Bad idea to muzzle the last words of the condemned

Recently, Professor Austin Sarat, the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—perhaps the most prolific anti-death penalty scholar in the country—published a half-baked column on the website “Verdict Justia” in which he argued “Let’s Stop Asking for Last Words of People About to Be Executed.” Sarat’s idea is bad.

In fact, I submit Sarat’s desire to forbid last statements—muzzling people about to be executed—is perhaps only slightly less bad than his morally unconscionable position in The New Republic, in 2019, that death penalty abolitionists should eschew the argument “even the most heinous criminals are entitled to be treated with dignity”—a position I equally rejected. 

While Sarat is right to be concerned—even complain—that statements of people about to be executed, similar to the reporting on the last meals of the condemned, “satisfy the public’s morbid fascination” with the death penalty and their curiosity about the condemned, he fails to balance or even contend with how the last words of death row prisoners have been used by a plethora of psychologists, researchers, death penalty abolitionists, lawyers, and many others for humanitarian reasons.

Reviewing Robert Elder’s 2010 book “Last Words of the Executed,” published by the University of Chicago Press, iconic death penalty abolitionist Sister Helen Prejean wrote: “This is a dangerous book. Who knows how we will emerge from the encounter? It makes me want to live, use my energies in soul-sized pursuits like justice, like love.”

Blurbing the same book, Rob Warden, the Executive Director emeritus of the Center on Wrongful Convictions at Northwestern Pritzker School of Law, asserted: “Whether you favor or oppose the death penalty, you won’t think about it the same way after reading the last words of the condemned—some remorseful, some spiteful, some humorous, all tragic. Most horrifying is the realization that some of those who claimed innocence until the end probably were telling the truth.”

The case that most recently drew Sarat’s ire over the last statements of the condemned concerns a Florida man, the so-called ‘Casanova Killer,’ who, in May, made positive comments—and headlines—when, right before being executed in Florida, “in a truly bizarre twist,” he extolled President Trump’s administration.

Of course, as long as we have a death penalty, there will be prisoners who are executed who will use their last words to offend.

But what about, just for example, the innocent man or woman who wants to proclaim one last time to a merciless world—and to their friends and loved ones—their innocence? What about the prisoner who wants to complain about how many times he was poked with a needle and/or subjected to a “cut-down” procedure so that state executioners could achieve venous access? What about prisoners subjected to nitrogen-gassing, the abomination of an execution method employed, so far, only by Alabama and Louisiana—what if they should want to say something about how the mask was strapped to their face and how tightly it is affixed before the gas begins to flow? Sarat’s short-sighted and ill-conceived proposal would silence these last words—words our “so-called’ civilized society needs to hear.

Moreover, completely antithetical to Professor Sarat’s suggestion is the erudite and convincing 2001 article “Muzzling Death Row Inmates: Applying the First Amendment to Regulations That Restrict a Condemned Prisoner’s Last Words,” written by Kevin O’Neill, an Associate Professor at Cleveland State University College of Law. O’Neill, formerly the Legal Director for the American Civil Liberties Union of Ohio, wrote: “the privilege to deliver a last dying speech—uttered in the presence of, and made audible to, the assembled witnesses in the moments just before one’s execution—is a First Amendment right.”

Professor O’Neill painstakingly backed up his argument using legal and historical research going back centuries in his 62-page law review. He starts by telling the story of the execution of Nathan Hale, a hero of The American Revolutionary War, a story mostly all Americans learned about for the first time in elementary school. When 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.’”

It would have been a bad idea for the British to muzzle Hale’s last statement. And it’s a really bad idea—and un-American—to muzzle the last statements of others condemned to death now.