Death penalty procrastination

The U.S. Supreme Court has ruled that the death penalty is constitutional -- the imposition of such a sentence does not, in and of itself, violate the Eighth Amendment ban on "cruel and unusual punishments."

But so long as convicts linger on death row and creative members of the bar represent them, the question shows no signs of going away.

In Washington, justices heard arguments Monday in a lawsuit brought by two Kentucky death row inmates who contend that state's method of execution -- lethal injection after anesthesia -- is not guaranteed to be as pain-free as possible.

Meantime, the high court announced last week it will decide a Louisiana case that hinges on whether a state can execute an offender for the rape of a child, when the child did not die.

Patrick Kennedy, 43, was sentenced to death for the rape of his 8-year-old stepdaughter. The high court in 1977 banned executions for rape in cases where the victim was an adult woman. But five states still provide a death penalty for rape of a child.

The strongest argument against the death penalty -- emphasized by the number of wrongfully imprisoned convicts recently set free by DNA evidence -- is plain old mistaken identity. But that concern wouldn't seem to apply in the cases of Kentucky death row inmates Ralph Blaze and Clyde Bowling Jr.

Blaze killed a sheriff and a deputy who we were attempting to arrest him. Wounded and lying face down, the deputy was killed with a shot to the back of the head at close range. It's not likely the sheriff did it.

Bowling shot and killed a couple and their 2-year-old son outside their dry-cleaning business. A motive was never established.

The death penalty is serious business. Judges, prosecutors and jurors should weigh its application carefully, and err on the side of caution. They usually do.

But there's a tendency for the original crime and its victims -- a 2-year-old child who never lived to attend first grade, an 8-year-old girl violated by an adult who she should have been able to trust, a deputy sheriff lying helpless and thinking of a family he would surely have loved to see again -- to grow distant with the passing of time, to be swept under the rug and forgotten as the attorneys argue that poor Jim-Bob has been a model prisoner, kept his cell swept clean, and is now concerned only about whether the technicians who will insert his IV tubes are really the best-trained for the job.

Oh, please.

Of course we can all hope for the day when the ultimate punishment grows ever less necessary. In the meantime, in the real world, the correct answer to the argument that it provides no deterrent effect is to note that it sure cuts down on recidivism.

As U.S. Solicitor General Paul Clement correctly argued in the Kentucky cases, if capital punishment is constitutional, then there must be some acceptable method for carrying it out. "Were it otherwise, the result would be to render capital punishment constitutional in theory, but unconstitutional in practice."

If these convicts want to contend they're victims of mistaken identity, let them so argue. Otherwise, let the sentences be promptly carried out by any reasonably humane method currently at hand.