Is there ANYTHING unusual about the Death Penalty? (NY Times Article)

April 23, 2008
Op-Ed Contributor

Cruel and Unusual History



THE Supreme Court concluded last week, in a 7-2 ruling, that Kentucky’s three-drug method of execution by lethal injection does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. In his majority opinion, Chief Justice John Roberts cited a Supreme Court principle from a ruling in 1890 that defines cruelty as limited to punishments that “involve torture or a lingering death.”

But the court was wrong in the 19th century, an error that has infected its jurisprudence for more than 100 years. In this nation’s landmark capital punishment cases, the resultant executions were anything but free from torture and prolonged deaths.

The first of those landmark cases, the 1879 case of Wilkerson v. Utah, was cited by Justice Clarence Thomas, in his concurring opinion in the Kentucky case. The court “had no difficulty concluding that death by firing squad” did not amount to cruel and unusual punishment, Justice Thomas wrote.

Wallace Wilkerson might have begged to differ. Once the Supreme Court affirmed Utah’s right to eradicate him by rifle, Wilkerson was let into a jailyard where he declined to be blindfolded. A sheriff gave the command to fire and Wilkerson braced for the barrage. He moved just enough for the bullets to strike his arm and torso but not his heart.

“My God!” Wilkerson shrieked. “My God! They have missed!” More than 27 minutes passed as Wilkerson bled to death in front of astonished witnesses and a helpless doctor.

Just 11 years later, the Supreme Court heard the case of William Kemmler, who had been sentenced to death by electric chair in New York. The court, in affirming the state’s right to execute Kemmler, ruled that electrocution reduced substantial risks of pain or “a lingering death” when compared to executions by hanging. Kemmler, had he lived through the ensuing execution (and he nearly did), might too have disagreed.

After a thousand volts of current struck Kemmler on Aug. 6, 1890, the smell of burnt flesh permeated the room. He was still breathing. Saliva dripped from his mouth and down his beard as he gasped for air. Nauseated witnesses and a tearful sheriff fled the room as Kemmler’s coat burst into flames.

Another surge was applied, but minutes passed as the current built to a lethal voltage. Some witnesses thought Kemmler was about to regain consciousness, but eight long minutes later, he was pronounced dead.

Perhaps the most egregious case came to the court more than 50 years later. “Lucky” Willie Francis, as the press called him, was a stuttering 17-year-old from St. Martinville, La. In 1946, he walked away from the electric chair known as “Gruesome Gertie” when two executioners (an inmate and a guard) from the state penitentiary at Angola botched the wiring of the chair.

When the switch was thrown, Francis strained against the straps and began rocking and sliding in the chair, pleading with the sheriff and the executioners to halt the proceedings. “I am n-n-not dying!” he screamed. Gov. Jimmie Davis ordered Francis returned to the chair six days later.

Francis’ lawyers obtained a stay, and the case reached the Supreme Court. Justice Felix Frankfurter defined the teenager’s ordeal as an “innocent misadventure.” In the decision, Louisiana ex rel. Francis v. Resweber, the court held that “accidents happen for which no man is to blame,” and that such “an accident, with no suggestion of malevolence” did not violate the Constitution.

Fewer than 24 hours before Francis’ second scheduled execution, his lawyers tried to bring the case before the Supreme Court again. They had obtained affidavits from witnesses stating that the two executioners from Angola were, as one of the witnesses put it, “so drunk it would have been impossible for them to have known what they were doing.” Although the court rejected this last-minute appeal, it noted the “grave nature of the new allegations” and encouraged the lawyers to pursue the matter in state court first, as required by law.

Willie Francis was executed the next morning. Because his case never made it back to the Supreme Court, the ruling lingers, influencing the decisions of today’s justices. In his majority opinion last week, Chief Justice Roberts called Louisiana’s first attempt at executing Francis an “isolated mishap” that “while regrettable, does not suggest cruelty.”

Justice Clarence Thomas, writing separately, also mentioned the Francis case: “No one suggested that Louisiana was required to implement additional safeguards or alternative procedures in order to reduce the risk of a second malfunction.” In fact, Louisiana did just that. Two weeks after the botched execution of Willie Francis, its Legislature required that the operator of the electric chair “shall be a competent electrician who shall not have been previously convicted of a felony.” This law would have prohibited both executioners from participating in Francis’ failed execution.

The court’s majority opinion in the Willie Francis case acknowledged, “The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence.” Yet the Supreme Court continues to flout that standard.

In its ruling last week, the court once more ignored the consequences of its rulings for men like Wallace Wilkerson, William Kemmler and Willie Francis. The justices cited and applied Wilkerson’s and Kemmler’s cases as if their executions went off without a hitch.

And 60 years after two drunken executioners disregarded the tortured screams of a teenage boy named Willie Francis, the Supreme Court continues to do so.

Gilbert King is the author of “The Execution of Willie Francis: Race, Murder and the Search for Justice in the American South.”


            I read the op-ed piece from today’s New York Times with some sad bemusement.  So many so-called Civil-Libertarians in the United States waste so much time and ink writing about the Death Penalty.  I suppose it shocks the conscience of Americans that 50% of the death row inmates in Illinois were probably innocent about ten years ago when Governor Thompson commuted all death-penalty sentences to life.  But should it really shock the conscience of Americans only in death penalty cases?  One can only presume that Judges, Juries, and Prosecutors in death penalty cases are all aware that there is no more extreme punishment possible than death, but the stories from death penalty trials all over the country show that these trials are all mockeries of justice, inattention, and down-right nonchalance.

          So why do we care so much about the death penalty itself?  It’s the so-called system of criminal justice that’s hopelessly broken.  It’s the 99.99% of all cases which do NOT involve the death penalty that should really shock the conscience because, in a relative sense, the Judges, Prosecutors, and Juries in NON-death penalty cases clearly are even more nonchalant than they are when capital punishment is involved.  Prosecutors and judges talk about handing out 20-99 year sentences without a single thought of the cost/benefit to society of crime and punishment.  They are all just there on an assembly line, processing the meat and packing it out for storage in the cooler.  Believe me, I’ve been there and seen that.  I would ten thousand times rather die than spend 20 years in jail—what would be left of life when I got out?  But that’s what my good friend Moshe Leichner is facing, and he spent a cool million on his legal defense team, and they never once explained to him that they Federal government would have to prove that he lied and that people believed his lies and relied on those lies before he could be convicted of fraud.

          The police and jailers do their robotic and automaton jobs, and community colleges advertise that young people should “join the fast growing correctional services industry”.  Real, True Civil Libertarians should give up on the death penalty.  Real, True Murderers like Jeffrey Dahmer or Ted Bundy are hard men to cry for.  Real, True Civil Libertarians should cry for the fact that nobody has ever even asked the question of what percentage of the 99.99% of non-death penalty sentences are born by innocent people, or people who were “guilty” of unconstitutional crimes or unconstitutional prosecutions.  My own personal and admittedly not-very scientific pole in the Los Angeles Metropolitan Detention Center convinced me that, giving prosecutors all reasonable doubts, 85-90% of the people in Federal Custody are (1) neither a past, present, nor future danger to society, (2) wouldn’t hurt a flea (and never did in the past), (3) are either factually innocent of the crimes charged (about 40-50%) or were convicted of crimes which were defined unconstitutionally (35%) or else convicted by an incredibly unconstitutional process (50-60% again) or (obviously) some combination of one or more of these categories.


          THAT, my friends and fellow Americans, is the real tragedy.  There’s no money to be made off the death penalty—that’s why it’s so rare.  There’s LOTS of money to be made in the Federal-to-State Welfare (“revenue sharing”) program, and that’s why so many people are in jail.  The jails need to be torn down or converted into museums, housing projects, summer camps, warehouses, or factories.  Probably the ONLY penalty that should be preserved is in fact the death penalty, and juries should be very carefully instructed in the law and cost-benefits of convicting an innocent person. 


If juries were fully informed and judges were fair, (neither of which condition obtains today) then the death penalty could probably be imposed on the worst of all criminals (the Jeffrey Dahmers and Ted Bundys of the world—or perhaps the Bushes and the Cheneys), but all financial crimes should be resolved financially with careful accounting, and should create nothing more nor less than crushing debt and tracing of lost or stolen funds to avoid money laundering.  All victimless crimes should be abolished.  Breach of Public trust should probably be the highest of all crimes.  Domestic violence crimes should be given careful scrutiny, and should never be allowed to create litigation advantage in civil divorce or custody cases except in cases of real and genuine injury (smashed heads, broken bones, but not “I was so scared”). 


No punishment should ever be imposed except by a jury, and juries should be given free reign over the law and conscience of society.  Judges would then need to be truly master referees of trials and legal educators of juries, only this and nothing more.  Then American might have a chance of being the “land of the free and the home of the brave again”—only this and nothing more will ever suffice—to the cruel and unusual practice of imprisoning more than 1% of our population, we must say “quoth the raven, nevermore.”  The spectre watching over us today is too horrible, to loathsome—that people are led and taught to be afraid of crime and criminals, when what they need to be afraid of is the government.

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