Comment: Covid pause on death-row executions gives time for fresh thinking on capital punishment

When Joe Biden is inaugurated in January there will be 52 prisoners left on federal death row in the US. It would not take him long to spare their lives, writes Ian O’Donnell
Comment: Covid pause on death-row executions gives time for fresh thinking on capital punishment

The federal prison complex in Terre Haute, Indiana, where Lisa Montgomery, convicted of fatally strangling a pregnant woman, cutting her body open and kidnapping her baby is scheduled to be executed by lethal injection on December 8. File Picture: AP Photo/Michael Conroy

Several times this year, I began to write about how a named individual was to be slowly and deliberately killed in front of a group of spectators in Huntsville, Texas.

The identity of the intended victim kept changing but the killing – plans for which were announced in advance each time – never took place.

To my great relief, the article remains unfinished.

What I had in mind to describe was not the coordinated activity of a criminal gang. Rather, it was the ultimate move in the choreography of capital punishment.

The condemned person draws their last breath strapped to a gurney in a small room with viewing galleries to the side. 

These accommodate media representatives as well as members of the victim’s family. 

Sometimes no one attends on the prisoner’s behalf; decades on death row erode all but the most committed relationships.

An opportunity is given for a last statement before the lethal drugs begin to flow through a catheter that has been inserted into the prisoner’s arm. 

If accepted, this often takes the form of an apology for the harm caused, an expression of love for family and friends soon to be left behind, or a prayer.

When Abel Ochoa was executed on February 6, he told those gathered, that: “I would like to thank God, my dad, my Lord Jesus saviour for saving me and changing my life.

"I want to apologise to my in-laws for causing all this emotional pain. I love y’all and consider y’all my sisters I never had. I want to thank you for forgiving me. Thank you warden.” 


                        Lisa Montgomery  is is due to be executed on December 8 in Texas.
Lisa Montgomery  is is due to be executed on December 8 in Texas.

If the body is not claimed, it is interred a couple of miles down the road in a cemetery maintained by the Texas Department of Criminal Justice. 

The headstones of men who have been executed – which are manufactured in a prison workshop – are inscribed with an ‘X’, distinguishing them from their neighbours, even after death.

The prison in Huntsville where executions take place is called the Walls Unit. 

The electric chair, known as Old Sparky, was first used there on February 9, 1924, when five men were done away with. 

The last inmate died in the chair on July 30, 1964; he was number 361.

Between 1965 and 1981, due to a temporary prohibition on the practice, no prisoner was put to death in Texas

When executions resumed in 1982, drugs were used instead of electricity and, by 2006, the number killed by lethal injection had overtaken the number electrocuted.

Executions in Texas declined from a peak of 40 in 2000 to three this year, with the downward trend given further impetus because of precautions taken to limit the spread of the coronavirus.

It is a bitter irony that some of the state’s death row occupants have seen their life expectancy extended by the Covid-19 pandemic.

This slowdown provides an opportunity for fresh thinking about capital punishment. If the trajectory is to be sustained – as I believe it should be – the conversation needs to change from one about justice to one about mercy.

It is an act of mercy to allow someone to live when there are no obstacles to prevent justice taking its course and the weight of opinion is that it should. Mercy is where compassion trumps justice.

Mercy makes people uneasy because it involves unmerited leniency. It gives criminals what they have no right to claim and are seen not to deserve.

Also, it is condescending, treating criminals as less than fully accountable for their actions.

Despite these risks, it offers some broad benefits.

It shows that society is robust enough to absorb the harms of crime without exacting the ultimate penalty. It demonstrates humility by acknowledging the fallibility of the law. 

It acknowledges that, however dreadfully someone has behaved, they still matter because of our shared humanity.

These benefits mean that, on balance, allowing space for mercy is preferable to rigid, relentless lawfulness.

I have stepped inside the death chamber in the Walls Unit and spoken with some of the correctional staff whose duty it is to administer the final sanction. They struck me as decent and dutiful God-fearing men who believed in upholding the rule of law. But they are employed by a state where mercy is seen as weakness.

Also, they live in a country whose president has been keen to burnish his law and order credentials. 

File photograph of Lisa Montgomery in December 2004. Montgomery, of Melvern, Kansas, is due to be executed on December 8 for the murder of pregnant Bobbie Jo Stinnett, cutting the fetus from her body, and claiming the live baby as her own. Picture: Wyandotte County Sheriff's Department via Getty Images
File photograph of Lisa Montgomery in December 2004. Montgomery, of Melvern, Kansas, is due to be executed on December 8 for the murder of pregnant Bobbie Jo Stinnett, cutting the fetus from her body, and claiming the live baby as her own. Picture: Wyandotte County Sheriff's Department via Getty Images

The Trump administration resumed executing federal prisoners this summer after a 17-year hiatus. Recent months have seen a killing spree with three men put to death in July, two in August and two in September.

Another execution is scheduled for next week and two more will take place in the run-up to Christmas

On December 8, Lisa Montgomery will be the first woman to have her life extinguished by the federal authorities in almost 70 years. She will be followed, two days later, by Brandon Bernard, who was a teenager when he committed murder 21 years ago.

Whether to grant clemency in these cases is a matter for the President and, as his term draws to a close, Donald Trump could choose to commute these sentences to life imprisonment. It is almost certain that he will not.

When Joe Biden is inaugurated in January there will be 52 prisoners left on federal death row. 

It would not take him long to spare their lives. I estimate that to sign his name 52 times to authorise these commutations would take four minutes at most. 

If Mr Biden could find these four minutes during his first 100 days in office, it would be a powerful demonstration of leadership, and it would signal the change of direction so many voted for. Its positive ramifications might even extend to states like Texas, bringing a dwindling number of executions to a permanent halt.

We used to execute murderers in Ireland. Most often they were hanged but some were shot. The last of them was Michael Manning, a 24-year-old carter from Limerick who killed an elderly nurse after a drunken sex attack. 

He blamed his appalling conduct on the effects of the large quantity of alcohol he had consumed.

From his cell in Mountjoy Prison, Manning wrote to the Minister for Justice seeking mercy, but to no avail. On April 20, 1954, Albert Pierrepoint escorted him to the gallows in Mountjoy Prison and his neck was snapped.

The country did not descend into chaos when this grotesque ritual was halted.

There is an excellent prison museum in Huntsville. Hopefully, it will not be long before the gurney from the Walls Unit is decommissioned and joins Old Sparky as another exhibit of a less civilised time.

  • Ian O'Donnell is professor of criminology at University College Dublin. 
  • His book Justice, Mercy, and Caprice: Clemency and the Death Penalty in Ireland is published by Oxford University Press

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