Thursday, September 2, 2010

Speak Easy

'I ask them: "Do you wish to make a statement?" ' he said.
'I leave the words "last" out, or "final," or anything like that. I think that's probably better than making a last statement, or final word. I just try to keep that out of it.'
That's Charles O'Reilly, the just-retired warden of the Huntsville Unit, the prison where Texas carries out the business of court-ordered murder.  He said those words 140 times, while supervising and participating in 140 killings in the six years he was warden.  According to the Daily Mail, that's more lethal injections than any other warden.  
And he's comfortable with it, he says.
If you think it's a terrible thing, you shouldn't be doing it in the first place.
'You don't do 140 executions and then all of a sudden think this was a bad thing.'
I don't know.  Maybe it's possible to oversee the killing of 140 men and women and not be moved.  Allen Ault would disagree, though.  He was a prison warden in Georgia.  He, too, oversaw and participated in state killings, though fewer than O'Reilly.  A couple of weeks ago, according to the Concord Monitor, he spoke to a study commission in New Hampshire.
"Lethal injection is certainly more humane than the gas chamber," Ault said. "But execution is gruesome any way you do it." Sometimes members of the public would offer to do the job for him, Ault said.
"I didn't want sadists to do it," he said, adding that no one with a conscience can carry out an execution and feel no regret or pain. "I wanted a human being to do it if we had to do it."
Ron McAndrew made essentially the same point.
"Many colleagues turned to drugs and alcohol from the pain of knowing a man had died at their hands," said Ron McAndrew, who oversaw executions in Florida and now speaks internationally against the death penalty. "And I've been haunted by the men I was asked to execute in the name of the state of Florida."
The complexity and variety of the human mind, the metaphoric heart and soul when confronted with death far exceed my capacity for full understanding.  I am moved to tears by murders imagined and by lives saved.  I have known remorseless killers.  We each react as we do.  There's probably nothing else usefully to say about it.  
So perhaps O'Reilly is the exception who has overseen and participated in 140 killings and is unburdened, unmoved by it.  Or maybe he's just in denial.  (The possibility that he's simply evil I flat out reject, though I suspect some who read this might believe it.)

Anyhow, what interests me about the Daily Mail story isn't really that O'Reilly seems to have no particular feeling about killing all those folks.  He can't even remember their names they make so little impression on him.  (Which is, after all, maybe how he does it - through complete dissociation from the event.)
What interest me is where I began.  With last words.
Let me take you back to Ohio for a moment where in 1997 (two years before they began killing people), the Department of Rehabilitation and Correction decided that the execution protocol didn't really account for the fact that men about to be killed may not be feeling charitable toward the killers.  So they cooked up this plan to deny the condemned the opportunity to say their last words.  Instead, the protocol (and I don't have a copy - or any of the early paperwork handy) required that several hours before the killing, guards would give the guy who was gonna be killed a legal pad and a pencil.  He could write down whatever he wanted as last words.
Then, after he was dead, the warden would read some, all, or none of the statement to the press.  If he wanted, the warden would edit the statement.
Oh, sure there was that sticky First Amendment thing.  But we're talking about someone who just got killed.  Who'd know?  Who'd complain?
The answer, it turns out, is that the ACLU would know and complain.  They sued in federal court.
Kevin O'Neill, who litigated the case for the ACLU of Ohio, wrote a law review article, "Muzzling Death Row Inmates: Applying The First Amendment to Regulations that Restrict a Condemned Prisoner's Last Words," 33 Ariz.St.L.J. 1159 (2001).  Unfortunately, it isn't available for free.  Here's the start of the introduction, which is about all I can give you. - and sorry, but I had to omit the footnotes.
Nathan Hale stood on the gallows in 1776, awaiting execution by his British captors, he was asked whether he had any last words. His dying speech, brief but eloquent, resounds through history: "I only regret that I have but one life to lose for my country."
The privilege to utter a last dying speech in the moments just before one's execution is a freedom that is deeply ingrained in Anglo-American history and tradition. Visible as early as 1388, the privilege was consistently honored at English executions throughout the sixteenth century and took root on this side of the Atlantic in the seventeenth century. It was available to everyone: from kings, queens, and aristocrats to the poorest of the poor. Indeed, the privilege was extended to individuals conspicuously bereft of most rights: including "witches," slaves, and prisoners of war. Even a Tennessee lynch mob saw fit to afford its victim the right to deliver a last dying speech.
So Ohio stood alone, a beacon for denying what even a lynch mob would grant.
The judge refused to dismiss the case (here and here).  Then the state settled, reinstating the centuries old tradition of permitting the condemned to speak his or her last words.
And really, that seemed to be that.
Until I read that article in the Daily Mail.  And I guess I really shouldn't be surprised.  Seems that Warden O'Reilly had his own version of the unconstitutional Ohio protocol.
He told inmates they could say whatever they wanted in their last statement, but it must be in English.

'That's all I understand,' he said - and it can't be profane. If the obscenities start, so do the drugs.

'He's got about 15 seconds to do all the cussing he wants to and it will be all over,' Mr O'Reilly said.

'It is going to be the last thing they're going to say. It ought to mean something.

'Most of the statements are pretty decent. They apologise to the victim's family and tell their family they love them.'
See, it's important that when you're about to be killed, you obey the rules.  And that First Amendment thing?  That's only for people who won't offend.
But now O'Reilly is retired.  So maybe -  Here's the relevant part:
Congress shall make no law . . . abridging the freedom of speech.
Maybe that's just too hard to understand.  After all, as I explained here, "no law" has never really meant "no law."  Still, it covers this.
Perhaps someone ought to pass the news on to the next warden.  Texas doesn't have an execution scheduled until mid-October, so there's plenty of time for him to read the Constitution.

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