Is this 'cruel and unusual'?

ARLINGTON, Va. — ARLINGTON, Va. -- Which of the following scenarios constitutes cruel and unusual punishment, as prohibited by the Eighth Amendment to the Constitution: (1) aborting a baby with a fully developed nervous system and probably inflicting great pain; (2) killing a nightclub manager in cold blood; (3) taking 34 minutes - twice the normal time - to execute the killer of the nightclub manager?

Anti-death-penalty forces want us to believe No. 3. They claim the Dec. 13 execution in Florida of Angel Nieves Diaz took too long and required a second injection, thus violating the Eighth Amendment. Florida's outgoing governor, Jeb Bush, has suspended all executions in his state pending an investigation into the state's lethal-injection process. In California, U.S. District Judge Jeremy D. Fogel declared California's execution procedure unconstitutional and lethal injections - the preferred execution method in 37 states - an offense to the ban on cruel and unusual punishment.


One wishes such considerations were available to relatives of the deceased, and to the deceased themselves, who are not given a choice in the method of their execution, much less the option of continuing to live. Mr. Diaz spent more than two decades in prison before he was executed. That probably inflicted cruel and unusual punishment on the relatives of his victim.

It might be helpful to look at Mr. Diaz's criminal resume. According to court records, Mr. Diaz was convicted of second-degree murder in his native Puerto Rico. He escaped from prison there and also from Connecticut's Hartford Correctional Center in 1981. In Hartford, he held one guard at knifepoint while another was beaten. Mr. Diaz was responsible for three other inmates escaping with him.


As to the constitutional issue regarding cruel and unusual punishment, here, too, some history may be helpful. This is why "original intent" of the Founders is important to consider, because what they meant by the phrase and what we think we believe about it differ considerably.

At the time the Bill of Rights was written, the authors specifically sought to ban such execution methods as burning at the stake, crucifixion and breaking on the wheel. In modern times, the Supreme Court has decided cases that redefine what the founders meant. In Hudson v. McMillan (1992), the court ruled that the use of excessive physical force against a prisoner might constitute cruel and unusual punishment even if a prisoner does not suffer serious pain. But the infliction of physical pain or hardship is not necessary for such a finding. As far back as 1958, the Supreme Court ruled in Trop v. Dulles that the use of denationalization (the deprivation of citizenship) is a punishment barred by the Eighth Amendment.

Aside from the period between 1967 and 1976, when capital punishment was effectively suspended, the Supreme Court has consistently ruled that the death penalty does not violate the Eighth Amendment but that some applications of it might. The court declared the execution of the mentally retarded to be cruel and unusual punishment and thus barred by the Eighth Amendment (Atkins v. Virginia, 2002). In Roper v. Simmons (2005), the court ruled it was cruel and unusual punishment to put to death anyone who was under the age of 18 at the time they committed their crime.

I don't know how you define cruel and unusual in a lethal-injection case. Angel Nieves Diaz was said to have a physical condition that required more drugs to kill him than if he had not had the condition. If those administering the drugs had known about it and given him a double dose so he might die within the "norms" of such executions, would that have been constitutionally acceptable? Does this not get us into the same arbitrary standards that are applied to the unborn? At first, the Supreme Court imposed an arbitrary trimester standard, forbidding the state from restricting a woman's decision in the first three months. But subsequent rulings have resulted in abortion on demand, for any or no reason and at any time.

Will the same erosion of justice against convicted killers mimic the erosion of rights for the unborn innocent? The arbitrary way in which we approach anything of importance today would suggest it might.

To avoid this legal hairsplitting, why not return to an earlier and acceptable method of execution that ensures justice is done and inflicts minimal pain on the guilty: the firing squad.

Cal Thomas' syndicated column appears Wednesdays in The Sun. His e-mail is