The U.S. Supreme Court: Clearing the Way for Botched Executions Since 1879

Soon, the U.S. Supreme Court will hand down its decision in the highly anticipated and potential landmark death penalty case of Baze v. Rees that has effectively put a de facto moratorium on executions across the country. The Court is considering whether the 3-drug lethal injection protocol used in executions carries a "substantial risk" of inflicting cruel and unusual punishment as prohibited under the Eighth Amendment. The Supreme Court hasn't shown much interest in examining the constitutionality of methods of execution, and has done so only a handful of times over the last 117 years. But in the cases that it has, the Court boasts an absurd and uncanny knack of deciding that various methods of execution are not cruel and unusual punishment, only to see those very executions prove otherwise, with horrific results.

In March of 1879, (Wilkerson v. Utah) the Supreme Court considered and upheld Utah's right to execute Wallace Wilkerson by firing squad. Three months after the Court's decision, Wilkerson, wearing a white felt hat and carrying a cigar, was lined up before sharpshooters. He refused a blindfold because he wanted to "die like a man" and look his executioners "right in the eye." The sheriff relented, placed a bull's-eye over the condemned man's heart, and commanded the sharpshooters to fire. Four heavy slugs ripped into Wilkerson, but none struck his heart. Wilkerson jumped from the chair, screaming, "Oh, my God! My God! They have missed!" Witnesses watched in revulsion as the wounded man, "writhing and gasping" bled on the ground for nearly half an hour before he was pronounced dead.

Afterward, one Utah newspaper sarcastically commented, "The French guillotine never fails."

The next time the Supreme Court considered whether a method of execution was cruel and unusual punishment was in 1890 after convicted murderer William Kemmler was sentenced to death in the electric chair. The chair had never been used in an execution before, and Thomas Edison and George Westinghouse were engaged in a bitter "war of currents." Edison, promoting his direct current (DC) power system, waged a campaign to convince Americans that Westinghouse's alternating current (AC) system was more lethal for killing criminals (or "Westinghousing" them, as he liked to say). Westinghouse was understandably livid and contributed $100,000 to Kemmler's legal defense to prevent Kemmler's death and the bad publicity for his D.C. system.

Westinghouse failed and the Supreme Court cleared the way for New York State to execute Kemmler in the chair. On August 6, 1890, the switch was thrown and the current surged through Kemmler for 17 seconds. Dr. Alfred Southwick, a Buffalo dentist and "father of the electric chair" who had been campaigning for a more humane method of execution than hanging, announced to witnesses in attendance, "We live in a higher civilization today."

But behind him, Kemmler was gasping for breath. "Great God!" a witness screamed. "He's alive!"

The current was immediately switched back on and Kemmler began shaking and moaning in the chair. A "purplish foam" dribbled from his mouth as his head began to smoke and his coat caught fire. Witnesses fainted and vomited and ultimately, Kemmler was pronounced dead.

"It was a brutal affair," Westinghouse said. "They could have done better with an ax."

The last time the U.S. Supreme Court considered a significant question of cruel and unusual punishment was in 1946, after the stuttering, 17-year-old Negro Willie Francis was convicted in a sham of a trial for the murder of a Cajun pharmacist in St. Martinville, Louisiana. A few months later, Willie was strapped into the portable electric chair known as "Gruesome Gertie" and had a leather mask thrown over his face. The gasoline-powered generator was fired up, the executioner said, "Good-bye, Willie," and threw the switch. Willie began to rock and slide in the chair, convulsing and yelling, "Take it off! Take it off! Let me breathe!"

"You're not supposed to breathe," his executioner snapped, and continued to let the current surge. Finally, Willie painfully stuttered, "I am N-N-Not dying!"

That was enough for the sheriff to call off the execution of Willie Francis. Willie was unbuckled and dragged back to a cell, where an incredulous Louisiana Governor Jimmie Davis (known for his hit song, "You Are My Sunshine") ordered the chair fixed and Willie returned to it in six days. Willie thought the whole experience was "plumb miserable," and remarked that "the electric man could have been puttin' me on a bus to New Orleans the way he said good-bye."

Appalled by what he had witnessed at the jail across the street from his house, a Cajun lawyer named Bertrand DeBlanc stepped in and managed to obtain a stay, and Willie's case of double jeopardy and cruel and unusual punishment worked its way up to the U.S. Supreme Court.

The case was deadlocked at 4-4 until a reluctant Felix Frankfurter cast the deciding vote, allowing Louisiana to return Willie to the chair. But Willie still had a chance. DeBlanc filed last-minute affidavits with statements from two eyewitnesses who claimed that Willie's botched execution was "the most disgraceful and inhuman exhibition" they'd ever seen, and that the executioners (a guard and an inmate from the Louisiana State Penitentiary in Angola) were "so drunk that it was impossible for them to know what they were doing." Indeed, one irate executioner told Willie he'd be back to "kill you next week if I have to use a rock."

The Supreme Court took note of DeBlanc's affidavits and the "grave nature of the new allegations" of negligence on the part of the State of Louisiana. No longer could Willie's attempted execution be termed, "an innocent misadventure" as Justice Frankfurter had described it in his concurring opinion.

Frankfurter was so tortured by his own decision that he quietly worked behind the scenes (and unbeknownst to his fellow Justices) to secure an 11th hour pardon, believing that the re-execution of Willie Francis was "a barbaric thing to do" and would "needlessly cast a cloud on Louisiana for many years to come." At the same time, blacks and whites alike became caught up in the teenager's fate as front-page headlines across the country trumpeted each and every twist in Willie's ultimately heart-wrenching case.

Sixty years later, convicted Kentucky cop killer Ralph Baze and double-murderer Thomas Dowling both sit in jail cells, awaiting the Supreme Court's latest decision on cruel and unusual punishment in their case, Baze v Rees. Though neither has an imminent date with death, one wonders if they are aware of the Court's history in Eighth Amendment death penalty cases, and the strange and ghastly fate of the condemned men whose names appear, like apparitions, in all their legal briefs and documents.

Comments

[guntotinganglion]

Part 2 of 2

It's a hard thing to weight the system to the innocent, and the powers that be have worked overtime to make sure this doesn't happen. Currently, we live in a system that does the opposite, which is to say, if one must incarcerate a thousand innocent human beings to assure that one guilty human being does not go free, that is the price we pay. And that is one reason why the prison population in this country has skyrocketed over the last 30 or so years.

We have the highest prison population on Earth. And violent crime continue unabated.

[JerDogNebr]

I share this pessimism regarding the US Supreme Court on the issue of method of execution. However, the landscape is not so bleak in the state courts. On February 8, 2008, Nebraska held electrocution unconstitutional under the cruel and unusual provision of the Nebraska Constitution in State v. Mata. Georgia did the same thing under the Georgia Constitution in State v. Dawson (2001). There is no state or federal jurisdiction that has electrocution, hanging, firing squad, or gas chamber as their sole method of execution.
I was one of the lawyers in the Mata case. We owed a huge debt of gratitude to the lawyers from Florida, Alabama, and Georgia who put together the FACTUAL challenge to electrocution. It was this evidence and expert testimony that carried the day. Regardless of how one feels about the death penalty, frying through electric current is not the civilized thing to do.
The same result may ultimately prove true in the lethal injection cases, but I doubt it. I think the real issue for the courts is one of ascetics. How does the process of execution “look” to the general public. Heads popping off or slow strangulation (hanging), smoke, fire, repeated attempts at application of current (electrocution), and gagging and defecation (gas chamber) are difficult to watch. As long as the condemned prisoner appears to be peacefully “going to sleep,” that will be just fine with the US Supreme Court and public at large. The prisoner’s death experience will be irrelevant.

[larry278]

Face it the phrase 'human execution' is an oxymoron; it's judicial murder either painful or painless. I, & others, demand the inhumane death sentence for treason & other awful crimes. We feel that some individuals aren't fit to live. We're barbarians & blood thirsty. We demand revenge in blood. Let's be honest about our blood lust & desire to take revenge on a class of particularly vile criminals. We simply want to get shut of them; not scare others who might consider accomplishing some horrible crimes. There is no rehab or prevention in executing a criminal. Stop using euphemisms for judicial murder. It's nothing less than a barbaric form of revenge.
larry lynch

[Aaror]

The problem with the triple drug cocktail is that the painkiller is a highly sought narcotic, and there is strong financial incentive for the executioner to steal it. If we were smart we would use a single drug method, giving the criminal an OD of Heroin or Cocaine. If it was stolen the patient wouldn't die...
This would also serve as an educational tool in the dangers of these drugs, killing people with them makes a clear and visible lie of their "harmlessness," to the very people who need to know this the most.

[Cautious]

"The Supreme Court hasn't shown much interest in examining the constitutionality of methods of execution, and has done so only a handful of times over the last 117 years."

The reason the US Supreme Court hasn't shown much interest is that they are constitutionally prohibited from doing so. I take it that in your high school civics class, you were looking up some girl's dress instead of listening when they talked about separation of powers.

The Supreme Court hears federal cases when they are brought to them. States decide on their criteria and methods for execution, but if someone presents a case that violates "cruel and unusual punishment", then they hear it. The Founding Fathers wrote the Constitution to give some powers to the states, and criteria and methods for execution are decided by the states.

Aside from the whether-or-not, there are effective ways to execute someone by lethal injection, and it is absurd that no one is doing it. As soon as they are certain that they have a functioning IV, they could give an absolutely overpowering dose of morphine, or a mixture of morphine and valium. The person would quite likely be totally unconscious after that. They would be unable to experience fear when the paralytic drug is administered. If lidocaine was mixed with the potassium chloride, then that would not hurt either, especially if the person is unconscious from the morphine.

[Zenpilot]

That's not correct. The Supreme Court decides which cases they will hear. Many cases are brought, few are heard.

[JerDogNebr]

The first part of your post is correct, but the FACTUAL assertions regarding how you would conduct a lethal injection are flawed. First, it is not always possible to get a functioning IV. Some inmates require use of a “cut down” procedures. Have you ever had a blood test were the nurse had to switch to the other arm? Second, it is true that a large dose of morphine will NORMALLY be fatal, but not always and not in a timely fashion. The prisoner’s heart beat and respiration will dramatically decrease and they may be placed in a coma. However, “death” may not occur for several hours or days. That is why they include potassium chloride in the lethal cocktail - to stop the heart. Third, there can also be problems with adverse reactions to morphine and/or barbiturates that will result in the prisoner experiencing seizures, convulsions, etc., That is very unpleasant to watch. Fourth, the paralytic agent serves no purpose in the lethal cocktail, except to make the execution look "peaceful" when the opposite may be the case.
Execution is killing, pure and simple. The executioner must commit to the process and ignore the messy details. Thousands were killed during the French Revolution (and after) using the guillotine. Effective, fast, cheap, painless, and 100% reliable. The only problem was the bloody mess and its effect on the witness. That may explain why the US of A can’t be more like the French.

[train36]

The point of going to jail is to suffer and be punished. Seems like these inmates who are literally fighting for their lives are indeed suffering and thinking about what they've done. A minor victory I suppose. As for the death penalty itself, why try to hide the fact that it is a killing. All this medical BS to make it seem like a routine surgery of sorts. It is what it is and may be better served if you brought back hanging and firing squads. Better yet, death should be in the same manner as the convicted's victim.

[guntotinganglion]

The death penalty is wrong. Killing is wrong. That's it.

However wrong it may be, if it's on the books, and the law demands it, why not use a truly painless method? Anesthesia. Then hypoxia, the way that animals are "put to sleep". I've been in surgery before, and been under anesthesia, and it is complete senselessness. Once under, a hyperbaric chamber could be used to draw the atmosphere out of the chamber, and the human being dies painlessly, and peacefully.

I repeat, I am against the death penalty. It is immoral. It is unethical. It is cowardly. But if you must, there are ways to make it truly painless. But, I'm afraid that is not the intention of most death sentences.

[vippy]

I am for the death penalty but only if you did the crime. Seems to me that the district attorneys
make a case, withhold pertinent information, does not get admitted, etc. and they are looking
for the almost perfect conviction rate so they can be promoted. So many cases lately where prisoners had been wrongfully convicted proves my point that one can make a case against someone most every time! We should be able to hold the prosecuting attorneys responsible
for such things. Only then, and only then can we progress. I do not find that one is a coward
if we put someone on the death penalty. The criminal had no feelings for the victim either.
Even animals are getting rid of their outcasts.

[jrldev]

I am also for the death penalty when a "fair trial" convicts a person of a murder. The problem is that many times the prosecution have been shown to withold evidence that will have created a reasonable doubt about the accused being the "murderer". In cases where the
accused was wrongly convicted and later (after the execution) found that the prosecutor witheld evidence, the state should also convict the prosecuting party of a crime and designate the proper penalty up to 2nd degree murder.

[guntotinganglion]

Part 1 of 2

The brave thing to do is to not violate your principles. The easy thing (and perhaps coward is too harsh a word) is to turn away from ones principles and do the expedient thing that denies humanity of the victim and perpetrator. No victim was ever brought back by more death.

And I believe I can assume that you don't believe in killing, which is ironically, why you believe in killing. It's bizarre to live in a society that has a death penalty for those who inflict death.

Another argument is, in many cases that have involved the death penalty, certainty is not an option. If keeping one innocent human being from being wrongfully executed means removing the death penalty, then that's a price we should pay. That is the basis of modern law...if the only way to prevent one innocent human being from going to jail wrongfully means a thousand guilty go free, that is the price we must pay. And that is where courage, and the lack thereof, becomes a factor.

[guntotinganglion]

Part 2 of 2

It's a hard thing to weight the system to the innocent, and the powers that be have worked overtime to make sure this doesn't happen. Currently, we live in a system that does the opposite, which is to say, if one must incarcerate a thousand innocent human beings to assure that one guilty human being does not go free, that is the price we pay. And that is one reason why the prison population in this country has skyrocketed over the last 30 or so years.

We have the highest prison population on Earth. And violent crime continue unabated.

[maddogbitesback]

SkipHarv - the horrors of execution in the United States make your comment trivial and irrelevant. To quote Shakespeare, "A rose is a rose and by any other name smells just as sweet."

The barbarism of capital punishment is worse than murder. It is carried out with the consent of the nation. It puts United States in a special category. I cannot think of a developed nation other than America which has capitol punishment. America is truly a nation of extremes. Ttruly great universities were established soon after the first settlers arrived. But who can afford to go to them. Not the poor. They attend schools which would be shut down by the SPCA if they housed dogs. There is no state concern about the lack of medical care for those tens of millions who cannot afford health insurance.

When I read this particular blog I thought a so terrible record of continued endorsement of capitol punishment and violence against each other explains how Abu Ghraib and Guantanamo and rendition could be things of America and not the third world. America should leave the rest of the world to find its own way to civilization. America has nothing to teach them.

Would a seventeen year old going through such an experience really have cared whether he was referred to as a black or an African American.

Grow up Skip. Your comment devalued the horror of the story.

[jrldev]

The problem is that America (a modern "civilize nation") have the distinctive honor of being the one nation with the highest-per capital murder ratio. Partly because the preponderance of the present laws are not enforced by the state and local officials. We have more criminal laws in the books - both federal and state - than probably any other "civilize" nation and yet we fail to enforce them. Who is at fault? I wish I had the answer to that question.

[1will]

I no longer believe in the death penalty because of the large numbers of people freed from prison due to DNA evidence of the last several years. I have no faith in the system to only execute the guilty. We've read about the rogue prosecuter in NC and the FBI crime labs mistakes. Eye witnesses are notoriously unreliable and juries are made up largely of those too stupid to get off of jury duty. I want the guilty punished but I no longer trust our justice system enough to execute only the guilty.

[calirighty]

So you're saying that people who had 20 eye witnesses testify against them should NOT be executed because someone might have screwed up a DNA sample? What do you consider a large number? And what is the percentage of this "large number" as compared to actual conviction? I would bet it's very small.

[klmebane]

so in your mind its ok to execute an innocent person? does that mean it is also ok for the guilty to go free on a technicality? eye witness testimony is not always accurate. people lie, people can be coerced (both into giving and withholding testimony) sometimes there is even a hysterical effect where people want so badly to believe they saw something that they will convince themselves they did. DNA means far more than any witnesses testimony. so if they screwed up DNA and that evidence says the person wasn't there, i don't care if 50 people say they saw that person there.

[Counterglow]

It is a statistical certainty that innocent people have been executed in the United States.

I have heard that when Bush was elected for his first term, Texas sheriffs engaged in an orgy of evidence destruction to ensure that no after-the-fact DNA analysis could be used to demonstrate that Bush had signed the death warrant of an innocent man.

[calirighty]

Ah yes. Behind every lib is conspiracy theory. You need to stop watching T.V.

[klmebane]

bush signed more death warrants than any texas gov before him. there is no statistical possibility that EVERY person he signed a warrant for was truly guilty of the crime they were convicted of. period. it isn't a matter of conspiracy­... and i'll stop watching tv when you stop watching fox noise channel.

[Counterglow]

It was on 60 Minutes, which has a better track record than most American news outlets, especially Fux News. Take another Valium and go back to sleep.

[Overd0g]

Why not just drop a 30 ton iron cube on the them? Failsafe and pain free.

[calirighty]

Nah. Iron prices are high. A .50 cent bullet is more efficient.

[SkipHarv]

Mr King just so you know in the 21st century we are considered either BLACK or AFRICAN-AMERICAN now!!

[saram]

seriously