Arguments in favor of the death penalty deal in absolutes. A life unjustly cut short for reasons beyond our knowing—there are few certainties in such cases but the crushing finitude of a life that did not get to be lived, and the brutal manner in which they were killed. And indeed, in the case of Lisa Montgomery, who was executed Jan. 13, 2021, it is hard to think of anything but her murder of 23-year old Bobbie Jo Stinnett, who was eight months pregnant at the time of her murder.
Lisa Montgomery befriended 23-year-old Stinnett online, telling her that she too was pregnant, then came to Stinnett’s house under the premise of buying a dog. Montgomery strangled her with rope, carved the baby from her womb with a kitchen knife, and left Bobbie Jo to bleed out on the kitchen floor. Lisa Montgomery then kidnapped Bobbie Jo Stinnett’s daughter and claimed the baby as her own, telling even her own husband that she’d gone into labor and given birth. Stinnett’s mother, Becky Harper, found her daughter’s body about an hour after her death. The next day, authorities arrested Montgomery and returned the baby safely to her father.
There can be no reason ascribed to Montgomery’s lie that ended in a family torn apart. In closing arguments during Montgomery’s trial, U.S. Attorney Matt Whitworth spoke of Stinnett’s daughter: “Every time she has a birthday, it will also be the anniversary of the slaughter of her mother. Every year — for the rest of her life.” Montgomery was tried with “kidnapping resulting in death,” and after five hours of deliberation, the jury found her guilty and recommended the death penalty.
Any jury in such a case is tasked with making sense of the senseless, and the only sure thing one can parse in such a story is a 23-year-old soon-to-be mother, dead in a pool of blood. The death penalty deals in certainties and says that in exceptionally brutal cases, there is something to be restored in an execution. Not only should the offender spend the rest of their lives behind bars, but they should feel each minute tick down, the certainty of their fate hanging over them.
The existence of capital punishment implies that some people have done things so heinous that justice can only be found in their execution. After all, it is proportionate. And indeed, it is difficult to imagine a crime as brutal as Bobbie Jo Stinnett’s murder, no end so poetically tragic as death right at the precipice of new life. But as Bryan Stevenson writes in Just Mercy, “The death penalty is not about whether people deserve to die for the crimes they commit. The real question of capital punishment in this country is, Do we deserve to kill?”
There is a spectacle of objectivity around the death penalty and our criminal justice writ large that simply does not exist in practice. The death penalty is often applied in arbitrary and capricious ways; after all, an overwhelming majority of murder cases do not end in a death sentence. Nor does it go to the most prolific or high-profile federal cases. A 2013 report from the DPIC shows that only 2% of counties in America account for a majority of cases leading to executions since 1976, suggesting that there is a large geographic bias. When less than 2% of convicted murderers end in execution, how can we say that this is an equal application of justice?
Our criminal justice system is often anything but just; the murders of George Floyd, Breonna Taylor, Elijah McClain, and many other Black people killed at the hands of police are the tip of a vast iceberg of racist, discriminatory, and cruel violence executed by the state in the name of “justice.” The death penalty is no exception.
In cases of murder, those with a white victim are more likely to result in an execution than murderers with Black victims. Currently, 75% of death penalty cases have a white victim. The Death Penalty Information Center reports that since 1977, “295 African-American defendants have been executed for interracial murders of white victims, while only 21 white defendants have been executed for interracial murders of African Americans.” That same report shows that exonerations of African Americans for murder convictions are 22% more likely to be tied to police misconduct.
Lisa Montgomery’s case is in some ways unique—she was the only woman on death row and the first federal execution of a woman since 1953—but in other ways, her case fits right in alongside other death penalty cases. A 2007 study showed that 36 of 37 inmates reported sexual or physical abuse; a majority reported a multi-generational history of physical abuse. Almost 95% suffered from psychiatric diagnoses or symptoms.
Of course, most people with trauma, even incredibly severe trauma, do not go on to commit crimes. However, the links between incarceration and trauma are undeniable. Robert Dunham, executive director of the DPIC, said to the Marshall Project, “The people who are being executed tend not to be the worst of the worst offenders but the most vulnerable. They are disproportionately severely mentally ill, brain damaged, intellectually disabled or chronically abused or a combination of those.”
Such vulnerabilities often allow the state to violate their constitutional rights, as is illuminated by executions of intellectually disabled people. Although Atkins v. Virginia established a ban on executions in cases where the defendant has an intellectual disability, cases like Alfred Bourgeois’ and Corey Johnson’s show that many legitimate claims to intellectual disability are denied.
Lisa Montgomery was born into a family with a history of mental illness, was sexually trafficked by her mother, raped by her stepfather and his friends, and suffered brain damage as a result of the abuse she lived through. Her lawyers say she lost touch with reality and thus should have her sentence commuted to life in prison. These appeals were denied.
In a gut-wrenching piece, Lisa Montgomery’s sister, Diane Mattingly, wrote about the abuse her sister survived as a child that led to diagnoses including bipolar disorder, temporal lobe epilepsy, dissociative disorder, and Complex Post-Traumatic Stress Disorder. Her writing about Lisa echoes Mr. Dunham’s assertion that those who are executed are not the worst of the worst, but the most vulnerable. “She is not the ‘worst of the worst’ for whom the death penalty was intended,” says Mattingly, “She is the most broken of the broken.”
Again, the death penalty deals in absolutes, but in actuality, it only provides the illusion of certainty. It tells us that with a simple shot, evil can be rid from the world in a way that’s barely even painful—certainly in line with the eighth amendment. Far from cruel and unusual, death by lethal injection is generous to someone who committed such a brutal crime. Even the method of killing, lethal injection, appears clinical, like something you would see in a doctor’s office.
Despite the sterile appearance of lethal injection cases, when conducting autopsies from the Southern Ohio Correctional Facility, Dr. Mark Edgar found horrifying patterns. In a majority of autopsies of lethal injection cases, executed men suffered pulmonary edemas, which fills the lungs with fluid and feels like drowning. Further, in 2015 the Supreme Court dismissed evidence that a commonly used lethal injection drug, midazolam, merely sedates a person but does not cut off sensation. Without a proper anesthetic, the second and third shots would produce the “effect [of] being buried alive while feeling fire in one’s veins.”
Underneath the cloak of bureaucratic mundanity, the death penalty is little more than a show of power. Killing Lisa Montgomery could never bring Bobbie Jo Stinnett back. It could never give her daughter a mother. It could never erase from her mother’s brain the memory of finding Bobbie in a pool of blood. It simply serves as a taxpayer-funded spectacle that creates an illusion of justice in a situation that is fundamentally impossible to make right. There is nothing restored, and we all end up more empty.
The death penalty imagines evil can be excised like a small tumor, but we remain ignorant to how the disease has metastasized and spread throughout the body. To take another life does not get rid of evil in our world. It simply removes a little more possibility, a little more life.
Joe Biden campaigned on ending the federal death penalty through legislative action, and said he wanted to incentivize states to follow through. Of course, this would take time, and much of recent Congressional focus has been on Cabinet nominations and COVID relief. However, there are 49 people currently on federal death row, and Joe Biden has the power to commute their sentences.
Obama paused federal executions while in office, but as Sonia Sotomayor pointed out, the Trump administration executed more than three times as many people in the six months from July 2020 to January 2021 than it had in the previous six decades. Obama did not kill the people on death row, but he could have saved them. With the power to commute sentences, Joe Biden has the possibility to save 49 lives. Ending the federal death penalty for good must be a priority, but Biden should do what he can now to save the lives of the people on federal death row by commuting their sentences. These two goals need not be mutually exclusive.
The death penalty is cloaked in procedure and routine, but it asks questions of us that are anything but mundane—questions of justice, redemption, good and evil. St. Augustine wrote that evil was nothing but the absence of good. In turn, by taking life, one cannot create justice. We have told ourselves we deserve to kill, and by killing, we only constitute our country to be a little more punitive, a little more unjust, a little more cruel. We atone for the loss of life by hollowing out the world of just a bit more life, and we all lose in the process.