Bowels Of The Beast

If being imprisoned can be described as descending into the “Belly of the Beast.” Then not only being imprisoned, but condemned to death must bring one beyond that belly into the very Bowels of the Beast. Being condemned to the many years of solitary confinement under that sentence of death is itself a fate worse than death. This experience is not unlike that told in Dante’s “Inferno.” A work of classic literature that tells the story of a man who finds himself sent to hell. His only hope to escape this fate is to descend into the bowels of hell, to pass through the numerous levels, each progressively worse than the last, and only by surviving this journey might he have the hope of being free from condemnation. As bad as it might be when one first arrives, it only becomes worse as the many months and years slowly pass by. With each day, each week, each month, and each year that outside world drifts further and further away. In that solitaire world we call “death row” one is neither allowed to live or die but only exists in a state of perverted limbo, struggling not only in an inherently hostile environment but also in the seemingly elusive hope of “justice” as the very essence of your life itself slowly erodes away and is lost forever, and even death itself becomes seen as acceptable means of escape from the eternal torment of this never ending uncertainty. Upon being sentenced to death the condemned are kept in solitary confinement in segregated units designed not only to isolate the prisoner from the rest of us in the world, but even from each other. Not even one for one moment of a single day is the condemned prisoner allowed to forget that he exists now only to die, Death itself becomes the very fiber that collectively binds this morbid artificial and methodically structures environment together. As you struggle to mentally survive there are those around you that one by one descend into the inevitable psychological degradation culminating in acts of desperation as they might give up what hope might remain and waive their appeals – or simply be found hanging by a bed sheet in the silence of their own cells – as even that certainty of self inflicted death becomes more merciful than this perpetual state of uncertainty. Perhaps there are those who will say that such a prolonged and torturous existence is itself part of the punishment imposed upon those sentenced to death, that they should suffer as much as possible before they are put to a physical death. But then to respectfully paraphrase the German philosopher Nietzsche when we (individually or as a collective society) deal with monsters every day the greatest threat to us is not the monsters themselves, but of becoming the monster ourselves. If we deliberately inflict upon the condemned the same barbaric acts we condemned then for, then how are we any better? When out of malice and intent we deliberately inflict torturous acts upon another, are we not then becoming monsters ourselves? But then what of those later found to have been wrongfully convicted and condemned to death? In recent years over 125 men and women have been exonerated by the courts and released from death row; after being found to have been wrongfully convicted and condemned to death. See, www.southerninjustice.net and there can be no doubt that there are still many more innocent victims of our inherently imperfect judicial system still on death row. See, Justice Delayed Is Justice Denied with so many innocent men and women being wrongfully convicted and condemned to death, how can anyone advocate deliberately imposing prolonged suffering upon any of the condemned? Being wrongfully convicted and condemned to death is not about actually being put to death as the true injustice – the inevitable and irreparable injury – inflicted upon the innocent is that condemnation to an existence under the never relenting threat of death; of the ever increasing isolation as family and friends give up hope and are never heard from again; of the ever changing faces of lawyers who although all too often become your only contact with the world outside never the less meticulously keep their distance and even perceive your frustrations at the injustice as the manifestation of a “difficult” client and abruptly abandon your case when a better job comes along. See, Legal Representation In Capital Cases – Privilege or Pretense? It’s about the faded photographs of a life that once was and is now lost forever. It’s about laying awake on yet another sleepless night remembering the fading fragments of better times only to realize even your own children are now grown and gone and the grandchildren that are never seen. Words along cannot begin to grasp the depth of the impact upon those of us condemned and confined to the solitary existence, virtually powerless to influence the conditions of the environment – conditions of deliberate, extreme inhumane deprivation, of being subjected to the monotonously structured regime for an endless and seemingly eternal period of time constantly reminded that you are virtually warehoused only until the time of your own death – an intentionally inflicted death at the hands of those who today feed you. Recently there has been renewed questions of whether the means and methods of carrying out the actual execution of the condemned constitutes an act of cruel and unusual punishment given the numerous incidents of botched executions where the condemned prisoner obviously suffered a prolonged and painful death. Challenges to the use of the electric chair after numerous malfunctions resulting in the prisoner quite literally bursting into flames as witnesses watched in horror led to most states doing away with their electric chair and adopting the alternate of lethal injection as a more “humane” way to put a man to death. The recent execution of Angel Diaz in Florida on December 13, 2006 proved beyond any doubt that no matter what form of actual execution is adopted inevitably “mistakes” will happen and what was supposed to a “humane” and meticulously planned execution becomes as act of prolonged physical torture as the condemned helplessly struggles in pain. No matter what form of execution we choose, we simply cannot eliminate the inevitable element of human error. The bigger question we have yet to ask is whether the long-term confinement while condemned to death is itself an infliction of cruel and unusual punishment that makes the death penalty constitutionally intolerable. As the ever increasingly complexity of appellate review in capital cases results in the average length of a condemned prisoners stay on death row now easily exceeding a full decade – there are now many prisoners condemned to death for over 30 continuous years – can we as a civilized society continue to ignore that the very nature of being condemned to death, that prolonged uncertainty of the fate that awaits, is itself “cruel and unusual” punishment violative of even the most basic notions of a presumably civilized society, making the death penalty itself constitutionally intolerable? As a presumably civilized society we impose constitutional prohibition against governmental actions that “shock the conscious,” a term that is itself measured as a matter of constitutional law as being found to be offensive to “the evolving standards of decency of a civilized society.” When we stand before the rest if the world and hold ourselves out as a model of social and civil rights, how is it that we now remain alone in the western world in practicing capital punishment? Condemning any man, especially an innocent man, to death brings with it a fate far worse than death itself – being condemned to the Bowels of the Beast, to exist quite literally in a cage under objectively inhumane conditions for many years, even decades constantly reminded that you are condemned to death. It is that existence itself that makes even death by whatever means might claim you a mercy killing, not an act of judicially imposed punishment. Although it is only too easy to discount the claims of a condemned man and brush aside any concerns of conscience over this barbarically inflicted “punishment, “ this position, that it is the prolonged confinement under sentence of death itself that is a fate worse than death has been widely recognized by noted jurists – even Supreme Court Justices – and scholars alike through the years. See, Coleman v. Balkcom, 451 U.S. 949, 952 (1981) (Stevens, J. concurring) (recognizing that the mental pain suffered by a condemned prisoner awaiting execution “is a significant for form of punishment (that) may well be comparable to the consequences of the ultimate step itself – the actual execution.”); Furman V. Georgia, 408 U.S. 238, 288-89 (1972)(Brennan, J. concurring)(“we know that the mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.”) Those most familiar with the prolonged confinement of prisoners on death row — the wardens of the prisons themselves – have also publicly expressed their belief that the many years under sentence of death is itself a fate worse than that of death. The former warden of San Quentin wrote (see, Duffy and Hirshberg, Eighty Eight Men and Two Woman 254 (1962) that “One night on dearth row is too long and the length of time spent there by (some inmates) constitutes cruelty that defies the imagination. It has always been a source of wonder to me that they didn’t go stark, raving mad.” More recently, the former warden of Florida’s death row, Dennis O’Neil has now become an opponent to the death penalty. See, “His Turn for Turning the Other Cheek,” St, Petersburg Times, November 23, 2006. Many of the lower court judges have equally recognized that the prolonged wait of that uncertain fate shocks the conscience of any civilized man. See, People v. Anderson, 493 P. 2d 580, 6 cal. 3d 628, 649 (Cal, 1972) (“The cruelty of capital punishment lies not only in the execution itself, but also in the dehumanizing effects of the lengthy imprisonment prior to the execution during which the judicially and administrative procedures essential to due process of, are carried out. Penologists and medical experts agree that the protracted process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.”); see also, Suffolk County District Attorney v. Watson, 411 N.E. 2d 1274 (Mass. 1980)(providing vivid and detailed description of the type of psychological pain and torture that a condemned man experiences while awaiting execution, in arguing why capital punishment is unconstitutional under the Massachusetts Constitution because “it will be carried out only after agonizing months and years of uncertainty.”); Hopkinson v. State, 632 P. 2d 79, 209-11 (Rose, Chief Justice)(recognizing “the dehumanizing effects of long term imprisonment pending execution”) We are a constitutional democracy and it is our Constitution itself that, as recognized by our Supreme Court, Estelle v. Gamble, 429 U.S. 97, 102 (1976) embodies “broad and idealistic concepts of dignity, civilized standards, humanity and decency” against which forms of punishment imposed by the state must be measured. This Constitutional prohibition against the infliction of cruel and unusual punishment “expresses the revulsion of civilized man against barbarous acts – the ‘cry of horror’ against man’s inhumanity to his fellow man,” Robinson v. California, 370 U.S. 660, 676 (1962)(Douglas, J. concurring). Supreme Court Justice Antonio Scalia, himself a zealous advocate of the death penalty, (see, The Greater Evil) has recognized that our contemporary constitutional prohibition against the infliction of cruel and unusual punishment is based on English Law, see Harmelin v. Michigan, 501 U.S. 957, 966 (1991)”there is no doubt that Section 10 of the English Bill of Rights of 1689 ‘is the antecedent’ of the cruel and unusual punishments clause of our Eighth Amendment”) Today that origin of prohibition under the English Bill of Rights of 1689 is defined by the Privy Council, which is the highest appellate court for the commonwealth nations, presided over by members of England’s “House of Lords.” In addressing the question of whether the execution of a prisoner after a prolonged period of time offends basic notions of humane treatment in Pratt & Morgan v. Attorney General of Jamerica (Nov. 2, 1993) the Privy Council concluded that “there is an instinctive revulsion against the prospect of executing a man after he has been held under sentence of death for many years, What gives rise to this instinctive revulsion? The answer can only be our own humanity; we regard it as an inhumane act to keep a man facing the agony of execution over a long, extended period of time.” With such a broad consensus on the issue of whether the prolonged period of time under sentence of death constitutes an infliction of cruel and unusual punishment, why are we now the only country in the world that will keep a man in solitary confinement for decades under sentence of death, yet refuse to even address the question of whether this protracted uncertainty of one’s fate is itself a fate far worse than the infliction of death itself? It is the humanity within each of us that ultimately defines us as a “civilized” nation. Rather than focus so much on the question of whether capital punishment is itself cruel and unusual punishment, isn’t it time that we started to both publicly and judicially address the question of whether the inevitable long period of time between imposition of sentence to the finality of appellate review – a period of time now often surpassing 20, even 30 years – is itself a fate far worse than death itself and whether that prolonged solitary confinement of condemned man is what truly makes the contemporary imposition of a sentence of death constitutionally intolerable.

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