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by Clark Howard
Art by Mark Evans
Loretta Rudd made the decision that would eventually kill her when she was just eighteen years old, a senior getting ready to graduate from a small high school outside the rural county seat of Nowers County, which was derisively referred to as “Nowheres” County.
The decision that Loretta made was to tell the boy that she loved, and who loved her, that she had decided to marry someone else. The boy who loved her, a senior at another high school in a neighboring county, had met Loretta at a Friday-night football game between the two schools three years earlier when they were both ftfteen; they had been going steady ever since, and had become cautiously intimate. When she told him of her decision, he was stunned.
“You’re not serious,” he said, half thinking, hoping, it was a joke of some kind. “Tell me you’re just kidding, Retta.” He was the only one in her life who ever called her “Retta.”
“I’m very serious,” Loretta declared. “I’ve been seeing Carter Graham while you were away at ROTC camp. And he’s asked me to marry him.”
Carter Graham, then completing his third year at an elite private university, had been home on spring break. He was a local rich kid, the only son in a family that owned half of Nowers County and had every acre of it planted in soybeans.
“I’m sorry,” Loretta said, and did seem sincerely so, “but I’m tired of being a small-town girl in nowheres, from a nowheres family, going nowheres. Carter’s got one more year of college and then he’ll go into his father’s business and we’ll live in a big house up on The Hill with plenty of money for anything I want.” The Hill was an exclusive conclave where only the six wealthy families in the county lived.
“But I thought we were going to move to Memphis or Atlanta or someplace after we graduated,” her spurned young lover tried to reason. “I thought we were going to find us a place to live, and jobs—”
“Find what kind of place to live?” she challenged. “A tacky little furnished apartment? And what kind of jobs? Me a waitress and you a delivery man or something? No thank you.” She put a hand on his bare chest, one of the last times she would touch him intimately. “I’m sorry, baby. I just can’t.”
“But, Retta, that would just be a start.” He was pleading now. “We could both go to night school, eventually get degrees in something—”
“Eventually! When? Seven or eight years from now? Ten?”
“Retta, sweetheart—”
“No! I’ve made up my mind. I just can’t stand being poor any longer.” She took her hand away from his chest. An ant crawled across his arm. He started to slap it, but Loretta stopped his hand and flicked the ant away with one finger. “I’m sorry for doing this to you, sweetheart, truly I am. But I’ve got to do it.” She kissed him briefly on the lips, the kiss salty with tears both hers and his. “You’ll get over me, sugar. I know you will. Just wait and see—”
Robert McWade, the state director of corrections, was just finishing breakfast when the phone rang and a moment later Delia, his housekeeper, brought him a portable handset.
“It’s the governor, Mr. Bobby,” she said.
McWade swallowed his coffee, took the phone, and said, “Good morning, sir.”
“I thought you and I had agreed that you were to call me Grant,” said the voice of Governor Grant Marlow.
“That’s only when we’re drinking together,” McWade said. “In private.”
“After all the years we’ve been friends, after you helped me cheat my way through our freshman year in college copying your notes, how would you like it if I started calling you ‘Mr. Director’?”
“You’re the governor, you can call me anything you want to.”
“You’re a hard-head, Bobby McWade,” the governor said. “Listen, come over to my office, will you? Fred Willis and Art Meadows are going to join us. We’ve just received a federal court order to stay the Carter Graham execution.”
McWade frowned. Fred Willis was the state attorney general, Arthur Meadows the state surgeon general. “Stay it on what grounds?” he asked.
“I’ll tell you when you get here,” Marlow said. “Hustle on over.”
As he turned off the handset, the frown on Robert McWade’s face morphed into an expression of perplexity. What possible basis could a federal court have used to stay Carter Graham’s execution? In the three years since the condemned man had been convicted of beating his wife, Loretta Rudd Graham, unconscious with a hammer, then putting her in the Tuskey River with a spare tire tied to her ankles, his case had been appealed to, and rejected by, the state supreme court, the federal district court, the federal court of appeals, and the U.S. Supreme Court. Every possible appellate avenue had been explored and denied. And Governor Grant Marlow had declined to commute the wealthy landowner’s sentence to life imprisonment because of the heinous nature of the murder: An autopsy had shown water in the victim’s lungs, indicating that she had been drowned. Loretta Rudd Graham had still been alive when her husband had dumped her in the Tuskey River with that tire tied to her ankles.
Carter Graham, at present on Death Row in Parmalee State Prison, was due to be executed by lethal injection in just three days.
Now that proceeding apparently was off.
* * *
Grant Marlow, at forty-six, with a good firm chin, a full head of attractively graying hair, a wryly engaging smile, and a photographic memory of names, faces, and places, was the perfect image of a governor, someday a United States senator, possibly even a President of the United States. He was currently in his seventh year as governor, and firmly believed the Senate and the White House to be in his future.
“Come in, boys, come in,” he greeted his director of corrections, attorney general, and surgeon general, as McWade, Fred Willis, and Arthur Meadows came through the door. Willis had a distinctly sour expression on his face. He had been fighting Carter Graham’s slick, expensive lawyers for three years, was within seventy-two hours of being done with it, and his expression communicated that he was not a happy camper.
When the three men were seated across from him, the governor said, “Okay, Freddie, give us the gory details.”
Willis opened his briefcase and removed a four-page document stamped on each page with a U.S. District Court seal. “It’s a new approach to the cruel-and-unusual-punishment appeal,” he said.
McWade groaned. “That’s been up and down the court ladder dozens of times in dozens of states. I thought the law was settled on that issue.”
“Generally it is,” said Willis. “But now a new twist has been added to it. The appeal doesn’t contend that lethal injection itself is cruel and unusual; it contends that the method being used to execute a person by lethal injection is cruel and unusual.”
Both the governor and McWade shook their heads in confusion. Meadows, the surgeon general, merely raised his eyebrows in curiosity.
“I don’t understand,” the governor said.
“Neither do I,” McWade agreed. “What’s the difference?”
Willis shrugged. “I don’t really see a difference myself,” he admitted. “But the district court made a distinction. Basically, what Graham’s lawyers are contending, and what the court is agreeing to, is that there’s no way to tell whether a person being executed by lethal injection can feel any pain between the time the first drug, the sedative, puts him to sleep, and the time the second drug paralyzes his body, and the third drug stops his heart. They say that the current administration of the drugs leaves open the possibility that the condemned man is conscious of what’s happening, realizes what’s being done to his body, and therefore suffers an agonizing death—which is cruel and unusual. One of the points they make for this possibility is that the condemned man may have a strong enough constitution to subconsciously resist the drug being used to put him to sleep.”
“That’s ridiculous,” McWade said. He turned to Arthur Meadows. “What about it, Art?”
The surgeon general shrugged. “In theory,” he admitted, “that could be true. In practice, however, I’d say it was impossible.” Rising, the doctor paced the room for a moment, then turned as if facing an audience of medical students. “The first drug administered is sodium thiopental, known more commonly as sodium pentothal. It’s a barbiturate that induces general anesthesia when administered intravenously. Very fast-working drug. It reaches effective clinical concentration in the brain within thirty seconds—”
“Which means?” the governor asked.
“Which means that it puts the person being injected into a state of unconsciousness in which that person is unaware of what is happening, is pain-free, is completely immobile, and will have no memory of the period of time during which the anesthesia lasts.”
“Go on,” Governor Marlow said, nodding.
“For surgical procedures, patients are given a dose of one hundred to one hundred fifty milligrams over a period of ten to fifteen seconds. For executions, in our state, a dose of two grams is administered. That amounts to two thousand milligrams. That dosage alone may be lethal, depending on the person’s fat-solubility level and the individual brain’s cell reactions to the drug.”
“Isn’t there a way to measure the effect the drug has on a particular individual?” McWade asked.
“To some degree. That’s the job of an anesthesiologist—but, of course, medical ethics prohibit anesthesiologists or any other medical doctors from participating in a legal execution. As you know, we have one of our state doctors there to pronounce the condemned person dead, but that’s after it’s all over. That’s not considered participation in the execution itself.”
“Isn’t there any other way to measure the effect of the first drug?” the governor asked.
Arthur Meadows sighed quietly. “Let me answer this way. The brain is truly the most amazing organ in every living creature. Almost any form of life you can think of—birds, reptiles, fish, amphibians, mammals—all have brains. And the human brain is the most astonishing of them all. It gives us the power to think, speak, imagine, everything. It controls our body temperature, blood pressure, heart rate, ability to breathe. It accepts a vast flood of information from our eyes, ears, nose, sense of touch. It lets our body stand, sit, walk, talk. It lets us dream. Reason. Experience emotion. All of these tasks are coordinated, controlled, and regulated by an organ about the size of a small head of cauliflower.” He slowly shook his head. “No, we’ll never be able to tell for certain what anyone’s brain feels in a given circumstance.”
There was silence in the office for a long, solemn moment, each of the four men with his own secret, perhaps even fearful, thoughts. Then the governor broke the spell.
“All right. What do we do now?” His eyes settled on the attorney general. “Fred, how about it?”
Fred Willis shrugged. “We appeal to a higher federal court. That’s all we can do.”
“And if we lose there?”
Another shrug. “We go to the top: the U.S. Supreme Court. We won’t lose there, I guarantee that.”
Governor Marlow groaned. “If it goes that far again, we may be looking at years before we get a ruling this state can live with.”
“Fred, isn’t there some way,” McWade asked, “that we can satisfy the lower court about this initial drug injection? Some way we can reasonably assure the court that the condemned man is so deeply unconscious that he won’t feel anything?”
“I don’t know,” the attorney general admitted. “I have one idea—”
“Well, let’s hear it,” the governor said.
“All right. Under our present procedure, an electrocardiograph machine is connected to the condemned person and a flat-line monitor indicates when the heart stops and death occurs, after which our state doctor in attendance verifies that the person is dead. Now then, the federal court might—and I emphasize might—be impressed if we offered to also attach a brain-wave monitor of some kind to measure the activity of the brain before, during, and after the initial dose of sodium pentothal is injected, to ensure that the brain is receiving no pain signals.”
“Can that be done?” the governor asked. He looked at his surgeon general. “Art?”
“An electroencephalograph machine could be used, I suppose,” the surgeon general said. “What that does is measure the activity of brain neurons. See, the brain is made up of about a hundred billion nerve cells—neurons. They do all the gathering of information and transmitting of electrochemical signals in the body. As the sodium pentothal is injected, those neurons essentially take naps, and the brain-wave monitor reflects the diminishing activity that results.”
“Is it reliable?” the governor asked.
“As reliable as any other method. A lot of things about the brain are still pretty much a mystery to us.”
“But do you think the court would buy that?” McWade asked the attorney general.
“Art and I have discussed it. We think that, unless one of the judges is a neurologist, there’s a fair chance they would. It only takes two of the three judges on the panel to lift the stay.”
Grant Marlow rose from behind a stately mahogany desk that had once belonged to President Jefferson Davis of the Confederate States of America and walked over to gaze out a large picture window that overlooked the splendid grounds of the executive mansion. Somewhere deep in the recesses of his own brain lay the hope of someday looking out the windows of the Oval Office. After a long moment’s reflection on his options, he turned back to his top advisors.
“Well, a fair chance of winning is better than no chance at all,” he told his attorney general. “Can we get it done by Friday?”
“Maybe. I mean, it’s possible.”
“Then go for it,” the governor ordered . . .
Be sure to read the exciting conclusion in our May issue, on sale now.
"Cruel and Unusual" by Clark Howard, copyright © 2008 with permission of the author.
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