Tennessee execution highlights death penalty’s depravity

The litigation — especially U.S. District Judge Eli Richardson’s cynical and macabre opinion published November 26 — concerning Harold Nichols’s scheduled execution on December 11 in Tennessee contains elements about the way our legal system operates that evidence not only the death penalty’s depravity, but how it casts an ugly stain on lawyers generally, contributing in making law one of the most hated professions.

Echoing what I wrote about earlier this year in the Memphis Flyer, that the use of pentobarbital in executions is torture, Judge Richardson wrote: “As to the challenge that [Nichols] is making, [Nichols] alleges (and the Court accepts as true) that pentobarbital causes flash (acute) pulmonary edema as it enters the blood stream and passes through the lungs and burns the membranes of the lungs, and that when fluid enters the lungs it causes a drowning sensation akin to waterboarding—‘one of the most powerful, excruciating feelings known to man.’”

But despite this eye-opening judicial finding about the torturous use of pentobarbital, which Richardson stresses later on in his opinion too — writing “The Court (as noted above) accepts as true that [Nichols] is ‘sure or very likely’ to experience the sensation of drowning if he were to be executed by lethal injection” — Richardson nevertheless “tossed” (as The Tennessean described it) Nichols’s challenge to his impending lethal injection. Judge Richardson concluded Nichols was barred by a one-year statute of limitations when the state adopts a new “particular method of execution.”

As The Tennessean explained, Judge “Richardson found that switching the drugs used in lethal injection [to, in this case, a single dose of pentobarbital] is not considered an ‘adoption of a new particular method of execution.’ So the window to sue began after Tennessee made lethal injection its default method of capital punishment in 2000, and it shut a year later.”

Notwithstanding this statute of limitations problem, Judge Richardson goes on to observe in his opinion “the Supreme Court has expressed substantial and detailed skepticism that the use of pentobarbital would ever violate the Eighth Amendment” and its prohibition of cruel and unusual punishment. This fact on its own has the ability to make citizens distrust, even hate, the tyrannical, nonsensical, unbending and unmerciful nature of the law since, as Richardson concedes, the use of pentobarbital in executions is no different — in the amount of torture it causes — than waterboarding someone to death.

Further, too, Richardson’s opinion acknowledges there have been “incidents” involving the use of “executions via single drug pentobarbital.” But when Richardson rules that the law, here an unjust statute of limitations, bars Nichols from even challenging the torture via pentobarbital that he is “sure or very likely” to experience, the law becomes a veritable ass.

And not only does the law become an ass when it becomes entangled with the death penalty’s depravity—the wrongheaded notion steeped in revenge that any good, like deterrence, could ever come from punishing the people who kill by killing them too—the law becomes soiled in fascism and barbarism; this is especially so when our jurisprudence (thanks to Justice Alito and company) causes Judge Richardson to, correctly, move on to pen in his analysis: “But now the Court must answer a narrow question: has [Nichols] plausibly alleged facts suggesting that a firing squad or single bullet to the back of the head significantly reduces a substantial risk of experiencing severe pain?” (For laymen, The Tennessean helpfully explained “prisoners challenging their method of execution must propose a viable alternative to win their case. Nichols’ proposals — firing squad or a single bullet to the back of the head—were not clearly less painful, feasible or readily implemented than lethal injection by pentobarbital, Richardson found.”)

Amidst the backdrop of this swirling and unsavory legal morass, Nichols, 64, has asked Governor Bill Lee to grant him clemency by changing his sentence to life without the possibility of parole. As reported by Nashville Scene, while taking “full responsibility for his crime” — rape and murder of a college student — Nichols’s official clemency request cites his “record as an ‘exemplary prisoner,’ a traumatic upbringing and Nichols’s post-conviction reconciliation [with the victim’s mother] Ann Pulley [whose “forgiveness” Nichols] “earned.”

The Associated Press reported that Nichols’s clemency petition “argues that he turned his life around in prison, becoming a model inmate who [a number of corrections officials have said] helps make the Riverbend Maximum Security Institution a safer place and even mentoring at-risk youth.” The petition credits [the victim’s mother] “with inspiring Nichols’ reformation” and recounts how Ms. Pulley met with Nichols on three separate occasions after his conviction, “giving him a Bible that he still treasures 35 years later.”

Without naming them, Nashville Scene claims that “Sources close to the governor have also indicated that he is personally uncomfortable with the governor’s singular power to stop — and conversely, to condone — state killings.” Still, on August 5, Governor Lee allowed the heartless and ultimately torturous execution of Byron Black — an intellectually disabled man with severe dementia who had spent 36 years on death row — to go forward; media witnesses unanimously reported Black pitifully lifting his head up off the gurney at one point as he lay dying to grimace, but also to report: “It hurts so bad.”

An autopsy later revealed that the pentobarbital Black was executed with had caused pulmonary edema which would have resulted in the “waterboarding sensation” Judge Richardson discussed — the same “waterboarding sensation” that’s in store for Nichols. (73-year-old Oscar Smith, executed on May 22 after spending 30 years on death row, became the first prisoner in Tennessee to be executed this year with the new single-dose of pentobarbital lethal injection protocol; for religious reasons, Smith declined to have an autopsy conducted.)

Governor Lee has a precious opportunity to rein in the law — to make it less of an ass. As a self-professed devout Christian, Governor Lee should embrace the principles of Christian forgiveness so bravely embodied by the victim’s own mother. And, not for nothing, a joint statement issued November 10 by Tennessee’s three Catholic bishops has also called for an immediate moratorium on the death penalty and its eventual abolition under state law. Based on his record — and his politics — Lee is unlikely to support abolition. But a moratorium on executions using a single dose of pentobarbital at least until after a trial scheduled in April in the case of other Tennessee inmates who have challenged the use of the questionable drug? That’s an easy call for Governor Lee to make based on the record before him. And it’s the right thing to do.