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Nicolais: Death sentence gone awry

Author: Mario Nicolais - December 19, 2016 - Updated: December 16, 2016

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Mario Nicolais
Mario Nicolais

Every law school student loves to argue. Most see reflections of Gregory Peck or Spencer Tracy in their mirrors. And, in my law school experience, nothing brought about an argument as fast and as fierce as the death penalty. Stakes cannot be greater or an outcome more final. I even remember former Illinois Gov. George Ryan speaking at our school after he reignited the political debate over the death penalty by declaring a moratorium in 2000.

A decade after leaving law school, I find myself drawn to the subject again for two reasons. First, I’m a die-hard fan of the cult television series “Rectify,” which just aired its series finale. The best show nobody watched over its four year run, “Rectify” centers on a death row inmate released, but not exonerated, after new evidence is introduced 20 years after his conviction. The show has a slow and deliberate pace, takes advantage of outstanding writing and superlative acting and is a great choice for binge watching over a long weekend.

Second — and infinitely more serious — the state of Alabama just executed an inmate via lethal injection. And media reports suggest it did not go as planned.

Ronald Smith “executed” a convenience store clerk in a 1994 robbery. More than 20 years later, with all his appeals exhausted, Alabama executed Smith. The state put him to death using a three-drug cocktail. The first drug administered is intended to render the inmate unconscious. In Smith’s case, he heaved, coughed, and struggled for breath for over thirteen minutes. Given two separate “consciousness” tests, he appeared to react, if only in physical movement.

Unlike many of my classmates, I never formed a passionate opinion on the death penalty. Like many Americans, I found myself torn. On one hand, I believe in real evil, the irredeemable kind that I wish to be irradiated from this world. And there are families who seek and should have closure. Finally, unlike the main character in “Rectify,” and the highly publicized real life incidents of wrongly-convicted capital punishment inmates, the underlying facts in most death row cases are in serious dispute. The question of innocence is not in serious contention.

This undated photo provided by the Alabama Department of Corrections shows Ronald Bert Smith Jr.. Smith Jr., an Alabama inmate coughed repeatedly and his upper body heaved for at least 13 minutes during an execution, Thursday, Dec. 8, 2016, using a drug that has previously been used in problematic lethal injections in at least three other states. (Alabama Department of Corrections via AP)
This undated photo provided by the Alabama Department of Corrections shows Ronald Bert Smith Jr.. Smith Jr., an Alabama inmate coughed repeatedly and his upper body heaved for at least 13 minutes during an execution, Thursday, Dec. 8, 2016, using a drug that has previously been used in problematic lethal injections in at least three other states. (Alabama Department of Corrections via AP)

On the other hand, even one wrongful conviction that sends a man or woman to her death is nauseating. It isn’t a question of unfair punishment, but instead a stripping of all that God bestowed upon this person. Taking a life is taking everything; mind, body and spirit. Data also suggests that capital punishment does not work as a deterrent, so the societal benefit is mitigated.

The argument goes back-and-forth, argument and counter-argument ad infinitum. Certainly this topic is more than a single column can do justice to.

But cases like Smith’s have a visceral impact that tip the balance for people like me. To begin, there is the system that led to his death. Jury members who were entrusted with determining his guilt voted against the death penalty. Instead, they suggested life in prison. Unique among the states, Alabama allows judges to overturn jury recommendations. And in Smith’s case, the judge exercised that prerogative. It makes me feel like the judge never trusted the jury to make the right decision.

And then there is the wretchedness of the execution itself. Inmates in Oklahoma appealed the use of the same drugs used on Smith all the way up to the U.S. Supreme Court. They argued the drugs do not always work as intended, which makes them a form of unconstitutionally cruel and unusual punishment. The Supreme Court denied the appeal, 5-4, but Justice Sonia Sotomayor’s dissent labeled the practice “the chemical equivalent of being burned at the stake.”

Smith’s final moments appear to make Sotomayor’s words perhaps prophetic.

Mario Nicolais

Mario Nicolais

Mario Nicolais is a legal scholar, owner of his own law firm and general counsel for a long-term health care company.