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High Dudgeon in Ohio


The blogger at Ohio Death Penalty Information has been having convulsions this week over a couple of my remarks.

First, in the course of refuting the notion that a condemned murderer has a constitutional right to a completely painless execution, I made the following statement which was quoted in USA Today and elsewhere:

Why are we that concerned about whether a convicted murderer feels some pain at death? It's supposed to be punishment.

That seemed like a fairly routine observation, and it is a point that I and many others have made. However, in a leap worthy of Evel Knievel in his prime, ODPI takes this to mean that I do "not consider it important whether or not inmates are tortured to death during lethal injections." ODPI then proceeds to declare the straw man of his or her own creation "disgusting."

How anyone could interpret a reference to "some pain" to mean "torture" is beyond me. Torture by definition involves extreme pain. See, e.g., Cal. Penal Code § 206. "Some" cannot mean "extreme" unless one subscribes to the Humpty Dumpty school of lexicology.

ODPI also proclaims that yours truly "bills himself as the most reasoned death-penalty proponent in the US," giving as support for that statement only this blog generally, no specific page or post. As most appellate lawyers know, when someone cites a case without a point page for a particular proposition, the case usually doesn't say what it is cited for. I am quite confident that I have never used such a superlative to refer to myself, and sure enough a search of the blog turned up none.

ODPI queries whether I can muster the overwhelming majority of Americans who support capital punishment to amend the Constitution to conform to my view. That might be possible if it were necessary, but it is not. Methods of execution that were not completely painless were in use in all states when the Eighth Amendment was ratified, and, except for the Furman-Gregg interlude, remained in use for the 200 years after.

Later on Monday, I wrote this post suggesting that we drop lethal injection and retrofit the gas chamber to use carbon monoxide rather than cyanide. Such substitutions have been the topic of some discussion around the blogosphere, such as this post over at SL&P. ODPI opines that my post constitutes offering my own "expert medical opinion," even though the only medical opinion offered is a quote from the American Veterinary Medical Association, a source frequently cited by people on both sides of this issue.

ODPI further promotes me to the founder of CJLF, an organization that had been in operation for years before I joined it.

Curious as to where this blogger is coming from, I poked around a little on the site and found this interesting statement on the "about" page: "Information found on ODPI should therefore be considered as being provided for entertainment value only."

Maybe that explains it. If one is only trying to entertain -- as opposed to engaging in informative discussion of important issues -- then perhaps ad hominem attacks, distortion of others' positions, and false statements made with knowledge or disregard of their falsity are all just part of the act.

Well, this blog isn't about me, and I expect most readers don't care about any of this. That is why I moved most of this post into the "extended entry" section off the front page, and that is why I probably will not respond to any more of this trash talk at all. I did want to respond on the record to the preposterous assertion that I endorsed torturing inmates, though, because even obvious falsehoods have a way of taking hold if not refuted, and sometimes even if they are refuted.


Why would we need to amend the Constitution? It already says that no person "shall be deprived of LIFE, liberty or the pursuit of happiness without due process of law." The Constitution envisioned the death penalty as a legitimate form of punishment. Similarly, the populace overwhelming supports it – and has – for a long, long time. Are the opponents of capital punishment so bereft of arguments that they believe that lethal injection is “cruel and inhuman treatment” because death is not immediately imminent? Should we just mandate death by firing squad and instruct the shooters to aim for the head? Really, to call lethal injection cruel is to strip cruel of any meaning. It’s one thing to say that you have a moral opposition to the principle of the death penalty – but it is something else entirely to make a serious claim that it is unconstitutional because it *may* incur a brief period of pain.

Umm, Steve Taylor's name is all over his website, ODPI. I guessed you didn't try to find it. Your snarky post is unbecoming.

Thanks for the info, but a browser search for "Taylor" shows it is not on the home page. The posts are unsigned. I also checked the "about" page, the logical place for a solo blogger to identify himself, if he chooses to do so. There I found him referring to himself there as "ODPI blogger" and not by name. Sounds like a decision to remain anonymous to me. It didn't seem necessary to look any further

Far from being "snarky," my post is quite restrained, particularly in comparison to what it is responding to.

Kent, you did endorse torture. If "some" pain is desirable, and "punishment" is the end, how are you showing restraint? It would seem you'd want an amount of pain commensurate with the crime, which, if the legal system is working, is the worst of the worst -- hence, torture.

Kent, Mr. Taylor identified himself as ODPI Blogger in May.

"It would seem you'd want an amount of pain commensurate with the crime...."

Not sure where you got that. At no time have I endorsed intentionally inflicting the kind of pain that most murder victims suffer. What I have said is that we do not have an obligation to ensure that an execution is completely painless, which is a quite different thing from inflicting pain for its own sake. It's perfectly OK with me (and, I believe, most supporters of the death penalty) if an execution is painless, but it's not essential so long as it doesn't amount to the kind of extreme or prolonged pain that constitutes cruelty.

I have already withdrawn my statement that ODPI blogger is anonymous. It appeared that way after looking in the three places that a blogger would normally and logically identify himself: the signature on the post, the blog home page, and the blog "about" page. A tag line in a post deep in the archive is hardly a place where one who is not a regular visitor to a blog would expect to find such information.

Once again, abolitionists unintentionally show the weakness of their arguments by the abuse of the English language. The pain and suffering of an executed convict is not "torture" if done unintentionally. To take a gruesome example, if I negligently cause a car wreck in which a person suffers a great deal, you cannot say that I "tortured" the person to death.

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