Martin Dyckman
Whether the murderer Clayton Lockett deserved to die is beside the point to nearly everyone who has read or heard about how he died in Oklahoma Tuesday.
His execution attempt, evoking images of medieval torture, was botched so badly that it had to be interrupted shortly before a heart attack completed what needles and drugs failed to accomplish.
Only a few sick souls — those who get their kicks from cruelty — want such things done in our name.
So Oklahoma, Florida and other states will have to reconsider whether lethal injection is so “humane” after all. And perhaps the U.S. Supreme Court will stop pretending that it’s only a hypothetical issue.
The better question, one that people throughout Europe are asking and which should be asked here, is why the United States persists in putting people to death by any means.
Even here, public support has fallen to just 55 percent, the lowest in 40 years. Six more states have recently repealed it. Among the 32 that retain it, there were only 80 new death sentences last year, far below the record 315 in 1996. Even in Florida, one of the more active states, there were just 15 new sentences last year compared to a historic high of 47 in 1991.
Among other reasons, prospective jurors have become more willing to rely on life without parole to protect society and more aware –thanks to DNA exonerations — of the risk of wrongful convictions.
(A new study from the National Academy of Sciences estimates that more than 4 percent of those sentenced to death are innocent. That’s more than twice the number who are eventually exonerated by DNA or other factual evidence.)
Those reasons make the case for ending capital punishment altogether — a case that retired Justice John Paul Stevens argues eloquently in his new book, “Six Amendments: How and Why We Should Change the Constitution.”
Stevens, who spends much of his time in Florida, cites the vicious but unsuccessful campaign to unseat three Florida Supreme Court justices in 2012.
“(I)t illustrates the fact that the political consequences of death penalty litigation may be more important than vindicating the state’s interest in retribution,” he writes.
He disagrees sharply with Justice Antonin Scalila’s glib remark, in a 2006 case, that the possibility of killing the innocent has been reduced to an “insignificant minimum.”
“When it comes to state-mandated killings of innocent civilians,” says Stevens, “there can be no ‘insignificant minimum.'”
In Florida, coincidentally, three justices last week dissented in a death case in a way that I think could persuade the U.S. Supreme Court to finally overturn Florida’s unique capital punishment law.
Timothy Lee Hurst was condemned for murdering a co-worker during a robbery at a Pensacola fast-food restaurant. The jury, which heard evidence of mental retardation, voted only seven to five in favor of death, but that’s not the crucial issue in the case.
To Justices Barbara Pariente, Jorge Labarga and James E.C. Perry, it matters greatly that there is no record of the jury agreeing unanimously to the existence of either of the two aggravating factors that the judge cited in imposing death.
The law requires the reasons for death to outweigh those in favor of life. In Hurst’s case, the judge cited only two — that the murder was “heinous, atrocious and cruel” and that it was committed in the course of a robbery.
But Pariente’s dissent pointed out that the jury did not convict Hurst of robbery. And because Florida requires only the judge, not the jury, to itemize the reasons for and against death, “it is actually possible that there was not even a majority of jurors who agreed that the same aggravator applied,” she wrote.
This, she contends, would be unconstitutional under a U.S. Supreme Court decision requiring juries to agree unanimously on the facts supporting a sentence of death.
She’s made that argument before, to no effect. But, she warned, the U.S. Supreme Court may take a different view.
“Except for Florida, every state that imposes the death penalty, as well as the federal system, requires a unanimous jury verdict as to the finding of an aggravating circumstance,” she wrote.
She has cautioned the Legislature to fix this. So did former Justice Raul Cantero. The advice remains ignored.
Is it possible that legislators secretly want the entire law overturned on that account?
Probably not. But you’ve got to wonder.
Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives near Waynesville, North Carolina. Column courtesy of Context Florida.
