I have been reporting for years on the kinds of executions that led Justice Harry Blackmun to declare in a Feb.22, 1994, dissent (Callins v. Collins) that he would no longer vote for the death penalty:
“The problem is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.”
And Justice William Brennan told me more than once: “I can’t believe that the leader of the free world is going to keep on executing people. I still believe that eventually we become more civilized. It would be horrible if we didn’t.”
In addition to the increasing revelations that some prisoners on death row are innocent, there is the increasing shock — and I mean “shock” — of how some states carry out executions with the approval of the courts, including our highest court.
I knew Justice Brennan well, and I have no doubt how he would react to this July 24 press release from the always-carefully documented Washington, D.C.-based Constitution Project:
“Yesterday, Joseph R. Wood III was pronounced dead after a nearly two-hour long execution by the state of Arizona. Media witnesses, some of whom have observed previous executions, reported that Wood gasped for air more than 600 times during the execution.
“The process was so prolonged that Wood’s attorneys filed for a stay of execution in the midst of it, which was then rendered moot once Wood was pronounced dead” (“Transparency Needed Before Executions Continue,” The Constitution Project, July 24).
I asked if Wood’s 600 gasps was a typo and was assured it was not.
Quoted in the release is the former governor of Texas, Mark White, co-chair of The Constitution Project’s Death Penalty Committee:
“This was the fourth reported botched execution of the year. And in each one of these cases, the government has concealed vital information concerning the source, safety, and efficacy of the drugs to be used in the execution, refused to reveal information concerning the training and skill of the personnel involved in carrying out the execution, while also using drugs never before used to kill humans. Meanwhile, the courts continue to look the other way.”
Keep in mind: “Using drugs never before used to kill humans.”
But an execution in Kentucky that I’d previously reported on used a way of killing that many states have adopted: lethal injection.
In “Sanitizing The Death Penalty” (May 7, 2008), I wrote: “The U.S. Supreme Court — by a walloping 7-to-2 majority in Baze v. Rees — declared constitutional Kentucky’s method of death penalty by lethal injection — a combination of three toxic chemicals used as a method of execution in 35 states.”
And dig this:
“As Justice John Paul Stevens noted disquietly, one of the three terminating chemicals paralyzes the unsedated prisoner, who is conscious but unable to move, breathe or utter his last cry.”
I described Chief Justice John Roberts’ main opinion as written “with language as bland as if he were ruling on an intellectual property case.” In it, he wrote:
“Some risk of pain is inherent in any method of execution — no matter how humane.”
Humane? “Unable to move, breathe or utter his last cry”?
Furthermore, Roberts argued: “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual (under the Eighth Amendment).”
Coming to a conclusion directly opposite that of the chief justice, Justice Stevens, citing Justice Byron White, said that after 33 years on the court, “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.
“‘A penalty with such negligible returns to the state (is) patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’”
Nonetheless, Justice Stevens agreed with the chief justice and voted with the majority.
Yet so long as this nation continues to execute human beings, there is a small but growing movement across party lines to at least bring the Eighth Amendment back to life in these cases.
The Constitution Project has published a well-bound, 165-page, deeply documented report, “Irreversible Error: Recommended Reforms for Preventing and Correcting Errors in the Administration of Capital Punishment.” (To obtain a free copy of “Irreversible Error,” go to constitutionproject.org.)
I have a copy and am continually learning from it, ranging from such chapters as “Ensuring Effective Counsel” to “State-by-State Execution Procedures.”
I expect that across the nation, reporters, assignment editors and other participants in print and digital media will be interested in this report — along with concerned citizens.
Maybe even one or two 2016 presidential candidates will be interested — or am I being overly optimistic?
Defendants in death penalty cases certainly will be profoundly interested.
Nat Hentoff is an authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow.