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My last discussion about our support of the death sentence fell a little flat. To be exact, it fell about as flat as a guy I once saw lose his grip while climbing the Williams tower (thanks, Channel 26, for that indelible memory), so I’ll let that go.

It’s time for the final part of our discussion, after which the subject will…well…die.

Sometime this week, possibly as soon as today, Oklahoma’s governor, Mary Fallin is expected to sign legislation establishing nitrogen hypoxia as that state’s back-up method of execution. Because of that state’s problems with lethal injection, it’s a “lead-pipe-cinch” that it will be used in November

Here’s how it works:
1a: If the current facilities are used, when the murderer is strapped to the gurney, instead of an IV line being used to deliver a lethal dose of drugs, he/she is given an opportunity to make a final statement, and afterward, a mask is placed over his/her face.

1b: If a gas chamber is constructed, the inmate is strapped onto a gurney or into a chair. He/she is offered the opportunity to make a statement, before the warden gives the nod to a person controlling a gas valve.

2: At this time, a nitrogen/air gas feed is opened. Over the next few minutes the air is closed, leaving only nitrogen. The person will feel something like what you and I experience at the dentist’s office, until the nitrogen concentration passes a certain point. At that time, he/she will immediately lose consciousness and stop breathing. Brain death will occur within six to ten minutes, leaving all organs except for the heart suitable for transplant.

We’ve solved the problem of executing an individual in a manner so painless, it’s actually been endorsed in a law-journal article.

It’s time to discuss the need or desire for the death sentence.

1—Why do we impose a sentence of death?
In the United States, we execute people for domestic-terrorism, terrorism by a foreign agent, espionage by a member of the U.S military during a declared war (our last was World War II, and this is the only mandatory death sentence under United States law), espionage by a civilian under the same conditions, Treason (the only Constitutionally defined crime, which can only take place during a declared war), and aggravated murder.
Aggravated murder is when a person unlawfully kills another with malice aforethought (premeditation), in a particularly heinous manner and/or with one or more aggravating factors (most states require two), which are:
Murder of a Federal, state, county or local law-enforcement officer, commissioned peace officer or first-responder during the course of his/her duties.
Murder of a Federal or State employee during the course of his/her duties. This includes all Federal employees, such as forest rangers and postal workers, as well as state employees like the lady who processes your car registration.
Murder of a child under a certain age (some states set the threshold as young as three years old, while others go as high as fourteen.)
Murder in the commission of an accompanying felony, generally first degree or higher, but some states list any felony, down to fourth-degree as an aggravating factor. (The latter is known as the “felony-murder rule”, not to be confused with the crime of felony-murder)
Examples include, but are not limited to:
Armed robbery, carjacking, kidnapping, burglary, home-invasion, rape, intimidation of a witness, obstruction of justice with intent to get someone executed, and capital perjury. (Yes; if you’re a prosecutor or witness in a state such as Texas, and your withholding or destruction of evidence, false testimony and/or perjured brief in opposition of a capital appeal result in the execution of an innocent person, this is capital murder and you can be executed. The Cameron Willingham case springs to mind, but that hasn’t been fully litigated.)

A notable exception to the felony murder rule exists:
If you are part of an ongoing criminal conspiracy which results in death, you can be executed. (This is called the law of parties.)
This means that, even though you were just the driver, if your buddy decides to kill the clerk during the gas-station robbery you two planned, you will both face death. A significant number of people executed by the state of Texas have been “law of parties” defendants.
This also extends to anyone involved. If you lent your girlfriend’s brother the car, you can be fully prosecuted, especially if you know he has prior arrests for violent felonies.
If you were dumb enough to lend someone your gun, you can either use it to commit suicide when it’s returned or immediately call an attorney and arrange a deal. (I will cover the various sorts of immunity agreements in a later blog, but always ask for “blanket-immunity” or “transactional immunity”, if the prosecution steadfastly refuses.)

2—What are the alternatives to a sentence of death?
Life without parole:
It’s just that…forever in prison. Life in prison is not an acceptable substitute, because life means different things in different states, and has even meant different things in different decades. In 1990, “life” in Texas meant parole after fifteen years. Following the Kenneth McDuff case, this was changed to thirty-five years and later boosted to forty years. A few years ago, this was demoted to the sentence for first-degree murder, with “life without parole” replacing it as the alternative to death. All states with the death-sentence, the Federal government and the U.S. Military currently offer life without parole.

Civil death:
Previously used in Europe, the Roman Empire and (arguably) the American Old-West, it is the loss of all rights, even the most basic human rights. Traditionally, a person was declared an “outlaw”, that is outside the law. They were no longer considered human, it was permissible to kill this “former-person”, ignore them or do anything else you wanted. In the eyes of the law, they no longer existed.

If you look closely at the text of the Thirteenth Amendment to the U.S. Constitution, you will see that slavery is preserved as punishment for crimes.
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Given the current political climate, it’s likely this could only be used for capital crimes, but this is why people used to draw such sentences as “thirty years at hard labor”.
It is actually conceivable that our government could outfit capital-criminals with explosive collars, set to detonate when the wearer strays farther than 200 metres from a correctional officer or foreman, and use them to build highways, schools, parks and so on.

How do you feel about that? Would you send your child to a slave-built school? Would you feel guilty, if the new high upon which you were driving had no toll, because it was built with prison labor?

Consider this; there is no perfect, one-size-fits-all solution. If you use slavery, you get reduced-price infrastructure. If you execute with nitrogen, you reduce the wait for needed donor organs.

Put aside your personal prejudices and ask yourself which is better for society. Both could benefit it, but at what cost?


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