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Ann Neumann: Whole Body Burning

March 14, 2014

Who gets executed in America, and where, and how—is changing.

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Image from Flickr via seantoyer

By Ann Neumann

The scene is a parking lot outside the Pantry Pride grocery store in Leesburg, a city of less than fifteen thousand at the edge of three water-speckled counties in central Florida; it is February 21st, 1978, 3 p.m. Karol Hurst pulls her “cream-colored Plymouth” into a parking space after a brief visit with her mother, who works two blocks away. Hurst is white, twenty-two years old, and has been married for eight months. She is seven months pregnant. She goes in and buys some groceries. When she returns to her car, Freddie Hall, a thirty-three year old black man with a criminal record and a troubled history, puts “his gun in her face” and forces her into the car. He gets in with her and drives off. Hall’s buddy, Mack Ruffin Jr., thirty-two and also black, follows behind in a second vehicle. They want Hurst’s car to rob a convenience store.

In a wooded area the next county over, Hall and Ruffin rape Hurst in the front seat of her car. They pistol-whip Hurst “trying to break her neck,” but when that doesn’t work, Hall shoots her in the back of the head.

Hall and Ruffin continue their plan to rob a Shop-and-Go in Hernando County. Deputy sheriff Lonnie Coburn responds to a call at the convenience store, at the intersection of Highway 301 and State Road 50. He is overpowered by Hall and Ruffin. They shoot him dead with his own gun. Both men are later captured. In 1978, both are sentenced to death.

Executions have become a predominantly Southern practice.

In a courtroom in Marion County in the fall of 1990, Barbara Brunson, Hurst’s mother, testifies on behalf of prosecutors who do not want Ruffin’s death sentence commuted to life in prison. “I want him back on death row,” she says. Despite this testimony, his sentence is commuted. Ruffin is forty-one.

On appeal, the Florida Supreme Court rules in December 1990 that Hall must be resentenced because the prior court did not “weigh mitigating factors.” Hall’s defenders say he was abused by his mother and father for decades because he is “retarded.” “Hall’s guilt isn’t in question, just his punishment,” writes the Orlando Sentinal.

“Affidavits from some of Hall’s sixteen brothers and sisters paint a stark portrait of a childhood filled with abject poverty, constant violence and unbearable brutality,” the Florida Supreme Court said in its order setting aside Hall’s death sentence. “Born the sixteenth of seventeen children to a mother and father who fought ceaselessly with shotguns, knives, or whatever weapons were available, Hall’s childhood was marked by an existence which can only be described as pitiful.”

After numerous appeals, the courts determine that Hall’s sentence should remain death, despite the fact that he is “mentally retarded,” despite his sustained childhood abuse.

**

Executions have become a predominantly Southern practice. Capital punishment is now illegal in eighteen states. Since the 1980s, eight states and the District of Columbia have outlawed it. Even where execution remains legal, it is rarely practiced. Partly because of changes in the US public’s attitude toward the death penalty, “thirty states have had no executions in the past five years,” a New York Times Op-ed from December 2013 notes. But of the 219 executions that took place in the years 2009 through 2013, about 80 percent took place in the South. In these same years, Texas alone accounts for 38 percent. “Just 2 percent of counties in the United States are responsible for all death sentences,” wrote the New York Times.

There have been 1,369 executions since Gregg. More than 50 percent of all executions in 2013 were in Texas or Florida.

The Supreme Court’s ruling in Furman v. Georgia in 1976 had essentially ended executions in the US, but the 1976 Gregg v Georgia, which involved death penalty cases in five Southern states—Texas, Florida, North Carolina, Georgia and Louisiana—determined that executions could take place if they did not violate the Eighth Amendment’s ban on “cruel and unusual punishment.” There have been 1,369 executions since Gregg. More than 50 percent of all executions in 2013 were in Texas or Florida.

This arbitrary application of the death sentence means that execution is increasingly not a matter of justice, but of circumstance—determined by region, race, and the resources a prisoner can muster. But the regionalization of executions is only one factor in capital punishment’s decline. DNA exonerations have caused the public—and lawyers, judges and jurists—to doubt the certainty of death sentences.

“We urge you to discontinue the use of Nembutal [pentobarbital sodium] in execution of prisoners in your state because it contradicts everything we are in business to do—provide therapies that improve people’s lives.”

In addition, wardens with lethal-injections executions (the most common method of execution) on their dockets have recently been challenged by a shortage of drugs. European pharmaceutical manufacturers have stopped producing or exporting drugs used by US prisons in executions as a protest to capital punishment. But opposition has come from American companies as well. In 2011, one US manufacturer, Lundbeck, mailed a letter to the Ohio Department of Rehabilitation and Correction stating, “We urge you to discontinue the use of Nembutal [pentobarbital sodium] in execution of prisoners in your state because it contradicts everything we are in business to do—provide therapies that improve people’s lives.”

The drug shortage caused Ohio to become the first state to use a single-drug injection in December 2009, a deviation from the standard three-drug dosage, approved by the Supreme Court in Baze v. Reese in 2008, that states have used for more than a decade.

More controversies have arisen over drug shortages in the past two years, with some wardens relying on unidentified, out-of-state compound pharmacies. Fifty-nine single-drug executions have taken place since 2009, including in Ohio, Texas, Georgia, Arizona, and Missouri. A spate of new court cases has been brought to challenge the single-dose method. Because its constitutionality has not been addressed by the Supreme Court, many lawyers have found its use as a new way to challenge the “cruel and unusual” stipulation.

The state of Florida considers anyone with an IQ below 70 to be mentally disabled. Hall’s IQ was tested. He scored 71.

Last month, Supreme Court justices, in a dissenting opinion regarding an appeal in Missouri, asked if prisoners have a right to know how they will be killed. The question is a result of new state laws that shroud the drugs used, and their origin, in secrecy. Two reportedly horrific executions, one in Oklahoma and one in Ohio, have increased attention to drug access and usage. The first injected prisoner stated, “I feel my whole body burning,” and the second reacted violently to the injection before succumbing; evidence, some say, of cruel and unusual punishment. “Even if you support the death penalty, you should be outraged,” wrote Andrew Cohen at Politico.

And yet, as Adam Liptak wrote this week, the court has stated that opposition to one method requires that a lawyer suggest another. “Before inmates can be told what chemicals the state means to use to kill them, the court said, they must first propose an acceptable alternative method for their own executions.” In short, the court is implying that there must be a method that is not “cruel and unusual,” and that the responsibility to identify it, at least within the parameters of this pending case, resides with lawyers and their clients, a grisly prospect for those working to prove that execution is altogether inhumane.

While Americans find the practice of executing prisoners at all to be grisly and the number of executions has declined by half since a high in 1999, doubts surrounding the method of execution increase. Public justification for killing killers has relied on a supposed vindication of crimes (victims’ families are given the chance to witness executions), but too on execution’s ability to deter others from killing. But cases like that of Freddie Hall are challenging why we execute: if Hall is mentally disabled, the product of a horrifying childhood of abuse and torture, how does his murder address criminal action more broadly—or mete out justice?

The Hall case opens the door for a more nuanced public discussion of the cause of lethal crimes. Aren’t there less barbaric, more effective ways that society can address crime, long before it is committed? The answers to such questions depend on how our culture—and its subcultures, perhaps like the South—view its own moral behavior toward those who are poor, disabled or minorities.

**

On February 20, 2002, the US Supreme court heard arguments for Atkins v. Virginia and exactly four months later ruled in a 6-3 decision that “the execution of mentally retarded defendants constituted cruel and unusual punishment in violation of the Eighth Amendment.” Hall’s lawyers immediately appealed his case, charging that his sentence of death is now unconstitutional. The state of Florida considers anyone with an IQ below 70 to be mentally disabled. Until that time, Hall’s mental abilities were either not addressed by the courts or were not diagnosed by medical experts. Hall’s IQ was tested. He scored 71.

Last week, the Supreme Court heard arguments for the appeal of Freddie Hall’s death sentence. Hall’s lawyers asked the court to determine how states, in this case Florida, should determine mental competence for death row inmates. Is it a number? Should determination include a margin of error?

When Justice Stephen G. Breyer asked Florida’s solicitor general, Allen Winsor, what would be so terrible about bringing in experts, Winsor responded, “What is so terrible about doing it is you would end up increasing the number of people who would be eligible for a mental retardation finding.”

It is quite possible that the court’s decision, expected within the next few months, could fail to reflect the public’s waning appetite for execution, particularly of those with mental disability. Justice evolves slowly, often trailing far behind public opinion. It’s an institution that is best suited to following, not leading. What remains clear, regardless of whether Hall is executed or not, is that the death sentence is not the solution to violent crime. Clear as well is the fact that execution will likely take its last breath in the South. We may never fully understand why. To Hall, after thirty-eight years in prison, it may not matter.

Ann Neumann, a nonfiction contributing editor for Guernica, has written for Bookforum, Lapham’s Quarterly, New York Law Review, The Nation, and others. Her monthly column, “The Patient Body,” about issues at the intersection of religion and medicine, appears at The Revealer, a publication of The Center for Religion and Media at New York University, where she is a visiting scholar.

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