In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Capital Punishment and Extreme Mental Torture

The death penalty, the Supreme Court claims, is an act of retribution; so whatever suffering the condemned endure is part of the price they pay for their crimes. Punishment, after all, is meant to inflict pain. And while the Court disapproves of any form of physical abuse of prisoners (such as beatings, prolonged sleep deprivation, or withholding food and water or necessary medications), thus far it has ignored mental suffering endured by men and women condemned to death. In the Court's reasoning, even though life sentences without parole are available, only a "death for a death" will do. In Gregg, the Court says: "Retribution is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." And, as I noted in my letter to Pope John Paul II, the U.S. Supreme Court has ruled that killing human beings is not an assault on their dignity. Thus, by legalizing premeditated homicide, the Supreme Court legalizes torture. Morally speaking, this is dangerous, for it presupposes that a system of justice can in all cases identify the truly guilty with a degree of certainty that, we know, cannot be obtained. This ruling also seems oblivious to the corrosive effects on the souls of those who carry out the killings. "Afterward, when I get home I sit up in my La-Z-Boy chair the rest of the night. I can't sleep, can't eat," Major Kendall Coody told me after participating in his fifth execution in the Louisiana death chamber. And his participation in the killings wasn't even direct. After prisoners were executed, his job was to collect their personal belongings to send to their families. 

When the Abu Ghraib scandal first broke, government officials tried to confine blame to a few rogue soldiers, but inquiries revealed that the soldiers were working within a climate of abuse that had raised questions all the way up to the White House. Memos documented that government officials first sought legal advice before ordering torture tactics against terrorist suspects. The question of Pentagon and Defense Department officials to their lawyers is shocking in its callous simplicity: "The Geneva Conventions prohibit us from torturing or humiliating prisoners of war; how might we legally circumvent those prohibitions so we can inflict pain on detainees during interrogation and not be held legally accountable?" The response was to replace the designation "prisoners of war" with "enemy combatants."

"Prisoners of war" have human rights protected by international agreements. There is little consensus on the legal rights, if any, of "enemy combatants." Terrorist suspects detained in U.S. bases in Afghanistan, Guantanamo Bay, Cuba, and in Abu Ghraib and other bases in Iraq may be held indefinitely with-out charge and without legal counsel as long as their captors see fit.' International human rights groups have been barred from the camps. As of June 2004, more than five thousand foreign nationalists have been jailed and stripped of their civil liberties in the United States, Guantanamo, or Iraq since September 11, in anti-terrorism "prevention detention" measures. Military intelligence officers told the Red Cross that 70-90 percent of the people locked up in Iraq have been arrested by mistake. 

Torture was legalized under Nazi Germany's Nuremberg Laws, which "redefined" Jews as non-citizens and non-human. By the same legal logic, the Louisiana Legislature legalized cockfighting by designating roosters as "fowl," not "animals," thus circumventing the state's prohibition against cruelty to animals.' 

President Bush's legal counsel, Alberto Gonzales, remarked that the nature of the war on terror "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint [italics added] some of its provisions." Gonzales, you may recall, gave legal guidance to Governor Bush, who dispatched 152 persons to the Texas death chamber. 

But the Pentagon's list of approved "stress and duress" interrogation techniques, which includes throwing suspects against walls, hooding them, depriving them of sleep for days at a time, and binding them in painful positions, forbids "extreme" mental torture, such as "threatening detainees with immediate death." (italics added) 

The Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (wording from Article 5 of the UN Universal Declaration of Human Rights), which has been ratified by the U.S. Senate, holds us to a higher standard of moral con-duct than we have been able to achieve on our own. By signing on to the Convention Against Torture, we have committed ourselves never to engage in "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted." 

The concept of severe "mental" suffering is revolutionary. It reveals an "evolving standard of decency" of human rights never before embraced by the United States. With these words, the United States Supreme Court and its people face a new reality about the death penalty: There is simply no way that we are ever going to figure out how to preordain the killing of a human being without inflicting severe mental suffering. 

The defenselessness of persons under the control of their captors is central to understanding torture. If someone can resist an aggressor, we don't call it torture. It is the defenselessness of the victim that makes us loathe torturers and cringe when we see the photographs of our soldiers smiling and giving a thumbs-up at the plight of suffering Iraqi 'prisoners. 

I was glad when the Supreme Court consulted the wisdom and experience of the world community in Atkins and ruled that executing mentally retarded persons is an act of cruelty. Most of our democratic allies stopped killing mentally handicapped persons long ago, though Justice Scalia, as we have seen, dissented in Atkins, scornfully refusing to consider international moral standards of cruelty. "[Other countries'] notions of justice are (thankfully) not always those of our people," he said. 

Sister Helen Prejean
Sister Helen Prejean
I wonder what the Framers of the Constitution would think of how the United States holds on to the death penalty while so many of our allies have abandoned it over the last fifty years. The Framers wrote the best Constitution they could, incorporating the best ideas and values from other countries. They very much wanted the new Republic to stand tall among other nations in its respect for the human person against the massive powers of the state. I think they would be appalled by the way constitutional protections of defendants have been ignored or abused in the administration of the death penalty. In the absence of those protections, they would not be surprised that so many innocents have been caught up in the system. I think they'd be shocked at the legalistic quagmire the courts have created and immensely saddened by the Supreme Court's heavy emphasis on procedure over law. With long-term imprisonment available, as it was not in their day, they'd be quick to see that capital punishment was no longer necessary or desirable. And I think they'd take Senate ratification of the UN Convention Against Torture very seriously, embracing its prohibition against mental and physical cruelty. I can see them proudly holding high the United Nations Universal Declaration of Human Rights on which the torture convention was based.

The execution chamber in Central Prison, Raleigh, North Carolina, is airtight. A wooden chair with a high back, armrests, and footrest is mounted against the chamber's back wall. Under the chair a metal container contains cyanide, and under the cylinder is a metal canister filled with a sulfuric acid solution. When executioners turn three keys in the control room, an electric switch causes the bottom of the cyanide container to open, dropping the cyanide into the acid, which produces the lethal gas. A heart monitor, which can be read in the control room, is attached to the chest of the condemned. After the warden pronounces the prisoner dead, ammonia is pumped into the chamber to neutralize the gas, and exhaust fans pump the inert fumes from the chamber. Members of the prison staff then enter the chamber and remove the body for release to the county medical examiner. Leather belts, strapped across chest, arms, and legs, affix the condemned to the chair, and a leather mask with small holes near the nose and mouth is attached to the face. 

In 1983, the General Assembly of North Carolina gave the condemned the option to choose death by lethal injection. Under this provision, the warden must be notified in writing by the condemned at least five days before the execution that he or she would prefer death by lethal injection. 

David Lawson chose to die in the gas chamber. He said he wanted the people of North Carolina to know they were killing a man. He tried to have his execution videotaped and broadcast, but state and federal courts denied his request, arguing that he did. not have a constitutional right to make his death public. 

In a last appeal to the U.S. Supreme Court, David Lawson's lawyers requested a stay of execution, arguing that execution by gas was a form of cruel punishment and in violation of the Eighth Amendment, but the Court refused to hear the petition.

On June 15, 1994, David Lawson was killed by the state of North Carolina for the murder of Wayne Shinn, whom he had shot during a burglary in 1980. It took thirteen minutes for the gas to kill him. 

Lawson, wearing only socks and boxer shorts over a diaper, sat in the chair and watched as guards strapped his chest, arms, and legs to the chair and hooked up an electrode over his heart. Guards then placed a leather mask over his face. Soon after 2:00 a.m., the cyanide was dropped into the acid and the lethal fumes began to rise. Lawson, choking and gasping and straining against the straps, took short breaths and cried out, "I am human. I am a human being." He pushed up on his feet and kicked his legs. His hands gripped the ends of the armrests. Drool and tears slid from under the mask. A few deep breaths of the gas would have killed him sooner, but David Lawson continued to take short breaths and despite paroxysms of choking cried out until his voice was but a whisper: "I . . . am . . . a human . . . being."

➤ Excerpted from The Death of Innocents, An Eyewitness Account of Wrongful Executions, Sister Helen Prejean, Vintage Books, 2006. Sister Helen Prejean is the author of Dead Man Walking. She travels extensively, giving, on average, 140 lectures a year, seeking to ignite public discourse on the death penalty. She is a member of the Sisters of St. Joseph of Médaille and lives in Louisiana. (NB: Commercial links provided for information purpose only.)

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