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Concerns, contradictions and the continued use of the death penalty in the U.S.

383356 17: The execution bed sits empty on Death Row April 25, 1997 at Texas Death Row in Huntsville, Texas. About 450 prisoners are on the Row. Texas has the most executions in the US each year. The inmates are executed by lethal injection. (Photo by Per-Anders Pettersson/Liaison)
383356 17: The execution bed sits empty on Death Row April 25, 1997 at Texas Death Row in Huntsville, Texas. About 450 prisoners are on the Row. Texas has the most executions in the US each year. The inmates are executed by lethal injection. (Photo by Per-Anders Pettersson/Liaison)

States botched one-third of all executions last year.

“They have difficulties getting a vein, they have difficulties finding the drugs, etc.,” Elizabeth Bruenig, staff writer at the Atlantic, says.

“And then they have difficulties getting the drugs into the individual. So, I think these botches are pretty common.”

Yet, the total number of executions remained low, and 60% of Americans still support capital punishment.

78% of Americans say that there is a risk of executing innocent people and yet they still support the death penalty,” Bruenig says. “So, there is obviously an attachment to it.”

But for those who support the death penalty – is it working how it’s intended?

“It doesn’t necessarily punish the worst of the worst it tends to punish the poorest of the poor and the sickest of the sick,” Bruenig says. “Even then the state can’t really be trusted to carry it out all that safely and accurately.”

Today, On Point: Concerns, contradictions and the continued use of the death penalty in the United States.

Guests

Elizabeth Bruenig, staff writer at the Atlantic. (@ebruenig)

Robert Blecker, professor emeritus at New York Law School. Author of The Death of Punishment: Searching for Justice Among the Worst of the Worst. (@RobertBlecker)

Also Featured

Dee Smith, wife of Kenneth Eugene Smith, whose execution was called off in Alabama.

Transcript: Highlights from the show’s open

DEE SMITH: We said our goodbyes and, you know, hugged and we hoped it wasn’t our last, but we expected it to be our last.

MEGHNA CHAKRABARTI: Dee Smith is married to Kenneth Eugene Smith, a prisoner in Alabama. Kenneth Eugene Smith was found guilty of carrying out a murder for hire in 1988. He has been on death row for the last 30-plus years. The 57-year-old was scheduled to be executed by lethal injection at the William C. Holman Correctional Facility at 6 p.m. on November 17th, 2022. For Dee, it was the longest and hardest day of her life.

SMITH: I was really trying not to think about losing him, you know, because I knew the hardest part was yet to come. I knew at that point, you know, like once I got to the point of actually being there to witness, it was, you know, I didn’t know how I was going to hold it together. I mean, he was my best friend.

CHAKRABARTI: Dee visited Smith for hours that day at the prison. They shared his last meal together, fish and chips, and even talked on the phone right before he was brought to the execution chamber later that evening. Dee and other family members were due to be picked up by the prison staff and brought to the witness room for the execution. But the call never came. They just waited and waited and waited.

SMITH: You know, that’s all I could think about was them killing him without us being there, him being alone. It wasn’t until after the fact that we found out what really happened.

CHAKRABARTI: In 1989, Kenneth Eugene Smith was convicted in the murder for hire killing of Elizabeth Sennett. Reverend Charles Sennett was deep in debt and wanted to collect his wife’s life insurance. He hired Smith and a friend, John Forrest Parker. They were each paid $1,000 to kill Elizabeth. Smith was 22 years old at the time and a father of four. He accepted the job.

On March 18th, 1988, Smith and Parker staged a robbery inside Elizabeth Sennett’s home. They beat and stabbed the 45-year-old woman to death. At trial, Smith admitted to being an active participant in the planning and carrying out of the robbery, but he denied beating or stabbing Elizabeth. He was convicted and sentenced to death. Smith’s conviction, though, was overturned in 1992. He was retried and convicted again in 1996.

But in that trial, the jury recommended a life sentence in an 11 to 1 vote. However, the judge overrode that recommendation and put Smith back on death row. His coconspirator, John Forrest Parker, was executed in 2010. And Reverend Charles Sennett, the man who ordered the hit on his wife, he killed himself less than a week after her murder. Kenneth Eugene Smith has been awaiting execution for more than 30 years. And it was in that time when he met Dee. They were introduced by a mutual friend and became pen pals six years ago.

SMITH: It was like just finding my other half, you know. I mean, it sounds crazy, but my heart knew he was the one.

CHAKRABARTI: They spoke on the phone almost every day. A couple of years ago, Dee moved from the Midwest to Alabama to be closer to the prison where Smith is incarcerated. And in December of 2021, they got married. Dee knew Smith was on death row, but she says she wanted to be with him for as long as she could.

SMITH: Through our relationship, from the beginning, we’ve always tried to hold on to hope. We’ve always tried to live in the present, you know, And we don’t want that joy to be taken away. The good memories, you know, and we’ve always strived for that.

CHAKRABARTI: Smith was scheduled to die on November 17th, 2022, at 8 p.m., he was taken to the execution chamber.

SMITH: You know, he was stabbed down to a gurney, you know, and they kind of just left him there, you know, not knowing. All I could think about was, okay, any minute now they’re coming. And I feel that I have to be there, have to be strong for my family, You know, sitting there consciously waiting for his own death.

CHAKRABARTI: Waiting because earlier that same evening, the United States 11th Circuit Court of Appeals had stayed Smith’s execution. But moments later, the United States Supreme Court vacated the stay 6 to 3. So by 10 p.m., Smith’s legal options were gone and procedures for the lethal injection began.

SMITH: They just come in and start poking and prodding, you know, using him as a human pincushion. You know, poke around, look for a suitable vein in his arms, his feet. They got one into one of his arms, but they were having a hard time getting the second one in. And they attempted to insert needles into his neck. And, you know, that’s when they finally ended up ending it. And that was at 11:30, at midnight when they called to say they didn’t have enough time to proceed with the execution.

CHAKRABARTI: Specifically, Alabama Department of Corrections Commissioner John Hamm said, quote, At about 11:21, we decided we would not be able to finish that protocol before the midnight hour when the death warrant expired, end of quote.

Though the execution had failed, Alabama Governor Kay Ivey said in a statement, quote, Some three decades ago, a promise was made to the victim’s family that justice would be served, although that justice could not be carried out tonight because of last minute legal attempts to delay or cancel the execution, attempting it was the right thing to do. End quote.

Smith was returned to his cell. Dee had no idea the execution had been botched until she spoke with him later that night.

SMITH: At one point he even told them, like, you’re not in the vein. And the guy is like, Yes, you are. I mean, they were hitting muscle. I mean, it was like they had no idea what they were doing. I’m sorry, but an hour to put an I.V. in, you go into the hospital, you’re not going to sit there and let somebody poke and prod at you for an hour to put an I.V. in. I mean, that’s not going to happen. Nobody in their right minds can do that.

SMITH: Smith’s execution wasn’t the first in Alabama to go wrong. In fact, his legal team had argued that he should be sentenced to life in prison precisely because the state had recently botched two other executions via lethal injection.

SMITH: Could have been prevented. They knew that there was issues. You know, we tried to tell them, we went to the courts. We said, there’s these problems. This has happened two times already. Even though they botched those executions, they didn’t stop to fix the issues. You know, they rushed. They proceeded to take my husband’s life. You know, their only concern was he was going to die, and they were going to make sure it happened by any means necessary.

CHAKRABARTI: We reached out to the Alabama Department of Corrections and the governor’s office for comment. Neither responded. However, here’s the state attorney general, Steve Marshall, at a press conference following Smith’s failed execution.

STEVE MARSHALL: What occurred on November 17th was a travesty. It was a travesty of justice, not for Kenny Smith, the twice convicted murderer who was scheduled to be executed that day. But it was for Elizabeth Sennett and for the members of her family. 35 years. That’s how long Elizabeth and its family waited for justice to occur. 35 long years.

CHAKRABARTI: The Alabama governor’s office has since suspended all executions while the Department of Corrections completes a, quote, top to bottom review of the state’s execution procedures. That review is ongoing. Kenneth Eugene Smith remains on death row.

Now, botched executions are not new. In fact, there were so many last year that 2022 has been called by some as the year of botched executions. However, what may be new is the fact that even in light of failed executions, a majority of Americans continue to support the death penalty, approximately 60%, according to recent surveys. However, that gets complicated, based on how you ask the question.

And with the knowledge that most Americans also acknowledge that execution attempts can go wrong, that innocent people may face the death penalty, and the racial disparities in who is given the death sentence. So it’s that conflict that we’re trying to understand today, especially in places such as Alabama and other states, because they are turning to a different means of execution now, lethal gas.

Interview Highlights

How common have botched executions become inside of Alabama and in other states?

Elizabeth Bruenig: “In Alabama, the last three executions that they have attempted consecutively have all been botched. But the week that Kenny Smith was set to be executed, November 17, 2022, that very week, there were several other individuals scheduled for execution. Three, I believe, in the United States. And a couple of those executions, all three of those were completed successfully, meaning they did kill the prisoners.

“In two out of three of those cases, there was difficulty setting a line. Setting an IV line seems to be something that lethal injection teams all over the United States struggle with. There have been botched executions before. One was in Alabama involving Doyle Lee Hamm, where authorities attempted to set a line for hours and failed and had eventually it was revealed, pierced his bladder even in that process. So this does happen. It is somewhat common.”

On what’s going on during botched executions, and the execution of Joe Nathan James Jr. 

Elizabeth Bruenig: “Joe Nathan James Jr. was executed in the state of Alabama July 28. It took 3 hours. He showed no signs of consciousness during his execution. Usually, a person who is being executed is read their death warrant, offered the opportunity for last words. Joe Nathan James reportedly said nothing and it’s unclear if his eyes were even opened during this period. The state has never been able to confirm that he was conscious during his execution.

“This is extremely unusual, and it raised the question of why. And so some folks who were working with me set up a second autopsy, an independent autopsy for Mr. James before he could be buried. And we got a look at his body and what had happened, it appears to have been that the state attempted to set lines, set I.V. lines in his hands, in his foot, in his arms, you know, possibly multiple times and failed.

“This is based on bruising sites as seen around the punctures. And then it appears they just started cutting into his arm with a sharp instrument. There are several lacerations that were created by some kind of knife, and it appears they attempted but failed. Something along the lines of a vein is cut down, when the arm or part of the body is cut into so that the skin can be pushed back and a vein can be located visibly with the naked eye. That appears to be what has happened to Joe Nathan James.”

On what happens inside execution chambers

Elizabeth Bruenig: “We have no idea what happens inside execution chambers because those folks are all protected by secrecy, that’s enforced by the state. We don’t even know who they are, what their qualifications are to be working back there. But my reporting suggests they’re local paramedics. And in that case, you know, they’re just not trained to be doing this. And it’s more and more common that as the death penalty becomes more and more associated with these sorts of archaic forms of torture and execution of the past, doctors and medical professionals don’t want anything to do with it.

“So the few doctors and medical professionals who will take on execution work probably are not well trained. Likely they don’t have a specialty where they’re putting needles in veins every day. Or maybe it’s been a long time, and perhaps they went to medical school before ultrasound was in common use because you can purchase an ultrasound machine on Amazon. It’s not that the Alabama Department of Corrections can’t access one. It appears to be that they would know how to use it.”

On American support for the death penalty

“The poll question is faulty as a measuring device. It’s faulty as a moral measuring device. It fundamentally distorts public opinion. Since I think 1937, the Gallup poll and now the leading poll, the Pew poll asked the same question. The question is, do you support the death penalty for someone convicted of murder? Well, I gave up tenure as a law professor. I surrendered a guaranteed income in one of the world’s great jobs to keep my promise to a number of convicted murderers to amplify their voices.

“I spent thousands of hours inside maximum security prisons and on death rows, probing their lives, probing their attitudes. And I know now, without any doubt, that circumstances can conspire to produce murder and murderers who still have years later after prison, much to offer us, who are vital, vibrant, smart, compassionate, wise, with a refined sense of justice. I’ve probed their lives.

“So, I mean, I sound now like an opponent of the death penalty, and yet I’m not. I mean, after decades documenting that daily life, I’m convinced to a moral certainty that the majority of those who committed, and stand convicted of murder do not deserve to die. And yet … I also feel morally convinced, along with 60% of Americans, that some people do deserve to die, that they’re so evil, they’re so heinous, they’re so despicable, they’re so cruel. So the only right answer to the question as asked, do you support the death penalty for someone convicted of murder? Is, it depends.

“But if forced to answer yes or no to that question, do you generally support the death penalty for someone convicted of murder? I guess it has to be, no. And yet again, the worst of the worst of the worst. I’m convinced and it’s irrelevant what I’m convinced of, a majority of Americans, a majority of the world, by the way, an overwhelming majority is convinced that the worst of the worst of the worst really have forfeited their right to live, really do deserve to die. And that’s why you get the support, not because of deterrence.

“I mean, the same studies that you’re citing, the study, the Pew study, indicates not only that a majority thinks that we risk executing the innocent, but that deterrence is not a major issue for them, that it does not effectively deter. Of course, that’s not really the question. The question is not does the death penalty deter? Because of course it does, but not perfectly. But so does life without parole and not perfectly. The question is, does it have a marginally better, more effective deterrent effect than its principal alternative life without parole?

“For those of us who seek justice, that’s irrelevant. Because if we use deterrence as the basis for supporting the death penalty and happily fewer and fewer Americans do these days, then we’re signing on to using a person as a means to our own ends. We’re engaging in a cost benefit analysis and we’re saying kill X so that Y doesn’t do something else in the future. And that’s not moral.”

Should the death penalty be reserved for the absolute worst of the worst?

Elizabeth Bruenig: “We can only know the absolute worst criminals in retrospect. So we would sort of have to wait for human history to end, wrap it up, and then name a list of like the top 100 people who needed to die, because only then could we compare all the crimes and see which ones were really the worst of the worst. Second, I just would emphasize again, it doesn’t really have to do with the type of crime you committed because you can commit that crime in a certain state and not get death and commit that crime just ten miles over the state line and get death.

“So this is really not about who commits the worst crime. The people who get death are not Americans who commit the worst crimes necessarily. They are Americans who are in areas where prosecutors want to hand down capital sentences and have the resources to defend them, like in Harris County, where Houston is in Texas. In more rural areas, oftentimes prosecutors just don’t have the resources to defend a years-long capital sentence, and they just won’t get involved. They just give down. They give up. Juries like it. It’s reversible. You can always let the guy out if it turns out he was innocent. And, you know, in the more fundamental question, I don’t believe in killing. I don’t believe in taking human life unless there’s absolutely no other way possible to keep people safe.”

Are you saying that that you don’t think there’s even agreement right now amongst the most irredeemable murderers in the country?

Elizabeth Bruenig: “Of course there’s not, Nikolas Cruz did not, in fact, receive a death sentence because there was a non-unanimous jury. And so where someone sees the absolute worst of the worst, the most sadistic, heinous, inhuman killer, another person says, yes, that’s correct. They have real serious problems. They’re inhuman and sadistic. There’s something wrong with them. There is a problem there. They never had a chance.

“And that seems to be what the jurors determined, who voted against death in Nicholas Cruz’s case. But there’s a huge amount of conflicting feeling about this in the United States, because people have conflicting feelings about mental and emotional health and what role those should play in mitigation. But obviously, some jurors were persuaded, even in Nicholas Cruz’s case.”

Related Reading

The Atlantic: “Alabama Makes Plans to Gas Its Prisoners” — “The constitutional right whose protections lie nearest to the skin, flesh, and blood of each American citizen is the Eighth Amendment—the constraint on the government’s ability to punish us in cruel and unusual ways.”

The Atlantic: “A History of Violence” — “Critics called 2022 ‘the year of the botched execution’—and it was indeed an infamous period, mainly because the state of Alabama lost the ability to competently kill prisoners in its charge while retaining the sovereignty to try.”

New York Times: “If Not the Parkland Shooter, Who Is the Death Penalty For?” — “A Florida jury’s recommendation this month that Nikolas Cruz, who murdered 17 students and teachers in Parkland in 2018, be spared execution produced great anguish and anger in many of the victims’ families.”

This article was originally published on WBUR.org.

Copyright 2023 NPR. To see more, visit https://www.npr.org.