Alabama’s Next Death Penalty Atrocity: Executing Casey McWhorter

30 years after a murder committed by three teenage boys, Alabama plans to execute one of them, Casey McWhorter, who was just three months past his 18th birthday at the time of the crime. (McWhorter’s co-defendants were 15 and 16, respectively.)

Any argument in favor of executing McWhorter is undercut by the illogical, unbending brutality of a bright-line legal rule established by the U.S. Supreme Court. In 2005, in Roper v. Simmons, the Court held the 8th and 14th Amendments prohibit the execution of defendants younger than age 18, but, not the execution of juveniles like McWhorter who—mentally and emotionally—under any reasonable interpretation, were children at the time of their crime(s). This is because of Roper’s legal fiction that childhood rigidly ends at 18 years of age—on the nose—and not a day, or as in McWhorter’s case, 3 months, older. Describing that period in his life to a reporter recently, McWhorter said: “I had issues in my head that I didn’t know how to work out.”

The grotesque absurdity that “justice” requires frog-marching McWhorter to his extermination as a middle-aged man, so long past when he was that deeply troubled youth at the time of his crime—or, when he attempted to commit suicide right after it—is compounded by the fact McWhorter was sentenced to death by a vote of 10-2; Alabama and Florida are the only states that allow non-unanimous juries to impose death sentences.

This past summer, in “Animal passion, Alabama death sentences, and HB 14,” I wrote about sensical legislation put forth by Alabama House of Representative Chris England that would have fixed that anomaly—“the far-reduced ‘state of humanity’ a non-unanimous jury offers.” The same bill—which failed to become law—expressly provided that a defendant like McWhorter “may be resentenced…if his or her death sentence was not unanimous.”

But perhaps the most outrageous fact undergirding Alabama’s next death penalty atrocity—set to go forward sometime during a 30-hour period beginning November 16—is: if, in the summer of 2018, McWhorter had elected, during the 30 days he had to do so, that he wanted to be gassed to death with nitrogen—not executed via the state’s often bungled lethal injection protocol—his execution would not be able to proceed now.

This is because: Under Alabama law effective June 1, 2018, death-sentenced prisoners had 30 days to elect execution by nitrogen gassing, Alabama’s new, unconscionable and untested method of execution deprives the condemned of oxygen, replacing it with an allegedly precisely regulated purified form of nitrogen. They could do this by way of their own writing alone, through their attorneys, or by election on a bureaucratic prison form prepared and disseminated by the Alabama Department of Corrections—a form Supreme Court Justice Sonia Sotomayor observed was haphazardly disseminated to death-sentenced prisoners.

The constitutionality of nitrogen asphyxiation has never been decided by any court, because no state has ever attempted to gas its condemned to death before. So if McWhorter had chosen to be gassed to death during that month Alabama law gave him that option, his execution could not go forward—as nitrogen gassing still has to withstand significant, time-consuming legal challenges.

Dr. Joel Zivot, a friend of mine—and an associate professor at Emory University—sits on the Board of Advisors of Project Hope to Abolish the Death Penalty, an organization founded and run by Alabama death row prisoners. Zivot has learned, through his capacity on the board, McWhorter is asserting that, when he got the nitrogen-gassing-election form he didn’t have sufficient time to talk with his lawyers about it, and was skittish about signing anything. Then, time ran out.

Contacted recently about this information, McWhorter’s counsel, Benjamin Rosenberg said: “I am fairly sure that Casey did receive the form, and my recollection is that he called me about it. My recollection is hazy about what was said or how much time we had.”

What the good people of Alabama should be talking about and asking each other—at the ballpark, around the dinner table, at church, and at other places of meeting and reflection, is: How can a civilized, modern society extinguish Mr. McWhorter’s already tortured existence amidst the backdrop of such a murky, unsatisfactory stew of uncertainties—and distasteful legal peculiarities?

Speaking about his predicament with the media, McWhorter said: “Even if I never had a chance to actually get out and actually spent the rest of my life in prison, the fact that I can change lives from here means something. That’s something that’s worth fighting to keep breathing for.”

Cynics might say McWhorter’s statement is self-serving. But McWhorter is expressing something inherently human—the desire to do some good with his life by helping others—and that reflects personal growth acquired during three decades of incarceration. Alabama should let that growth continue. It should let a godforsaken child, one who has already been punished severely for his offenses, continue to grow and make amends—as a man—such as he can.

Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.