Commentary

When Death Row Speeds Up

The state of Texas should be far from commended for its ample dedication to continuing the death penalty. But at least the care Texas courts take when listening to death penalty appeals is technically what used to be the American way:

“Texas, the nation’s most active death penalty state, generally waits until all appeals are exhausted before carrying out executions” (“Lawyers: Mo. Moving Too Quickly on Executions,” The Associated Press, Jan. 31).

But, as I reported last week, citing a New York Times editorial, certain states’ disregard of death row inmates’ final last-minute appeals is becoming more common. I wrote about Herbert Smulls, who was executed in Missouri on Jan. 29 for the 1991 murder of a jewelry storeowner. His lawyers had made appeals to the U.S. Supreme Court for a stay of execution, claiming Smulls’ Eighth and 14th Amendment rights had been denied. Their most urgent appeal was sent just before 10 p.m. on the night of Smulls’ planned execution.

However, as reported by numerous outlets, Smulls’ departure from this planet began at 10:11 p.m. He was pronounced dead at 10:20 p.m.

But, according to the AP, one of Smulls’ lawyers, Joseph Luby, “received an email at 10:30 p.m. from the Supreme Court, saying the stay application was denied at 10:24 p.m. — four minutes after Smulls was pronounced dead.”

That doubly obliterated Smulls without a hearing.

It may interest you, the reader, to know that “Smulls, who was black, was convicted by an all-white jury.”

Additionally, a key element of Smulls’ appeals was the nature of the drugs Missouri finally used to kill him. As the AP, the Times and other media have reported, Missouri and certain other states hide the identities of certain execution drugs and the compounding pharmacies supplying them.

For example, the AP noted in its report on Smulls’ passing that “two weeks ago, Ohio inmate Dennis McGuire took 26 minutes to die by injection, gasping repeatedly as he lay on a gurney with his mouth opening and closing. And on Jan. 9, Oklahoma inmate Michael Lee Wilson’s final words were, ‘I feel my whole body burning.’”

It also may interest official executioners in Iran, North Korea, China and other expeditious nations that, according to the AP, the attorneys for Smulls expressed concern “that it was the third straight case in which Missouri has moved ahead with an execution while the case was still in court.”

I’d appreciate hearing from anyone in another state who is keeping count of death row inmates being extinguished, while their cases are still on appeal under our once glorified system of justice.

Some state legislators are now working to create investigative procedures into precisely what poisons are ending the lives of these prisoners. I would very much like to hear from them. I’d also like to hear from recently awakened citizens who can inform me whether any candidates in local, state or federal elections are breaking through official silence on these shrouded homicides.

Also, what of the ministers, priests and rabbis living in these states that are speeding up executions? Are any of them speaking up?

I also am increasingly curious about the quality of legal representation throughout the nation, and how well attorneys are handling the cases of their clients on death row. How many of these prisoners have lawyers with the know-how and persistence of Herbert Smulls’ attorneys?

Moreover — an essential question — how many inmates now waiting on death row in states that hide their execution methods have lawyers with the capacity to be of any real use to them?

This raises a much more wide-ranging question about the present state of American justice.

In a recent issue of The Week, Andrew Cohen reported on “the one area where America really needs more lawyers.”

He began: “Mike Engle, a public defender in Nashville, stood up in a local courtroom last month and raised a troubling issue that has national resonance.

“After prosecutors notified a trial judge that they were seeking the death penalty against an indigent defendant named Lorenzo Jenkins, who is accused of murdering three people, Engle asked the judge to assign a private attorney to handle the case on behalf of the defendant” (“This is the one area where America really needs more lawyers,” Andrew Cohen, The Week, Jan. 22).

According to the AP, the public defender expressed his concerns to the judge thusly: “Our office, quite frankly, lacks the resources to defend a death penalty case” (“Private attorney weighed in death penalty case,” AP, Dec. 14, 2013).

he Week’s Cohen continued: “This surely is not what the United States Supreme Court had in mind in 1963 when it first recognized a constitutional right to counsel in Gideon v. Wainwright.

“What the justices did not do in Gideon, and what has haunted the court system ever since, is to require states to enforce the right to counsel through policies and programs (and most of all, funding) that ensures adequate representation in all criminal cases.”

And dig this deeply shameful truth about our system of justice: “The result has been catastrophic for millions of Americans who cannot afford their own attorney. There are no precise, recent figures telling us how many indigent defendants need lawyers each year — but in 2007 the figure was at least six million people.”

Furthermore, Cohen reported in The Week, “as the Supreme Court has gotten more conservative since Gideon, it has consistently refused to force state legislators to adequately fund defense work or to overturn convictions even where criminal defendants received patently ineffective assistance from overworked public defenders.

“As a matter of law, this must change.”

Those of you who are interested in bringing justice to such defendants should remember this when you vote for president in 2016.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow.