The litigation — especially U.S. District Judge Eli Richardson’s cynical and macabre opinion published November 26th — concerning Harold Nichols’ scheduled execution on December 11th in Tennessee contains elements about the way our legal system operates that evidence not only the death penalty’s depravity, but how it casts an ugly stain on lawyers generally, contributing to making law one of the most hated professions.
Echoing what I wrote about earlier this year in the Memphis Flyer, that the use of pentobarbital in executions is torture, Judge Richardson wrote: “As to the challenge that [Nichols] is making, [Nichols] alleges (and the Court accepts as true) that pentobarbital causes flash (acute) pulmonary edema as it enters the blood stream and passes through the lungs and burns the membranes of the lungs, and that when fluid enters the lungs it causes a drowning sensation akin to waterboarding — ‘one of the most powerful, excruciating feelings known to man.’”
Despite this eye-opening judicial finding about the torturous use of pentobarbital — which Richardson stresses later in his opinion, writing, “The Court (as noted above) accepts as true that [Nichols] is ‘sure or very likely’ to experience the sensation of drowning if he were to be executed by lethal injection” — Richardson nevertheless “tossed” (as The Tennessean described it) Nichols’ challenge to his impending lethal injection. Richardson concluded Nichols was barred by a one-year statute of limitations when the state adopts a new “particular method of execution.” As The Tennessean explained, Judge “Richardson found that switching the drugs used in lethal injection [to, in this case, a single dose of pentobarbital] is not considered an ‘adoption of a new particular method of execution.’ So the window to sue began after Tennessee made lethal injection its default method of capital punishment in 2000, and it shut a year later.”
Notwithstanding this statute of limitations problem, Richardson goes on to observe “the Supreme Court has expressed substantial and detailed skepticism that the use of pentobarbital would ever violate the Eighth Amendment.” He acknowledges there have been “incidents” involving the use of “executions via single drug pentobarbital.” But Richardson rules that the law, here an unjust statute of limitations, bars Nichols from challenging the torture via pentobarbital that he is “sure or very likely” to experience.
Here the law becomes entangled with the death penalty’s depravity — the wrongheaded notion steeped in revenge that any good, like deterrence, could ever come from punishing people who kill by killing them, too. The law also becomes soiled in fascism and barbarism, especially so when our jurisprudence (thanks to Justice Alito and company) causes Judge Richardson to, correctly, move on to pen in his analysis: “But now the Court must answer a narrow question: has [Nichols] plausibly alleged facts suggesting that a firing squad or single bullet to the back of the head significantly reduces a substantial risk of experiencing severe pain?” (The Tennessean helpfully explained “prisoners challenging their method of execution must propose a viable alternative to win their case. Nichols’ proposals — firing squad or a single bullet — were not clearly less painful, feasible, or [more] readily implemented than lethal injection by pentobarbital, Richardson found.”)
Amid the backdrop of this legal morass, Nichols, 64, has asked Governor Bill Lee to grant him clemency by changing his sentence to life without the possibility of parole. As reported by Nashville Scene, while taking “full responsibility for his crime” — the rape and murder of a college student — Nichols’ official clemency request cites his “record as an ‘exemplary prisoner,’ a traumatic upbringing, and Nichols’ post-conviction reconciliation [with the victim’s mother] Ann Pulley [whose ‘forgiveness’ Nichols] ‘earned.’” The Associated Press reported Nichols’ petition “argues that he turned his life around in prison, becoming a model inmate who [a number of corrections officials have said] helps make the Riverbend Maximum Security Institution a safer place and even mentoring at-risk youth.” The petition credits the victim’s mother “with inspiring Nichols’ reformation” and recounts how Pulley met with him on three occasions after his conviction, “giving him a Bible that he still treasures 35 years later.”
Without naming them, Nashville Scene claims, “Sources close to the governor have also indicated that he is personally uncomfortable with [his] singular power to stop — and conversely, to condone — state killings.” Still, on August 5th, Lee allowed the execution of Byron Black — an intellectually disabled man with dementia who had spent 36 years on death row — to go forward; media witnesses unanimously reported Black pitifully lifting his head up off the gurney at one point as he lay dying to grimace and to report: “It hurts so bad.”
An autopsy revealed the pentobarbital Black was executed with had caused pulmonary edema which would have resulted in the “waterboarding sensation” Judge Richardson discussed — the same sensation that’s in store for Nichols. (Oscar Smith, 73, executed May 22nd after spending 30 years on death row, became the first prisoner in Tennessee to be executed this year with the new single-dose of pentobarbital protocol; for religious reasons, Smith declined to have an autopsy conducted.)
Lee has a precious opportunity to rein in the law. As a self-professed devout Christian, he should embrace the principles of Christian forgiveness so bravely embodied by the victim’s own mother. And, not for nothing, a joint statement issued November 10th by Tennessee’s three Catholic bishops has also called for an immediate moratorium on the death penalty and its eventual abolition under state law. Based on his record — and his politics — Lee is unlikely to support abolition. But a moratorium on executions using pentobarbital, at least until after a trial scheduled in April, in the cases of other Tennessee inmates who have challenged the use of the questionable drug? That’s an easy call for Lee to make based on the record before him. And it’s the right thing to do.
This essay was first published by The Times of Israel. It is being published here with the permission of the author.
Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.
