Know Your Executioner

Stephen Michael West

Meet Stephen Michael West. He is not a man I would invite to dinner at my house. He is at the vanguard of a rather interesting legal issue, though, which is why I write about him today.

Section I of this post contains a description of his crimes, because some people will want to know about the facts and circumstances of his crime and his conviction. The description of the crime itself is pretty tough stuff and if you are made uncomfortable by things like that, you can skip ahead to section II.

For now, it’s enough to know — this case asks the rather unusual question, one I am not aware of being asked before, of whether a condemned prisoner has the right to know the identity of and speak with his own executioner.

I

In March of 1986, when he was 23 years old, West and a fellow resident of rural Union County, Tennessee (a community located north-northeast of Knoxville), went looking for sex before their breakfast shift at the McDonald’s restaurant where they both worked. The accomplice said he knew a woman who would give them sex, and led them to the home of a family and they waited until the husband left for work. Then, the accomplice used the ruse of wanting to borrow money so he and West could gain entrance. Thereafter the mother was raped, and both the mother and the fifteen-year-old daughter were killed with guns and knives. West and the accomplice then returned to work his regular shift at McDonald’s, initially telling no one about what had happened.

So far, the story has never been in any serious dispute. Beyond those points, the picture becomes a little bit cloudier.

West made five different confessions to the police, each of which had inconsistencies with the other, and the Miranda status of those confessions were disputed (although the trial court resolved the Miranda arguments against West and the confessions were entered into evidence). Consistent throughout West’s confessions, however, was his claim that he not participate in the rapes and murders of the accomplice’s victims (though he admits he was in the house when it happened).

West has also claimed to have had ineffective assistance of counsel at his trial, which consisted of no statement at all from the accomplice, who had confessed to the rape and both killings. His trial counsel did not investigate nor seek to present evidence of a purported mental Illness caused by a history of childhood abuse. Prison doctors have diagnosed West as suffering from auditory hallucinations, major depression with psychotic episodes and paranoid schizophrenia.

Other than evidence of West’s confessions, the only other evidence put forward by the state at the trial were neighbors who saw a blue car later traced back to West’s accomplice, and a forensic pathologist who provided persuasive testimony that two people participated in the rape of the mother.

Nevertheless, West was convicted of two counts of first-degree murder with aggravating circumstances, and two counts of kidnapping, and one count of rape (forensic evidence about the sexual assaults on the younger woman was, apparently, inconclusive). Because the murders occurred within the course of the commission of the other, serious, and violent crimes of kidnapping and rape, he was eligible for and ultimately received the death penalty according to the laws of the state of Tennessee.

The accomplice was 17 years old at the time and was therefore ineligible for the death penalty under Tennessee’s laws. He is serving two life sentences. It is very, very difficult to conjure up all that much sympathy for Mr. West notwithstanding the contentions about his mental illness and his insistence that he did not actually kill the women who were the victims of the crimes committed that dark day.

West was 23 when he was involved, however he actually was involved, in these life-shatteringly awful crimes. He has spent the last 29 years in prison under a sentence of death and will, with certainty, die where he has lived functionally all of his adult life, inside a prison. The significant questions of his fate that remain unresolved are when and how he will meet that death.

II

Regardless of the merits of the Tennessee judicial system’s judgment of death upon him, West stands a convicted murderer and rapist and in this post, I shall question neither his legal guilt nor his moral culpability.

Most recently, his execution was scheduled for January of 2014. West yet lives; Tennessee has not been able to conduct an execution since 2009 because of legal challenges to its execution protocol. His attorneys have been among the leaders of a movement to challenge the way prisoners are executed, in the hopes of preventing the executions from happening at all.

Once upon a time, Tennessee used the classic three-drug protocol for executions by way of lethal injection. That protocol consists of intravenous injection of first 1) a barbituate, classically sodium thiopental, followed by 2) a paralytic, classically pancuronium bromide, and then 3) a lethal agent, typically potassium chloride. As one writer put it, the vulnerability to challenge of this execution protocol is:

If the barbiturate is not fully effective, perhaps because the dose is too low or the needle misplaced, the inmate may still be able to feel pain. If the paralyzing agent is then injected, the person will feel suffocated — but will be unable to move or cry out, and may even look peaceful. The potassium chloride will then cause an intense burning sensation, muscle cramping and chest pain.

It’s easy, especially for those who have read of the awfulness of crimes like West’s, to dismiss the fact that the condemned prisoner feels pain upon being executed. Our concern about performing an execution in a humane way does not arise out of sympathy for the prisoner — it is out of respect for our own laws, which prohibit the imposition of cruel and unusual punishments.

And indeed, after a rash of botched executions (example), Tennessee faced several political and practical challenges to its ability to adhere to its execution protocol. The seeming wave of botched executions in other states rallied death penalty opponents in Tennessee, who began to push for abolition. In March of 2011, the state surrendered its entire stock of sodium thiopental to the DEA in the face of a threatened seizure based on violation of importation laws; since then, Tennessee’s correctional system presently has had no supply of either sodium thiopental or pancuronium bromide.

“Old Smokey,” the electric chair used by the State of Tennessee until 1960.

So, in September of 2013, Tennessee switched to a one-drug protocol using only one drug: a massive dose of pentobarbital. Getting the drug turns out to be a logistical challenge because most manufacturers will not sell the drug to prison systems. As a “backup,” the state adopted a law authorizing executions by electric chair if lethal injection drugs are not available, in May of 2014.

Such, then, is the present state of capital punishment in Tennessee; such, then, is the foundation for the latest round of legal challenges in which Stephen Michael West is the ostensible lead plaintiff.

III

Let’s be clear: West isn’t the actual intellectual or political mover here. It’s his lawyers — court-appointed, dedicated, idealistic, smart, and publicly-paid lawyers — who have been filing pleading after pleading, keeping their client alive. Everything that you will read about from this point forward in the post. on both sides of the argument, has been paid for by the taxpayers of the state of Tennessee.

The gravamen of the legal challenge pending in a Nashville court is that either a massive dose of pentobarbital or the administration of the electric chair constitutes cruel and unusual punishment. It’s a civil case, so the burden is on the plaintiffs (that is, West and his fellow condemned prisoners) to prove that the state will violate their Eighth Amendment rights.

As for the electric chair challenge — having offered proof that the state has difficulty getting pentobarbital, the defendants wanted to demonstrate that the electric chair was necessarily and unavoidably painful, sometimes not even lethally so. On July 2, 2015, the Tennessee Supremes made clear that they are having none of it: West must show that he will necessarily face the electric chair, not that he might, before they will even allow him standing to challenge this mode of execution. That, in turn, will only happen if lethal injection according to the then-current protocol is found to be unconstitutional, or if there are no drugs available at the scheduled time of execution.

Until one of those two things happens, no one gets to challenge whether the electric chair is a cruel and unusual method of punishment, because there is no chance that the electric chair will be used. It’s just there. Sitting in a corner, behind some ropes on stanchions. Looking kinda scary but not actually engaged in the act of killing anyone.

More interesting than that, though, is the claim that could trigger the ripeness of a challenge to the electric chair — a showing that the pentobarbital injection (if there ever is any) is cruel and unusual. To do that, the attorneys wanted to inspect the execution chamber, and they wanted to depose the actual executioners. In order to do that, they needed to know who the executioners were — who are the people who will actually administer the fatal dose of pentobarbital?

What the attorneys are looking for is the likelihood that the people who are administering the drugs are not qualified to do so, that they do not have any substantial medial training. Presumably, they have medical experts lined up who will say that X% of people are allergic to pentobarbital and if West is one of them, he will not slip painlessly into the arms of Morpheus before succumbing; he will fall into anaphylaxis and convulse painfully before dying or, more perversely, experience intense pain shooting through his blood vessels before dying but not be able to move and thus present the outward appearance of peace and repose to the observers. How can we really tell when someone else is actually in pain, anyway?

So the plaintiffs tried to ascertain the identities of the executioners, who they had sued as “John Doe Executioners 1-100” and the state resisted giving this information. Initially the trial court indicated that it would be amenable to having that information circulated just among counsel, with counsel under orders to keep the identities of the executioners secret. Then, the state reached a deal with the attorneys for the prisoners that, if the executioners were to be called to testify, they would do so behind a screen and with their voices disguised. This was also good enough for the trial court. And it was good enough for the appellate court.

But it wasn’t good enough for the Tennessee Supreme Court, which said no, Mr. West, you don’t get any executioner information or testimony at all, because the prisoner has brought a challenge to the protocol on its face. Presumably, the trial is to proceed as though the drug will be administered by the most-qualified person possible — a top anesthesiologist, perhaps. Of course, that in all probability isn’t who will be doing it. It’s not certain that the executioner is a doctor at all. Does that matter?

Seems to me that it does. An anesthesiologist can be presumed to have training, experience, knowledge, and skill that a lesser-qualified person — a general-practice doctor, a paramedic, a phlebotomist, a prison guard who took a first-aid class — would not. If there is any reasonable medical chance that a large dose of this drug would cause discomfort in the specific person of the condemned, then if we take the notion of not imposing cruel and unusual punishments seriously we must use someone to administer this poisonous dose of barbituate in a way that will not induce that response. A phlebotomist probably doesn’t have enough medical knowledge to do that.

Now, the state’s argument is that barbituates are pleasant to take, and the dose is so large that there is no doubt about even the tiniest potential for survival or sensation. Maybe that’s true, and presumably they have a medical expert who will so testify. Does everyone, uniformly, react that way to a massive intravenous dose of barbituate? I don’t know and I bet most doctors would hesitate to say that this would be a uniform reaction.

Against that, the Supreme Court said the privacy concerns of the executioners must prevail. Were their identities to become known, even inadvertently and innocently on the part of the attorney who disclosed that information, those people would be subject to retaliation and harassment by the families of the condemned and the general public.  Other states, the Court noted, protected the anonymity of their executioners and debatably, the Tennessee Legislature signaled its preference that executioners be given the benefit of performing their jobs anonymously.

So even if the executioners are not top anesthesiologists, we may not know. It could be that the plaintiffs need to make a factual showing that in the hands of an unqualified administrator, these drugs have the potential, in the doses contemplated, to cause pain. And in that case, the state would have to demonstrate how it had a precaution to avoid or mitigate that circumstance — presumably with medical personnel involved.

But that hasn’t happened yet; maybe it’ll turn out that the plaintiffs can demonstrate this as a matter of fact but they’ll have to do it without the executioners or any knowledge about them.

IV

Make no mistake about the objective: the goal here is to stop the execution from happening at all. The method here is to make the execution as difficult as possible for the state to perform. Make it hard for the state to get the drug. Make the state prove that the drug is absolutely 100% foolproof. Make the state find someone with rare qualifications to administer the drug, and then persuade all such people not to do it so the state can’t find an executioner. And cost the state as much money as possible along the way.

I think it’s a chump’s game at this point. Stephen Michael West has lived functionally his entire adult life in prison and will do so for the rest of his life. We call this “justice” and if, as I have chosen to allow unchallenged, he is truly guilty of the crimes for which he has been convicted, I’m going to say that yes, that is justice.

What’s going on now is a complex legal dance in and out of the rules of civil discovery and touching on issues that are perhaps best left alone. Would confronting your executioner be something you would want to do in the hopes of persuading him not to go through with it? Is there some measure of comfort in having the executioner be anonymous (and possibly unseen) at the time of life’s end? These are morbid matters that inspire at least small measures of dread and terror, and they need not be.

Nor need we go through the expense. Leave aside the issue that the current state of affairs forces very talented lawyers to intentionally gum up the workings of the justice system simply to stall for time, and the perversity involved in such an endeavor. Isn’t life in prison punishment enough for anything? I see no cause for mercy in West’s case for the now thirty-year-old crime; but I hardly consider life in prison to be “mercy.” Insisting on killing the man will cost Tennessee much more money than whatever public benefit it claims it might achieve. Let the executioners remain anonymous; let them go home and not ever hear a call to their grim duties. Save money, save time, save effort, and devote those resources to other, better places, like preventing future crimes.

Feature image: Public domain, sourced from wikimedia commons. Mug shot of Stephen Michael West taken by Tennessee Department of Corrections, no copyright on government works. Picture of Tennessee electric chair, nicknamed “Old Smokey” by prison guards from the 1950’s, creative commons licensed sourced from wikimedia commons. Note that in 2014, Tennessee caused a new, different-appearing electric chair to be created which was exhibited to the media after Gov. Haslam signed the law reinstating use of the device; I have found no non-copyrighted pictures of that newer chair.

Burt Likko is the pseudonym of an attorney in Southern California and the managing editor of Ordinary Times. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.