Barry Graham: Illusory Flowers in an Empty Sky

In his insistence that condemned prisoners refrain from criticizing their captors and killers, AZ Department of Corrections Director Charles Ryan is historically typical. The people who officiate at executions seem to value politeness. The executioner never seems angry. The prisoner is killed, but the killing is strangely passionless. It just seems to be the end result of a bureaucratic procedure, something that the rules demand.


After witnessing the killing of Mary, Queen of Scots, Robert Wynkfield wrote:

Then she, lying very still upon the block, one of the executioners holding her slightly with one of his hands, she endured two strokes of the other executioner with an ax, she making very small noise or none at all, and not stirring any part of her from the place where she lay: And so the executioner cut off her head, saving one little gristle, which being cut asunder, he lift up her head to the view of all the assembly and bade God save the Queen.

The boy went out and stayed a long time, then came back with the man who was to administer the poison, which he brought with him in a cup ready for use. And when Socrates saw him, he said: “Well, my good man, you know about these things; what must I do?” “Nothing” he replied, “except drink the poison and walk about till your legs feel heavy; then lie down, and the poison will take effect of itself.”

Charles Ryan

At approximately 11:17 a.m., Mr. Towery gave his last statement.
The evening prior to his execution, I had informed Mr. Towery what he could expect when ADC placed the intravenous (IV) catheters. Mr. Towery then made fists with both hands to show me the veins in each of his arms. He said “With veins like these, how can they miss.”
I advised Mr. Towery that if there were any problems with the procedure or if he had concerns with what was occurring as the IV lines were being inserted, that he should advise the ADC officials who were present in the execution chamber that he wished to speak to his attorney. I further told Mr. Towery if the ADC officials would not allow him to speak with his attorney that he should say words to that effect as part of his last statement.
Mr. Towery was concerned about speaking openly about the procedures, as he had been informed by ADC that his last words would be cut off if he made any statements against ADC.
This concern is consistent with what Richard Bible told me during a morning meeting I had with him on the day of his execution. The date was June 30, 2011. Mr. Bible said that he was told by an ADC official to keep his last statement short, and that if he was critical of the ADC, critical of law enforcement or made disparaging comments about the victim, the microphone would be cut off during his statement. Mr. Bible was also told he would have to rehearse his last statement with an ADC official.
Mr. Towery said that rather than directly state that he asked to talk to his lawyer during the IV insertion procedure, he would say something to the effect of “Hey Dale I should have called you.” He also said that if there were problems with the insertion of the IV lines or that if he was being hurt, he would use the word “mistake” as part of his last statement.
During Mr. Towery’s last words, he said “In the end, I should have called you Dale.” Based on my discussions with Mr. Towery, this phrase meant that he asked to have speak to his lawyers while the catheters were being placed but was denied access.
During Mr. Towery’s last words, he also said that he should have gone left and he went right. He went right when he should have gone left. He then went on to say he made “mistake, after mistake after mistake.” Based on my discussions with Mr. Towery, this phrase meant that there were problems or he was hurt during the insertion of the catheters.

Before Samuel Lopez was executed in Florence, AZ, on June 27, he received a letter, dated June 5, from Charles Ryan, Director of the state’s Department of Corrections, who wrote:

You may choose to make a final statement that is reasonable in length and does not contain vulgar language or intentionally offensive statements directed at the witnesses. The microphone will remain on during your statement. It will be turned off, however, in the event that you use vulgarity or make intentionally offensive statements.

I am not aware of a case making an 8th Amendment argument for a “last words” or “last meal” right. But there is at least one case making a First Amendment argument. See Treesh v. Taft, 122 F. Supp.2d 881 (D. Ohio 1999)(challenge to Ohio’s policy of allowing only written last statements. The litigation was later settled when Ohio agreed to allow inmates to give oral last statements to assembled witnesses). See, Kevin Francis O’Neill, Muzzling Death Row Inmates: Applying the First Amendment to Regulations that Restrict a Condemned Prisoner’s Last Words, 33 Ariz. St. L.J. 1159 (2001)(arguing that curtailing or censoring an inmate’s last words to witnesses violates the First Amendment and arguing for an analogy to defendants’ right ofallocution before sentencing)

• Do you have the legal authority to decide what is offensive? If so, what criteria do you apply?
• Do you have the legal authority to decide what is intended to offend? If so, what method do you use to determine a person’s intentions?
• Does the prisoner have the right to speak before being executed, or is it a privilege that can be granted or denied at the discretion of the Department of Corrections?
• If it is the prisoner’s right to speak, do you have the legal authority to turn off the microphone while a prisoner is saying their last words, if you deem what is being said intentionally offensive? If so, what is the point of law that gives you this authority?

The history of the death penalty, like any other history, is made up of stories, some factually-accurate, some not, but which become accepted truth if repeated long enough.

History records that the reason the State of Arizona stopped hanging people and started gassing them instead is that there was an unseemly incident in which Eva Dugan’s head pulled off when they hanged her in 1930. It was decided that a method of killing less distressing to the spectators was in order.

It’s also popularly believed that the reason the state stopped gassing people and started poisoning them was because of the unpleasant demise in 1992 of Don Eugene Harding, who vomited all over himself, took a while to die, and flipped off Attorney General Grant Woods while dying. The witnesses were so distressed that the state decided it was time for a new method.

It turns out, though, that it didn’t happen that way.

My friend Chuck Kelly witnessed it. He tells me that Harding was facing away from the witnesses. “One of the witnesses - I don’t remember which one - did say that Harding appeared to be flipping off Grant Woods… I would say this would be a difficult interpretation to make, since Harding’s back was to us…  Also, some witnesses did say they were upset by the execution.”

Chuck kindly dug out the report he wrote for The Arizona Republic at the time. Here it is:

Something I’ve been thinking about since the killing of Troy Davis last week…

A few months ago, Larry Fondation and I had a conversation in which we agreed on two things: 1. Each of us has written books that are an accurate portrait of the U.S. in the last 15 years or so. 2. However accurately we depict it, neither of us understands this country.

I don’t think madness can be understood by the sane… and this country is mad. Just as a person is a composite of aggregates, so is a country. And, just as a person can become mentally ill, so, I think, can a country.

The lynching of Troy Davis went ahead. Along with the economic collapse, this nation is bankrupt morally.

Today, the State of Georgia will kill Troy Davis, even though there is no physical evidence to connect him to the murder he denies committing, and seven out of nine eyewitnesses have recanted their testimony, saying that police coerced them to lie.

Last night the State of Arizona killed Donald Beatty, who killed a 13-year-old girl after raping her.

Beatty was a hard person to sympathize with. His crime was atrocious, and, after his conviction and sentence, he continued to deny it, to the extent of contacting newspapers and trying to get them to support him. He admitted his guilt when strapped to the executioner’s gurney, and apologized to his victim’s family, but, since he was trembling, it’s impossible to know whether he actually felt remorse or was just frightened. Deathbed conversions are no conversions at all.

While Beatty certainly had to be incarcerated for everyone’s safety, by killing him the state has validated his way of being. Whether he “deserved” it or not is irrelevant; in making such a judgment, we are creating a story, and turning away from real life. It is the same mistake Hannah Arendt made when writing about the executions of Nazis. Although Arendt thought the death penalty was wrong, she made an exception in the case of the Nazis. Addressing Adolf Eichmann, she wrote:

Just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations — as though you and your superiors had any right to determine who should and who should not inhabit the world — we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.

Did she not see that she was making the same judgement call that the Nazis had? They deemed Jews (and gay people, and other groups) unfit to share the earth with them, and used that as their justification for murder, and Arendt is doing the same thing. Eichmann’s legacy lives on in her view. She was the most brilliant philosopher of the difference between the private and the public, the personal and the social, but in this instance she is letting her personal outrage invade the public realm.

As for what Beatty or Eichmann may have “deserved” - can there be anything worse than what they had already experienced, having to be men who would do the things they did?

The victim’s survivors must have a say and place of decision-making at all phases of the trial, penalty hearing, sentencing, and prospective clemency/commutation actions, as well as any prospective parole hearings.

 It is among paramount consideration preceding all execution action that the survivors must be provided a say in any completion of the capital punishment case.