel is an economically wise--yet emotionally fulfilling--way to exact justice on a real Texas bandit. If you wish to bring a friend (or parent) to the execution, the Texas Department of Criminal Justice will provide another shovel for just $25 more--that's a 50% discount! With two shovels, you and your friend can really give the convict a walloping. After you've finished clubbing the criminal to a bloody pulp, corrections officers will add insult to his injury by using the brain-smattered shovels to dig a grave for him out back.

2. BAYONET - $100 per execution

Cut right to the chase with a REAL World War I bayonet! You'll make a slicing impression with this genuine German antique. Your mother's killer will be trembling in his socks when he sees you coming at him with a foot-long silver blade. He'll wish he never raped and shot your mom as you thrust the shiny bayonet into his abdomen. Imagine how scared he'll be as he sits there helplessly strapped to a chair as you slash and stab him to death. You can do anything you want with the bayonet. You can scalp the criminal. You can stab him through the top of the head. You can saw off his fingers. Hell, you could even cut open his stomach and stuff his kidneys in his mouth while he's still alive. Go ahead! Knock yourself out! Do justice! We'll even throw in rubber gloves and a wetsuit for just $50 more so you won't get your nice clothes all bloody.

3. SPRINGFIELD MODEL 1903 - $250 per execution (plus additional ammunition beyond 5 rounds)

If you prefer firearms to close-quarters weapons, then the Springfield M1903 is the choice for you. Don't get your hands dirty. Be an old-fashioned Texas marksman. Line the child rapist up in your sights, get the range right and BLAM! There goes the back of his head. As an added bonus, the Texas Criminal Justice Department will provide an ENTIRE CLIP of ammunition for your amusement; it is our way of saying "thank you" for your support. That means you can take your time with your criminal. You can fire your first shot through his shinbone. Then the next through his hand. You know, whatever you like. Give him a nice gutshot and ask him how he likes it now. But if you do not finish the convict off in five rounds, you must pay $10 per additional bullet. Despite the cost, we are certain that all you Texas sharpshooters out there will really appreciate going round for round on a scumbag with a Springfield. Go for it! Ready, aim, fire!

4. MUSTARD GAS - $500 per execution

Maybe you liked chemistry in high school. Maybe you'd rather use science on a punk than a gun or a knife. If this fits your bill, then Texas Corrections has the solution for you: A genuine mustard gas grenade. For just $500, you can REALLY make a bank robber squirm by tossing some lethal chemicals directly into an airtight container. You can watch him squeal like a pig as he tries to hold his breath. But you'll just laugh, because the mustard gas will burn away his skin at the same time. That'll teach him to touch little girls at the playground! At the same time, you'll learn why most countries outlawed mustard gas after 1918! For the more adventurous citizens out there, mustard gas is the way to go. In Texas, we don't just shoot 'em, beat 'em or stab 'em. We gas 'em, too!

5. MAXIM MACHINE GUN - $1000 per execution (includes 250-round ammunition belt)

If you're a marksman but prefer rapid fire, don't settle for a single shot. Get behind this VINTAGE 1911 Maxim machine gun and UNLOAD into a child molester with a full belt. Learn how the machine gun changed the face of warfare as you demonstrate what 250 30-caliber bullets can do to a Mexican gangster tied to a chair. Have fun with it! Hold down that trigger and roar! Let the machine gun do the talking. Cut the bastard in half if you want to. We regret that the Maxim costs more than other execution methods. It is difficult to find working models that do not jam. Additionally, it takes time to set up the Maxim and calibrate it; this thing weighs a lot. Your $1000 contribution helps defray all these costs. And believe us: Once you squeeze the trigger on this baby, you'll say: "It was worth every dollar!" So what are you waiting for? RAT-A-TAT-TAT, bitches!

NOTE: If the Maxim jams at any time before you complete your 250-round belt, we pledge to refund your $1000 contribution pro rata ($4.00 per round) depending on how many rounds remain in the belt. We also pledge to lend you a Corrections Officer's service pistol to administer a final shot to the offender free of charge.

6. FLAMETHROWER - $2000 per execution

It's time for an old-time Texas barbecue! Take fiery revenge on your wife's lover by toasting him like a stuck hog. For just $2000, we will give you an ORIGINAL 1918 flamethrower with a full tank. Don't mess around with shovels or pistols. Burn the sumbitch alive! Light up the starter, twist on the fuel flow and reduce him into a pile of ashes. Don't worry: He won't turn into ashes before he struggles in vain to escape the flames. Torch him! If you really want to make him regret what he did, don't hose him down right away. Shoot a fireball above his head first. Make him sweat. Then shoot another burst to his left, then his right. Finally, give him just a little scorch. Make him live for a while with peeled-off skin. See how he likes being a victim now. See how fun flamethrowers can be? Nothing says "Ouch" like a full-body burn. And you can only give a full-body burn with a flamethrower. So get in there and start cookin'!

7. BIG BERTHA - $5000 per execution

For Texans who have some money to spare, why not blast a criminal to smithereens? Chances are the offender changed your life forever. Chances are he stole something from you that you can never replace. You probably want to make his life as empty as yours, don't you? If this is the way you feel, BLOW HIM AWAY WITH A BIG BERTHA ARTILLERY GUN! When you pull the firing cord on this baby, there won't be anything left of the man who ruined your life. There won't be anything to bury. Nobody--and no body part--walks away from a 16-inch, 2100-pound high explosive direct hit. When you really just can't stand criminals, nothing says "I hate you" more than landing a Big Bertha shell on his head. For just $5000 (credit available), the Texas Corrections Department will set up a secure firing range, as well as the VINTAGE 1908 "Big Bertha" artillery gun. It will load the weapon, place the offender downrange and allow you to say "FIRE!" before pulling the firing cord. Then, via closed-circuit television, you can watch in slow-motion as the shell falls on the offender. One moment he is there. The next moment he is gone. We will even give you a complimentary DVD recording so you can watch the moment as often as you like for the rest of your life.

In closing, I would like to personally thank Texas for its commitment to criminal justice. Here at the Department of Criminal Justice, I can assure you that we will continue to make executions accessible to the public in a way that is both emotionally satisfying and economically sensible.

Thanks again for your support.

DOMINIC CARTER, CRIME AND CHANGING PUNISHMENT IN AMERICA

AN ESSAY

A few months ago, I wrote a short article about Dominic Carter, the former New York 1 anchorman who allegedly beat his wife. I used Mr. Carter's story to illustrate how difficult it is to "prove" things in our empirically-based evidence system. Now, a State court in New York has sentenced Mr. Carter to an unusual punishment for attempted assault. This presents compelling new issues.

Just as Mr. Carter's case provided an excellent vehicle to discuss evidence law, his sentence now provides an excellent vehicle to discuss criminal penalties in modern America. Put simply, criminal penalties are changing in America. And they are drifting far from their traditional purposes. In my view, this is not a good thing.

According to the New York Post, Mr. Carter was convicted of attempted assault for pervasively abusing his wife since 1997. See N.Y. Post, Crying shame of jailed NY1 journo, Jan. 15, 2010 at 5. Although his wife denied that Mr. Carter beat her, the trial judge--Arnold Etelson--referenced police reports detailing marital strife in the Carter home for over a decade. Id. He sentenced Mr. Carter to 30 days' imprisonment. Id. He also ordered Mr. Carter to "stay away" from his wife for two years unless "he is prescribed medication by a psychiatrist able to assure the judge that [he] is well enough to see her." Id. Additionally, the judge gave Mr. Carter an article from New York Magazine detailing Matt Damon's views about "honesty and humility." Id. During sentencing, he told Mr. Carter: "Try some humility and honesty--it goes a long way." Id. Finally, the judge gave Mr. Carter's wife a sticker with the words "Attitude Makes the Difference. " Id. He instructed her to affix the sticker to her bathroom mirror so that Mr. Carter can see it when he visits. Id.

This is highly irregular judicial work. As a general rule, the criminal law forbids specifically defined conduct. The criminal justice system decides whether the defendant engaged in that conduct, then neutrally decrees the legal consequences. While morality animates all criminal codes, it is not for judges in the criminal justice system to pontificate about it, let alone publicly scold criminals for sport. This New York judge transformed his courtroom into an entertainment circus. And the spotlight was not on Mr. Carter--it was on the judge.

To start, it is strange that Judge Etelson characterized these facts as "attempted" assault. At common law--and under New York State law--an assault means an intentionally harmful or offensive touching. See, e.g. NYPL § 120.00, et seq. Any intentional crime can be "attempted" if the defendant intends to achieve the bad result envisioned in the criminal code, then takes some action corroborating that intent. But it is no longer "attempt" when the defendant achieves exactly what the law forbids. Here, the judge relied on police reports that detailed Mr. Carter's abuse. They all but verified that he had routinely hit his wife since 1997. If the judge believed those reports, then he should have convicted Mr. Carter of assault, not attempted assault. If Mr. Carter succeeded in harmfully or offensively touching his wife, it was no longer attempted assault. It was just plain old assault--and it's a worse crime than attempted assault.

But Judge Etelson's legal errors pale in comparison with his bizarre approach to criminal penalties. Traditionally, criminal penalties in America--as in all Western countries--target the body and property. The law assumes that people do not want to suffer bodily pain or lose their property, so penalties targeting those things ostensibly dissuade potential criminals from making "bad choices." The death penalty, imprisonment, fines and corporal punishment encompass everything a State can realistically do to penalize crime.

In modern America, imprisonment is the preferred penalty. Fines follow in second place. Most consider corporal punishment an archaic penalty; it really never happens anymore. The death penalty is more common. Still, State-ordered death is quite a rare punishment, too.

Judge Etelson did not give Mr. Carter a traditional punishment. Rather, he theatrically used Mr. Carter as an instrument. The only traditional part about Mr. Carter's sentence was his imprisonment. To some, thirty days in prison for attempted assault might appear harsh. But no one would call it bizarre. People expect either fines or imprisonment for crimes in America. The criminal justice system works in part because the public knows what to expect for certain transgressions. They trust judges to declare penalties that everyone expects. At the same time, they understand that even a convicted criminal is entitled to some dignity before the law. He need not be publicly humiliated, ridiculed or belittled in the courtroom. His prison term and social ostracism accomplish that on their own. It is not the judge's role to morally grandstand or scold. He simply must pronounce sentence. Legislators moralize when they write the laws. Judges should not.

What does a New York Magazine article or a sticker have to do with the law? When did Matt Damon become a legal authority? True, "honesty, humility and a good attitude" are virtues. But it is not the law's role to chastise people for failing to be virtuous. The law's only role is to decree whether a person acted in a defined way. It does not matter whether he was virtuous or not when he did. A defendant suffers enough when a judge declares the penalty for violating the law; he does not need to "rub it in" by acting the moralist. In fact, I argue that judges overstep their bounds when they do.

I understand that people like to see criminals squirm. But their convictions should make them squirm, not a judge's moralizing antics. If every judge took it upon himself to act like Judge Etelson, our criminal justice system would look more like a Catholic school than a neutral forum for just laws. In a word, it is not a judge's job to castigate a convict's moral failings. Moral failings are irrelevant to the law. And the law is the only thing that judges are constitutionally empowered to decide. Anything else they say is unauthorized fluff.

Judge Etelson-style grandstanding is not the only abomination that occurs in our criminal justice system. Now, criminal penalties also increasingly intertwine with psychiatry. Mr. Carter's case is no exception. In his sentence, Judge Etelson conditioned Mr. Carter's future with his wife on his agreement to take psychiatric medications. He also retained discretion whether to permit Mr. Carter to see her, depending on whether a psychiatrist could assure him that he was "well enough."

Are these judicial inquiries? If they are, do they not negate the State's moral outrage against Mr. Carter? After all, if the court believes that Mr. Carter needs psychiatric medication, that means he is mentally ill. If he was mentally ill at the time he struck his wife, that makes him far less morally blameworthy. After all, the criminal law depends upon free, rational choice for its moral strength. It is easy to condemn someone who knowingly makes a bad choice. But it is not easy to condemn someone who lacked the mental composure to make choices, let alone recognize they were wrong.

In this case, Judge Etelson tried to wear too many hats. He wanted to punish Mr. Carter for doing something that violated the law. But then he stepped back and ordered Mr. Carter to take psychiatric medications for his "mental problems." Put simply, judges are not psychiatrists. They are not social workers. It is not their job to monitor people's behavior once they serve their sentences. Nor is it their job to declare whether people are "normal." Rather, they are mere judicial officers, and it's not a complicated job. It is not about management; it is about judgment: Did the defendant do this or not? If he did, he goes to jail. If he didn't, he goes free.

There is undoubtedly a relationship between law and psychiatry. But a judge's only concern with psychiatry is to determine whether a defendant is mentally well enough to be criminally responsible. If he is, that ends the inquiry. In fact, judges must be extremely wary when dealing with psychiatry in criminal cases. After all, the entire rationale for criminal punishment collapses as soon as psychiatry shows that the defendant cannot make rational choices. In that light, judges should tread lightly when tampering with psychiatric issues. They might just discover that the "evil defendant" is really no ogre at all. He might just be "sick." And it is not proper to morally condemn sick people, let alone jail them for choices they could not make. For better or worse, the law only works on sane people.

I doubt that Judge Etelson understood all these issues when he entertained the news media during Dominic Carter's sentencing last week. From his perspective, he was in the spotlight and he was going to relish the moment. He was not content to play the neutral magistrate who calmly decrees the legal consequences of statutory violations. No, he had to play the scolding father, too, as well as the psychiatrist and the actor.

I do not like this. While it may be impossible to separate law from popular morality, judges should consciously try to do so. True, laws enshrine popular morality. But they are not moral weapons. They are technical guidelines. It does not matter whether a law-abiding citizen is moral; he must merely not violate the technical guidelines. Morality is about character. Law is about conduct. It is much easier to control conduct than character. And a judge simply declares whether the individual in question violated the conduct guideline.

Well, at least that's what a judge is supposed to do. American criminal law is changing for the worse because the distinction between morality and law is eroding every day. Just look at the Carter case. It's all right there to see.

PRISONS DON'T WORK : IT'S TIME TO START EXECUTING PEOPLE AGAIN

CONSIDERED OPINION

By : Mr. Edward J. Mercy, Esq., Lawyer and Humanitarian

Today, the United States provides free housing to 25 million people. No, they are not hard-working, decent people. They are convicted criminals, living rent-free in our overcrowded prison nation. There, they enjoy free meals, free books, free heat, free electricity, free cable television, free plumbing, free security service, free workout facilities and free clothing, all at taxpayer expense. Not a bad deal, is it? Especially not a bad deal when you consider that these “residents” likely committed murder, rape, incest, robbery or theft. In a word, America’s prison policy is a disgrace. It is time to rethink our entire approach to criminal justice, and it is not difficult. We need only look to our wise common law history.

When our Founding Fathers revolted from England in the 18th Century, they did not throw the baby out with the bathwater. Instead, they retained favorable English traditions in the new government while excising unfavorable ones. English common law was among the favorable traditions they kept, and for good reason. For centuries, English judges, applying reason, common sense and community sensibilities, had created an impressive legal system that satisfied both justice and the people. Rather than allying themselves to an inscrutable legal code like their Continental counterparts, English judges sought justice in the facts of each case, pronouncing a judgment on those facts alone. Future litigants could then analogize their cases to cases past, and in so doing enjoyed a measure of predictability in their behavior that did wonders for the English economy. In criminal matters, common law judges pronounced judgments consistent with the people’s basic moral sense. They imposed penalties not just to punish the wrongdoer, but also to send a clear message to others that criminal activity would meet a terrifying end. Crime led to bodily suffering. Common law judges knew that criminals are fundamentally physical beings, and only by punishing their bodies could they truly be deterred.

English common law judges harshly punished almost every felony with death, from murder to rape to shoplifting property valued at over 40 shillings (2 pounds sterling). This remained the case until the mid-19th Century, when prison first began to emerge as an alternative to capital punishment. Since then, prison has increasingly supplanted capital punishment as the standard means to manage crime. Yet today’s sad state of prison affairs proves that the penalty does not work. It has been a 150-year experiment. And it has failed. Criminals do not fear prison; they actually receive better treatment in prison than they would as free men forced to compete in a difficult employment market. By contrast, common law tradition worked for over 600 years prior to the ascendancy of the prison. It is time to restore tradition in America.

Universal capital punishment will solve this Nation’s prison problem. First, it will drastically reduce State prison budgets, freeing valuable funds for more beneficial social programs, including programs designed to prevent crime before it happens. Second, it will truly punish offenders for violating society’s rules. Criminals, like animals, understand only bodily pain. Punishing their “liberty” is no substitute for inflicting agony on their bodies. Only through physical pain and the horror of death will future offenders be dissuaded from breaking our laws. Third, universal capital punishment will mark a return to orderly, swift justice as it existed in the common law when this Nation was founded. As many great minds on our Supreme Court understand, there is tremendous practical appeal in returning to 18th Century values to guide 21st Century policy. Indeed, the following discussion will show that neither the Constitution of 1787 nor the Bill of Rights of 1791 imposes a barrier to universal capital punishment.

Criminals may be characterized generally as contract-breakers. When every citizen is born, he enters into a contract with society to abide by its laws. In return, society protects him from natural threats and guarantees him an opportunity to enrich himself through society’s many unique channels for advancement. When a citizen commits a crime, he has broken his promise to society, and every law-abiding citizen in society suffers an injury. Society has both a right and a duty to punish the lawbreaker to remedy that injury. As the common law recognized, violating society’s deepest values requires harsh penalties to prevent similar conduct by others. To that end, capital punishment is not only warranted, but necessary.

Every felony should be publicly punishable by death. The question is only how much pain the criminal should endure before dying. Common law judges understood this. They knew that it did not make sense to execute criminals in private. What possible effect could the spectacle of social vengeance have on the populace if the populace was not permitted to watch the State inflict agony on the criminal’s body? Today, America gets it all wrong in the few cases when it does execute criminals. Rather than publicly broadcast executions in broad daylight, it carries them out secretly in a walled chamber in the predawn hours before only a few, select witnesses. Such practices reflect a hesitant shame in the death penalty that completely undermines its instrumental purposes. At common law, executions were an opportunity for society to voice its values as a group. It allowed people to come together to express their hatred for those who broke the social contract and also to behold the fate of those who dared to violate the law. English authorities set up permanent scaffolds for this purpose and held executions at scheduled times throughout the month. We can improve on this tradition in the modern age. We are no longer limited by time and space. We can broadcast executions on television and by webcast. Camera techniques will allow us to focus in on the criminal’s writhings before death, reinforcing the deterrent effect on all who see it. Common law judges would have applauded such advancements in execution publicity.

How, then, should we delineate punishments for various offenses? Certainly it would offend our moral sensibilities to execute people for the most minor offenses, such as parking violations or failure to pay a littering summons. But all other offenses—especially those involving property—must warrant death. Death must punish violent crimes and sexual crimes. Death must punish tax evasion above $500. Death must punish failure to pay child support over $250. And death must punish the whole panoply of drug offenses. We must acknowledge that criminals will only respect a system that is as brutal to them as they were brutal to their victims. Furthermore, we must inflict death on those who violate values that we consider important. That is why even the pettiest drug offender must die. It is the only way to frighten others into refraining from any illegal conduct with drugs.

Tradition will guide us in determining which execution method will be assigned to each crime. Nonetheless, judges must be allowed some discretion in meting out punishments in order to heighten the deterrent effect that the penalty will have on future offenders. For example, while the standard penalty for rape will be the spiked garrote, a judge must be allowed to “re-enact” the crime on the criminal if justice dictates. This would involve inflicting as much of the crime as practically possible on the criminal. If the victim was stabbed 40 times and raped, the executioner would stab the criminal 40 times and rape him or her as well. If the criminal strangled a child with a cord then cut off its limbs to hide the crime, the judge must have the power to sentence the criminal to precisely the same fate—before the public eye.

For most felonies, short-drop hanging will provide an ample method to cause death. Rather than the long-drop method, short-drop hanging does not break the neck, ensuring that the condemned slowly dies of suffocation. For particularly violent murders, breaking on the wheel is an appropriate retribution. This involves lashing the prisoner to a large wooden wheel, then systematically crushing his joints and bones with a large hammer or cudgel. Finally, the executioner smashes the prisoner’s skull once he determines that the prisoner has sufficiently suffered for his crime. Anal rapists should be subjected to Turkish impalement, namely, slowly skewered—anally—on a large, sharpened bamboo pole until death results. Robbers should have their hands and heads cut off with an axe. Burglars should be garroted. Embezzlers should be suffocated with a bag and beaten to death. Software pirates should be boiled alive in hot wax, feet first. Drug sellers should be guillotined, while drug users should be gassed. This is not an exhaustive list, but it conveys the general principle that no lawbreaker will escape society’s wrath.

Especially severe penalties should be reserved, of course, for especially severe crimes. Again, tradition provides ample guidance in this regard. In England, high treason was the most serious crime and warranted the ultimate punishment, namely, to be “hanged, drawn and quartered.” A judicial opinion from 1683 describes the procedure: “That [the condemned] should return to the place from whence they came, from thence be drawn to the Common place of Execution upon Hurdles, and there to be Hanged by the Necks, then cut down alive, their Privy-Members cut off, and Bowels taken out to be burnt before their Faces, their Heads to be severed from their Bodies, and their Bodies divided into four parts, to be disposed of as the King should think fit.” This penalty should be re-adopted not just for traitors, but for all criminals who pervert the most important values in our society. Political dissidents, serial child molesters, mass murderers, terrorists (as the President may think fit to name) and oil pipeline saboteurs come to mind as suitable targets for drawing and quartering. By returning to common law tradition, we will not only punish the criminal proportionately to his offense, but we will also add a measure of sheer terror to the punishment. And that will send the clearest message to all who dare break the law: Trangress, and you shall be disembowelled alive.

Opponents to capital punishment routinely claim that the Eighth Amendment to the United States Constitution bars a return to universal capital punishment. That Amendment, adopted in 1791, forbids the Federal Government from inflicting “cruel and unusual punishments.” Our Supreme Court, however, has never held that any execution method in the United States has been “cruel and unusual,” including the firing squad, hanging, the gas chamber, the electric chair and, most recently, lethal injection. Indeed, other constitutional text impliedly recognizes that the government has power to inflict capital punishment. The Fifth and Fourteenth Amendments, for example, forbid both State and Federal governments from “depriv[ing]…life…without due process of law.” Now, the text says that government may not deprive life without due process. But as long as the government affords due process, it impliedly has power to take life. Several erudite Supreme Court justices have recognized as much, echoing this essay’s assertion that the death penalty has a long, illustrious tradition at common law. In fact, it is precisely that tradition that supports this essay’s contention that universal capital punishment is the best way to remedy the criminal justice crisis in our country. In 1791, hanging, guillotining and drawing and quartering were widespread penal practices in England and Europe; they were neither “unusual” nor “cruel” in the 18th Century understanding. And because our Supreme Court recognizes that the words “cruel and unusual” should be evaluated according to 18th Century understandings, we should take strength in our conclusion that universal capital punishment in no way violates the Eighth Amendment.

In sum, universal capital punishment will serve both practical and traditional goals. Like the wise common law judges who used reason, common sense and popular morality to justify the death penalty in the centuries leading to American independence, we, too can justify universal capital punishment. Like the wise common law judges from whom our Founding Fathers adopted our legal system, we too understand that criminals respond only to bodily stimuli. That is why universal capital punishment will actually reduce crime: It will target criminals’ bodies, terrifying potential offenders from engaging in conduct that will result in physical agony. By returning to traditional, public executions, more and more potential offenders will “get the message” that crime not only will not pay, but will also lead to a horrible, grisly death before a jeering public. Is there a better goal than that? A society with less crime is a better society for all. And perhaps most important from a practical perspective, universal capital punishment will deconstruct the ponderous, inefficient and costly prison system that threatens to bankrupt State and Federal budgets. Thus, by returning to common law tradition, we will achieve numerous salutary goals: We will justly punish those who break the social contract; we will reduce future crime by terrifying criminals with public agony; and we will save money. The solution is obvious. Let’s close down the prisons and start executing people again. After all, centuries of common law can’t be wrong.