Academic journal article TriQuarterly

Death Bed

Academic journal article TriQuarterly

Death Bed

Article excerpt

I am sitting in the witness stand of a courtroom in Frankfort, Kentucky, facing David, a young defense lawyer at Kentucky's Department of Advocacy. David is standing at a podium questioning me. It is April 18, 2005. We have been waiting for this moment for a very long time. I am the first of a dozen expert witnesses to testify in Baze et al. v. Rees et al., (1) a bench trial concerning the constitutionality of Kentucky's lethal injection protocol. Lethal injection is this country's most widely used method of executing death row inmates. I am testifying on behalf of the plaintiffs, Ralph Baze and Thomas Bowling, two condemned inmates who are claiming that the Kentucky protocol constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution and Section 17 of the Kentucky Constitution. The three defendants involved in this trial are most responsible for how Kentucky's executions are handled. They are the Commissioner of the Kentucky Department of Corrections, the Warden of the Kentucky State Penitentiary, and the Governor of the Commonwealth of Kentucky.

For months, David and his colleagues have been preparing for this trial. I am here because I have studied lethal injection, indeed all of this country's execution methods, for nearly fifteen years while a professor at Fordham University School of Law in New York City. The topic of execution methods has so troubled me that I have continued to follow it during my entire legal career, in spite of other professional interests and commitments. To me, the problem with execution methods symbolizes nearly everything that has gone astray with the death penalty in this country.

This courtroom scenario in Frankfort is not what people typically think of when they hear the word "trial" in the popularized television sense of that word. Everything about the setting projects smallness and understatement. Frankfort, the state capital, has a population of less than 30,000 people. The city's courthouse is a miniature of all the ones I have ever seen. There are only two courtrooms in the entire building. There is no Starbucks. Most certainly, this is no place for a Boston Legal episode where trials seem like packed fish bowls viewed by hundreds. As I sit in this courtroom, however, I am continually reminded that some of the most significant cases ever decided in this country started in locales that many Americans would consider quaint. We merely watch, not experience, Law & Order lives.

A civil bench trial is also very different from a criminal jury trial. In a civil bench trial, there is no direct involvement of the inmates' peers by way of a jury vote. A prosecutor and defense attorney do not battle over the guilt or innocence of the inmates. There is little interest in the original facts of the case. The inmates have already been convicted of murder and sentenced to death. They are not appealing their sentences and are not even present in the courtroom. Indeed, because this bench trial is a civil matter and a lawsuit, the inmates, who were previously called defendants in their criminal case, are now called plaintiffs.

Regardless, the "how" of Kentucky's executions is the heart of the plaintiffs' case. The constitutionality of execution methods is also of burgeoning significance throughout the country as medical investigations continually reveal the troubling, and all too latent, aspects of lethal injection. The concern is highly democratic within the death row inmate population. The risks of an inhumane lethal injection affect every inmate equally, no matter their color, their class, the quality of their legal representation or the purported social value of their victim. Each inmate has been designated by the state to die in the same way. In this bench trial, we are wrangling over how exactly that death will occur.

David and I both believe that lethal injection is not what the public and many lawmakers think it is--a serene and soothing way to die, like putting a sick animal to sleep. …

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