The litigation — especially U.S. District Judge Eli Richardson’s cynical and macabre opinion published Nov. 26 — concerning Harold Wayne Nichols’ scheduled execution on Dec. 11 in Tennessee contains elements about the way our legal system operates that show 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.
Judge Richardson wrote: “[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.'”
(IN THE NEWS: East Ridge murderer continues to fight against death penalty as sentence nears)
But despite this eye-opening judicial finding about the torturous use of pentobarbital for lethal injection, which Richardson stresses later on in his opinion too: “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 Nichols’s challenge to his impending lethal injection. Richardson concluded Nichols missed the one-year statute of limitations when the state adopts a new “particular method of execution.”
As The Tennessean explained, “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.”
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” and its prohibition of cruel and unusual punishment. This on its own has the ability to make citizens distrust, even hate, the tyrannical and unmerciful nature of the law since, as Richardson concedes, the use of pentobarbital in executions is no different — in the amount of torture it causes — than waterboarding someone to death.
(IN THE NEWS: East Ridge’s Harold Wayne Nichols nears execution 35 years after conviction)
Richardson acknowledges there have been “incidents” involving the use of “executions via single drug pentobarbital.” But when Richardson rules that the law (here an unjust statute of limitations) bars Nichols from even challenging the torture he is “sure or very likely” to experience, the law becomes a veritable ass of itself.
The wrongheaded notion, steeped in revenge, that any good could ever come from punishing the people who kill by killing them too — the law becomes soiled in fascism and barbarism; this is especially so when our jurisprudence (thanks to Justice Alito and company) causes Richardson to, correctly, move on to say: “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?” (For laymen, The Tennessean helpfully explained “prisoners challenging their method of execution must propose a viable alternative to win their case.”)
Nichols, 64, has asked Gov. Bill Lee to change his sentence to life without the possibility of parole. As reported by Nashville Scene, while taking “full responsibility for his crime” — rape and murder — Nichols’s request cites his “record as an ‘exemplary prisoner,’ a traumatic upbringing and post-conviction reconciliation [with the victim’s mother] Ann Pulley [whose “forgiveness” Nichols] “earned.”
The Associated Press reported Nichols’s petition credits Pulley “with inspiring Nichols’ reformation” and recounts how she met with Nichols on three separate occasions after his conviction, “giving him a Bible that he still treasures 35 years later.”
Without naming them, Nashville Scene claims that “sources close to the governor have also indicated that he is personally uncomfortable with the governor’s singular power to stop — and conversely, to condone — state killings.” Still, on August 5, Gov. Lee allowed the heartless and ultimately torturous execution of Byron Black — an intellectually disabled man with severe dementia spent 36 years on death row — to go forward; witnesses unanimously reported Black pitifully lifting his head up off the gurney at one point as he lay dying to grimace, but also to report: “It hurts so bad.”
An autopsy later 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 in store for Nichols.
Lee has a precious opportunity to rein in the law. The governor should embrace the principles of forgiveness so bravely embodied by the victim’s own mother.
Based on his record — and his politics — Lee is unlikely to support abolition. But a moratorium on executions using a single dose of pentobarbital, at least until after a trial set for April in the case of other Tennessee inmates challenging 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.
Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He lives in Woodland Hills, California.
