Death and the Lightning Bolt: Capital Punishment On The Ropes?

Oct. 5, 2015 (Mimesis Law) — The jury returned its verdict and the judge, as judges pretty much all do, thanked them for their service. It is, he said, a difficult thing the county asked you to do, and it is grateful. Then he –

Oh, wait, sorry. I left out the crime. It was ugly. Edgar Allen Poe stuff. Hoffner and his co-defendant Archie Dixon wanted to get hold of their buddy Chris Hammer’s car. So they, with the assistance of Kristen Wilkerson (Dixon’s girlfriend) . . . Feh. Don’t make me tell it. Here’s the official version, from the Ohio Supreme Court’s opinion in Hoffner’s appeal.

In the early morning of September 22, Hoffner, Dixon, and Hammer went to Wilkerson’s house. Once there, Hoffner and Dixon attacked Hammer. Hoffner restrained Hammer in a headlock while Dixon beat him. Hoffner tried to break Hammer’s neck, and Dixon struck Hammer in the head with a wine bottle. Hoffner and Dixon then tied Hammer to a bunk-bed ladder, and Dixon went through Hammer’s wallet, taking out his money, birth certificate, and Social Security card. Then Hoffner and Dixon discussed how they should dispose of Hammer’s body. While Hammer remained tied to the bunk-bed ladder, Hoffner and Dixon left Wilkerson’s house to dig a grave. Hoffner and Dixon returned to Wilkerson’s house and they, along with Wilkerson, drove Hammer, blindfolded, to the gravesite in Hammer’s car. Wilkerson stayed at the car while Hoffner and Dixon walked Hammer into the woods, where they permitted Hammer to smoke a cigarette. Then they gagged and again blindfolded Hammer, tied his hands and feet behind his back, grabbed him by his arms and legs, and dropped him into the grave, still alive. At one point, Hammer was able to remove the gag from his mouth and free one of his legs. Hoffner jumped into the grave and placed his foot over Hammer’s mouth when Hammer yelled for help. Hoffner and Dixon then held Hammer down and covered him with dirt. After Hammer was completely buried, Hoffner and Dixon walked back and forth across the grave, packing down the dirt. Hoffner, Dixon, and Wilkerson then returned to Wilkerson’s house in Hammer’s car.

OK, got that? Now, let’s start again.

The jury returned its verdict recommending that Tim Hoffner be executed, that he should be killed in the name of the people of the State of Ohio. And the judge, as judges pretty much all do after any jury trial, thanked them for their service. It is, he said, a difficult thing the county asked you to do, but a vitally important thing.

Then he added that if any of the jurors needed therapy as a result of performing this service, the county would pay for it.

There were three executions scheduled for last week.

Kelly Gissendaner, on death row in Georgia, didn’t kill anyone herself though she arranged for the 1997 murder of her husband, Douglas Gissander. Gregory Owen, the actual killer, was her lover at the time. He’s doing life with a chance of parole. Whatever, whoever Gissendaner was then, she’d changed, showed remorse, provided support and counsel for other prisoners.

Richard Glossip, on death row in Oklahoma, didn’t kill anyone, either. It was Justin Sneed, serving a life sentence for the crime, who murdered Barry Van Treese, the owner of the motel where they both worked. The state’s theory is that Glossip put Sneed up to it. The evidence supporting that claim, never strong, has pretty much completely unraveled.

It’s pretty clear that Alfredo Prieto, on death row in Virginia, did kill people himself, at least three and maybe half a dozen more that he’s been linked to. He was on death row in California for the 1990 rape and murder of Yvette Woodruff when DNA tied him to killings in Virginia. He was extradited there, tried and again sentenced to be killed for the 1988 murders of Rachel Raver and Warren Fulton, III.[1] There’s a fair chance that Prieto was mentally retarded. If so, his execution would be unconstitutional. The courts showed no interest in finding out.

Gissendaner was to be executed Tuesday, Glossip Wednesday, Prieto Thursday. In each case the Pope, who’d made a point of calling for abolition of the death penalty when he spoke to Congress, made a specific request that the sentence be commuted. None of the sentences were.

In each case, last minute litigation raised questions about what would happen. None of it staved off the executions. Litigation delayed Gissendaner’s for about five hours. Virginia refused to wait, killing Prieto while the Supreme Court was deciding whether to hear his final appeal on the lethal injection drugs involved (eventually dismissed as moot because, well, it wouldn’t have made any difference to him).

Glossip, on the other hand, wasn’t killed. With hours to go, Governor Mary Fallin issued a 37-day reprieve so that they could figure out how it is that the prison got the wrong drug for the third in the killing sequence. Later, the Court of Criminal Appeals granted a request from the Attorney General that the next three scheduled killings (Glossip’s new date would make his the third) be put off indefinitely while they tried to resolve the drug issue.

So the wholly innocent guy gets a temporary break that has nothing to do with whether he is in fact innocent. The serial killer whose execution might be unconstitutional gets killed while the courts are still deciding whether to stop it for reasons that have nothing to do with whether he’s ineligible to be killed at all. And the first woman to be executed in Georgia in the past 70 years, who didn’t actually kill anyone, a woman whose February execution date was put off because it snowed.

Want more?

Kimber Edwards was due to be executed in Missouri Tuesday for hiring Orthell Wilson to kill his ex-wife, Kimberly Cantrell so that he wouldn’t have to pay child support. Friday, Governor Jay Nixon commuted the sentence to life after “significant consideration,” whatever that means.

Also Friday, we learned that Gregory McKnight, on the row in Ohio, asked to drop his appeals and be executed for the murder of Emily Murray, a college student, back in 2000. He’s not the first person to ask to be killed though it’s very far from clear whether his request for assisted suicide (a crime in Ohio except in the case of people we want to kill) will be granted. And if it is . . . .we have executions scheduled here in the Buckeye State through the end of May 2019! That’s a long time to wait for a wish, and plenty of time for him to change his mind.

John Kasich is the Governor of Ohio and could do something about all those folks here waiting to be killed. Of course, he’s running for President. Still, based on his track record he’s a willing but not particularly enthusiastic supporter of executions. He now says that the way to curb mass shootings is to execute the people who commit them. This despite the fact that more than half of those folks commit suicide by shooting themselves. Too late to execute them, though perhaps if they knew that assisted suicide was available here they’d consider shooting up places here rather than across the country.

In 1972, when the Supreme Court declared all then-current death penalty laws unconstitutional and emptied death rows across the country, Justice Potter Stewart famously explained that “death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” The new laws that the Court approved four years later supposedly fixed that problem. The new laws will be rational, the Court said. They’ll accurately identify the worst of the worst people who did the worst of the worst things. And those folks will be killed.

Had it actually worked that way, had the results actually been as fantasized, Harry Blackmun would not have determined to give up “tinker[ing] with the machinery of death.” That’s from his dissent from the Court’s refusal to hear Callins v. Collins (footnote omitted).

Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question–does the system accurately and consistently determine which defendants “deserve” to die?–cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed. . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

And he was only looking at the decision of who should be sentenced to die.

Thurgood Marshall said that if only people understood how it all works, they’d oppose capital punishment. Maybe they’re catching on. Executions are down. Capital prosecutions are down. Death sentences are down. Texas, fucking Texas, hasn’t sentenced anyone to die since late last year, and it’s not likely to impose death in any of the three cases likely to be tried the rest of this year.

You know, Potter Stewart was on to something.

[1] California apparently wanted Virginia to have him because it figured that the Old Dominion would actually carry out the death penalty, something California, with over 700 folks on the row, doesn’t actually do, it seems.

Main image via Flickr/Patrick Feller

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