Eric Allen Patton stabbed his victim to death with a set of knives, a barbecue fork and a pair of kitchen scissors. She was Charlene Kauer, a white, middle-aged businesswoman from Oklahoma City who had once hired him as a handyman. He was a black labourer in his 30s, with a long record for violent burglary. In December 1994, he came to Kauer’s door demanding money. She offered him $10. He attacked her, ransacked the house, butchered her to death and made off with $24. When her husband came home, he found Charlene lying naked on her back, smothered in blood, the scissors still sticking out of her chest.
The crime scene photographs presented in court resembled stills from a low-budget horror movie. It was the kind of monstrous killing that reaffirms in Oklahomans’ minds the necessity and justice of capital punishment, and a jury duly sentenced Patton to death for first-degree murder. After spending the past decade on death row, exhausting his appeals process, at 6pm on August 29 Patton was scheduled to die.
The visitors’ centre at Oklahoma State Penitentiary is a squat little building in the shadow of towering white prison walls. On execution days it doubles as the media centre, and peanut cookies and fresh coffee had been laid out on wooden tables alongside neat piles of factsheets detailing Patton’s crime. When I arrived shortly after 3.30pm, nobody else was there.
In due course, two other journalists showed up. Executions were a fixture of their beat, and while we waited the two men chatted idly about the nuisance of faulty air conditioning and the difficulty of giving up smoking. The key detail of this job, they said, was the prisoner’s choice of last meal. Readers enjoyed comparing it with what they would choose for themselves — a culinary variation on Desert Island Discs.
A spokesperson from the department of corrections arrived with the press release listing Patton’s final meal request. A tall, lean Southerner with a quietly thorough manner, Jerry Massie took evident pride in the dignity of an execution, and found the fascination with last meals faintly distasteful. After all, he sighed, this isn’t a game. ”Besides,” he said, ”you can’t get all that much for $15 anyway.” Fifteen dollars? The budget for a last meal used to be $50, he explained evenly. But when the public read about men getting steak and lobster, there was such an outcry that the state parliament passed a Bill cutting it to $15.
Patton chose a large pepperoni pizza with extra mushroom, and a large grape soda. It was served between noon and 1pm — which meant that somewhere now inside that great white fortress, he was sitting alone, waiting, with nothing left but his final statement to make in the death chamber.
Executions, like awards ceremonies, prefer to keep the speeches brief though, and his time limit would be two minutes. What would they say to stop him if he kept talking? ”Well, nothing,” replied Massie, puzzled to have to spell out the obvious. ”We’d just start the execution.”
By 5.30pm nobody else had arrived. The victim’s relatives had decided not to attend. Patton’s family weren’t coming, either, having said their final goodbyes that morning by telephone through a glass partition. All visits on death row are conducted that way, and their last had been no exception. A few years ago, protesters would have been staging a candlelit vigil at the gates, but they no longer turn up in any numbers. Death penalty supporters used to come along and taunt them by celebrating, but they don’t show up any more, either. Massie did warn of a possible commotion from prisoners banging their cell doors as the clock ticked towards six. Not any more, the reporters corrected him. They hadn’t bothered to do that in ages.
In the hot, late Oklahoma sunshine, a van drove us around the perimeter wall to a side entrance at 5.45pm. Guards with bristle moustaches and round mirrored sunglasses didn’t say much, just searched us and led the way along a long, grey tunnel of a corridor. Halfway down, they pointed us into a slender room just deep enough to accommodate two rows of 12 metal chairs. These were lined up facing a glass wall obscured by white blinds.
Patton’s legal team of four sat in the front row, beside his priest. A few places away sat two officials from the department of corrections. Two men in navy blazers stood holding phones to their ears, lest a final reprieve were to come through. At the door, a pair of guards leaned against the wall, silently chewing gum. The two reporters and I sat in the second row. Nobody breathed a sound.
At 6pm the blinds slowly raised. And then there he was — suddenly right before our eyes, so close that, were it not for the glass, I could probably have touched him. Patton lay strapped on his back on a gurney, an IV drip running from each arm to a hole in the wall behind him. He looked composed but intensely alert, like a patient about to go into theatre. His was the first black face I’d seen all day. He turned to look at us and started to speak.
Most family pets are put down with greater sense of occasion than the execution of Eric Patton managed to marshal. You would be forgiven, therefore, for thinking American prisons must be killing their inmates every day. Before becoming President, George Bush executed more than any other state governor, and under him the country’s moral politics have shifted farther and farther right. One would expect the death penalty to be enjoying an all-time high. In fact, the figures tell a different story.
In 1999, America executed 98 people — a record total for a single year. The annual figure had been climbing steadily since capital punishment was reinstated in 1976 — as had the number of death sentences issued every year, which reached a peak in 1996. Public support had grown from an average of around 65% to more than 80%.
But in 2000 the numbers changed direction. Executions fell that year, and have continued to fall ever since, so sharply that this year’s total may not even pass 50.
Death sentences have more than halved, and support for capital punishment has slumped back to around 65%. The US Supreme Court has removed entire categories of criminals from death row. Two states have imposed moratoria while they review their death penalty, and moratoria legislation has been introduced in over 20 more. New York has abolished its death penalty altogether, and New Jersey is expected to follow suit. Even in Oklahoma, one of the more prolific states left, Patton was only the third inmate to be executed this year.
Quietly but unmistakably, the anti-death-penalty movement in America has started to win. Less of a movement than a patchwork of pressure groups, its campaigners have no centralised leadership and no recognisable public face. Their offices are staffed largely by interns, in grey buildings housing warrens of lobbyists, some in Washington DC but most scattered across the country. They are chronically underfunded and unfashionable. How can they be winning when America’s liberals are losing every other culture war? Certainly not by telling anyone that killing people is wrong. The argument they prefer to employ, activists say, is that America is killing the wrong people. Or it’s killing people the wrong way. Or killing them at the wrong price. America just isn’t killing people properly.
Richard Dieter runs the Death Penalty Information Centre in DC. A wry, softly spoken activist in middle age, he has been fighting capital punishment all his life and remembers when they used to talk about its wrongness. ”The thought was, well, this argument is so right it’ll catch on.” He chuckles fondly. ”We thought, you know, it’s so obvious! And so people would go and hold candles at executions and what not. But it was found that an equal number of people would show up shouting for the execution, and it just got really rowdy. Nobody was moving. It was going nowhere.”
”In the 80s, we started trying to persuade people about the system’s arbitrariness,” says Marshall Dayan, head of the American Civil Liberties Union’s (ACLU) death penalty project in North Carolina. ”The racism, classism, the poor quality of counsel, the prosecutorial misconduct. But none of that had any traction either. People just said, ‘Who cares if the system isn’t perfect? These people are murderers.”’
What changed everything was the emergence of the innocence movement. In 1998, Northwestern University’s law school in Chicago hosted a national conference on wrongful capital convictions. It brought together 31 former death row inmates who had been found innocent and released. One by one, each man stepped forward on stage to introduce himself with the words, ”If the state of such-and-such had had its way, I would not be here today.”
”It was just an extraordinary event,” Dayan recalls. ”People all over America saw this on the evening news. And once exonerations started reaching their consciousness, all of a sudden all the things we’d been talking about for years started to gain traction. When they find out some of the people on death row aren’t, in fact, murderers, but innocent people, then they ask how does a wrongful conviction happen? And the answers to that question are: racism, classism, etc — all the things we’d been trying to talk about. Only now, everyone started listening.”
Soon, students at Northwestern had uncovered 13 wrongful capital convictions in Illinois alone. One man had spent 15 years on death row and come within two days of being executed before the students found evidence that proved his innocence.
By 2000, the state of Illinois had exonerated more death row inmates than it had executed, at which point its governor — a Republican and long-time death penalty supporter — declared a moratorium. After conducting a full review, he then commuted the death sentence of every prisoner in the state. ”Our capital system is haunted by the demon of error,” he said frankly. ”Error in determining guilt — and error in determining who among the guilty deserves to die.”
”To be honest, no one thought of switching the argument to innocence strategically,” Dieter admits. ”We didn’t plan on Illinois happening. It just kind of fell into our lap. But innocence has completely rewritten the political rules of the death penalty. What’s an acceptable number of innocent people for a state to kill a year? None is the acceptable number. Politicians just can’t say they support the death penalty no matter what any more.”
He ticks off the victories with a kind of wonderment. Jurors have become reluctant to use the death penalty unless DNA evidence proves guilt beyond all doubt. In every state except one, they now have the option to sentence life without parole, instead of death. For the first time ever, the Supreme Court has overturned a death sentence because of the poor performance of the defendant’s counsel. ”And his lawyer wasn’t even that bad!” Dieter marvels. ”He wasn’t even one of the ones who’ve been caught sleeping through a trial or turning up drunk. That’s how much the court has changed.” In the past three years, the court has made juveniles and the mentally retarded exempt from the death penalty. A new campaign is under way for the court to exempt the mentally ill as well.
Many states are beginning to wonder whether the death penalty isn’t just costing too much already. A typical capital case costs at least three and a half times as much as lifetime incarceration. New Jersey has passed 60 death sentences, overturned 50 on appeal, and still not executed any of the 10 men left on death row. Having spent more than a quarter of a billion dollars executing nobody, it’s expected to abolish its death penalty this year.
Other states have had to halt all executions while their method is challenged in the courts. Lethal injection, the method used in 37 of the 38 death penalty states, consists of three different drugs — an anaesthetic, a paralytic and a potassium chloride to stop the heart — and is supposed to be painless. But there is growing evidence that, in fact, it inflicts an excruciatingly painful death. The American Medical Association has condemned the practice, many doctors now won’t participate and practically every prisoner on death row is filing a suit. A court in Missouri has already ruled in one’s favour, effectively outlawing lethal injection in the state, and a court in California will consider the next major test case next week. California has the largest number of people on death row in America — but, for now, it cannot execute anyone.
”If you look at every single indicator,” smiles Dave Elliot, spokesperson for the National Coalition To Abolish The Death Penalty (NCADP), ”you see that the death penalty is literally withering on the vine.” One by one, he predicts that more states will impose a moratorium while they try to solve all the flaws in the system. In the process, they’ll come to see that those problems just can’t be fixed. And then, faced with an intractably unworkable policy, they will simply abandon it.
”It’s not so much a question of whether we will win any more, but when,” Elliot claims. ”Will it be five years or 15? I’m not sure, but I promise you it will be somewhere between the two. We are on the eve of abolition.”
But not everyone in the movement agrees. Some worry that they have been here before. They thought the death penalty was about to be abolished by incremental logic more than 30 years ago. And just look, they say, what happened then.
In 1972, the Supreme Court declared every state’s death penalty statute void. Death sentences were being imposed so arbitrarily, ruled the judges, that they violated the Eighth Amendment. ”These death sentences are cruel and unusual,” one justice famously declared, ”in the same way that being struck by lightning is cruel and unusual.” Jubilant activists assumed it would mean all-out abolition.
”What else were we to think?” one recalls. ”We thought it was all over. We thought we’d won.”
But the court had not declared the death penalty per se unconstitutional. It had merely said it wasn’t being administered properly. Almost at once, states began drafting new improved statutes, with clearer sentencing guidelines. In 1976, the Supreme Court examined three states’ revised protocols and agreed that, yes, all the problems had been fixed. So eager were many other states to start executing again that they recalled their parliaments from summer recess the very next day, just to pass a new death penalty Bill.
Bill Wiseman was a young representative in Oklahoma, one of the states that rushed its legislature back into emergency session. He didn’t believe in the death penalty, but he was afraid of losing his seat if he voted against it. ”I was just having such a happy time being a politician,” he smiles sadly. ”It was the most fun. And here this damned thing comes along and it has the potential to just crap all over this wonderful time in my life. So I was faced with a decision — and I was a wuss about it.”
He voted yes. ”But afterwards I came to the conclusion that if we were going to do the wrong thing, we might as well do it the right way.” Wiseman set about inventing an alternative to the gas chamber and the electric chair. ”Something,” he winces, ”that would be more humane.”
Today, Wiseman is an Anglican priest in a grand old church in downtown Tulsa, Oklahoma. He is more opposed to the death penalty than ever. But he has a wolfish, twinkly smile, and it’s easy to picture his ambitious younger self back in 1976, loving the limelight while trying to salve his conscience. He describes how the state’s medical examiner heard he was looking for ideas, and offered to help. The pair more or less cobbled together a cocktail of intravenous drugs on the back of an envelope. The examiner had no specialist pharmacological training, Wiseman’s medical knowledge was zero. But he wrote down what the examiner proposed, called it lethal injection and put it before the house.
”I was going round like I was some angel of mercy, really starting to believe my own bullshit, when I ran into a reporter friend of mine one day. I was like, ‘How do you like my Bill?’ And he just shrugged. It was the very first feeling I had of, ‘Uh-oh’. He said, ‘Bill, I’m afraid this’ll make it too easy for them to pass death sentences.’ And on the outside I said, ‘Oh no, I’m sure that won’t happen.’ And on the inside I’m going, ‘Oh God, what if he’s right?’ So what did I do? Nothing. I was enjoying the momentum and fame and the clips on the Today show too much. Everybody liked me. Hey, I was fixing up the death penalty, wasn’t I? I was making it humane.”
More than 30 states soon copied Wiseman’s lethal injection Bill, many word for word. In 1982 Texas became the first to implement it, with the judge happily predicting that, ”1983 will bring some more [executions] … This humane way will make it more palatable.” He was not wrong. Wiseman had certainly fixed up the death penalty; his ”more palatable” method has now killed more than 800 prisoners. And, he says quietly, he shares responsibility for every single one.
The dilemma for the anti-death-penalty movement today is obvious. By challenging lethal injection in the courts, they have put a lot of executions on hold. They may force some people to think about what it really means for the state to take a life. If they win, they’ll give legislators the disagreeable task of finding another way to carry out an inherently ugly act.
But to argue that lethal injection is ”inhumane” implies the possibility that a humane alternative could exist. For some activists, talk of a humane execution goes hand in hand with demands for a moratorium instead of abolition. It smacks to them of the 1970s all over again, and they don’t like it. ”The parallels with what happened in 1976 are certainly very strong now,” an ACLU activist in San Francisco warns. ”We need to be very careful not to let the progress we’ve made slip through our fingers again.”
Mona Cadena, of Amnesty International in California, puts it more bluntly. ”Moratorium scares the hell out of me. It opens the door for people to think there’s a way to fix the death penalty — and that’s exactly what happened in 1972. The Supreme Court said it’s not working. The states changed it. They said it’ll work now — and the court said OK. So we’ve already tried a moratorium. We should be saying it’s not appropriate under any circumstances for the government to choose who is going to live and who is going to die.”
Cadena is the only activist I meet who volunteers a moral objection to the death penalty unprompted. ”But I get called a super-crazy liberal pinko communist for saying it — by people in this movement. It’s so bizarre. These days I find myself allied with the Catholics just because they’re the only abolitionists who’ll talk about right and wrong. I think some people feel the moral argument should be left for the churches, and that a moral discussion is not for us.”
The debate between pragmatists and absolutists has been raging within the abolition movement for nearly a decade now. What is quite clear is that the pragmatists have won. ”The debate is over,” the NCADP’s Dave Elliot says firmly. ”There is no disagreement. The abolition movement has matured.” He refers to experiments conducted on pro-death-penalty students, which presented arguments framed around flaws in the system. The approach generated significant movement in the students’ minds. Arguments framed in morality did not merely fail to change minds, but reinforced students’ original opinions. Elliot drums the table as he spells out the message: ”If you address the death penalty as a moral issue, you … do … not … ”
What is less clear is exactly how far this is a matter of purely strategic discipline. It would never have occurred to me to ask activists whether they believed it was wrong to execute anyone; I took it for granted. But then one happened to mention that he thought, in principle, it could sometimes be right. He could definitely think of extreme circumstances in which certain people deserved to be put to death, he said. The trouble, he quickly added, was that his ”deserving” case would be different from mine, and from the next person’s and the next. As we’d never all be able to agree whom to kill, there was no point having a death penalty.
I put the question to everyone. Could they ever support the death penalty? And with very few exceptions, each answer was essentially the same. Yes — but only for Hitler. Oh yes, if you knew someone was guilty and irredeemably wicked — only, you could just never be 100% sure. Yes, of course, loads of murderers deserve to die — it’s just that you can’t trust the state to tell which ones. Yes — but it’s for God to punish them, not the government.
If this is a tactical position, it is certainly very clever. It gets you off the defensive and opens up space to negotiate. But I’m not sure that everyone did say it for purely tactical reasons. Some of them seemed to mean it.
”We’ve brought a lot of people into this movement who seem able to negotiate the thing like that in their own heads. And it’s been a huge, huge frustration to me.” Lance Lindsay runs Death Penalty Focus in San Francisco, and reflects on the strange, bittersweet price of the movement’s success. ”It’s focused us on saying, ‘the system’s broken’, and thinking, ‘If we put in enough reforms, if it ends up just being a few monstrous people who are killed, I can live with that.’ To me, that’s completely missing the point.”
In the end, the purest articulation of what it should be about comes from the inventor of lethal injection. ”I’m opposed to the death penalty because of what it does to us — not what it does to the person who dies,” Wiseman says. ”That’s what it’s all about. How it changes and identifies us as a society when we make a corporate decision to take a life. All that stuff about how it’s incompetent or unfair, that’s all very interesting, but it’s not the point. The point is, we must not do this because it eats away at our soul.”
I’d wondered a lot about what it might do to the soul to attend an execution. Whenever I’d pictured it, it was the final statement I dreaded most. Patton’s execution had been selected at random to witness, so I had no idea what he might want to say. When he opened his mouth to speak, it was obvious he’d thought hard about the words, for he had memorised an entire speech. Mindful of the time limit, he had to rattle through it quickly. And so its impact, in the end, was strangely unaffecting — like hearing someone recite a shopping list
He thanked the prison guards on death row. ”They’ve been like family to me.” He thanked his legal team for fighting his cause. He thanked the prison warden — the governor — for taking care of him, and he thanked his parents for bringing him into the world — ”And for loving me, especially through this trying situation.” His life, Patton said, had been ”a blessing and blast”, but he was ready to meet Jesus Christ his saviour, ”for now and all eternity”. At the very end he paused for breath. ”That’s all,” he said.
The drugs are administered by three executioners in the room next door, hidden from view. Only the warden knows their identity; they are not employees but volunteers who answered an advert for the position in the local newspaper. They cannot see the person they are killing and nobody can see them.
Patton closed his eyes. He let out a deep, noisy breath as the anaesthetic entered his veins. As the second drug followed seconds later, paralysing him, his ribcage slowly stopped rising and falling. The third drug was the one that would kill him — but by then there was nothing to see. If he did suffer pain, nobody would have known. For eight minutes we all sat there in absolute silence, staring at a frozen body, waiting for him to die.
Nothing could have looked less like what was actually happening. I kept having to remind myself that I was watching someone being killed — because none of the evidence would agree. There was no violence, no resistance, not even the appearance of an act of will. From the look on everyone’s faces you’d think we were witnessing a rather sad but unavoidable law of nature — not a decision deliberately taken, or one that could have been reversed.
After a while people’s gaze began to wander from the body. Each of us stared into a different private space, as frozen as Patton, like actors arranged on stage into a tableau of human alienation. The old-fashioned black-and-white clock on the wall above Patton’s head ticked slowly by, and at 6.11pm a doctor pronounced him dead. The blinds were lowered, everyone got up and we filed out into blazing sunshine.
Back at the media centre, Jerry Massie asked how I’d found it. Surreal, I said. That’s funny, he said — a lot of people tend to use that word. I wanted to say it was traumatic, or horrific, or revolting. But it wouldn’t have been true. Had Patton been electrocuted, that would have been traumatic — to watch him jolt to death, even burst into flames, and have to smell his burning flesh would have been unthinkable. It would have had the merit of seeming real, though, and no one could have walked away lightly.
But the American justice system has perfected so brilliant a denial of death that the horror of it is how calmly one can watch. In that sense, you could say it really was a humane execution. But the people for whom it has been made humane are the ones carrying it out.
The media centre felt like a TV studio green room after a show is over. Prison staff munched on cookies, the reporters cracked some jokes and somebody gathered up the piles of unused press releases. Massie was disappointed to hear that Patton hadn’t apologised for his crime. His expression suggested he found the omission rather rude. – Guardian Unlimited Ã‚