In rare cases, the last meals become news because they provide insight into the thinking of the prisoners themselves. Ricky Rector‘s execution was controversial because many believed he was unable to understand what was going on around him (after a self-inflicted shot to the head severely damaged his brain); his lack of understanding was confirmed when he saved a slice of pecan pie that came with his last meal “for later.” John Allen Muhammad–better known as the D.C. sniper–asked that his food choices be kept secret, perhaps reflecting his quiet and calculated nature. Troy Davis didn’t eat a last meal at all, refusing the meal for “good luck” and hoping right until the very end that his execution would be stayed and he would get another chance to eat.

Regardless of what drives the public’s weird obsession with these meals, prison authorities have not seemed to enjoy the practice as much. Indeed, states seem to struggle with how to treat this final ritual, sometimes treating the last meal thing as a necessary evil, while other times publicizing and playing up the last meals. (Texas used to have a website.)  One group of states respects almost any request within reason (perhaps making minor modifications when necessary). Others allow prisoners to choose from foods that are already in the prison kitchen; Virginia lets prisoners choose from any meal from a month-long cycle. Florida permits prisoners to eat anything within a $40 budget.

States were probably driven to offer last meals principally by tradition. Perahaps there was also a subconscious wish to make up for the “‘grim act of violence’ that is about to occur.” Or maybe the act is a vain attempt to calm a prisoner before his execution, so that he will “go quietly.”

Regardless of the states’ motivations behind last meals, it would seem the practice is waning. Texas stopped publicizing its last meals on a website some time ago, after hearing too many public complaints. Other states imposed new limitations such as the budgets and ingredient lists described above.

And now, after the execution of Lawrence Brewer last Wednesday, Texas has finally eliminated the practice entirely. Brewer ordered an enormous meal of pizza, barbeque, fajitas, ice cream and more … and then didn’t eat it. After Brewer’s mocking last fast, an angry state Senator wrote prison officials that the practice should end; it did the next day. The Texas Senator justified his position by repeating a line heard often before: the victims didn’t get to choose their last meals, why should the killer? 

I think Texas’ decision was the right one. We don’t need to be doing anything else to make the imposition of the death penalty more of a spectacle. And if the last meal really is driven by a sense of guilt about the act that most always* follows it, then perhaps we should get rid of the meal and take a closer look at the act causing the guilt in the first place. Tradition aside, it’s time to rest this odd and somewhat creepy practice.

-Michael

*Actually, some prisoners eat their “last meal” only to find that it isn’t their last. See, e.g., Duane Buck.

[There are] two underlying evils of intolerable delay. First, the delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.  Second, “delaying an execution does not further public purposes of retribution and deterrence but only diminishes whatever possible benefit society might receive from petitioner’s death.”  Thus, I find constitutionally significant both the conditions of confinement and the nature of the penalty itself.

[snip]

One does not need to accept the proposition “that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,’” in order to agree that the imposition of the death penalty on these extreme facts is without constitutional justification.

(citations omitted)

Justice Thomas responded with a concurrence in the denial [PDF] that directly rejects any notion of death row phenomenon and mocks the philosophy’s implicit reliance on international law:

It has been 14 years since JUSTICE STEVENS proposed this “novel” Eighth Amendment argument.  I was unaware of any constitutional support for the argument then.  And I am unaware of any support for it now.  There is simply no authority “in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”

[snip]

[Justice Stevens's view] deviates from the Constitution and . . . proponents of his view are forced to find their support in precedent from the “European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.”

[snip]

At bottom, JUSTICE STEVENS’ arguments boil down to policy disagreements with the Constitution and the Tennessee legislature.  There are, of course, alternatives. As Blackstone observed, the principle that “punishment should follow the crime as early as possible” found expression in a statute decreeing that “in case of murder, the judge shall in his sentence direct execution to be performed on the next day but one after sentence passed.”  I have no doubt that such a system would avoid the diminishing justification problem JUSTICE STEVENS identifies, but I am equally confident that such a system would find little support from this Court.

(citations omitted)

This is a great articulation of both sides of the argument.  Frankly, I don’t know which way to come out on this one, but it should be interesting to see what role international law plays in a debate over the proper interpretation of the Eighth Amendment.

-Michael

-Michael

Broom’s attorneys plan to argue that a second execution attempt would be cruel and unusual punishment under the Eighth Amendment, as it would impose an “unconscionable” amount of physical and mental anguish on Brown.  To be sure, something deep down says it’s wrong to put a man in a chair and attempt to execute him twice.  But is that type of anguish any different from the anguish every prisoner faces in anticipating his/her sentence?

In 1989, the European Court of Human Rights (ECHR) ruled that, in some situations, “the ever present and mounting anguish of awaiting execution of the death penalty” is simply too much.  See Soering v. United Kingdom [PDF].  Scholars have dubbed this anguish “death row phenomenon.”  I’m not familiar with any U.S. case staying an execution becuase of a prisoner’s physical/mental anguish while anticipating his execution.  Nevertheless, there have been a few suggestions from a Justice or two that the sensitivities of death row inmates may present real Constitutional questions.

If a U.S. court nullifies Broom’s execution, that might be a step towards accepting the ECHR’s premise that some executions are simply too mentally trying.  Such a conclusion would raise a host of new questions.   How much mental anguish is too much?  What situations raise special anguish?  Is “mental anguish” objectively judged or something we examine on an individual basis?

Alternatively, the Court could rely on the physical pain suffered by Broom during the first injection to nullify any second attempt.  In 2008, the Supreme Court reaffirmed that “a series of abortive attempts” at execution could well be unconstitutional because it would cause a “substantial risk of serious harm.”  Baze v. Rees [PDF].  Resting on physical pain, rather than mental pain, would avoid any slippery slope into death row phenomenon arguments.   If the Court concludes that Broom’s mental anguish is enough to stop the sentence, however, it should be prepared to face a plethora of Soering-like arguments in future death penalty cases.

-Michael