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Keywords

criminal law; neuroscience; neurolaw

Abstract

Capital punishment, to be lawfully delivered, must occur without needless cruelty. Cruelty, defined in the setting of punishment, will naturally evolve with the maturation of civil society. Cruel punishment will always be a relative standard, and punishment cannot exceed what is morally shocking. In the setting of public executions, observers and victims share an aspect of the experience of punishment. The inmate has little opportunity to evaluate and report back on cruelty in the moments before death. Once dead, the inmate is necessarily silent on the matter. Empathy allows observers to evaluate punishment as cruel or not. Attempts by the state to block unfettered observation of all aspects of an execution deny Eighth Amendment protection, which stipulates that inflicted punishment shall not be cruel and unusual. Observation necessarily involves more than what a casual observer can surmise. Execution, as a form of killing, is a technical matter and, as such, requires more than casual knowledge of the details of that killing. Lethal injection is now the standard method of execution and while never a medical act, co-opts the tools of the medical trade and engenders comment. Ethically, professional medical societies, including the American Medical Association and the American Board of Anesthesiology, object to physician participation in lethal injection. As a consequence, physicians find themselves caught on the horns of a dilemma: How can the balance be struck between the benefit of some sort of technical evaluation that would reduce cruelty in executions, while refraining from instructing the state on how to kill without cruelty?

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