Former guest blogger Douglas Berman, at his home blog, begins a post on the Court's latest oral arguments thus:I know death is different, and I know we should always be especially careful in the administration of society's ultimate punishment . . .
I don't wish to pick at Professor Berman's actual post, but his opening phrase has made me wonder:
Is the execution of people by lethal injection, electric chair, etc., really the "ultimate punishment"? As Jack Balkin points out, our society in fact has more severe punishments to mete out than our modern form of execution.
So when we say that modern execution is the "ultimate punishment" we must mean only that it is the "ultimate punishment" that we currently allow. Which forces the question (s)-- if anti-death-penalty forces some day get their way and take the death penalty out of the box of feasible punishments, will some new thing (life without parole? something else?) become our new "ultimate punishment"? And if so, will it still be the case that new "ultimate punishment" be one we should treat with special care and use only in the most unusual of cases? Is it possible to not have an "ultimate punishment"?
Interesting questions. In some contexts, "ultimate punishment" is synonymous with "harshest punishment". Painless execution isn't the most severe punishment. We can imagine worse fates including painful execution and life without parole under torture.
"Ultimate" has other connotations in conjunction with the death penalty, though. To say that execution is society's ultimate punishment may underscore the finality of death or the irrevocability of execution. In these senses, it is trivially true that execution is the ultimate punishment. Execution is the last act of retribution that can be extracted from anyone. Obviously, capital punishment can't be reversed. Execution is ultimate because it closes the door to exculpation, restitution, or reconciliation.
When people argue that death is different, I take them to be leaning more heavily on the latter senses of "ultimate." Will asks what would happen if life without parole (LWOP) became the ultimate punishment. If "ultimate" just means "most severe," there would be no special moral implications. We wouldn't have to be more circumspect about sentencing people to LWOP just because LWOP happens to be our society's ultimate punishment.
If "ultimate" refers to severity, and punishments can be ranked by severity, then there must be an ultimate punishment. On the other hand, if "ultimate" also points finality or irrevocability, a society may reject such ultimate punishments. Some of the most powerful arguments against the death penalty reject this remedy precisely because it is an ultimate punishment.