Six months ago oral arguments were heard in the case of Baze v. Rees, challenging the constitutionality of execution by lethal injection which, if it were advertised on TV, would be “the method recommended by most veterinarians.” On April 16 the United States Supreme Court issued its opinions, all seven of them — and there are only nine justices. Nobody wants to be a team player these days or, as Jimmy Durante used to say, “Everybody wants to get into the act.” The constitutionality of the method was upheld on a 7-2 vote, with Associate Justices David Souter and Ruth Bader Ginsburg dissenting.
This will clear the way for the execution here in Tennessee of Edward Harbison, on death row for 25 years for the bludgeoning murder of an elderly Chattanooga woman about seven miles from where I sit. I remember the good old days when Edgar H. Smith held the national record of 14 years on New Jersey’s death row for the murder of a 15-year-old girl who he was apparently trying to rape. He was sprung in 1972. Four years later he was arrested for kidnapping and attempted murder. Rape was his apparent goal that time as well. Now, a quarter of a century on death row is closer to the norm than the record.
Tennessee went 40 years — from 1960 to 2000 — between executions, and has put only four murderers to death since. The logjam in executions is not limited to Tennessee. In some states we apparently still have Carter appointees decomposing on the federal bench. Some of them will assume jurisdiction and grant a stay that brings the machinery of justice to a halt just long enough to allow the death warrant to expire, so a new one will have to be applied for and signed by the governor, a new date set, witnesses re-screened and renotified, etc. It is not that difficult to find a federal judge who does not want to be the last person to say “No” to a condemned prisoner.
The Founding Fathers took capital punishment for granted. The Fifth Amendment to our Constitution says that no person shall “be deprived of life . . . without due process of law . . . .” That issue does indeed seem now to be at least as settled as constitutional law ever gets, meaning until there’s an ideological shift on the Supreme Court as retiring justices are replaced by unpredictable rookies. It’s the Eighth Amendment that the court pondered in Baze v. Rees. It forbids “cruel and unusual punishments . . . .” In the United States we’ve tried hanging, firing squads, the electric chair, and the gas chamber before 35 states settled on lethal injection as the most humane method of dispatching the worst of our villains. No society in the history of the human race has ever engaged in so much hand-wringing over methodology.
I am not a proponent of returning to the fine art of hanging, drawing, and quartering, although in the days before movies, radio, and TV it provided public entertainment. Electrocutions can be badly botched. Marksmen can miss the heart. There are indications that inhaling cyanide is painful, although no one has ever lived to tell about it. The “drop” in a hanging can be miscalculated, causing either messy decapitation or slow strangulation with about four minutes until loss of consciousness and irreversible brain damage, and another four until death.
Does anyone doubt that the death penalty must be reserved for the most atrocious crimes, used sparingly, and imposed mercifully? The killing of a helpless person is a weighty undertaking, but we no longer seek or adjudge death for garden-variety rapists, heat-of-passion killers, or even most criminals guilty of premeditated murder. The death penalty is sought for those convicted of savage, heinous crimes.
It’s not as if crimes deserving of the death penalty are hard to identify. I had some involvement in the military case of Wyatt Matthews, who was sentenced to death for the rape and murder of a librarian. He stalked her and asked for a date. She replied that she was married. After the other patrons left he asked for help in finding a book in the back of the library. He stabbed her at least 53 times — including in her breasts and vagina — with nine-inch library scissors. Some of the wounds were inflicted post mortem. After he left the library he returned and coolly retrieved a six-pack of beer he had forgotten and decided also to take her underpants as a trophy. Her husband found her body. The death sentence was reversed on appeal because the court members (a military jury) were not instructed on the requirement that they find and announce the aggravating factors that justified their unanimous death sentence.
I prosecuted the racist anti-Semitic serial killer Joseph Paul Franklin, who traveled the land from 1977 to 1980, shooting Jews and interracial couples. He shot and paralyzed Larry Flynt not because he publishes pornography (Franklin is addicted to it), but because he published photographs of an interracial couple. He has never been tried, I suspect, because prosecutors fear that a jury in rural Lawrenceville, GA, would acquit him as a folk hero.
He shot Vernon Jordan because his wife is white. Franklin defended himself at trial, won acquittal, and then confessed. He firebombed at least one Tennessee synagogue. He is on death row in Potosi, Missouri, for shooting three Jews, one of whom died. He represented himself here, too. I had to meet with him for pretrial conferences, through steel bars, of course. I asked him if he would pick up where he left if he ever got out of prison. “Oh no,” he replied. I’d start killing queers. N*****s and Jews are bad enough, but it’s queers who are ruining this country now.” He is believed to have murdered 20 people in three years.
Digression over. So why all the fuss about lethal injection? Is it so “cruel and unusual” as to be unconstitutional — the standard that is supposed to be “ne plus ultra.” I’ll let you in on the dirty little secret of the brigades of pro bono ambulance chasers who consider it a moral imperative to keep psychopathic monsters alive. It’s not about the constitutionality of the death penalty or the method by which it is imposed. It’s about “the law’s delay.” It’s about the talismanic patchwork of repetitive reviews amounting to what then-Justice Lewis F. Powell called a “now familiar abuse of process.” It’s about preventing the law from taking its course by any available means. It’s about pity, misguided sympathy, and moral squeamishness. It’s not about justice.
Dr. Willard Gaylin, a psychiatrist, is the author of “The Killing of Bonnie Garland.” Bonnie was bludgeoned to death by a jilted boyfriend. She was just another victim
who . . .
“. . . in a time so short as to seem indecent to the members of the personal family . . . ceases to exist as an identifiable figure. To those individuals in the community of good will and empathy, warmth and compassion, only one of the key actors in the drama remains with whom to commiserate — and that is always the criminal. The dead person ceases to be a part of everyday reality, ceases to exist. She is only a figure in a historic event. We inevitably turn away from the past, toward the ongoing reality. And the ongoing reality is the criminal: trapped, anxious, now helpless, isolated, often badgered and bewildered. He usurps the compassion that is justly his victim’s due. He will steal his victim’s constituency along with her life.”
I do not dismiss the predicament of those on death row, or society’s. No one should be executed without a thorough and impartial review of the trial proceedings. I believe every state requires that a death sentence be reviewed by its supreme court. Then the federal gauntlet begins and it can take 25 years to run it. But Charles Guiteau was hanged 9 months and 11 days after the death of his victim, President James A. Garfield. Leon Csolgosz went to the electric chair 45 days after President William McKinley died. (I’m certain that the variance is accounted for by the fact that Guiteau was prosecuted in federal court, Csolgosz by the state of New York.) Has anyone ever seriously maintained that they were denied “due process of law” or suffered “cruel and unusual punishments?”
But in this enlightened age we have “evolving standards of human decency” to reckon with, and decisions of foreign and international courts. These have actually been referred to by our activist judges and justices, although not cited as controlling precedent. Retired Justice Sandra Day O’Connor recently had the gall to publish an article in “Parade Magazine” chiding the judiciary for interpreting laws that are clear on their face, applying personal standards and, in short, not being true to their own constitutional mandates. During her sorry tenure on the Supreme Court she was one of the most erratic, unpredictable, and subjective justices ever — and one of the worst mistakes President Ronald Reagan ever made. If Vegas bookies took bets on the outcome of Supreme Court cases some of them would have been driven to psychotic breaks trying to determine the odds on her opinions.
We live in a time when stratospheric thinkers, rigorous legal scholars, self-righteous lawyers, and humbug judges continue to wrestle with these weighty issues, while the leading cause of death on death rows throughout the United States remains . . . natural causes.