Friday, April 25, 2008

kanBARoo Court. 35th Installment. Moralism: The State Bar, Capital Punishment, Euthanasia, and Suicide

As 1990 approached, two resource demands overwhelmed the California Supreme Court. Added to some 40 annual State Bar Court opinions (see 30C Installment), automatic appeals of capital sentences also burgeoned and today stand at about 20. The Supreme Court, which writes 110 to 115 opinions per year, dealt with the press of State Bar cases by permitting itself opinionless reviews. Today the court seeks to do what dissenting Justice Kennard had meritoriously suggested for its Bar cases—farm them out to the Court of Appeal. Automatic appeals of capital cases continue to increase, up 66% since 1985, and the Supreme Court currently has an incredible backlog of about 400 cases already briefed awaiting oral argument.

Despite California supposedly being a progressive state, California citizens support an execution system with a higher federal-reversal rate than many other states (see "A Broken System:Error Rates in Capital Cases, 1973-1995"), and its citizens support the executions. California imposes capital punishment for numerous offenses, not just unusually heinous murders. Killing a police officer gets death, as does a kidnapping in which the victim dies or causing a train wreck producing death.

California embraces capital punishment, and it now moves toward strengthening its commitment by instituting a less weighty review. The source of California's backwardness regarding capital punishment may be the same as that of its uniquely uncontrolled State Bar Court system, and the reasons Bar cases overloaded the California Supreme Court may explain its capital-case overload, both problems arising from moralistic excess. The State Bar promotes the devolution of legal sophistication into moralism, while capital punishment is regressive moralism's extreme. Thus, if this blog's thesis is correct—the State Bar embodies moralistic legal backwardness, which functions as a unified trait of the legal system—then the moralistic excesses of the State Bar help fuel the California mania for capital punishment.

Although citizens approve of capital punishment because they believe some criminals deserve to die, legal scholars officially justify it as a supposedly effective deterrent. Unquestionably, the prospect of a lethal injection would deter, if imposed with sufficient frequency, certainty, and swiftness. But procedures eschewed by civilized society could more effectively deter criminal acts. As a poster to Chicago law professors Becker and Posner's blog pointed out, beheading would prove a stronger deterrent than the lethal injection. (See Data are lacking about the deterrent effect of a reliably painless death penalty. Scholars debate the technology, purportedly in the interest of humane punishment, yet one should suspect other motives because of measures no one dares propose. Tellingly, prisons deny an oral sedative before the execution. California has passed a medical marijuana law, but no one has proposed affording prisoners the right to smoke to relieve their pre-execution anxiety or to avoid the pain of bodily puncture, by staff unconcerned for the prisoner's comfort. Such pain-avoidance proposals would meet an indignant outcry by all factions, revealing execution's ultimate premise: perpetrators of horrendous crimes should suffer.

The U.S. Supreme Court recently reviewed lethal injection as a cruel and unusual punishment because lethal injections sometimes cause excruciating pain. (See Baze v. Reez (2008) _U.S._.) Critics from both sides of the capital punishment debate argued the emphasis on execution method misplaced, but the U.S. Supreme Court's initial focus on pain was as insightful as its holding shallow. As organisms we avoid pain, but we cannot conceive of or weigh our death, logically incommensurable with life. Yet, the extent lethal injection's deterrence depends on its actual and potential pain remains unanalyzed. The court had no qualms about a method of punishment that regularly inflicts some pain, but any infliction of pain is cruel, unless the unthreatingness of a painless death defeats not only capital punishment's moralistic motivation but also its utilitarian rationalization. One might go so far as to ask, if painless, would execution serve as a deterrent or an incentive? Suicide is common; as recently revealed, some 12,000 Iraq-war veterans attempt suicide per year. But suicide's most constant feature is search for the least painful means.

Moralism, including its tenet that some deserve to suffer, insists that capital punishment actually be punishing, that it consist of more than mortality. Moralistic ideology also insists that suffering penalize lesser misdeeds, hence rejecting euthanasia. Moralism demands that capital punishment must not become euthanasia.

[See, also, "Morality Series" in Juridical Coherence.]

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