Capital punishment in the United States is often considered in terms of its constitutional vulnerability. Does it violate the Eighth Amendment’s prohibition on cruel and unusual punishment? Is the delay in the appeal and post-conviction remedy process cruel and unusual? Are condemned inmates provided with adequate representation during capital trials? Is the death penalty evenly applied? These are some of the legal issues at the heart of longstanding legal debates over our use of capital punishment.
But on a more practical level, any debate over the efficacy of the death penalty should also include a discussion of the enormous psychological toll capital punishment takes on jurors, Justices, Governors, and even executioners. These individuals have been speaking out with greater force recently about how it feels when the responsibility of taking the life of another person falls on the shoulders of an individual.
Perhaps that is what Justice John Paul Stevens (Retired) had in mind when he stated last year:
I really think that in regard to the death penalty . . . I’m not sure that the democratic process won’t provide the answers sooner than the court does, because I do think there is a significantly growing appreciation of the basic imbalance in cost-per-person benefit analysis. And the application of the death penalty does a lot of harm, and does really very little good.
Jurors, who must decide whether a defendant should live or die, have to live with their decisions for the rest of their lives. Clinical social worker Janvier Slick has debriefed and counseled juries following traumatic trials since 1999, including jurors in death penalty cases. Slick has concluded that “[j]urors are unrecognized victims of the death penalty. In Slick’s view:
An important strength of the American legal system is the gravity with which jurors view their charge to reach a decision based on the information presented; however, this is also one of the most difficult parts of being a juror. . . . Defense and prosecution attorneys complicate this struggle by doing their best to personalize both defendant and victim so that jurors emotionally connect with each of them. Witnesses may characterize the defendant as son, husband, parent and highlight positive things he’s done. Photos of the victim and statements of family members bring the victim’s presence into the courtroom.
She adds that for some jurors, the experience of having to decide whether another person should live or die “results in a variety of symptoms related to post-traumatic stress, and the problems may remain with them for a long time. Further, the trauma is not mitigated and may even be exacerbated when the defendant’s execution occurs.”
Data from the Capital Jury Project, which interviewed 1,200 jurors from 353 capital trials, confirm Slick’s findings. The study revealed that 62.5 percent of female jurors and 37.5 percent of male jurors had sought counseling after sitting on a capital trial. Eighty-one percent of female jurors and 18 percent of male jurors regretted the decisions made in their cases. Michael E. Antonio, Stress and the Capital Jury: How Male and Female Jurors React to Serving on a Murder Trial.
Consider comments made recently by the jury foreman in the Jodi Arias case in Arizona, where jurors deadlocked over whether she should be sentenced to death. Jury Foreman William Zervakos described a deliberations room “full of tears and spinning moral compasses as each juror struggled to come to grips with their own beliefs about what factors—including Arias’ young age at the time of the killing and her lack of criminal history—should cause them to show mercy and spare her life.”
In another recent interview, Robert Nesselrode, a juror from an Arizona death penalty trial that took place over 40 years ago, stated that he has empathy for the Arias jury because such a decision is “gut-wrenching.” Nesselrode was on a jury that had to decide the fate of a 16-year-old accused of starting a fire at a Tuscon hotel in 1970 that killed 29 people. After a six-week trial, the jury returned a guilty verdict. Even though the jury voted for a sentence of life in prison rather than the death penalty, he still finds it difficult to talk about over 40 years later.
Slick concludes that jurors “are unconsidered casualties in death penalty cases. The impact the death penalty has on them in the immediate and long term should be included in any consideration of ending it.”
Once a condemned inmate’s state conviction and sentence are affirmed on appeal and he has been denied relief on his post-conviction remedies, there is generally an eleventh hour request for a stay of execution from the U.S. Supreme Court. While condemned inmates typically request review by the high court at a few different points during the appeals process, the last-minute requests for a stay of execution often have a sense of gravity about them because the inmate’s execution is scheduled to be carried out immediately if their stay is denied. Whether the execution goes forward falls, one last time, to the votes of the nine justices.
Justice Ruth Bader Ginsburg said recently that dealing with eve-of-execution stay applications is “hardest part of the job I do,” and that death penalty decisions are a “dreadful part of the business.”
“People who are well represented at trial do not get the death penalty,” said Justice Ginsburg. “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.” If she had her way, “there would be no death penalty.”
Justice Ginsburg is not alone. A number of U.S. Supreme Court Justices have spoken publicly about their opposition to the death penalty. As jurists who combined have spent many decades analyzing and developing death penalty jurisprudence, it is interesting to hear their views on the death penalty and examine the ways some have evolved over time. Like many of the capital jurors interviewed as part of the Capital Jury Project, who stated that they often “regretted” the life and death decisions they made as jurors, some Supreme Court justices have also looked back with regret.
Justice Lewis F. Powell, who voted in favor of upholding the death penalty in and Furman v. Georgia and McClesky v. Kemp said in 1991 that he had “come to think that capital punishment should be abolished,” because, he added, “it serves no purpose.” See John Calvin Jeffries, Justice Lewis F. Powell: A Biography.
Similarly, after three decades and over 1,000 executions following the Court’s decision in Gregg v. Georgia (1976), which reinstated the death penalty and in which Justice Stevens voted with the majority, he has had a change of heart. In his concurring opinion in Baze v. Rees (2008), he wrote that he had come to believe that the death penalty was unconstitutional. In a later essay published in The New York Review of Books, he explained that, “Arbitrariness in the imposition of the death penalty is exactly the type of thing the Constitution prohibits, as Justice Lewis Powell, Justice Potter Stewart, and I explained in our joint opinion in Gregg v. Georgia (1976).”
In 2001, Justice Sandra Day O’Connor (Retired) added her voice to the “growing chorus of skepticism about the administration of capital punishment in the United States.” According to Justice O’Connor, “More often than we want to recognize, some innocent defendants have been convicted and sentenced to death,” and “If statistics are any indication, the system may well be allowing some innocent defendants to be executed.” In a speech to the Minnesota Women Lawyers earlier that year, she remarked that with Minnesota having no death penalty, “You must breathe a big sigh of relief every day.”
Justice O’Connor’s words demonstrate the heavy weight of the decision the justices are charged with reaching in capital cases, and the corresponding “big sigh of relief” that would come with never having to worry about reaching a wrong decision that resulted in the execution of an innocent person.
The last hope a condemned inmate has is for a grant of clemency by the Governor. Governors from death penalty states all over the country have expressed the agony they experience in deciding whether to grant clemency to a person who is about to be executed. California Gov. Edmund “Pat” Brown, who oversaw 36 executions and granted clemency in 23 other cases between 1959 and 1967, recounted the heavy personal toll capital punishment exacted on him in his eloquent and impassioned book, Public Justice, Private Mercy. In the end, he explained:
I am eighty-three years old as I write these words. I’ve done many things during my life that have given me a great deal of pleasure and pride, and a few things that I’d either like to forget or have another chance at. But the longer I live, the larger loom those fifty-nine decisions about justice and mercy that I had to make as governor. They didn’t make me feel godlike then: far from it; I felt just the opposite. It was an awesome, ultimate power over the lives of others that no person or government should have, or crave. And looking back over their names and files now, despite the horrible crimes and the catalog of human weaknesses they comprise, I realize that each decision took something out of me that nothing—not family or work or hope for the future—has ever been able to replace.
That was in 1989, when there were 230 men on death row in California. There are now over 730. While California voters declined to repeal the death penalty, six other states in the last six years have done so, often based—at least in part—on leadership from their own Governor’s office.
In 1986, Gov. Toney Anaya of New Mexico issued a broad grant of clemency to all death row inmates in the state and commuted their sentences to life imprisonment based on his conclusion that the death penalty was costly and ineffective. Thirteen years later, in 2009, New Mexico Gov. Bill Richardson reached the same conclusion and repealed the state’s death penalty entirely. In doing so, he explained that:
The issue became more real to me because I knew the day would come when one of two things might happen: I would either have to take action on legislation to repeal the death penalty, or more daunting, I might have to sign someone’s death warrant.
Citing Illinois’s criminal justice system as one “fraught with error and [which] has innumerable opportunities for innocent people to be executed,” Gov. George Ryan issued a moratorium on executions in January 2000, pending an investigation into why Illinois has seen more of its death sentences overturned than it has carried out. In January 2003, Governor Ryan commuted all Illinois death sentences to prison terms of life or less—163 men and 4 women—because he concluded that the capital punishment system was fundamentally flawed and unfair.
He explained that:
The facts that I have seen in reviewing each and every one of these cases raised questions not only about the innocence of people on death row, but about the fairness of the death penalty system as a whole. . . . Our capital system is haunted by the demon of error: error in determining guilt and error in determining who among the guilty deserves to die.
In 2011, Gov. Pat Quinn signed a bipartisan bill banning the death penalty in Illinois. Governor Quinn, too, was concerned with the problem of innocence on death row:
As a state, we cannot tolerate the executions of innocent people because such actions strike at the very legitimacy of a government. Since 1977, Illinois has seen 20 people exonerated from death row. Seven of those were exonerated since the moratorium was imposed in 2000. That is a record that should trouble us all. To say that this is unacceptable does not even begin to express the profound regret and shame we, as a society, must bear for these failures of justice.
Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it. With our broken system, we cannot ensure justice is achieved in every case. For the same reason, I have also decided to commute the sentences of those currently on death row to natural life imprisonment, without the possibility of parole or release.
I have found no credible evidence that the death penalty has a deterrent effect on the crime of murder and that the enormous sums expended by the state in maintaining a death penalty system would be better spent on preventing crime and assisting victims’ families in overcoming their pain and grief.
New Jersey & Maryland
In 2007, Gov. Jon Corzine of New Jersey signed a bill repealing the death penalty. And earlier this year, Governor Martin O’Malley of Maryland followed suit, stating: “I don’t know exactly what the timing is, but over the longer arc of history I think you’ll see more and more states repeal the death penalty. It’s wasteful. It’s ineffective. It doesn’t work to reduce violent crime.”
Other Governors Expressing Concerns
Governors in Oregon, Colorado, and Arkansas have all recently stated publicly that they have significant misgivings about the death penalty. In 2011, Oregon Governor Kitzhaber granted a temporary reprieve to Gary Haugen and announced that he would “not allow further executions” while he is Governor. He reasoned that:
[W]hile it may be convenient to blame lengthy and expensive death penalty trials and appeals on inmates ‘working the system,’ the truth is courts (and society) continue to reinterpret when, how and under what circumstances it is acceptable for the state to kill someone. Over time, those options are narrowing. Courts are applying stricter standards and continually raising the bar for prosecuting death penalty cases. Consider that it was only six years ago that the U.S. Supreme Court reversed itself and held that it is unconstitutional to impose capital punishment on those under the age of 18. For a state intent on maintaining a death penalty, the inevitable result will be bigger questions, fewer options and higher costs.
Governor Kitzhaber called on the legislature to bring reforms and encouraged Oregonians “to engage in the long overdue debate that this important issue deserves,” adding:
I am convinced we can find a better solution that keeps society safe, supports the victims of crime and their families and reflects Oregon’s values. Fourteen years ago, I struggled with the decision to allow an execution to proceed. Over the years I have thought if faced with the same set of circumstances I would make a different decision. That time has come.
Last in the line of those who shoulder the heavy burden of carrying out a sentence of death on behalf of a state, in some individualized sense, are the executioners and wardens who carry out and oversee the actual killing of the inmate. The views of wardens and executioners are worth considering. While voters and legislators may support the punishment of death in theory or as a policy, no one is closer to the death penalty, or in a better position to comment on the impact of the policy, than those who are charged with actually carrying it out.
Corrections officers undoubtedly have stressful jobs. One recent report indicates that 31 percent of correctional officers have post-traumatic stress disorder (PTSD). Comparing that to the rate of PTSD among returning Iraq war veterans, which is 20 percent, illustrates the enormity of the psychological toll exacted on prison staff.
For those charged with carrying out executions, the toll is even heavier.
Lewis E. Lawes
Lewis E. Lawes was the warden of New York’s Sing Sing Correctional Facility from 1920 to 1941, during which time he supervised 303 executions, “all the while condemning the practice of capital punishment as barbaric, inequitable and futile. “I shall ask for the abolition of the Penalty of Death,” he wrote in 1923, quoting Lafayette, “until I have the infallibility of human judgment demonstrated to me.” In a recent New York Times article describing Lawes’ aversion to executions, it was reported that:
Executions at the prison, in Ossining, N.Y., left Lawes physically ill, his trove of papers at the John Jay College of Criminal Justice shows. Once, when a condemned man named Patrick Murphy pleaded for a strictly prohibited last drink of spirits, Lawes broke the rules to deliver a medicinal dose of bourbon. Murphy accepted it gratefully and then offered it back to the stricken Lawes, saying, ‘You need the shot more than I do, warden.’
According to Lawes, “[w]hen you have steeled yourself, as I have, to supervise the death of a young and healthy man; when you try, as I try, to let routine rule while doing everything within the law to make the end as merciful as possible, it’s heartbreaking to run against the raw of human suffering.” See Donald A. Cabana, Death at Midnight: The Confession of an Executioner.
Donald Cabana was a corrections officer for over 32 years in Missouri, Florida, and Mississippi, holding positions ranging from Chief Juvenile Probation Officer to Prison Warden for maximum-security facilities to Commissioner of Corrections. In 1995, he testified before the Judiciary Committee of the Minnesota House of Representatives concerning his experience with the death penalty in Mississippi, where he carried out three executions. He told the legislators:
The first young man that I executed, a man by the name of Edward Earl Johnson, was convicted of killing a police officer. He insisted to the very end, somewhat oddly, that he did not commit the crime. . . . Well, you know we read about that sort of thing and of course the average person who reads that, the average legislator probably who reads that, says, “Well, what do you expect him to say?” I must tell you that just four days ago I had a rather gut wrenching meeting with a former high official who is now convinced the young man was in fact telling the truth. And I must say to you that however we do it, in the name of justice, in the name of law and order, in the name of retribution, you . . . do not have the right to ask me, or any prison official, to bloody my hands with an innocent person’s blood. Not in the name of justice, not in the name of fairness.
Similarly, in 2009, Ron McAndrew, former Warden of Starke Florida State Prison, testified before the Montana House Judiciary Committee about his experience with the death penalty. He entered the Florida State Department of Corrections as an entry-level officer in 1978 and by 1996 had worked his way up to Warden. When the Secretary of the Department asked him if he would have any problems carrying out the death penalty he replied, “No Sir!” But his views changed over time. In telling his story, Mr. McAndrew says that:
[T]hose of us who have lived through an execution know just what the death penalty does to those who must perform it. In my tenure as warden, I helped perform three electrocutions in Florida and oversaw five lethal injections in Texas. In both places, I saw staff traumatized by the duties they were asked to perform. Officers who had never even met the condemned fought tears, cowering in corners so as not to be seen. Some of my colleagues turned to drugs and alcohol to numb the pain of knowing that a man had died by their hands.
I myself was haunted by the men I was asked to execute in the name of the State of Florida. I would wake up in the middle of the night to find them lurking at the foot of my bed. One of them had been cooked to death in a botched electrocution. I stood just four feet away watching flames rise out of his head, hearing the electrician ask me, ‘Is that enough? Should I continue?’
It wasn’t until I left my post as warden that I finally sought counseling for the trauma I had been through. It was then that I realized that I could not support the system that had left me in so much pain and had cheated me out of the resources that could have better protected my staff and inmates. . . .
The very notion that we need the death penalty to keep prisons safe is both professionally and personally offensive. I don’t believe there is a single qualified prison warden in this country that wouldn’t trade the death penalty for more resources to keep his or her facility safe. The death penalty system is just a drain on those resources, and it serves no purpose in the safety of the public or prisons.
Jim Willet was Warden of the Texas Department of Criminal Justice’s Walls Unit between 1998 and 2001, where Texas executions take place. While serving as Warden, he oversaw 89 executions. He explained the emotional toll the executions took on him personally:
The first time is unbelievable. You have this healthy person—this person who was able to just jump up on the gurney–and you’ve said, “Kill this person,” and someone’s fixin’ to. You’re about to put someone to death in front of all these people. It’s an overwhelming feeling. I can’t describe it.
Jeanne Woodford, former Warden of San Quentin, oversaw four executions during her 27 years with the California Department of Corrections. When she started her long career as a professional in corrections, she believed she would be able to help implement changes and improve programming. In hindsight, she came to realize that being involved in executions had an impact on her. The executions she oversaw still wake her up in the middle of the night from time to time.
Woodford said that:
[The fact that she still thinks about it a lot] really lets me know that being involved in the execution process, seeing it up close and personal as I have from all points of view: the point of view of the correctional officers, the victim’s family members, seeing the system as it works, has taught me that I was involved in something that is really hurtful to people from all points of view.
Since retiring from her career in corrections, she has become an outspoken advocate of repealing the death penalty. In 2012, she sponsored a ballot initiative proposing to repeal the death penalty in California that nearly passed but was defeated by voters by a narrow margin of 4%.
Allen Ault was the commissioner of the Georgia Department of Corrections between 1992 and 1995, during which time he oversaw five executions. He describes his experience like this:
The first two were Thomas Dean Stevens and Christopher Burger, accomplices in a monstrous crime: as teenagers in 1977, they robbed and raped a cabdriver, put him in the trunk of a car, and pushed the vehicle into a pond. I had no doubt that they were guilty: they admitted it to me. But now it was 1993 and they were in their 30s. All these years later, after a little frontal-lobe development, they were entirely different people.
When the state of Georgia was preparing to execute Troy Davis despite concerns about his guilt, Dr. Ault and five other retired corrections officials, Terry Collins, Jeanne Woodford, Ron McAndrew, Dennis O’Neill, and Reginald Wilkinson, wrote a letter urging commutation of his sentence.
We write to you as former wardens and corrections officials who have had direct involvement in executions. Like few others in this country, we understand that you have a job to do in carrying out the lawful orders of the judiciary. We also understand, from our own personal experiences, the awful lifelong repercussions that come from participating in the execution of prisoners. While most of the prisoners whose executions we participated in accepted responsibility for the crimes for which they were punished, some of us have also executed prisoners who maintained their innocence until the end. It is those cases that are most haunting to an executioner.
Ault feared not only the risk of Georgia killing an innocent man, but also the psychological toll it would exact on the prison workers who performed his execution.
The men and women who assist in executions are not psychopaths or sadists. They do their best to perform the impossible and inhumane job with which the state has charged them. Those of us who have participated in executions often suffer something very much like posttraumatic stress. Many turn to alcohol and drugs. For me, those nights that weren’t sleepless were plagued by nightmares. My mother and wife worried about me. I tried not to share with them that I was struggling, but they knew I was.
Having witnessed executions firsthand, I have no doubts: capital punishment is a very scripted and rehearsed murder. It’s the most premeditated murder possible. . . . I will always live with these images—with “nagging doubt,” even though I do not believe that any of the executions carried out under my watch were mistaken. I hope that, in the future, men and women will not die for their crimes, and other men and women will not have to kill them. The United States should be like every other civilized country in the Western world and abolish the death penalty.
Jerry Givens, former Virginia Chief Executioner, executed 62 people on behalf of the State of Virginia. He is now a fervent opponent of the death penalty and lobbies for an end to the death penalty in Virginia. He said that his role in carrying out executions on behalf of the state has taken a tremendous psychological toll on him. In a recent interview, he described one horrifying aspect of the executions that has stayed with him:
Once you have an electrocution, there’s a smell down there of burning flesh, and if you have a moustache, hair features in, you know, near your nose, you can smell it, so you have to kind of wash yourself real good, you know, trying to get the- [sic] and it might be psychological, but you can still smell that, you know, greasy smell.
He also spoke about an inmate, Earl Washington, who came within weeks of being executed before DNA evidence exonerated him. “I wouldn’t want to have that, that burden on me, having taken the life of an innocent person,” he said.
In deliberating over our use of the death penalty, the public should consider the impact it has had on those individuals who have had to make the life and death decisions, and who are charged with actually carrying out the sentence. Many times this debate is so focused on policy considerations like cost, fairness, and innocence that the real, personal harm to regular people that comes from killing prisoners is lost.