Death is different

Of the 193 United Nations countries, 106 of them have completely abolished capital punishment, while 56 have retained it. One of the 56 is the United States. Until this past summer, the federal government had not held an execution in 17 years. In July, however, the Trump administration initiated a slate of executions, wedging 10 deaths into the latter half of the final year of President Trump’s term, with three executions taking place after Election Day. 

On December 11, the Justice Department of Attorney General William Barr executed Alfred Bourgeois, sentenced to death for brutally murdering his two-year-old daughter in 2002 at the Naval Air Station in Corpus Christi, Texas. His lawyers claimed he was of low intelligence and had diminished mental capacity, which should have exempted him from the death penalty. The death was by lethal injection. He had been sentenced in 2004, making him a resident of death row for 16 years. Of the 55 death row inmates held by the federal government, 46 percent are Black. All federal executions are carried out at the Federal Correctional Institution at Terre Haute, Indiana, bounded by State Road 63 to the east and the Wabash River to the west. Guards, armed to the teeth, are at the portals. Its walls are fortified by barbed wire enclosure. This is where Alfred Bourgeois died.

Capital punishment is unpopular. Some legal scholars argue that it should be reserved for cases of genocide or mass murder or else abolished altogether. Beyond its inhumanity, the advent of DNA evidence has demonstrated the possibility of actual innocence.

President-elect Biden has said he is against capital punishment. Pope Francis says he opposes capital punishment. The United Kingdom finally abolished the death penalty in 1969. In human rights terms, it is a relic of a bygone era. Supreme Court Justice Stephen Breyer has questioned the death penalty as unconstitutional. So did the late Justice Ruth Bader Ginsburg. Justices Kagan and Sotomayor don’t like the death penalty very much either.

The newest Supreme Court Justice, Amy Coney Barrett, after testifying to the Senate that she is “pro-life” – life she defined as “beginning with conception and ending with natural death” – has already voted for capital punishment. The late Justice Antonin Scalia, another pro-life Catholic, for whom Barrett clerked, also believed in the death penalty. He liked to quote St. Paul, who said “vengeance is mine, saith the Lord” for the proposition that the state could morally exact God’s vengeance upon a convicted killer.  If it’s not in the Constitution, it’s always good for a judge to cite scripture for his purpose. 

The Constitution contains four provisions relevant to capital punishment. The Fifth and Fourteenth Amendments prohibit the deprivation of life by either the federal government or the states without “due process of law.” The Fifth Amendment also refers to indictment by a grand jury “for a capital or otherwise infamous crime.” The Eighth Amendment bans the infliction of “cruel and unusual punishments.” Does this mean “cruel and unusual by 18^th century standards or those of or today? A liberal justice of the Supreme Court might say that the country has evolved since 1791, and that capital punishment, now banned for many years in so many countries, has become both cruel and unusual.

An originalist conservative justice might hold that not only the text of the Constitution authorizes capital punishment, but that the original understanding of the society at the time of the Constitution was that capital punishment was neither “cruel” nor “unusual.” In the Puritan Massachusetts of 1791, if you kissed your wife in public on Sunday, they threw you into the stocks for a week. At the time, that was not considered cruel or unusual. Today, I wonder. Justice Scalia might have said of the law: “stupid but constitutional.”

Chief Justice Roberts, in the 2008 case of Baze v. Rees, stated what has become trite conservative dogma: “Capital punishment is constitutional. It therefore necessarily follows that there must be a means of carrying it out.” 

The problem is that human beings can be hard to kill. It took 20 minutes to kill Bourgeois with a prescribed dose of pentobarbital. There is no humane way to “carry it out.” How does it feel to die? Over the centuries, nations, under color of law, have tried on for size: the firing squad (Gary Gilmore, who inspired Norman Mailer’s “The Executioner’s Song”); beheading by sword or axe (two of the six wives of Henry VIII); the stake (Joan of Arc); the guillotine (Marie Antoinette); the rope (Israel hanged Adolph Eichmann; we hanged Mary Eugenia Surratt who harbored John Wilkes Booth at her boarding house); the electric chair (atomic spies Julius and Ethel Rosenberg); the gas chamber (Caryl Chessman, author of the memoir “Cell 2455 Death Row”); and what has become the means du jour of U.S. execution, lethal injection.

In the fullness of time, these methods have been regarded as horrifically cruel. Haggling over how to do it was so distasteful to Justice Harry Blackmun that he recoiled in horror from death penalty cases, writing in Callins v. Collins that, “I no longer shall tinker with the machinery of death.” 

Although the evidence was overwhelming, Bourgeois denied his guilt until the very end. His last words were: “I did not commit this crime.” Nothing like denial. 

Anthony Amsterdam, professor emeritus at NYU Law School, is famous for arguing death penalty cases before the Supreme Court. He convinced the Supreme Court in Furman v. Georgia to apply a degree of consistency in the application of the death penalty. When asked at oral argument whether he would favor the death penalty for Adolph Eichmann, responsible for the murder of millions of Jews, he paused, his face contorted in reflection, and responded, “Your Honor, death is different.” It’s a hard question to answer.

James D Zirin, a lawyer and former federal prosecutor, is the author of “Plaintiff in Chief-A Portrait of Donald Trump in 3500 Lawsuits.”