RETHINKING CAPITAL PUNISHMENT : LET'S JUST BLOW THEM UP

CONSIDERED OPINION

By : Mr. Henry B. Henker, Esq., Legal Counsel to the Office of the Prosecutor, Austin, Texas (2006- present); Former Commercial Litigator, Henker, Haudegen & Daggett, LLP, a Fortune 250 Law Firm Specializing in Complex Financing Transactions (1994-2006); Contributing Author, Humanity Weekly (1987-present); Charter Donation Manager, UNICEF (1986-1997); Annual Keynote Speaker, The Dignity Association of Eastern Texas (1990-2003); Christian; Humanitarian; Married; Republican.

Capital punishment evokes strong emotions in America. Many Americans believe that States should not execute convicted criminals. Others believe that dangerous felons deserve to die for certain outrageous offenses. Still others believe that capital punishment should be applied on a wider basis against all kinds of criminals, from credit card scammers to double parkers. But no matter where we stand on the issue, capital punishment requires us to grapple with momentous issues involving State power, individual rights, liberty, dignity and history.

No one can really debate that the State has power over life and death. Western law functions on the premise that the sovereign decides who lives and who dies. When the American colonies broke from England in 1776, that sovereign power descended to the States. The States, in turn, yielded some of that power to the new Federal government. Still, the State's power to allow life and proclaim death remained intact. States executed people in 1776 and they execute people today. No one can really contend that the sovereign right to kill lawbreakers is "new." In fact, it is as about traditional a power as you can find in our system. Even our Constitution says that both the States and the Federal government have the power to "deprive life" as long as they afford Due Process of law. See, e.g, U.S. Const. Amendments V; XIV § 1.

Nonetheless, it is silly to think we have not changed as a people since 1776. We have electricity and cars now. We have the internet and movie theaters. We have even changed the way we think about core issues in our democracy. For instance, we allow women to vote now. We freed the slaves in 1863 and we enacted Civil Rights laws in 1964. These things would have been unheard-of in our forefathers' time. Simply put, our society is constantly evolving. In that light, it is only natural that we have begun to think differently about capital punishment, too.

At the outset, we must remember that Americans like to punish criminals. When a criminal commits a shocking offense against public sensibilities, we like to see him suffer. How else would we affirm our commitment to law if we did not harshly punish those who break it? How else would we express our common morality and decency if we did not harshly punish those who act immorally and indecently? Additionally, criminal punishment is revenge, and revenge is natural. When some vagrant kills our spouse, it is only natural to want to kill him, too. In this sense, capital punishment both upholds the law and quenches our natural thirst for revenge. Thankfully, killing criminals also prevents them from killing again. And it sends a message to would-be killers that they, too, will die if they try anything cute.

Still, we respect human dignity in America, too. In the past, we used to hang criminals by the neck until dead. In 1676, our English forebears even disemboweled a traitor alive then carved him up in Rhode Island. Until the 19th Century, we even publicly displayed executed criminals until the crows picked them clean. For better or worse, we decided as a society that such execution methods expressed insufficient respect for the criminal's dignity. Although these methods legitimately fulfilled the State's right to punish criminals, we decided that we were too humane to subject our fellow citizens to such horrible pain before death.

As Americans, we believe in dignity and humanity. Although we have no tolerance for criminals, we are progressive people. When we execute people today, we ensure that we use only the most humane methods possible. Lethal injection represents our society's balance between respect for law and respect for a criminal's dignity. In theory, lethal injection simply extinguishes life without inflicting additional pain or terror on the criminal. Once the chemicals flow into the criminal's body, he simply loses consciousness and justice is done.

For decades now, our society has largely accepted lethal injection. Many Americans are comfortable in the knowledge that lethal injection both adequately punishes lawbreakers while maintaining their dignity and ensuring our own humanity. After all, we do not butcher people anymore; we simply "put them to sleep," just like unwanted animals. This is humane. True, it does not make for a very satisfying spectacle. But it adequately strikes a balance between law enforcement and individual dignity.

Or so it seems. Recent research suggests that lethal injection may not be as dignified or humane as we once believed. After all, current protocols for lethal injection involve three discrete drugs: One sedates the criminal, the second paralyzes him and the third terminates heart and pulmonary function. Death does not occur until the third dose. We cannot know whether the prisoner suffers while tranquilized or paralyzed; after all, the paralytic agent renders it impossible for him to speak or move. It is entirely conceivable that he is writhing in horrible agony before paramedics administer the final dose. Furthermore, there are many documented cases in which death does not occur for more than two hours after the initial dose. There are even more cases in which paramedics cannot locate suitable veins for intravenous linkage. Sometimes the intravenous connections are faulty, causing corrosive chemicals to flow under the prisoner's skin, prolonging the procedure. That, in turn, prolongs the agony and anxiety. Put simply, lethal injection may not be as humane and dignified as we like to believe.

But there is a solution to these problems. As a society, we can reaffirm our commitment to law and dignity by simply blowing up convicted criminals with explosives.

Explosives would solve many of the nagging problems associated with lethal injection. By strapping four pounds of C4 plastic explosive to a convicted criminal, we can assure a quick and relatively painless death. Once detonated, the explosives will literally tear the offender apart in a heartbeat. Unlike lethal injection, it will not take hours for the offender to die. In one instant, the prisoner gets blown to pieces: There he is; there he goes. Done. That resolves the deeply problematic issues surrounding unnecessary pain and suffering in the lethal injection procedure. I mean, it can't really hurt to get vaporized, can it? You don't really have to time to reflect on it. It's just: BAM! Game Over. In my view, that reflects admirable concern for the prisoner's dignity and humanity: It is humane to blow people up.

Explosive executions offer many advantages over lethal injection and other methods. There is no way to botch an explosive execution. No one can survive four pounds of C4. And if the detonator fails, nothing happens. A technician can easily replace the detonator and get on with the show. This eliminates the troublesome medical issues relating to lethal injection. After all, doctors would be best suited to ensure that a person dies from lethal injection. Yet doctors' Hippocratic oath prevents them from participating in executions. This increases the likelihood of a botched execution. With explosive executions, however, you don't need doctors. You just need a guy to press a button. That is not very technical, and it certainly does not require 10 years of medical school to get it right. Even a high-school dropout can push a button. Hell, even a dog can.

Despite these advantages, there are some drawbacks to explosive executions. For one, they are messy. No one likes clean-up. Blowing up a person scatters shredded clothing, intestines, bone fragments, burned hair, eyeballs, fingers and charred kneecaps all over the place. Additionally, it scalds the room and deposits blood-crusted soot over a considerable radius. It takes time to clean up such a mess; plus it smells unpleasant. Not only that, but it also can be difficult to assemble the prisoner's remains for burial. It is much easier to bury a prisoner executed by lethal injection. You just unstrap him from the gurney and throw him in a pine box. But not so for a criminal executed by explosives. You need to spend twelve hours scouring through wreckage for burned pieces. That's neither fun nor dignified.

Explosive executions also require different witness accommodations than those appropriate for lethal injections. It would be both impracticable and dangerous to allow witnesses to watch an explosive execution from the room next door. To effectively and safely blow up a criminal, witnesses would have to watch remotely, perhaps by closed-circuit television. Additionally, the execution chamber would have to be significantly larger than chambers used to conduct lethal injections. Detonating explosives requires space; and many prisons do not have much extra space on hand. In that light, States would have to either build large new exploding chambers or conduct explosive executions outdoors. The first alternative would be quite expensive. The second would be somehow inappropriate. And both would deny witnesses the chance to get close to the execution scene. For better or worse, witnesses traditionally enjoy looking their tormentors in the eye before they die. That will not be possible in explosive executions.

We acknowledge these drawbacks to explosive executions. On balance, however, we conclude that explosives reflect a much better way to execute criminals than lethal injection. Although it will cost money to construct new exploding chambers, we believe it will prove a valuable investment given their ultimate benefits. And although witnesses have an interest in watching criminals suffer up close, we must remember that capital punishment is about the prisoner and the State: Witnesses are secondary. In a word, explosive executions fulfill both the prisoner's interest in a quick, painless death and the State's interest in punishing crime. Blowing criminals up is simply the most efficacious manner currently available. The fact that explosive executions are dignified and humane only increases their appeal for State governments nationwide.

We also acknowledge that victims and their families have an interest in securing justice for their pain. We understand that victims and their families want to see their tormentors suffer in the same way they suffered. We understand that victims and their families might worry that blowing up a criminal might be "going too easy" on them. After all, if a murderer slowly flayed a child to death with a scalpel, it might seem unfair to reward him with an instantaneous, explosive end.

We know how much victims matter. But we suggest that blowing up a criminal is quite satisfying, even if it is quick. True, victims and their families will have to watch the criminal explode by television. But it is amazing what modern-day camera techniques can show. Victims and their families not only get to hear the big BANG of the initial blast, but will also be able to watch slow motion instant replays of the criminal exploding from various angles. They will also receive complimentary Blu-Ray discs featuring all footage associated with the execution, including commentary, production notes and a musical score.

Considering these advantages, we believe that explosive executions will please victims and their families, despite their limited duration. On the whole, then, explosive executions will please everyone: The State, the victims and the prisoner.

It is an easy choice. We must start blowing up criminals immediately.