There was a sick irony to Alabama’s seemingly unconstitutional execution Thursday night of Ronald Bert Smith.
The spotlight focused on his last-minute appeal to the U.S. Supreme Court over Alabama’s use of judicial override in capital punishment cases. The court earlier this year found a similar system in Florida violated the 6th Amendment, which requires a jury to make the decision on whether a specific crime merits death. Smith’s jury voted 7 to 5 for a life sentence, but the trial judge instead sentenced Smith to death because, in part, Smith was raised in a stable, middle-class family and thus should have known better.
The Supreme Court issued a stay just before Smith’s scheduled 6 p.m. execution to give itself time to consider Smith’s appeal, then lifted the stay without explanation but soon issued a second one, which it also soon lifted, and Smith was finally killed by lethal injections that began at 10:25 p.m.
On a separate appeals track, Smith also had asked the 11th Circuit Court of Appeals to halt his execution while he argued that Alabama’s three-drug lethal-injection protocol is unconstitutional — an argument that other death row inmates in Alabama and elsewhere have made. The complaint is that the first drug in the protocol, midazolam, which is supposed to render the condemned insensate, doesn’t always do that, which means the dying prisoner likely suffers excruciating pain as the second drug paralyzes and the third drug stops the heart.
The 11th Circuit rejected his appeal on technical grounds, though the Supreme Court earlier was skeptical of that argument when it denied a preliminary injunction against Oklahoma’s three-drug protocol, ruling that condemned inmate Richard Glossip failed to establish that the use of midazolam violates the 8th Amendment guarantee against “cruel and unusual punishment.” That despite midazolam’s role in several botched executions. Most infamous: Joseph Wood, who took nearly two hours to die after Arizona prison officials first injected him with midazolam.
So what was the sick irony in Smith’s execution? The execution took about 40 minutes, and witnesses reported that Smith coughed and gasped for air about 13 minutes, occasionally “clinching his left fist and heaving his chest.” Since Smith is the only one who could say what he was experiencing, it’s hard to draw a concrete conclusion, but he seemed to have experienced just the kind of pain and suffering he asked the courts to spare him from.
There is a tension between the idea that capital punishment is constitutional and our evolving definition of what is ‘cruel and unusual.’
Was it cruel and unusual? That lies in the eye of the beholder. At the very least, it was a difficult death, and added another layer of barbarity to an inherently barbaric practice. And yes, Smith committed a barbaric act himself when he beat and then shot store clerk Casey Wilson, taking a life and causing unimaginable pain and loss to Wilson’s family. But a civilized society doesn’t kill its own citizens as an act of retribution, and the United States stands as a global outlier in clinging to the immoral practice.
At some point the Supreme Court needs to stop this, not just in Alabama with its absurd and indefensible judicial override system, but across the nation. In its 1977 Gregg decision, which allowed executions to resume after an imposed hiatus, the court ruled that “punishment of death does not invariably violate the Constitution.” Nearly 30 years later, the court went further in its Baze decision to say that “it necessarily follows that there must be a means of carrying it out.”
That’s a flawed logic — executions in practice can indict the legal theory that they are permissible. There is a tension between the idea that capital punishment is constitutional and our evolving definition of what is “cruel and unusual.” Given the continuing decline in issuance of death sentences, the death penalty clearly is becoming more and more unusual as a punishment, while killing someone is intrinsically cruel no matter how the executioner justifies it.
And these fights over process and protocol, while important, pale next to that grander injustice.