The Other Side of the Coin

By Michael Lambrix

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:

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?