Thursday 17 December 2009

Capital Punishment: Is it a form of torture?

The earliest historical records contain evidence of capital punishment. It was mentioned in the Code of Hammurabi (1750 BCE). The Bible says that death is an appropriate penalty for more than 30 different crimes. The Draconian Code of ancient
Greece imposed capital punishment for every offence.

By the end of the 15th century, English law recognized seven major crimes for which the penalty might be death: treason, murder, larceny, burglary, rape, and arson. However, by 1800, more than 200 crimes could get a person hanged.

In Canada, in 1859, the state claimed the right to execute criminals for committing any one of 230 offences. A couple of the charges that could have meant a trip to the gallows included stealing turnips and being found disguised in a forest. In 1803, a 13-year-old boy was hanged in Montreal for stealing a cow.

During 1972 the U.S. Supreme Court decided in Furman v. Georgia that the death penalty was unconstitutional because it was a form of "cruel and unusual punishment." The basis of the court’s decision was that black murderers were more likely to be sentenced to death that white murderers simply because they were black. However, this decision did not last long; in July 1975 the Supreme Court ruled that capital punishment did not violate any parts of the Constitution. Executions as they had before 1972 resumed again.

U.S. executions are meant to be clinical and humane, but for some they end up resembling medieval torture, complete with the smell of burning flesh, screams and scenes so gruesome that witnesses faint. Horror stories have emerged about all the execution methods commonly used in the United States, including the electric chair, lethal injection and gas chamber, with most of the disasters due to human error.

"We put animals to death more humanely," reporter Carla McClain said of a 1992 execution she witnessed, in which Donald Eugene Harding writhed and thrashed in an Arizona gas chamber for more than 10 minutes before dying.

Very few countries have used hydrogen cyanide as a method for killing condemned prisoners, the United States being the most prominent exception. Relative to the other methods in use at the time — the electric chair, hanging, and the firing squad — hydrogen cyanide gas was believed the most humane way of taking a person’s life. The inhalation of hydrogen cyanide gas causes the blood cells to block the oxygen in them that is necessary for someone to breathe.

The United States introduced the gas chamber as an execution method in the beginning of the last century. The first death row inmate ever executed with poisoned air was Chinese migrant Gee Jon, who died at the Nevada State Prison in 1924. The state tried to pump cyanide gas into Jon’s cell while he slept. This didn’t work because the cell was not sealed and the gas leaked out. This led to the construction of sealed gas chambers.

In 1972, I was invited to visit the state prisons in California, and while I was there, I talked with a prison official in the San Quentin prison where murderers are executed. While I sat in the gas chamber, the official told me of an execution that took place on June 3, 1955 when Barbara Graham was put to death. Death-watch officer Joe Ferretti was in charge of her execution. Ferretti strapped her into the gas chamber chair. Once she was secured in the chair, he said to her, ‘Now take a deep breath and it won’t bother you.” to which Barbara retorted, “How in the hell would you know?” She died easily unlike some gas chamber victims.

Those who have witnessed a gas chamber execution have a different view as to whether or not it is a humane way to put someone to death. They say it’s clearly very distressing and probably very painful for the condemned person. The hydrogen cyanide gas causes a choking death. It took Jimmy Lee Gray more than eight minutes to expire in the Mississippi gas chamber in 1983. Suffocating and purple-faced, he died after repeatedly slamming his head into a steel pole behind the chair he was strapped into to knock himself out. A former San Quentin, California, warden, Clifton Duffy, said, “At first there is evidence of extreme horror, pain, and strangling. The eyes pop. The skin turns purple and the victim begins to drool.”

Sentenced to death by gas chamber in Mississippi in 1983, Jimmy Lee Gray had the misfortune to be put to death by an executioner who later admitted he was drunk. Gray's gasps and moans so horrified observers; the witness room was cleared by officials.

According to a dissent by U.S. Supreme Court justice John Paul Stevens concerning the 1992 execution of Don Harding, there did not seem to be any civilized aspect of the gas chamber method of executing prisoners. According to the report at first Harding tried to hold his breath inside the chamber, but was unsuccessful; when he finally inhaled some of the fumes his body started convulsing and the muscles and veins under his skin were twitching in a ‘wavelike motion.’ His execution took over eight minutes to complete and Harding was writhing in pain for most of that time. According to officials at the scene Harding did not fall unconscious until right before his death.

Descriptions such as these were used by advocates for abolition of the death penalty to take their pleas to U.S. courts. Walter LaGrand, the last person executed in a gas chamber in March 1999, had court rulings in his favour. The Ninth Circuit Court of Appeals issued a stay whose logic would have banned lethal gas forever. It took 70 years for a court to finally recognize it as cruel and unusual punishment.

The State appealed that decision and the Appeals Court’s decision was overruled by the U.S. Supreme Court. Walter LaGrand, was executed by the state of Arizona on March 3rd, 1999. His execution took place despite a decision by a federal judge in 1994 that the method violated the Eight Amendment of the U.S. Constitution that persons not be subjected to cruel and unusual punishment. He was one of just 11 prisoners gassed among the 1,099 executions to date since the U.S. death penalty was reinstated in 1976.

Death by gas is used as a backup or secondary option for putting a murderer to death in five states: Arizona, California, Maryland, Missouri and Wyoming. However, given the certainty of a legal challenge the method is unlikely ever to be used again.

Unfortunately, once the hydrogen cyanide pellets (shaped like large eggs) are dropped into a glass container of sulfuric acid and the fumes begin circulating in the small air-tight chamber, no one can save the condemned man even if they wanted to do so. One such condemned man was sitting in the gas chamber at San Quentin and just after the fatal gas was circulating and the condemned man was holding his breath, the phone rang. There was a stay of his execution. Unfortunately, it takes ten minutes to pump the gas out of the gas chamber and if they had opened the door to the chamber to release him and bring him out, the guards would have died also. The man died minutes later.

One would think that death in the electric chair would be quick and painless.

In 1981, while I was visiting the Florida State Prison in Starke, Florida, I sat on the electric chair and talked capital punishment with a prison official. To my right, was a small alcove in which the executioner (an electrician by trade) would push a button and the electrical apparatus would then begin the execution. First would come a 2000-volt jolt then followed by a 500-volt jolt. This would be done again for a second time before the electricity was automatically cut off. The electricity entered the skull, passed through the body and exited from the lower right leg. The condemned are literally roasted. Their skin is so hot to touch that the guards have to wait before they remove the straps from the condemned’s body.

In 1999, Florida Supreme Court Justice Leander Shaw reacted with horror to pictures of Allen Lee Davis, who was put to death by electric chair. Shaw wrote. "The colour photos of Davis depict a man who - for all appearances - was brutally tortured to death by the citizens of Florida."

Davis had been strapped into an electric chair especially designed to fit his 350-pound frame. As he was being electrocuted, but before he was pronounced dead, blood poured from his mouth, soaking his white shirt and oozing through the buckle holes of the strap holding him down. I have seen those pictures. They were ghastly.

In 1983 in Alabama, a first jolt of electricity caused the electrode attached to John Evans's leg to catch fire. Smoke and sparks also came from under the hood placed over his head, near where an electrode was strapped to his left temple. A second jolt was administered, but despite the smoke and smell of burning flesh, doctors discovered Evans's heart was still beating and applied a third jolt that finally killed him after 14 minutes.

Two years later, in Indiana, William Vandiver received five separate jolts of electricity over the course of 17 minutes before his heart stopped.

Jesse Joseph Tafero was sentenced to death by electric chair in Florida in 1990, but a synthetic sponge that was used during his execution caught fire, causing six-inch flames to erupt from his head.

Many of those executed in the United States in the last 25 years suffered through executions in which their flesh caught on fire, blood saturated shirts, and witnesses watched and listened as the condemned convulsed and screamed with pain. During this period of time, the prisoner burns and shakes violently from this overdose of electricity; when it is over smoke is often seen coming from the prisoner's head.

Officials often defend this form of capital punishment as not being cruel and unusual, but how can they defend this opinion in the case of John Evans who was executed by electrocution in 1983? According to witnesses at the scene Evans was given three charges of electrocution over a period of fourteen minutes. After the first and second charges Evans was still conscious and smoke was coming from all over his body as a result of his flesh burning. An official there even tried to stop the execution on account of it being cruel and unusual punishment, but was unsuccessful. Witnesses later called the whole incident a ‘barbaric ritual.’

The latest method of executing prisoners on death roll has been lethal injection. Lethal injection is the preferred means of execution in the United States.

Nationally, there were 37 executions in total in America in 2008 - and lethal injection was implemented in 36 of those executions.

It has however been deemed not barbaric by many people because of the fact that it does not cause struggles or maim the body like hangings, firing squads, electrocutions, or the gas chambers. This method of executing is barbaric nevertheless. It comprises of injecting three drugs into the condemned. They are; a chemical cocktail containing a barbiturate, a paralyzation drug, and a drug to stop the heart which flood the veins of the condemned, ending their lives. It’s supposed to do its work within 15 minutes.

Sometimes it takes longer. In 2006, in Florida, convict Angel Nieves Diaz needed two doses and it took 34 minutes for him to die. Witnesses doubted that Diaz was unconscious or that he underwent a painless procedure as he died although there is no way to be sure. A single dose of the lethal cocktails that was to anesthetize, paralyze and then stop Diaz’s heart was not enough. The first injection went straight through his vein and out the other side of it, dispersing the chemicals into his muscles, forcing a second dose to be given.

There is documented evidence of at least four other botched executions in Florida. At the 1988 execution of Raymond Landry, officials there had to repeatedly puncture him with the needle because he had very small veins. In addition to this cruel treatment, during the procedure a tube attached to the needle leaked and the harsh chemicals used to kill Landry were sprayed in the direction of witnesses who were watching behind a glass window in the witness room.

Beside this case there have been cases where the victims were not given a strong enough dosage and as a result, they writhed in pain for a long period of time while they were still conscious.

The 6th U.S. Circuit Court of Appeals ruled on December 7, 2009 that death row inmate Kenneth Biros’ lawyer did not present evidence at Biros’s appeal that the state's new backup execution method could cause severe pain in violation of the U.S. Constitution. Biros, 51, was executed the next day for killing a woman he met at a bar in 1991. He was the first person put to death in the country with a single drug in a lethal injection. The lethal drug was simply an overdose of a barbiturate. This simply caused him to sleep first before it finally stopped his heart.

In recent years, several lawsuits have challenged the lethal injection as being cruel but it continues to be used by most U.S. states practicing the death penalty because the Supreme Court upheld its constitutionality in 2008.

But for Bennie Demps, who spent 33 minutes of agony as execution technicians tried to find a back-up vein to support an alternate intravenous drip in case the first one failed, the pain was excruciating.

In his last statement before he died from the procedure, he said, "They butchered me back there. I was in a lot of pain. They cut me in the groin, they cut me in the leg. I was bleeding profusely. This is not an execution, it is murder.”

At times, the scenes have been gruesome enough to physically affect observers. In 1989, in Texas, which holds the record for the most U.S. executions, a male witness fainted after watching Stephen McCoy's violent writhing.

Some of the most horror stories come from Ohio. "It don't work! It don't work," yelled a sobbing Joseph Clark in May 2006 as the vein that executioners had worked 22 minutes to find collapsed while the chemicals were being administered.

A year later, Ohio authorities took two hours before they successfully found a vein that they could inject the lethal injection into Christopher Newton. The process took so long; he was permited to leave the gurney to take a bathroom break.

Romell Brown became only the second man to leave a U.S. execution chamber alive in October 2009 after 18 failed attempts to administer the lethal injection. Authorities in Ohio decided to halt his execution after officials spent two hours trying to inject him with lethal chemicals.

The only case similar to the botched Brown execution happened in Louisiana in 1946, when a first attempt to execute Willie Francis did not work. Francis was returned to death row for nearly a year while the U.S. Supreme Court considered whether a second electrocution would be unconstitutional. The court ultimately ruled 5-4 against Francis, and he was put to death in 1947.

Brown’s lawyer’s arguments are limited to one simple argument, according to a federal judge. The issue is; Does the state, having failed once, have the legal right to try again?

I remember watching a TV movie in which an officer in the Second World War was the head of a firing squad. He didn’t think the condemned should be executed so just as he was about to yell, “FIRE” he didn’t and instead he said to the members of the firing squad, “SHOULDER ARMS!” In the movie, the authorities said that because the condemned man had been subjected to such a traumatic experience, he was spared and sent to prison instead. There was a famous case in England when the executioner failed to execute the prisoner at his hanging because no matter how hard he tried, he couldn’t get the trap door to open. The sheriff ordered the execution to stop. The man was later reprieved.

Brown has said that during the first attempt to execute him he was stuck with needles as many as 18 times. Execution staff struggled for two hours to find a vein that would not collapse when a saline solution was administered. Brown even tried to help the executioners secure his death: Turning over on his left side, he slid rubber tubing designed to clarify his veins up his left arm, then began moving the arm up and down while flexing and closing and opening his fingers. The execution team was able to access a vein, but it collapsed when technicians tried to insert saline fluid. Broom then became visibly distressed, turning over on his back and covering his face with his hands while crying.

Justice Frost said at the hearing, "We all agree that Mr. Brown suffered some pain from that attempted execution process. We all agree that the state of Ohio intends to proceed again on a second attempt." But Justice Frost said he doesn't know what Broom's lawyers could present about Broom's experience that would overcome the 6th Circuit's ruling.

Following Brown's execution try on September 15th, of which Justice Frost has called a “debacle," the state changed its execution methods to one intravenous drug with a backup method involving intramuscular injection.

"What happened to Brown on Sept. 15, 2009, at defendants' hands and under their direction was inhuman and barbarous," Broom's attorneys, Timothy Sweeney and Adele Shank, argued after the execution attempt. "It should not be permitted to happen again."

The state switched its execution methods with two goals: to end a 5-year-old lawsuit claiming that Ohio's three-drug system was capable of causing severe pain and to create a backup procedure if the first one didn't work. That backup plan, untested on U.S. inmates, allows a two-drug injection into muscle if a usable vein cannot be found.

Brown was sentenced to die for the rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland in September 1984 as she walked home from a Friday night football game with two friends.

The state opposes canceling a second try, saying Brown's execution was carried out according to the protocols then in place. Assistant Attorney General Charles Wille argued, "There is no evidence that Brown suffered pain of such severity as to rise to the level of severe pain prohibited by the Eighth Amendment."

Since September 2007, death-row prisoners have seen court and state authorities delay executions while the Supreme Court reflects on the status of lethal injections as a cruel and unusual punishment. New Jersey recently abolished the death penalty. There is talk of a nationwide moratorium, which has trickled down to Florida.

In January 2000, the Florida Legislature passed legislation allowing lethal injection as an alternative method of execution. Lately there have been questions about that ruling also. Former Governor Jeb Bush, who had no qualms imposing the death penalty on clearly crazed serial killer, Aileen Wuernos, suspended lethal injections in 2006. Even Charlie Crist, who ran his gubernatorial campaign on the tax-heavy prospect of locking up offenders who violate probation, had no power to halt the November stay that spared child-killer Mark Dean Schwab.

Hangings are generally quick. There have been some cases where the condemned men’s deaths were prolonged. One of the condemned Nazi leaders was heard moaning for twenty minutes before he died and Hosse, the man who was the head of the Auschwitz death camp was only dropped about fourteen inches. He must have suffered a long time at the end of his rope. There have been instances where some of the people who where hanged, were decapitated at the end of the drop. Chemcal Ali, the Iraq general responsible for the massacre of so many people in that country, lost his head as a result of his hanging.

I doubt that anyone shot by a firing squad in the United States ever suffered but it is messy, not that it matters to the condemned.

Whether a death-row inmate dies by lethal injection, electrocution, the noose or the gas chamber, judges, lawyers, citizens, victims, have all weighed in with their opinions about the capital punishment controversy. On a practical level, it costs more to house a death-row inmate because of the lengthy appeal process.

I have mixed feelings about capital punishment. In 1976, when Canada’s parliamentarians were discussing whether or not capital punishment should be abolished, I wrote a paper which ultimately ended up in the hands of all the members of the House of Commons and the Canadian Senate. One of the parliamentarians quoted from my paper where I had expressed my concern about executing innocent people.

In 1980, I was in Caracas, Venezuela giving a speech at a United Nations crime conference. One of the main topics was the issue of capital punishment. I said in part; “As a retentionist, I am not advocating the torture of murderers.” It was my intention then as it still is that executions if they must be conducted; must be quick and painless.

As to who should be executed, I feel that mass murderers, serial killers, those who torture their victims to death and terrorist who cause deaths or those who conspired to kill the victims should be executed.

Many people believe that capital punishment to be a necessary evil in our society to punish and deter those who would unjustly take the life of another. I am not convinced that it deters that much but it certainly punishes the murderer. I suppose the greatest insult one can offer another human being when that human being is a murderer is to tell him that he is not worthy enough to continue to breathe the same air as we do and that we want him to be extinguished just as the flame of a candle is extinguished. I feel that capital punishment, as a punishment should be applicable particularly for heinous murderers.

During my speech in Caracas, I also said in part; “I recognize the dignity of Man but I am angered when I hear abolitionists cry out that even the most vilest criminal remains a human possessed with dignity. What sort of humanist tries to relate Benjamn Franklin with that of Charles Manson or Marin Luther King with Adolf Eichman? To say that these men, some great and some unspeakably vile, equally possess human dignity, is to demonstrate an inability to make a moral judgment derived or based on the concept of human dignity.”

The vilest of murderers should be executed but their deaths should be quick and painless. To cause them to suffer during their executions would make society just as vile as the ones society executes.

1 comment:

iamjumbo said...

where you fail is in the fact that, when the eighth amendment was authored, the usual method of execution was short, or no, drop hanging, which resulted in up to twenty minutes or so of choking.
since, obviously, taking twenty minutes to strangle to death is NOT cruel or unusual punishment, NOTHING short of that is. by definition, no method of execution practiced in the u.s. since 1789 is cruel or unusual punishment