Today in History

Today is Juneteenth, the newest, most recently enacted federal holiday.  That's the date in 1865 when federal troops arrived in Galveston, Texas, with the news that slavery was over.  

But dates are tricky things.  And as we rightly celebrate liberty and freedom today, so, if you know me, you know there's also a dark side to the day.

June 19, 1953, 72 years ago. Julius and Ethel Rosenberg, convicted of spying for the Soviet Union, including providing secrets of the atom bomb, were executed.  Strapped in the electric chair at Sing Sing prison in New York.  Killed by our government, in our names, on our behalf.

Some say they didn't do it.  There's pretty overwhelming evidence that Ethel really didn't. And that the government knew it.

But, you know, dead is dead. Evidence and innocence be damned.

 Oh, maybe it's better to remember them this way.

Executioners

No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy

That's Section 2903.01(A) of the Ohio Revised Code setting forth the elements of one form of the crime of aggravated murder.   Anyone who is found guilty of doing that faces a minimum of 20 years in prison.  

If the person is also found guilty of what we call a "death specification" (the death specs are set forth in R.C. 2929.04(A)) the person can receive the death penalty. If that happens, and if the sentence is carried out, the prison guards who perform the execution will, of course, have 

purposely, and with prior calculation and design, cause[d] the death of another.

Which, of course, would seem to allow them to be sentenced to prison for a minimum of 20 years and maybe to be sentenced to be killed.

I've made that point before, just as I've pointed out that there's no exception in the law - at least none in either the Ohio Revised Code or in Ohio's case law - for doing the killing at the direction of a judge or a panel of judges.  

As I've also said, ain't nobody gonna get charged with aggravated murder (with or without death specs) for carrying out a court authorized execution.

I've lso pointed out, from time to time, that a substantial number of executions - both in Ohio and elsewhere - are botched, screwed up.  They take too long.  Things go wrong.  Flames shoot out of the head of the guy in the electric chair.  Prison guards have trouble sticking a needle in a vein to inject the lethal drugs.  The drugs don't actually provide the theoretically authorized painless killing. The hanging goes wrong and instead of a quick neck snap the victim dangles choking or gets decapitated.  Sometimes the execution fails completely and the person doesn't die.

And either the powers that be swear, despite the evidence, that nothing went wrong or they promise to double check their protocols and practice better and make sure it won't happen again.

Ho hum

And then I was reading The Faithful Executioner: Life, Death, Honor and Shame in the Turbulent Sixteenth Century, by Joel F. Harrington, history prof at Vanderbilt University.  It's the story of Meister Frantz Schmidt who for some 45 years, from 1573 to 1618, most as the official executioner (and also torturer, by the way) of Nurenberg.  Meister Schmidt was an interesting guy, a second generation executioner who wanted nothing more than to be relieved of the social and legal ostracism that came with the job.  

Of course, executions were public spectacles in those days.  And while Schmidt was apparently really good at what he did, other executioners were not so competent.  You know, they sometimes botched the job, didn't kill smoothly and easily, screwed up somehow.  Harrington quote a report on the 1641 effort by Valentin Deuser to cut off the head of Margaretha Voglin, "an extremely beautiful person of nineteen years" and, oh, a child murderer.  

She was in sorry shape, "ill and weak."  She had to be carried to the chair for her beheading.  Before getting the job done, Deuser apparently stalked around her, waving his sword.  He accidentally hit a bit of wood, sliced a chunk of skin off her head, and knocked her out of the chair. And

since he hadn't hurt her body and she fell so bravely, [the crowd] asked that she be released.

Nope.  Deuser grabbed her, put her back on the chair, took another swipe at her neck, nicked her that time, again knocking her off the chair.  And while she pleaded, "shouting, "Aiee, God, have mercy!" he

hacked and cut at her head on the ground, for which cruel butchery and shameful execution [he] was surrounded by people who would have stoned him to death had nto archers present come to his aid and protected him from the people.

Deuser was arrested and then fired from his job.  But apparently he was not the only screw up.  As Harrington explains,

Mishaps leading to mob violence and lynch justice jeopardized the core message of religious redemption and state authority.  In some German towns and executioner was permitted three strikes (really) before being being grabbed by the crowd and forced to die in place of the poor sinner.

In his concurring opinion in Furman v. Georgia, Supreme Court Justice Thurgood Marshall floated an idea that's become known as the "Marshall Hypothesis."  He thought that 

people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable.

It's been suggested that one way to effect the hypothesis - and then end executions - would be to make them public again.  Looking at the responses to botched executions in renaissance Germany, suggests Marshall may have been on to something.

Gratuitously Cruel and Unusual

 July 5, 2005.  Kirkwood, Missouri.  Police executing a search warrant.  Joseph Long, 12 years old, suffers a seizure and collapses to the floor..  Police stepped over him - repeatedly.  Failed to offer him help.  Refused to let his mother in the house to help him.  Joseph Long died.  Kevin Johnson, Long's older brother, stood by helplessly.

Two hours later,  two hours after Joseph Long died, police, including officer William McEntee, returned to the neighborhood after reports of fireworks.  It was McEntee's second visit that night as he'd been part of the search time.  Johnson, still and understandably distraught, saw him. "You killed my brother."

Then Johnson shot him.  Multiple times.

As you might imagine, Johnson being black and facing an all white jury for killing a cop, Johnson ended up on death row.  The good people of the State of Missouri plan to kill him next Tuesday.  Ho hum.  Shit happens.  Especially (but really not exclusively) to black guys caught up in the Missouri Criminal Justice System.  

OK, nothing new here.  The usual voices (mine is one, but you knew that if knew me or you'd been here before) oppose the execution for all the usual reasons - both the general ones about the death penalty in general and the specific ones about the facts and background of this case.  To date, they've had no effect.  The courts so far have all signed off on the killing, the governor is unmoved.  Unless something breaks, always a possibility with several days to go, they'll strap him down and kill him next week.

But see, there's something else.  Really, someone else: Kevin Johnson's daughter, Khorry Ramey.  She's 19 years old now.  Nineteen.  That's the same age her dad was 17 years ago when he watched his kid brother died and then killed Officer McEntee.  Johnson wants her to be there.  More importantly, she wants to be there.  Needs to be there.  To watch ti happen.  To say good-bye in the most intimate and personal way she can.  

To help her, somehow, this victim of the state's killing machine, deal with the trauma those good people of the State of Missouri are inflicting on her by killing her dad for the trauma he . . . . OK, you, know the drill.

Anyhow, here's the thing.  Missouri has a statute, Revised Code Section 546.740 saying who can watch when it kills someone:

546.740.  Execution, witnesses. — The chief administrative officer of the correctional center, or his duly appointed representative shall be present at the execution and the director of the department of corrections shall invite the presence of the attorney general of the state, and at least eight reputable citizens, to be selected by him; and he shall at the request of the defendant, permit such clergy or religious leaders, not exceeding two, as the defendant may name, and any person, other than another incarcerated offender, relatives or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution; but no person under twenty-one years of age shall be allowed to witness the execution.

It's that last clause,"no person under twenty-one years of age," which Khorry Ramey being 19 and all, just doesn't qualify.  

And so Missouri said no.  And so Khorry Ramey sued.  And so, Missouri could have said to the court,"OK, in the interests of common decency and since we're already committed to a course that will certainly damage the kid maybe we can just let it slide and agree that, as applied to Johnson's kid this is unconstitutional."  And the court would have said, "Dandy.  Khorry wins.  Case dismissed.  Let's eat some leftover turkey."

It could have done that.  It would have been the decent thing to do.  It would have been fair and just and morally right.

Of course, that's not what happened.  Today, the Honorable Brian C. Wimes of the United States District Court for the Western District of Missouri, Central Division (let's make this as wordy as possible) issued his opinion.  Missouri wins.  Oh, sure, 

Plaintiff alleges she will suffer harm that is “real, palpable, and devastating,” and no remedy is available at law to compensate her for the emotional harm she will incur if she is barred from attending her father’s execution. (Doc. #8). The Court does not discount these allegations of emotional harm and does not dispute they are irreparable, both in a personal sense and a legal sense.

But tough noogies.  And fuck you.

Strictly speaking, it's not cruel and unusual punishment because it's not punishment at all.  But this is a blawg, not a court.  And what the prison system and the good people of the State of Missouri and the Honorable Wimes are doing is sure cruel, and damn well ought to be unusual. And, oh yeah, gratuitous.

On the Murder of Daniel Lee

Daniel Lewis Lee was killed early this morning at the federal prison in Terra Haute, Indiana, by agents of the federal government. It was the first federal execution in 17 years.  

The Supreme Court, by a 5-4 vote declaring that Lee had almost no chance of showing that the method of execution would violate the Eighth Amendment, cheered it on.  It was, the court majority  said, its "responsibility" to ensure that Lee got killed.  And so he did.

The following is a statement from Ruth Friedman, attorney for Daniel Lee who was executed this morning:

It is important for everyone to understand exactly what happened last night to our client, Daniel Lewis Lee. At 2 AM on July 14, while the country was sleeping, the Supreme Court issued a 5-4 decision vacating the injunction that had been in place against the first federal execution in 17 years.  Within minutes, the Department of Justice moved to re-set Danny Lee's execution--for 4 AM, summoning media and witnesses back to the prison in the very middle of the night.  When it was brought to the government's attention that a court stay still remained in place, the DOJ first maintained that that stay presented no legal impediment to executing Danny Lee, but then filed an "emergency" motion to lift the stay.  

Over the four hours it took for this reckless and relentless government to pursue these ends, Daniel Lewis Lee remained strapped to a gurney:  a mere 31 minutes after a court of appeals lifted the last impediment to his execution at the federal government's urging, while multiple motions remained pending, and without notice to counsel, he was executed. 

It is shameful that the government saw fit to carry out this execution during a pandemic.  It is shameful that the government saw fit to carry out this execution when counsel for Danny Lee could not be present with him, and when the judges in his case and even the family of his victims urged against it.  And it is beyond shameful that the government, in the end, carried out this execution in haste, in the middle of the night, while the country was sleeping.  We hope that upon awakening, the country will be as outraged as we are.

 -- Ruth Friedman, attorney for Daniel Lee and Director, Federal Capital Habeas Project--July 14, 2020

Amen.

Luck

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           It is a bit after 10 at night.  I am sitting at the desk in my room in a cancer ward.  I am incredibly lucky. 

            A bit over two months ago, I was taken to the emergency room.  I had nearly collapsed in the kitchen of a church where I was chopping ham, helping folks from a church in a richer parish prepare a free meal for the area’s residents.  The consensus was that I should go to the emergency room. 

            Triage.  Tests.  “Your hemoglobin is dangerously low.”  Admitted to the hospital.  Five units of blood over the next 24 hours or so.  More time, more tests.  Taken from this suburban branch of the hospital to the main campus.  More time, more tests.  Nearly discharged – but now, “Off to the cancer center.  You have acute myeloid leukemia.”

            I am confined, in total, for a month: mid-December to mid-January.  The chemotherapy worked.  I was in complete remission.  The trick now is to keep it that way, to prevent a recurrence.  Which is why, on this Thursday night, I am once again in the cancer center, where I’ve been now since Monday night – getting more chemo.  Sigh.

I expect to be discharged Saturday afternoon.  Home again, home again, jiggity jig.  And then, a few weeks later, back once more.  And once more.  And once more. Sigh.

But as I said, I am incredibly lucky. 

* * * * *

            I’ve resisted writing this, not because any of it is a secret.  The tale is widely known among friends, colleagues, family, some not-quite-strangers.  And whoever those folks might have told.  My wife and I have lists of people to whom we send e-mail updates every few weeks if there’s something new to report. 

            But a blast out to the Googleverse?  To the Blawgoshpere?  I’ve been resistant.  It’s too personal.  Too much about me for me to want to share it with the world. 

            So why now? Why tonight from this desk in this cancer ward?  For reasons I don’t exactly understand – and perhaps I should have waited until I do, but well, I didn’t – it has to do with the murder tonight of 58-year-old NicholasSutton by the good people of the State of Tennessee.

             Sutton’d been on death row for just under 34 years.  Sent there for the killing of Carl Estep while serving a life sentences for three other killings.  In 1979, when he was 19, Sutton murdered his grandmother.  Two years later he entered guilty pleas to two second degree murders.  That history isn’t pretty, but most of them aren’t.  Despite the 167 exonerations of those who’d been sentenced to die, and despite the virtual certainty that some of the 1516 men and women we’ve killed since 1977 have been factually innocent, the truth is that most did kill, some more than once, some in horrific ways. 

            And yet. 

            Look, if you’ve read much of this blog before, you know that the folks who end up on death row are, with the rarest of exceptions, severely damaged.  They have backgrounds that would curl your toenails.  They have serious mental illness.  They're intellectually disabled.  And you know that, like Nicholas Sutton, the folks we kill have been on death row for years, often decades.  The men and women we kill are no longer the ones we sentenced to die.  

          And so it is that Nicholas Sutton, killer of four, saved the lives of three corrections officers while he was on death row.  And so it is that an unusual collection of folks urged the governor and the courts to commute his death sentence. And so it is that the governor and the courts said no.  

          And Nicholas Sutton was murdered tonight, killed in the name of the good people of Tennessee, not by lethal injection which he figured would be too painful, but by the electric chair, which we know is likely to be horrifically painful.  But his choice.

* * * * * 

            As I  said, I'm incredibly lucky. 

          Not so much Nicholas Sutton.  He got to decide whether to die on the gurney or in the chair.  

           I got to decide whether to die at all.  (A doctor told me, after reading me all the potential risks that I did not have to sign the informed consent that would allow them to give me chemotherapy, "but if you don't sign, you'll die."  I signed.)

* * * * *

          Nicholas Sutton.  May he rest in peace.

we have stopped being a civilized nation

Shortly before 8 Thursday night, Bily Ray Irick died.  He was killed by prison guards in revenge for the rape and murder of 7-year-old Paula Dyer 32 years ago.

Earlier on Thursday, and without addressing the merits of his requests, the Supreme Court denied the last effort to stop or delay the killing.  Sonia Sotomayor dissented.  

In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this “rush to execute” without first seeking every assurance that our precedent permits such a result. No. M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 1. If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent. 

May 6, 1986.  Warren, Ohio.  Raymond and Doris Montgomery.  He 77, she 80.  Both dead.  Stabbed to death in their home.

Later that day, Charles Lorraine confessed to killing and robbing the couple.  Then he went to a bar and, with some of the money he took, bought drinks for some friends. It was his last day of freedom.  He was 19 years old then.  He'll be 52 in October.

December 9, 1986, seven months and three days after the killings, Lorraine was sentenced to be killed.  He's been on death row ever since:  32 years, 1 month, and 10 days as I type this just after midnight the morning of June 16.

I don't know Charles Lorraine.  I never represented him.  I don't know much about him.  I do know this.  It's been 32 years, 1 month, and 10 days.  He was 19 then.  He'll be 52 in October.

Oh, and I know this.  Yesterday morning, the Ohio Supreme Court, without dissent, granted the motion of the Trumbull County Prosecutor and set a date for Lorraine to be killed:  March 15, 2023.  
Nearly 5 years from now.  More than 36 years from the day he was sentenced to die.  Nearly 37 years from the date of the killings.

Let's do that again.

• March 15, 2023.  
• Nearly 5 years from now.  
• More than 36 years from the day he was sentenced to die.  
• Nearly 37 years from the date of the killings.

And I do know that I'm pretty much a broken record here, but I gotta say it:  Even if you believe in the death penalty, even if you believe that it can be morally justified or (and?) that it discourages murder.  Even if you think it's a damn good idea as a matter of principle.  Even if all that.

36 fucking years?

My god.  What's the point?  And who, exactly, are we killing?  I mean, whatever else, the Charles Lorraine of today is not the Charles Lorraine who murdered Doris and Raymond Montgomery on May 6, 1986, not the Charles Lorraine who was sentenced to die on December 9 of that year.  36, nearly 37 years, they make a difference.  Who we were is not who we are.

And who we'll kill is not who we sentenced to die.

Really, it's enough.    

Doris and Raymond Montgomery

Charles Lorrine

   Charles Lorraine Death Entry & Warrant by jmgamso on Scribd

After three and a half years

January 16, 2014.  Just days over three and a half years ago.  

That's when a crew of select prison guards strapped Dennis McGuire to a table (we don't really use a gurney) at the Southern Ohio Correctional Facility in Lucasville, stuck needles into his arms, and . . .
Alan Johnson, a reporter for the Columbus Dispatch, watched and described what the witnesses saw.

Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. . . .After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still.

The Buckeyes haven't managed to kill anyone (legally, that is) since then.  What with being unable to get the drugs and the litigation and the ever changing protocols, they just haven't been able to.

Meanwhile, we've had people freed from decades in prison - the early parts on death row - for crimes they didn't commit.  We've had more getting relief, albeit not release, because of serious constitutional problems with their trials.  We've had death on the row.  And we've had more people sent to the row.

What we haven't had is any more executions.  

And yet the state survives.  

They're maybe gonna finally pass a law that exempts the truly really absolutely fucking crazy as a motherfucking bedbug guy from execution.  (Or, of course, maybe not.)

But despite execution dates well into 2020 (27 guys have serious dates, though for one or another reason it's a virtual certainty that we won't actually kill all 27 - certainly not as scheduled), we haven't actually executed anyone since McGuire.  

Three and a half years ago.

Still, the state endures.

We've had a judge declare that Ohio's death penalty law was unconstitutional because after a jury recommends death a judge has to make additional findings in order to impose a death sentence..  (That case is now pending in the Ohio Supreme Court.)  We've had another judge overrule a jury's recommendation of death because she could not, on the record before her, make those findings.

We had it announced that death row would be moving from Chillicothe to Toledo.  And we've learned that they've maybe changed their mind about the move, so now it looks like it won't happen - for sure not anytime soon.

And we haven't executed anyone here for three and a half years.

While Ohio keeps going on its way.

Our State Attorney General's son sits on the Ohio Supreme Court.  The Hamilton County Prosecutor has announced that there's no point in a third murder trial for former University of Cincinnati campus cop Ray Tensing who shot and killed Samuel DuBose.  That's unarmed Sam DuBose.  Sam Dubose who wasn't doing anything wrong.  Killed.  Shot to death by a cop.  Twice juries hung.  Tensing won't hang.  Won't go to prison.

Three and a half years.

And still Ohio thrives.  (There's that opiate overdose thing, but hey . . . .)

So three and a half years.  Which pretty much establishes that we can just let it go.  No actual need to kill anyone.  Just give it up.  We'll keep doing just fine.

Except, you know - Are We Having Fun Yet?

Time to get the gears running.  Tune the engines.  Spin the rotors.  Tote that barge. Lift that bail. Get a little drunk and you land in . . . .

Sorry, I got distracted there. 

January 16, 2014.  Just days over three and a half years ago.

And now, it looks like for real, next week.  July 26, 2017.  Ron Phillips.

Same drugs that left McGuire gasping and snorting and choking and struggling.  

Gary Otte in September.  Ray Tibbetts in October.  Alva Campbell, Jr. in November.

And on.

And on.

And on.

After three and a half years.  In which the state's done just fine.  

But you know how the tension builds.  Until we just have to kill again.  

Or maybe not.

There are petitions and motions in the Supreme Court.  But really, the ball's in Governor Kasich's court.  There's still a week.

We the People

September 17, 1787.  Philadelphia.  Delegates to the Constitutional Convention signed their proposed constitution.*

September 17, every year (since 2004).  The United States.  Constitution Day and Citizenship Day.**

September 17, 2020.  Lucasville, Ohio.  John Drummond to be executed.***

Because what better way is there to honor the Constitution than by killing someone?

Drummond was convicted and sentenced to die for the aggravated murder of Jiyen Dent, Jr., a three-month-old child on March 24, 2003.  A drive-by shooting.  Tragic.  And so.

I've several times here quoted Camus:

What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.

And I've noted that Camus was wrong.  There are worse monsters.  But it's not supposed to be a competition.  

John Drummond has been on death row now for some 13 years.  He's had at least two previous execution dates, though his lawyers, at least, knew they weren't real dates.  Whether he knew? Whether he understood?  

This one, though, is real.  In a little over four years a group of prison guards will tie him to a table, stick needles in his arms, and pump some drug into his body that will kill him.  

They'll do it in front of witnesses who will carefully watch the murder.  Some will likely cry.  Others grimace.  Perhaps one will throw up.  A couple will take notes.  Perhaps others will smile.  Maybe a fist bump. Really, there's no telling how folks will react to watching a man be put to death.

There will be, outside the prison in Lucasville, a handful of protestors.  They will hold signs.  They will hold hands.  There will be prayer.  Perhaps song.

Or, of course, maybe not. 

Here in Ohio we haven't actually executed anyone since Dennis McGuire in January 2014.  And although there are we others with dates sooner than Drummond's, it's not clear what will happen to any of them.

For one thing, we don't have the drugs.  And can't seem to find them.  The General Assembly passed a special law so that compounding pharmacies could make the drugs and keep it a secret.  That would encourage them, the legislature said.  Turns out that wasn't so.  For whatever odd reasons, Ohio's druggists - even the ones who manufacture to order - don't want to be in the business of abetting state murder.  Damn!

And then there's the problem that Ohio's death penalty law is unconstitutional.  One common pleas judge said so.  Others are being asked to weigh in on the question.  There's a case in an appellate court now.  Will we kill while waiting for a definitive ruling?  At least one of the men with a serious execution date has asked the Ohio Supreme Court to call a halt until the question is resolved - which makes sense, but who knows.

Because four years is a long time.  And Drummond may yet have issues.  He will have a clemency hearing before the Parole Board.  And then the Governor - whoever that will be - will get to decide whether to stop the killing.

After four more years.

Drummond was 26 when he arrived on death row.  He's 39 now.  They plan to kill him when he's 43.

Whether they do or not, it won't bring Jiyen Dent, Jr. back.  That tragedy will remain no matter what.

Constitution Day and Citizenship Day.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

------------------
* It didn't actually become The Constitution of the United States until it was ratified.
** By law.  Title 36 of the United States Code, Section 106.
***

  Drummond Execution Order