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Floggings no, lethal injection yes

John D. Bessler, an expert on capital punishment who teaches at the University of Baltimore School of Law, argues in his most recent book on the death penalty (he's written four) that, since its founding, the United States has become a more civilized place. We outlawed duels a long time ago. We no longer whip or torture inmates. We no longer place offenders in stocks. We stopped public hangings.

As Mr. Bessler points out in his excellent history, "Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment," we've made all kinds of progress since the time of Thomas Jefferson, John Adams and the adoption of the Bill of Rights.

The Supreme Court banned the death penalty for rape alone. State executions are no longer allowed for murderers considered insane or mentally retarded. The court banned capital punishment for inmates who were juveniles at the time of their crimes.

Two years ago, the court struck down life without parole for juveniles convicted of crimes other than murder.

And just last week, the justices considered arguments against life without parole for juveniles convicted of murder. The cases presented were those of two 14-year-old boys, one convicted in Alabama, the other in Arkansas. In this matter, the court has been asked to consider the constitutionality of a type of punishment that has been extremely limited in use, and mostly in Southern states: There are reportedly fewer than 80 inmates in the nation who received sentences of life without parole at the age of 13 or 14. Most states have never sentenced anyone that young to such a penalty.

(That includes Maryland, you'll be pleased to know. However, it should be pointed out that any juveniles who were sentenced to life would have been stripped of parole eligibility by the "life means life" order of Gov. Parris Glendening in 1995. Gov.Martin O'Malleycontinued the practice of denying parole to all lifers. Readers of this column, who have followed the case of Mark Farley Grant, know that, under these gubernatorial edicts, he has been serving a de facto sentence of life without parole. He was arrested at 14 for a murder in Baltimore in 1983. Though his advocates have compiled convincing evidence that Mr. Grant was wrongfully convicted and started pleading his case with the governor's office in 2008, Mr. Grant received no special consideration. He is finally being considered for a commutation of his sentence to a term of years — not because of his claim of innocence but because of his juvenile-at-the-time-of-crime status.)

As Mr. Bessler notes in his book, the United States clearly is not bound to maintain what the Founding Fathers considered "usual" punishments.

"The Founding Fathers," he writes, "never sought to lock future generations in to 18th Century mores." He says Mr. Jefferson, Benjamin Franklin, James Madison and George Washington were among those who came to oppose executions. They were heavily influenced by the Italian philosopher Cesare Beccaria's 1764 treatise, "On Crimes and Punishments." If a civilized society can be protected by sound prisons, he argued, there should be no need for executions.

So how does a society that shed many of its old cruelties — slavery, floggings, lynchings, executions of the criminally insane — still cling to the ultimate punishment? This is what Mr. Bessler's book seeks to answer, and in so doing, it argues persuasively that the death penalty, infested with randomness and bias, is a violation of the Eighth Amendment's prohibition against cruel and unusual punishments.

Of course, the so-called "originalists" see no such problem. Justice Antonin Scalia arrogantly asserted in an interview last year that the question of the death penalty's constitutionality is so easily resolved that, "I don't even have to read the briefs, for Pete's sake."

But over time, including the time of Justice Scalia, it's clear the Supreme Court's interpretation of the Eighth Amendment has not been static but rather (in the court's own words) "tied to evolving standards of decency that mark the progress of a maturing society."

And yet, and yet ... we still kill guys. Many states, including Maryland, still have the death penalty. An estimated 3,000 inmates await execution on death rows across the land. We no longer officially whip prisoners; we no longer officially torture them. But we still officially kill them. When you step back and regard that reality, it appears either grotesquely ironic or simply grotesque.

Dan Rodricks' column appears Tuesdays, Thursdays and Sundays. He is the host of the "Midday" show on WYPR-FM. His email is dan.rodricks@baltsun.com.

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