Cruel and Unusual Death with Dignity

Original Article

Belgium is on the verge of executing its first murderer by lethal injection. Well, not exactly “executing.” The state isn’t going to kill convicted murderer/rapist Frank Van Den Bleeken for his crimes. Rather, it is helping him be euthanized. By a doctor. At a hospital. To which he was transferred after a court ruled that Den Bleeken’s request to end the suffering caused by his imprisonment (he has served 30 years of a life sentence) and continuing violent sexual urges fits snugly within that country’s euthanasia law.

Ironically, Belgium opposes capital punishment under any circumstances. But it legalized euthanasia in 2002. Since then, the country has fallen off a moral cliff, with a growing number of lethal injections administered by doctors not just to the dying, but also to those with severe mental illnesses, crippling disabilities, and chronic, nonterminal illnesses. There have been several medicalized joint killings of elderly couples who would rather die together than live apart. Belgium even permits euthanasia followed by organ harvesting and the assisted suicide of dying children if they make the request in writing (among other requirements). Killing a prisoner who would rather be dead than imprisoned is merely the next logical step.

Meanwhile, U.S. opponents of capital punishment claim that death by lethal injection is “cruel and unusual punishment.” Thus, California is prohibited by federal court order from using lethal injection protocols because doing so might cause pain. More recently, a federal judge has ruled that California’s death penalty itself is cruel and unusual punishment, and therefore unconstitutional—because it is almost never carried out!

The lethal-injection-as-cruel-and-unusual-punishment meme was furthered earlier this year after two “botched” executions—one in Arizona that took 97 minutes to complete, another in Oklahoma that took 43 minutes. The ACLU lawsuits are flying.

Interestingly, the death drug used in euthanasia/assisted suicide is the same one used in executions. Moreover, studies from the Nether-lands—where euthanasia was decriminalized in 1973 and legalized in 2002—have found that physician-assisted suicide and euthanasia by lethal injection can—as in the Arizona and Oklahoma executions—take considerable time and cause side effects such as vomiting, gasping for air, and seizures. These documented difficulties interfere with the “death with dignity” narrative used to justify the legalization of doctor-assisted suicide—and so are underplayed by its proponents.

Execution has been further entwined with doctor-assisted suicide through the international campaign to prevent executions by drying up the supply of the killing agent, pentobarbital (Nembutal). Oregon and Washington’s assisted-suicide regimens became collateral damage after the campaign made the lethal drug unobtainable.

In Oregon, many assisted suicides are facilitated by the state’s branch of Compassion & Choices, a private group once more honestly named the Hemlock Society. The organization became so alarmed at the death drug dearth that its representatives met with the Oregon Board of Pharmacy to discuss establishing a nonprofit compounding pharmacy to manufacture a generic form of pentobarbital, which C&C would then distribute for use in assisted suicides. So far, no news on whether the state will go along.

Then there is Oregon governor John Kitzhaber. A medical doctor, Kitzhaber strongly favors giving cancer patients access to lethal doses of pentobarbital. But use it on vicious murderers? Absolutely not! That offends his liberal moral code.

Apparently believing that his own sensibilities matter more than the votes of the state’s citizens—who overturned a court ban and reinstated the death penalty in 1984—Kitzhaber placed a moratorium on executions for the balance of his time in office.

But Kitzhaber’s reprieve did not sit well with convicted murderer Gary Haugen, who has waived all appeals and wants to be done with life. He sued to be executed, gaining an initial ruling that he has the right to refuse mercy. But that decision was overturned on appeal on the grounds that Kitzhaber has the untrammeled power, as governor, to prevent executions—a decision the Oregon supreme court recently refused to review. So, at least until Kitzhaber is out of office, Haugen is stuck in limbo on death row—unable to die but not wanting to live.

And we are stuck with a paradox: The use of lethal drugs in executions amounts to cruel and unusual punishment, while the use of the same lethal drugs to eliminate someone sick, or sick of life, is “death with dignity.”

Call it “cruel and unusual death with dignity.”

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.