From The New Republic / By Stephen Lurie
Prison cells don’t attract many spectators, but executions have always drawn crowds. Paradoxically, the names and identities of death row inmates only come to matter when their execution had been scheduled: from impending death we take a sudden interest in life.
Despite the incongruity, this isn’t all that surprising. Twenty-first century America is still susceptible to the time-honored spectacle of state-sanctioned death, even if much of the attention now scrutinizes, rather than cheers, the practice. Recently, there have been many stories typical of the current fascination with American capital punishment, most notably Ben Crair’s piece in this magazine and Jeffrey Stern’s in The Atlantic. Like other recent examinations of the death penalty, both accounts focus specifically on the act of execution by lethal injection; each covers botched executions and the question of cruel and unusual punishment in the death chamber itself. Stern’s story centers on the act and ramifications of Oklahoma inmate Clayton Lockett’s execution: A paramedic—and later, a physician—fail to find a vein in a dozen stabs into Lockett’s flesh so the execution can proceed. (Which it does, equally gruesomely.) Crair’s investigation deals with the national execution drug shortage—including Lockett’s experience along with many others—and highlights Ohio prisoner Joseph Wood’s story; his execution was so mishandled that he “gasped and snorted for one hour and 57 minutes… the longest execution in modern history.”
For Stern and Crair, as well as many human rights-minded activists and advocates, the death chamber is a potent and useful example of inhumanity. Other, newer abolitionists—like the legislators in Nebraska that voted to abolish the death penalty there last month—focus on the act of execution as well. While the death chamber is itself horrific, abolitionists would be remiss to ignore the more common punishment: the immense cruelty of a prisoner’s long wait for execution. The “death row phenomenon” and associated prison conditions cause significant psychological and physical harm; a so-called “death before dying” is both internationally condemned and domestically pervasive. If the end to capital punishment in the U.S. is based on concern for human beings—whether in a religious or moral sense—the reform movement must be concerned with the prison conditions left when death is not on the table.
Executions of any kind are exceedingly rare, so much so that death row itself appears to be the real punishment for the vast majority of inmates. There are just over 3,000 people awaiting execution in United States prisons. In 2013, the latest year for which the Bureau of Justice Statistics has data, there were 39 executions. That is just more than the 31 inmates who died before their scheduled executions; it is just less than the 44 death row convictions or sentences overturned that year.
It is not a short wait on death row, either. Since 1984, the time between an individual’s sentencing and their execution has almost tripled—from an average of six years to 15-plus years. In Delaware, the fastest state to execute, prisoners spend, on average, just over seven years on death row. Mark Pettigrew, writing in the Journal of Law and Criminal Justice last year, suggests we ought to shift our scrutiny accordingly: “Nearly forty years of experience affirm the notion that capital punishment does not always, or even in the majority of cases, or the majority of states, produce death (more people are killed each year by lightning…),” he writes. “Increasingly death row is the punishment.”
It is not just the time served, though, that makes these delays brutal. The specific qualities of a death sentence and its attendant prison conditions raise serious concerns.
The sentence itself generally gives rise to what is sometimes referred to as the “death row phenomenon” or “death row syndrome,” resulting in psychological illness and physical deterioration: depression, hallucination, delusion, weight loss, and susceptibility to physical illness. Prisoners on death row face unique existential stress from “living under an ever present sentence of death, with much of this time spent not knowing when the actual execution will take place.”1 This stress is exacerbated under the present circumstances, where executions might not be on schedule, and stays or drug shortages can result in quick cancellations (as Stern and Crair demonstrate). Numerous courts, including the Supreme Court of California and the Inter-American Court of Human Rights, have found that the wait for execution “terrorizes” prisoners and thus constitutes cruel, inhuman, and degrading treatment. Many inmates prefer death and volunteer for their own execution. Others don’t wait: The suicide rate on death row is at least six times higher than in the general prison population.
Given that death row is associated with the harshest conditions of confinement, this is hardly surprising. Pettigrew’s review of confinement for capital convicts, conducted over three years, found striking similarities across prison experiences. “Inmates on death rows across the United States are routinely incarcerated for 23 hours a day, or more,” he writes. “Shackled whenever they leave their cell, arbitrarily denied even the most basic services: showering, exercise, unspoiled food, psychological and medical care … access to education, self improvement, and work opportunities.”
Because solitary confinement is the de facto housing for American death row convicts, and because excruciating delays are par for the course, international observers have considered U.S. capital punishment inhumane enough to delegitimize its practice entirely.2 In his report to the UN General Assembly in 2012, Juan Méndez (the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or Punishment) suggested that the realities of imperfect executions and death row conditions almost unavoidably run afoul of the international prohibition against human mistreatment.3 “Solitary confinement, in combination with the foreknowledge of death and the uncertainty of whether or when an execution is to take place, contributes to the risk of serious and irreparable mental and physical harm and suffering to the inmate,” Méndez writes. “Solitary confinement used on death row is by definition prolonged and indefinite and thus constitutes cruel, inhuman or degrading treatment or punishment or even torture.” Though a recent and high profile indictment of America’s practice of execution, it’s not the first. In Soering v. United Kingdom (1989), the European Court of Human Rights unanimously blocked the extradition of Jens Soering to the United States, where he would be put on death row: The ruling rested not on capital punishment itself, but the likelihood that extradition would condemn Soering to face inhuman and degrading treatment awaiting his execution.
Nearly every prisoner faces an abrogation of his or her 8th Amendment protections against cruel and unusual punishment; only a small few face the added cruelty and indignity of a botched execution. What about the pain of a cramped concrete cell, of shackling and restraints, attempts at self-harm, inedible food, existential fear, depression, and deprivation of any human contact? If there is concern over fair treatment of human beings sentenced to death, it’s unwise, from a strategic standpoint, to continue ignoring the majority of their lives. Campaigns based on claims of cruel and unusual treatment would not rely on staying the execution of a single individual, but rest on the indefinite torture of thousands. That would be powerful.
Moreover, the instances of death penalty abolition that do not consider the background conditions for capital punishment invariably leave immense cruelty in its place. Nebraska’s legislation is typical in this regard: All death sentences become sentences of life imprisonment without the possibility of parole (LWOP). The de facto alternative for states that abolish the death penalty, LWOP actually retains many of the worst conditions of confinement described above, as well as still effectively sentencing the prisoner to death. It is in almost every way a death row, and as such is also an internationally condemned practice.
It’s for this reason that some, like Andrew Dilts, an assistant professor of political theory at Loyola Marymount University, refer to current forms of death penalty abolition as “death penalty replacement,” the same result but with the added effect that prisoners lose even more legal protections. As Dilts writes in the new volume Death and Other Penalties: Philosophy in a Time of Mass Incarceration, these alternative sentences appease the “almost fetishistic levels” of concern over execution while it “effectively deflects attention away from the moment of death, even though death is necessarily a part of the sentence.” In addition, whereas “the Court requires strict review of offender qualifications, strict procedural guidelines, extended appeals processes, and additional standards of heightened scrutiny … the same procedural and substantive protections are simply not applied” to life sentences. The result, ultimately, is simply a “dramatic reduction of appellate rights” for inmates that are still condemned to die; it’s a slower death with even less of a chance for redemption. While the conversion of these sentences might lessen some of the specific psychological traumas related to the death row phenomenon, it does not address the expected use of solitary confinement or other inhumane treatment. There is nothing in an execution-focused narrative that would lead to the transformation of these conditions: It might, rather, cement them as appropriate penal policy.
Only by focusing on the cruel and unusual conditions of death row right now would a movement take hold that addresses the fundamental abuses taking place under our system of capital punishment, and our carceral system as a whole. This way forward is essential, but it is not easy.
While the Supreme Court has taken up the question of cruel and unusual executions on multiple occasions—including the pending pharmacological matters in Glossip v. Gross—it has repeatedly declined to hear cases on the constitutionality of prolonged delays on death row. In 2011, the court denied Manuel Valle’s petition for a stay of execution on this basis; after 33 years on death row, Valle was executed. In March, it denied a petition by Lester Bower Jr.’s on similar grounds; he was executed on June 3rd.
It is possible the court will become receptive to constitutional claims about confinement—as it did in Brown v. Plata, finding that California’s prison overcrowding violated the Eighth Amendment—but hopes for reform should not be hung on their word. In the state’s punitive mind, for now, the labeling of a convict as a capital offender symbolically forfeits his right to fair treatment. Successful campaigns for abolition tend to do the same, eschewing broader indictments of the prison system, and continuing to impose LWOP as a supposedly more humane substitute.
But all of these wayward precedents do tend to point toward a weakness: There is a general queasiness about the infliction of pain on inmates, regardless of their crime. If the American public’s comfort with capital punishment ends when it is cruel and unusual—when drug cocktails or decades in prison inflict pain on an inmate—then death row, not the death chamber, might be the most potent motive for popular and legislative abolition campaigns, ones that demand more than a slightly lesser evil. We can use death, as we have already, to look at life anew; from a familiar obsession with the end can come a chance for a radically different beginning.
1 As it happens, the same type of threat is condemned by the Senate Intelligence Committee’s report on CIA torture.
2 While both domestic and international law allow for the practice of capital punishment in theory, both contain provisions about the cruel and unusual treatment of individuals that entertain those moral questions when it comes to actual practice.
3 I assisted in researching this report.