Dale Baich has watched 13 people die in the Arizona death chamber. One in particular has stayed with him: convicted murderer Joe Woods, who took nearly two hours to die.
In some respects, Mr. Baich, a capital defense attorney, had no option but to be there for a client. But the experience affected him profoundly. “I can still see Joe’s mouth opening like a big yawn and him sort of lifting up against the restraints when he took that first gasp,” he recalls. “So, it doesn’t leave you.”
Volunteering to watch someone die by execution is one of the hardest tasks asked of Americans in the name of civic responsibility. But after states experienced a series of botched executions and troubles procuring drugs used in lethal injections, Arkansas, for one, has struggled to find enough witnesses. Its call for volunteers has come even as state lawmakers have made the process less accessible.
The emerging focus on the death chamber curtain underscores “an extraordinary period for the death penalty in the United States,” says Austin Sarat, a political scientist at Amherst College in Massachusetts.
Now, issues around transparency, drug availability, and public consensus may be coming to a head, with two executions scheduled for Monday night. Barring last-minute stays, it will be the first time a state has executed two people on the same day since 2000. The people watching Monday’s executions are part of a test of civic duty, reinforcing the importance – and also impotence – of witnessing capital punishment.
“If the role of witness has changed, it’s because the importance of that role has grown,” says Robert Dunham, executive director for the Death Penalty Information Center, which maintains the country’s most extensive database on the topic.
Up until 1936, executions in America were public events. Historian Joel Harrington, in “Faithful Executioners,” notes that public executions were historically intended to accomplish two goals: “to shock spectators and … to reaffirm divine and temporal authority.”
The hanging of Rainey Bethea in Owensboro, Ky., that year, caused a public uproar and set in motion a reform effort to better preserve the dignity of condemned prisoners. But smaller groups of invited witnesses have remained integral to document and certify the process.
Witness for all or ‘cog in the bureaucratic machinery’?
Arkansas requires six “respectable” citizens to watch an execution. Among them are often local pastors, sheriffs, newspaper reporters, crime buffs, and families of the slain as well as the convicted.
“The role of the witness is a complicated and contradictory one,” says Mr. Sarat, author of the 2014 book, “Gruesome Spectacles: Botched Executions and America’s Death Penalty.” An execution “is dramatic and traumatic for the individual witness, but it’s really just a cog in the bureaucratic machinery. Yes, [bearing witness] has an important theological connotation, but they are also being invited to see something which is required to be seen. It’s not like the witnesses are in charge.”
Before last week, the state hadn’t executed a prisoner since 2005. With lethal-injection drugs set to expire at the end of the month, Arkansas Gov. Asa Hutchinson at first set a rapid-fire execution schedule, which would have been unprecedented in the modern history of the US death penalty. Court challenges resulted in four of the eight death-row prisoners receiving stays of execution.
But Republican Governor Hutchinson joins a lot of Americans in saying that enough is enough when it comes to drawn-out cycles of appeals for convicted murderers. In fact, California voters in November upheld plans to hasten the process. Yet that comes at the same time that juries are condemning fewer people to death, actual executions are dwindling nationwide, and support for the sanction has dropped to lows not seen since the 1970s.
Arkansas had a particular problem as it prepared for its original plan of eight executions in less than two weeks: finding witnesses.
Last month, Wendy Kelley, the director of the Department of Corrections, asked a Rotary Club meeting for volunteers. At first, there were light chuckles in the audience. “They thought she might be kidding,” said interim president Bill Booker, according to the Arkansas Democrat-Gazette. “It quickly became obvious that she was not kidding.”
Little Rock resident Michelle Frost had a visceral reaction to the request. “I could understand not even wanting to read about these occurrences, let alone have to be in the room or watching,” she told a local news station.
A victim's family
On Monday, the family of Mary Phillips, who was slain by death row inmate Jack Jones, Jr., began to plan for their trip to the Cummins Unit, where Arkansas houses its death chamber.
For Ms. Phillips’ family, their role as witnesses will serve as the final nail of justice.
“It’s like they trapped us” in an endless series of legal hearings, Darla Jones (Phillips's daughter) told CNN. “We couldn't move on and have that closure because they wouldn't let us.”
Phillips’ family is obviously motivated by grief for their loved one. But in other ways, they fit the profile of average execution witnesses, who “are basically folks,” notes Mr. Dunham, a lawyer who formerly represented clients on death row.
Some are serial witnesses, like a witness who told his wife after an execution: “You ought to see this.” Some witnesses to Oklahoma City bomber Timothy McVeigh’s execution expressed disappointment that there was nothing to see.
Father Lawrence Hummer had a different experience. He counseled double-murderer Dennis McGuire before watching his execution in late 2014. Lawsuits claimed that Mr. McGuire suffered during the drawn-out procedure. State officials say he did not feel any pain.
But speaking as an observer that day, Father Hummer believes he knows the truth: “He was gasping and choking real loud….”
Banning reporter's notebooks
In recent years, death penalty states have been closing the curtains, both legally and literally.
Prison officials in Oklahoma and Virginia have drawn curtains when an execution appears to be in trouble, specifically in the cases of Clayton Lockett in 2014 and Ricky Lee, denying witnesses a clear view of what really happened.
For its part, Ohio has joined several other states in passing laws protecting the identities of people and businesses that compound the concoction used in lethal injections. Arkansas has banned reporter’s notebooks and pencils from viewing room.
To Baich in Arizona, such moves are less about whether the death penalty is defensible – and more about a growing question about whether Americans can really stand the truth about what’s happening in their name.
“What other act that the government does is shrouded in such secrecy, national security stuff aside?” he asks. “As citizens, we should demand to know that if the state is going to kill somebody, that the drugs come from an FDA-approved manufacturer of drugs, and we should know that the person who is sticking the needle in the guy’s arm is someone whom we would feel comfortable getting a blood test or an IV from. Yet the government says, ‘We can’t supply that information because people wouldn’t want to [kill someone] if their identity were known, or if the identity of the drug company were known.’ To me, that doesn’t make sense.”
Clarification: This article has been updated to correct the fact that Robert Dunham does not currently represent prisoners on death row.