Give death penalty lawyers phone access already, dammit!

One can only hope Christa Pike’s horrifically botched execution attempt in Tennessee will accelerate the death penalty’s demise in the United States.

Gallons of ink have been spilled—with much more to come—by legal experts and pundits from all corners of our society as Pike’s non-lethal torture is studied and debated. This is good, but one objectively reasonable conclusion quickly drawn from Pike’s case, whether you are for or against capital punishment, nonsensical Kafkaesque-rules in death penalty states prohibiting capital defense counsel phone access— either a cell or a landline—while the execution is in progress must be immediately eradicated.

Evan Mealins, a reporter for The Tennessean, wrote “Christa Pike’s lawyers faced communication hurdles as [the] execution failed.” He detailed how once it was clear that the execution was being botched, one of Pike’s lawyers had to be escorted through a series of six locked doors before he was able to reach a phone to solicit immediate assistance from the rest of Pike’s legal team who frantically tried to get ahold of the Tennessee Supreme Court. Mind-boggingly and unacceptably, Pike’s counsel related how the calls to “the number for the Tennessee Supreme Court they were specifically given for emergencies went to voicemail” and “two points of contact in the governor’s office did not pick up the phone.”

Finally, Pike’s defense team was, after a considerable and unconscionable delay, able to reach a clerk for the Tennessee Supreme Court and a hearing was convened “roughly an hour after the second dose of pentobarbital had entered Pike’s body.”

Mealins noted that “In 2018, Kelly Henry, former chief of the Federal Public Defender’s office’s capital habeas unit, sued to be able to reach a phone so she could alert a judge if something went wrong during the time preceding and during [an] execution.” Pike’s legal team also “raised concerns about access to a phone to [contact the] courts,” but according to Pike’s counsel, “While the Tennessee Supreme Court was ‘very troubled by the lack of telephone access,’” it did ‘absolutely nothing to remedy the problem.’”

Writing “the state’s lawyer in the prison had a cell phone the whole time,” Mealins tellingly observed that Pike’s lawyers “say state officials were slow to respond during a critical moment in the failed execution of Pike, and the struggle to get to a phone highlighted barriers that disadvantaged the condemned.”

10 years ago, in an article I titled “Executions hardly an exact science,” I discussed denial of requested phone access for an Alabama execution, noting that Alabama federal defenders had pointed out that in the 2000 execution of Robert Glenn Coe by lethal injection in Tennessee, a federal district judge, Aleta Trauger, ordered just what they were requesting. Trauger based her order on Coe’s First and Fourteenth Amendment rights to meaningful access to the courts and his Eighth Amendment right to be free from cruel and unusual punishment. Following the court’s order, counsel for Coe was given express permission by the prison warden to have his cell phone present during the execution and also provided an office near the execution chamber that had a landline.

Why was Pike less entitled to these rights Coe had when she most needed them?

When phone access during an execution was denied during Alabama’s botched execution of Christopher Brooks in 2016, I opined in The Selma Times-Journal the “State tilts advantage in executions to prosecutors.” I concluded “while they’ll give you one last crappy meal, last rites, and a free pauper’s burial, the one thing Alabama won’t give its condemned: the meaningful right to counsel and a lawyer when they need it most.” (Brooks’ attorneys even proposed a plan to correctional officials where they would buy a disposable cell phone for use only to witness the execution; at the end of the execution, the lawyers would then turn over the cell phone; even this objectively reasonable request was summarily denied.)

The bottom line is: Capital defense lawyers—like all lawyers—are officers of the court; they’re not rogue actors hell-bent on causing illegality inside state prisons. When observing a prisoner being executed they are doing a somber and profound duty that is unusual to any other profession, one that is constitutionally mandated, and one that very few people have the emotional and intellectual capacity to bear.

End the death penalty already, but also, until that day comes, can every death penalty state and every court please give death penalty lawyers phone access already, dammit!?