Written by Michael Lambrix for the
Minutes Before Six website
On April 28, 2015, the Supreme Court held “oral arguments” on an
Oklahoma case that argues that the drug Midazolam Hydrochloride used in
the lethal injection process fails to adequately render the intended
victim unconscious, resulting in the executing inflicting unnecessary
pain and suffering in violation of the Constitutional prohibition
against “cruel and unusual punishment.”
A decision is expected to be rendered by the end of June. Until this
issue is resolved, executions in numerous states (including Florida)
have been put on hold. But the general consensus among legal experts is
that the Supreme Court will find (by a predictably narrow margin of 5 to
4) that despite the overwhelming evidence of numerous prisoners seen to
have remained conscious after this drug (Midazolam) was administered it
fails to establish that measure of “deliberate indifference” necessary
to prove an infliction of “cruel and unusual punishment.”
Undoubtedly guiding the Supreme Court’s anticipated decision in June will be the narrow 5 to 4 decision reached in Baze v Rees, 553 U.S.
35 (2008) in which the court rejected a similar argument challenging
the use of sodium thiopental as the initial anesthetizing drug used in
Kentucky’s executions.
It must be emphasized that there is no dispute that if the initial
anesthetizing drug used in the “three drug cocktails” does not render
the person unconscious, upon injection of the following two drugs the
prisoner will suffer incomprehensible physical pain. But as the Supreme
Court has repeatedly held, simply because an execution method may result
in pain, either by accident or as an inescapable consequence of death,
it does not establish the sort of “objectively intolerable risk of harm”
that qualifies as “cruel and unusual.”
When it comes down to it, what the Supreme Court has consistently said
is that, as a matter of constitutional law, it is perfectly acceptable
to inflict incomprehensible pain and torture upon the prisoner as long
as it cannot be proven that those acting upon behalf of the state didn’t
actually intend to inflict unnecessary pain.
Rather, physically torturing a person to death under the pretense of
administering justice only arises to an unconstitutional infliction of
cruel and unusual punishment if it can be proven (not merely alleged)
that prison officials were deliberately indifferent to a “substantial…or
objectively intolerable risk of harm.”
Historically, the Supreme Court has not recognized any form of “botched
execution” to be in violation of this constitutional prohibition against
inflicting “cruel and unusual punishment,” as in every instance in
which the condemned prisoner suffered incomprehensible pain (i.e.
“botched execution”), during the execution process, prison officials
conveniently attributed this to an unforeseen accident…oops, sorry ‘bout
that.
To be clear, in the case currently before the Supreme Court challenging
the use of Midazolam as the initial anesthetizing drug there is no
dispute that the condemned man clearly was conscious and continued to
physically struggle as the subsequent two lethal drugs were
administered. Whether or not he suffered incomprehensible pain for a
prolonged period of time is not in dispute.
Instead, those challenging this particular lethal injection protocol
bear the burden of convincing a majority of the Supreme Court – the same
pro-death penalty conservatives who consistently remain openly hostile
to any challenge of the death penalty – that prison officials should
have known that this drug Midazolam was not going to render the prisoner
unconscious.
Quite simply, the ends justify the means and in a nation determined to
equate justice with vengeance at every level, as long as the majority of
Americans remain indifferent to the means of inflicting death, our
Courts simply will not take the action necessary to end this inhumane
infliction of torturous death.
But I would like to introduce into this debate an argument that seems to
be completely ignored…the psychological effect on the condemned
prisoner as he (or she) is strapped to that gurney awaiting that
uncertainty of a prolonged and torturous death, and more importantly,
why as a presumably civilized society we should even care whether
condemned prisoners experience physical pain when they are put to death.
I already know from experience that as soon as I (or anyone else) dares
to say that we should empathize with the pain inflicted upon the
condemned, they will see this as somehow negating the tragic suffering
of the victim of the crime. But one is not mutually exclusive of the
other and allowing the pain and suffering inflicted upon the victim to
justify indifference to the pain and suffering we then choose to inflict
upon the condemned only reduces all of us to the same measure of
monster we so quickly condemn.
Before anyone can be sentenced to death, the court must first identify
and find what is called “aggravating circumstances,” specific
circumstances unique to each case that makes that particular case stand
out as something more than the “typical” murder as (at least in theory)
the death penalty can only be imposed upon the “worst of the worst.”
By Supreme Court mandate – to conform with that same constitutional
prohibition against the infliction of cruel and unusual punishment –
each state that seeks this ultimate penalty is obligated to prove beyond a reasonable doubt that these special circumstances exist.
One of the most common “aggravators” used to impose death was that the
victim’s death was the product of a depraved mind. In Florida, this is
known as “heinous, atrocious, and cruel.” But regardless of each state’s
particular terminology, the definition remains the same…that the
victim’s death encompassed an intent not to merely kill, but to inflict
unnecessary pain and suffering, often this is not defined by the infliction of physical pain, but instead upon the psychological fear of imminent death.
This is but one of the irreconcilable paradoxes that exists in the
contemporary administration of the death penalty…if it can be shown that
the victim suffered the psychological fear of imminent death or
experienced physical pain “beyond that of typical death” then those
circumstances warrant the imposition of death as a punishment.
But when the state imposes that some measure of imminent fear of death
and even unnecessary physical pain resulting from a “botched execution,”
then the courts will excuse this as an unintended consequence.
Imagine for a minute that you are the condemned prisoner. First you will
spend many years in continuous solitary confinement as the appellate
review drags out and the uncertainty of your fate weighs down upon you.
The only people you remain close to through those years are the
condemned men around you and as time passes they will be dragged off to
their death – or, more often than not, they will simply rot away one day
at a time until they die of “natural causes.” Just as many more will
slowly detach from reality and slip into a world of their own making as a
means of escaping reality.
But somehow you maintained the physical and mental strength to survive
that prolonged process intended to break even the strongest men and only
then will you be rewarded with that visit from the warden as they show
up at your cell door and emotionlessly announce that your own execution
has been scheduled and you will immediately be transferred to the “death
watch” cell where you will suddenly find yourself completely isolated
from all those who until that moment provided your support. And then
that clock begins to tick away as you count down those last weeks, then
days, then hours, until they plan to kill you.
You are utterly helpless as you are forced to confront your own
mortality and with each tick of that clock you take yet another step
towards that fate and not even a moment goes by that you will be allowed
to forget that they intend to kill you.
But that undeniable imminent fear of death is only part of the
psychological process they will impose upon you, as the entire process
is designed to methodically break the condemned prisoner down; to reduce
him (or her) to something less than human, as by breaking us down to
that point in which we are no longer seen as human, then it makes it so
much easier to put us to death.
What few ever take even a moment to consider is that those of us who are
condemned actually live among, even in close proximity to, those who
are then put to death. We are each only too aware of the “botched
executions” and it takes on a personal dimension to each of us.
In my own personal experience I have known a number of those who were
subjected to “botched executions.” As I write this, it has been a
quarter of a century since the May 4, 1990 execution of Jesse Toffero at
Florida Supreme Court. From the time I came to death row in March 1984,
I came to know him well, and his mother who visited him regularly.
Jesse was her only child and losing him was itself traumatic, but her
knowing what he went through in those final moments elevated the trauma
far beyond that few could even comprehend.
At the time the then Florida governor Robert “Bloody Bob” Martinez
adopted a policy and practice of aggressively signing “death warrants”
in an attempt to expedite executions, it was not uncommon for Governor
Martinez to sign at least two death warrants a week and to keep up to
twelve men (and women) under imminent threat of execution.
In September 1988 Gov. Martinez signed my death warrant along with two
others (Robert Teffeteller and Amos King). We were all scheduled to be
executed on November 30, 1988, but both King and Teffeteller received
stays of execution, leaving only me to go down to the wire (please read
my death watch account “
The Day God Died”). But I, too, finally received a last minute stay of execution and was returned to the regular death row housing area.
Upon my return to the regular wing, Jesse was one of the first to
welcome me back and send me a few celebratory snacks. Back then the
death-row community was much closer than it is not – as our numbers grew
and the years passed, we’ve become divided amongst ourselves.
A little over a year later Governor Martinez signed another death
warrant on Jesse and there was not room on Q-wing, so the warden
converted the first five cells on 2-north, R-wing to an improvised
“death watch.” As coincidence would have it, it was housed on that floor
at that time. Jesse’s death warrant had him scheduled for execution in
about 4 weeks and he remained on 2-north for the first few weeks, and we
talked every day.
Towards that last week of April they moved Jesse to the formal death
watch cell on the bottom floor of Q-wing, only a few feet away from the
execution chamber. But Jesse was confident that he would quickly win a
stay of execution as substantial new evidence was discovered that
supported his innocence and would subsequently lead to his
co-defendant’s (Sonya Jacobs) exoneration and release from death row.
But his claim of innocence fell on deaf ears and his final round of
appeals was denied. In the early morning hours of Friday, May 4, 1990,
the state of Florida proceeded to carry out the execution of Jesse
Taffero in what by all accounts seemed to be just another “routine”
execution.
Without exception, all those who gathered to witness Taffero’s execution
uniformly agreed that it was anything but routine. As they sat in
silence only a few feet away, separated only by a glass window, they
watched in horror as the masked executioner pulled the switch to begin
that first fatal cycle of electricity – only to have the electric chair
malfunction and as that surge of electricity connected, Jesse quite
literally burst into flames before them, and they could see that Jesse
was still alive and physically struggling against the leather
restraints.
As the flames could be visibly seen, smoke and the putrid smell of
burning flesh filled the room. The executioner didn’t know what to do,
so he hit the switch again, but it only caused even more flames, and
again they could still see Jesse struggling despite the two failed
attempts to execute him. Nobody really knew what to do – they never
trained for failure. But after too many minutes passed, they again hit
the switch for a third time and only then did Jesse die, slowly tortured
to death in a scene straight out of the worst nightmare one could
imagine.
Later an investigation would conclude that those responsible for
carrying out the execution failed to properly saturate the sponge in the
saline solution used to ensure conductivity, resulting in what laymen
would say was a “short” in the connection, causing that artificial
sponge to catch fire.
But it would take two more similar “botched executions” in Florida’s
electric chair (Pedro Median and Allen Davis) before Florida only
reluctantly surrendered its three-legged monstrosity and switched to
lethal injection in early 2000.
However, even though they would argue that lethal injection was more
humane, it too has repeatedly proven to be less than what they would
want us to believe. Shortly after Florida adopted lethal injection they
went to put Bennie Demps to death, but couldn’t find a vein in which to
insert the needle. At the last minute a member of the execution team –
presumably not a doctor as the American Medical Association prohibits
licensed physicians from participating in the execution process – found
some sort of scalpel and sliced Demps inner thigh open, causing
substantial blood loss, to access a vein in his leg and then the needle
was inserted. All the while Bennie Demps remained fully conscious and
strapped tightly to the gurney.
A few years later when Florida proceeded to carry out the execution by
lethal injection on Angel Nieves Diaz on December 13, 2006, the person
responsible for inserting the needles into each of Angel´s arms ignored
obvious signs any trained medical personnel would have immediately
recognized that both needles had actually pierced through his veins and
onto the soft tissue beyond.
Once again a room full of witnesses watched in horror as a man was quite
literally tortured to death a few feet in front of them. For what was
determined to be a full 34 minutes, and not until two separate doses of
lethal drugs were pumped into his veins, Angel Diaz physically struggled
in obvious pain. Later, an autopsy would find chemical burns on both
his arms, and a conclusion that he undoubtedly suffered “excruciating
pain” (see article, “
Expert: Key Signs Ignored in Botched Execution of Miami Killer” by Phil Davis, Orlando Sentinel, February 5, 2007).
Despite indisputable evidence that botched executions are only too
common, repeatedly a narrowly divided Supreme Court has consistently
rejected the notion that inflicting incomprehensible physical pain
during this state-sanctioned ritual of death constitutes the infliction
of “cruel and unusual punishment.”
The problem is that proponents of the death penalty have successfully
manipulated the focus of this inquiry exclusively on the relatively
temporal infliction of physical pain at that moment of the botched
execution, ignoring entirely the irrefutable psychological torment the intended victim of such executions endures.
Our legal system has long recognized that the infliction of emotional
duress is a form of injury subject to judicial redress. If a person
slips and falls at the local grocery store, or is hit by a truck causing
considerable physical injury, that person is legally entitled to seek
compensation for the psychological duress inflicted, often to an even
greater extent than the physical injury itself.
Equally so, the infliction of psychological trauma upon the victim of a violent crime – especially the torture
one endures as the result of being aware of their imminent death – is
often the decisive factor in determining whether the perpetrator of that
crime is constitutionally eligible for a sentence of death.
So, why is it that when confronted with this virtual epidemic of
“botched executions” the entire focus is exclusively on that infliction
of physical pain and our courts conveniently ignore altogether the more
obvious infliction of psychological trauma imposed upon the condemned?
To me, it’s not so much about whether the condemned person actually
suffered physically when that execution is carried out, but instead
whether that condemned prisoner suffered the psychological trauma of
knowing that once they did proceed with their practiced ritual, one he
(or she) remained helplessly strapped in that gurney and waited for the
executioner to begin that fatal process, would they yet again screw up?
Instead of simply being put to death, would they “unintentionally” botch
that execution and that condemned prisoner then be subjected to what
nobody denies will be a prolonged and torturous death?
I do realize that some would argue that those we condemn to death
deserve nothing more than that infliction of physical pain, and that the
more they suffer, the better. Fortunately, those who are consumed by
their own malicious need to inflict a torturous death upon another human
being are few and do not represent the broader consensus.
When it comes down to it, this simple truth remains…whether it is an
individual, or as a collective society, we are ultimately defined not by
what we say, but what we do. It is our actions, not our words, which
paint the true picture of who we are.
If by our actions we so deliberately mimic the actions that we recognize
define “the worst of the worst,” then how can we hope to become
something better than the worst if all we strive to be is nothing more
than the worst?
Even the most staunch proponents of the death penalty (Supreme Court
Justices Thomas and Scalia) recognize that through the years since this
nation came to be, as a society we have grown intolerant of the
imposition of punishments that were once considered humane and
judicially necessary, practices that today would unquestionably “shock
the conscience” of a civilized society and in our more enlightened and
evolved social conscience be seen as a constitutionally intolerable
infliction of cruel and unusual punishment.
In Baze v Rees, 553 U.S. 35, 94-95 (2008) Justices Thomas and
Scalia concurred in the decision that a botched execution is not itself
sufficient to constitute the infliction of cruel and unusual punishment absent evidence of a subjective intent to inflict physical pain by providing an informative summary of the evolution of capital punishment in America.
The Eighth Amendment’s prohibition on the “infliction of cruel and
unusual punishments” must be understood in light of the historical
practices that led the framers (of the Constitution) to include it in
the Bill of Rights.
That the Constitution permits capital punishment in principle does not,
of course, mean that all methods of execution are constitutional. In
English and early colonial practice, the death penalty was not a uniform
punishment but a range of punishments, some of which the framers likely
regarded as cruel and unusual death by hanging was the most common mode
of execution both before and after 1791 (when the U.S. Constitution was
ratified) and there is no doubt that it remained a permissible
punishment after enactment of the Eighth Amendment. “An ordinary death
by hanging was not, however, the harshest penalty of the disposal of the
seventeenth and eighteenth century state”: S Banner; The Death Penalty: An American History
(2002). In addition to hanging, which was intended to, and often did,
result in a quick and painless death, “officials also wielded a set of
tools capable of intensifying a death sentence,” that is, “ways of producing a punishment worse than death” Banner, id at 54.
One such “tool” was burning at the stake. Because burning, unlike
hanging, was always painful and destroyed the body, it was considered a
form of “super capital punishment worse than death itself.” Banner at
71. Reserved for offenders whose crimes were thought to pose an
especially grave threat to the social order – such as slaves who killed
their masters and woman who killed their husbands (contrary to
historical myth, burning at the stake was not reserved exclusively for
alleged “witches”) burning a person alive was so dreadful a punishment
that sheriffs sometimes hanged the offender first “as an act of charity”
Banner at 72.
Other methods of intensifying a death sentence included “gibbeting” or
hanging the condemned in an iron cage so that (only after prolonged
death by starvation) his body would decompose in public view: see Banner
at 72-74, and “public dissection,” a punishment Blackstone associated
with murder, 4 W. Blackstone, Commentaries, 376 (W. Lewis ed 1897). But
none of these were the worst fate a criminal could meet. That was
reserved for the most dangerous and reprobate offenders – traitors. “The
punishment of high treason,” Blackstone wrote, was “very solemn and
terrible” and involved “emboweling alive, beheading and quartering.”
Thus, the following death sentence could be pronounced on men convicted
of high treason:
“That you and each of you be taken to the place when you came, and from
thence be drawn on a hurdle to the place of execution, where you shall
be hanged by the necks, not till you are dead, that you be severally
taken down while still alive, and your bowels be taken out and burnt
before your faces – that your heads be then cut off, and your bodies cut
in four quarters, to be at the King’s disposal. And God Almighty have
mercy on your souls” G. Scott, History of Capital Punishment 179
(1950).
The principal object of these aggravated forms of capital punishment was to terrorize the criminal and thereby more effectively deter the crime. Their defining characteristic was that they were purposely designed to inflict pain and suffering beyond that necessary to cause death.
As Blackstone put it, “in very atrocious crimes, other circumstances of
terror, pain or disgrace were superadded.” These “superadded”
circumstances “were carefully handed out to apply terror where it was
thought to be frightening to contemplate” Banner, 70.
As the Supreme Court’s two most zealous proponents of the death penalty
went on to reluctantly concede, all these forms of capital punishment
were subsequently found to “offend the notions of a civilized society”
sufficient to “shock the conscience” and constitute the infliction of
cruel and unusual punishment, as “embellishments upon the death penalty
designed to inflict pain for pain’s sake also would have fallen
comfortably within the ordinary meaning of the word ‘cruel’ see U. S.
Johnson, A Dictionary of the English Language 459 (1773)
(defining ‘cruel’ to mean “pleased with hurting others; inhuman;
hardhearted; void of pity; wanting compassion; savage; barbarous;
unrelenting”). In Webster, An American Dictionary of the English Language 52 (1828) (defining “cruel” as “disposed to give pain to others, in body or mind, willing or pleased to torment, vex or afflict; inhuman; destitute of pity, compassion or kindness”).
Although our moral compass continues to evolve, since the introduction
of electrocutions as a means of execution, the Supreme Court has
declined to recognize any contemporary means of execution as
“cruel and unusual” despite repeated examples of horrifically botched
executions such as that addressed in Louisiana ex rel. Francis v Resweber
329 U.S. 459 (1947) in which the electric chair famously failed and the
condemned prisoner survived – only to have the Supreme Court conclude
that the failure to kill the condemned prisoner was merely an “accident”
and instructed the State of Louisiana to strap that prisoner in again
and try to do a better job the next time. Virtually no consideration was
given to the obvious psychological trauma inflicted upon this condemned
prisoner.
When it is clear that virtually every member of our Supreme Court
unequivocally recognizes that what constitutes the infliction of cruel
and unusual punishment are not so much the means in which the death
penalty is administered, but whether the process itself was
“designed to inflict torture as a way of enhancing a death sentence;
(and) intended to produce a penalty far worse than death, to accomplish
something more than the mere extinguishment of life. The evil the Eighth Amendment targets is intentional infliction of gratuitous pain which basically has been recognized to give pain to other in body or mind.”
In good conscience, can anyone deny that the condemned prisoner will
undoubtedly experience incomprehensible psychological trauma not merely
because of his (or her) imminent death, but because of the knowledge
that this imminent ritual may not actually produce a “painless” death,
but instead inflict a prolonged and unquestionably excruciating and
torturous death?
When I consider this issue, I am reminded of the many examples of
classic literature I read through the years and how each reached beyond
simply telling a story to instead illustrate a greater truth. And it was
confronting that inconvenient truth that elevated each to historical
significance.
When Mary Shelley wrote the fictional book “Frankenstein,” it was
not simply a story of man creating a monster, but how the monster then
infected society with a fanatical need to destroy that monster and in
that process, consumed by that need to conquer this beast, they became
the monster. So too did the story go in “Moby Dick.” Ahab’s
obsession with slaying that Great White Whale blinded him and then
destroyed him. In the end, the beast presumably survived.
So too does the story go with this struggle to define whether any
particular method of execution constitutes the infliction of cruel and
unusual punishment – we become consumed with only that physical
infliction and conveniently oblivious to the psychological trauma the
condemned prisoner must endure.
I have no doubt that in time future generations will look back upon our
contemporary society and they will struggle to understand how a society
that prides itself on the humane treatment of all people could at the
same time blind itself to the infliction of such a barbaric ritual of
death. And for what? Nobody can claim that only the worst of the worst
are being put to death. And we know that those we do put to death could
even be innocent as our judicial system is far from perfect. So we
cannot even say that justice is being served.
In the end, the one question that needs to be addressed is simply
whether we, as a society, want to define our moral conscience by
mimicking the same measure of depravity that we condemn in the “worst of
the worst.” If the best that we strive to be is nothing more than the
worst of those amongst us, can we ever truly hope to become something
better ourselves?
 |
Michael Lambrix 482053
Union Correctional Institution
7819 N.W. 228th Street
Raiford, FL 32026 |
By
Michael Lambrix written for the Minutes Before Six website - See more
at: http://doinglifeondeathrow.blogspot.gr/#sthash.lc28TbgN.dpuf
