From beginning to the end, the death penalty process is rife with horrors for everyone involved. Those horrors start with the crimes that lead to capital charges. They are felt most acutely by the families of murder victims who must repeatedly relive their loss as the process unfolds.
For anyone accused of a capital crime, the announcement of a death sentence by a judge or jury, extended confinement on death row, the issuance of a death warrant, and the execution itself all are moments of almost unimaginable psychological suffering. That suffering adds immeasurably to capital punishment’s cruelty.
But psychological suffering has often been insufficient to support a finding that the death penalty, or any other punishment, violates the Eighth Amendment. It sometimes has even been dismissed as a necessary part of any capital sentence.
Earlier this month, U.S. District Court Judge B. Lynn Winmill offered a different view.
He acknowledged the significance of psychological suffering in a case brought by Gerald Pizzuto, a death row inmate in Idaho. Winmill’s opinion asks us to take seriously what he describes as the “psychological torment” that accompanies the issuance of each new death warrant.
The Idaho Statesman reports that “Idaho has sought to execute Gerald Pizzuto by lethal injection five times since his 1986 first-degree murder conviction, including three times in the past two years.” “Pizzuto’s attorneys,” the Statesman continues, “argued that the state had operated in bad faith by obtaining death warrants while knowing it lacked the lethal injection drugs required under Idaho law to execute their client.”
Each of those instances, Pizzuto says, caused him extreme mental anguish and “psychological torture.”
Judge Winmill refused to dismiss Pizzuto’s claim that a state which repeatedly seeks death warrants for an inmate, even though it does not have the capacity to carry out an execution, may impose a level of suffering that could violate the Eighth Amendment. Because, like Idaho, many death penalty states are currently unable to get the lethal drugs they need, were Pizzuto to prevail they might have to reconsider the way they go about issuing death warrants.
Perhaps no one did more during their time on the bench to highlight suffering of the kind that Pizzuto alleges than Supreme Court Justice Stephen Breyer. Eight years ago, Breyer used his dissent in Glossip v. Gross to offer an expansive analysis of the profound psychological damage done to death row inmates.
Breyer focused first on the deleterious impact of death row confinement, which he labeled “severe” and “dehumanizing.” This impact, Breyer wrote, is “aggravated by uncertainty as to whether a death sentence will in fact be carried out. In 1890, this Court recognized that “when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it.’”
And Breyer argued, as if anticipating what Pizzuto has experienced, that those feelings are compounded when death warrants are “issued and revoked, not once, but repeatedly.”
Like Breyer, law professor John Bessler also has made important contributions to the conversation about the psychological cruelty of capital punishment. In an interview with the Catholic News Agency, Bessler argued that “The U.S. needs to start looking at the psychological aspect of the death penalty, in terms of the psychological pain or suffering, because that is part and parcel of the definition of what is torture is, as defined by the U.S. ratification of the Torture Convention.”
While recent Supreme Court cases on the death penalty have shown what Bessler calls an “obsession with will there be physically excruciating pain for an inmate at the time of death, the psychological state of inmates awaiting death could also be torturous.”
This is true he says “because the person has an awareness of their impending death for literally decades. And in a lot of cases, you’re seeing multiple death warrants being issued. There are cases where more than ten death warrants have been issued for a given individual.”
Bessler notes that Article 1 of the United Nations Convention Against Torture defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.” In his view, the inclusion of severe “mental suffering” makes it clear that the psychological anguish an inmate can experience on death row qualifies as torture.
Judge Winmill’s decision in the Pizzuto case reflects themes emphasized by Breyer and Bessler.
Picking up on Breyer’s concern about solitary confinement, Winmill noted that each time the state obtained a death warrant in Pizzuto’s case he was removed from his cell to “solitary confinement in the Execution Unit…. He was kept there in complete isolation from other inmates and … was asked to select witnesses for his execution and indicate his wishes for the disposition of his property and remains.”
Yet every time Idaho sought and obtained a death warrant for Pizzuto, it “did not have the chemicals needed to carry out … lethal injection.” Since the defendants in Pizzuto’s case repeatedly rescheduled his execution despite knowing that they could not carry it out provided what Winmill called a “plausible” basis for an Eighth Amendment claim.
Building on Bessler, the judge wrote that each new death warrant dragged Pizzuto “to the ‘precipice’ of death and forced to relive the terror of his impending execution…” Winmill said that the “repeated rescheduling of his execution is like dry firing in a mock execution or a game of Russian roulette.”
“With each new death warrant,” he observed, “comes another spin of the revolver’s cylinder, restarting the thirty-day countdown until the trigger pulls.”
Again, echoing Breyer, Winmill described “a delirium of uncertainty” and “perpetual terror” induced by Idaho’s scheduling and rescheduling of executions, despite knowing that they would not be carried out. That, he found, “plausibly constitutes cruel and unusual punishment.”
But to prevail in the Eighth Amendment context, Winmill wrote, Pizzuto will have to show that what has happened to him amounts to the “‘unnecessary and wanton infliction of pain’” and is the result of “deliberate indifference” to his suffering.
In addition, as the Supreme Court put it four years ago in Bucklew v. Precythe, Pizzuto will have to show that his on-again, off-again execution dates and the deprivations that attended each one “intensifie[s] the sentence of death with a [cruel] superadd[ition] of terror, pain or disgrace.”
There is a long way to go before we will know whether Pizzuto can meet those requirements and his contentions will be proven to be true. In the meantime, Winmill’s ruling is a small, but nonetheless significant, victory for those who want to follow Breyer and Bessler in making the psychological cruelty of capital punishment a more important part of the death penalty debate in the United States.