He Speaks, We Kill

There's a long history to the idea of having the condemned speak last words.

Here's the beginning of a law review article by Kevin O'Neill ("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), not available for free, I'm sorry to say). 

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.

The general hope, even the expectation, was that the condemned would speak words of remorse, or repentence, would note the error of his (mostly his, sometimes her) ways and warn others to be better.

The soul of the condemned might then be saved, the community comforted in the knowledge that they had killed the right person and achieved the saving of (mostly) his soul, and the members of the community would be chastened and avoid sin/crime/whatever.

Sometimes that happened.  Sometimes, as with Nathan Hale, the last words were of defiance.  Sometimes. . . .

Well, it could get messy.  But maybe that's fair when you're busy killing people.

Polly Klaas was 12 years old when Richard Allen Davis entered her bedroom where she and some friends were having a slumber party.  He kidnapped her, murdered her, and according to the jury attempted to sexually assault her.

When the jury returned its verdict finding Richard Allen Davis guilty of all the charges against him, AP reported that he

turned to the television cameras and raised the middle fingers on both of his hands.

And just before the judge sentenced him to die, Davis told the court that he didn't sexually assault the girl.

I would also like to state for the record that the main reason I know that I did not attempt any lewd act that night was because of a statement the young girl made to me while walking her up the embankment: ''Just don't do me like Dad."

The Polly Klaas story, from the moment she was kidnapped through Davis being sentenced to die was tabloid fodder for the non-tabloid media.  And the sentencing apparently scared the Ohio Department of Rehabilitation and Correction.

A year or so later, and before the State of Ohio got back into the killing business after 36 years, the good people at the Department of Rehabilitation and Correction, feared that someone they would kill might take a lesson from Davis and say something offensive at the end.  You know, remorseless killers and all that.

So they cooked up this plan to deny the condemned the opportunity to say his (mostly his) 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 (assuming literacy, but hell, so what if he wasn't).
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.

Really, who would mind?

The answer is that the ACLU of Ohio would mind.  And it's then-Legal Director, the same Kevin O'Neill who later wrote that law review article I quoted a bit of, sued.  No court ruling.  The state caved and the case settled.  Last words, spoken by the condemned, restored.

At the time of the lawsuit, I was quoted in the Columbus Dispatch saying that the state was trying to "pretty up" the process but that it was, no matter how they cosmeticized it, killing.

Since then, they've killed 45 men here in the Buckeye State.  Every one has been offered the opportunity to speak into a microphone and have his last words reported by the media witnesses and heard by whichever other witnesses were present.

Which is as it should be.

All of which is prelude to this story by Andrew Welsh-Huggins of the AP.

Kenneth Smith is scheduled to die July 19 for his involvement in the slaying of a husband and wife in their Hamilton home in 1995 during a robbery. Since his incarceration, Smith, 45, had his larynx removed and uses an artificial voice box.
For the execution, the state will raise the head of the gurney where Smith will lie about four inches and let him keep one arm free to make it easier to use his voice box, according to an affidavit by Edwin Voorhies, South Regional Director for the Department of Rehabilitation and Correction.
It would be the first time an Ohio inmate has not been completely strapped down since the state resumed executions in 1999.
Smith will be able to use his free hand "to make a final statement, to help clear his throat, and to do other things which his condition requires," Voorhies said in the affidavit filed Friday in federal court in Columbus.

It's clearly right.  Smith, if they kill him, has a right to speak his last words.

And yet there's something disturbing about the plan. 

It's something akin to those last minute efforts to save the guy's life so we can kill him.  (See, e.g., Lawrence Reynolds.)  But it's not quite that.  That, after all, betrays the raw cynicism of the killing machine.  This betrays its grotesqueness.  

It's not that they're planning on killing someone with a disability.  Hell, you could make an argument that it would violate the ADA to refuse to do so.  And it's not exactly that they're accommodating the his disability.  That's the ADA again.

No, it's that the disability becomes, in a sense, the centerpiece.

We're no longer talking about murdering Kenneth Smith or even how to murder him.  Instead we're talking about how to help him speak from a table in the murder room.  We need to let him do it, but it's a distraction.

The folks who want him dead understand that.  All they're interested in is the killing.  

And while it's important that he gets to speak, it's as important, maybe more, that we focus attention on the fact that we're helping him speak only so we can murder him.

His words matter.

The killing matters.

The mechanics of his speech? 

That's a distraction.

His words count.  The te