Not every prisoner requests a last meal. For those who don’t, they have two options. They can have whatever is on the menu on the day of their execution in the general body of the prison, or they can have the generic last meal, which is quite a substantial feast. For those unable to make up their minds, they get a steak, medium rare, eggs over easy, hash browns, and buttered toast. They follow this with jello, and may wash it down with a glass of milk and a glass of juice.
The most gruesome of all last meal requests came from Doug Stephener, a huge evil-looking monster with a face that could have come from a Lon Chaney movie. According to reports that circulated widely, this fiend was a pedophile who had eaten parts of his victims. He was scheduled to die by lethal injection in Texas in the fall of 2014; however, there was worldwide revulsion at his apparent request. He said he wanted to eat a young boy, under the age of eight, and a non-Asian, for his final repast. Of course it was an Internet hoax, though it took in many people. Had they done their research they would have realized immediately it could not be true. Texas had abolished the tradition of the last meal three years earlier, in September 2011.
The reason for abolishing the last meal was that one prisoner abused the privilege, at least according to Texan officials. Lawrence Russell Brewer was a vile white supremacist, who took part in one of the most horrific race killings in living memory. Along with two companions, he picked up a black man, James Byrd Jr., in Jasper, Texas. Byrd was looking for a lift, but the three men chained him to the back of their pickup truck and dragged him to his death. He was alive for about a mile of the ordeal before his head struck something on the road and was torn from his body. The forensic evidence was clear that he was alive up to that point. When Brewer was executed in 2011, he used the occasion to give one final middle finger to the world. He requested a triple bacon cheeseburger, two chicken fried steaks with gravy and onions, a cheese and beef omelet, tomatoes, a meat lovers pizza, some bell peppers and jalapenos, a bowl of okra, a pound of barbecued meat, half a loaf of bread, and three fully loaded fajitas. He also ordered three root beers, a pint of ice cream, and a slab of peanut butter fudge.
On the day that he was to enjoy this banquet, the general body of the prison were getting sloppy joes, navy beans, creamed corn, and sliced bread. The prison provided the huge feast for Brewer, despite the fact that no ordinary man would have a hope of making a serious dent in such a meal. When the meal arrived, Brewer refused to eat a bite. The food was eventually thrown out. In reaction both to the flagrant waste and the vile man who had created the waste, Texas Senate Criminal Justice Committee Chairman John Whitmire wrote to Huntsville Penitentiary Chief Brad Livingston: “It is extremely inappropriate to give a person sentenced to death such a privilege. Enough is enough.”
He went on to describe the last meal as “ridiculous” and pointed out that Brewer had not allowed James Byrd the privilege of a last meal or any other merciful consideration. Forks down; the last meal was over.
Livingston pulled the plug on last meals in Texas, immediately announcing that from that day on convicts on death row would eat whatever was on the prison menu on the day of their execution.
There was a liberal backlash, with Elizabeth Stein, producer of “Execution Watch” for KPFT-FM radio station, telling the Houston Chronicle: “I think it’s sad that our elected and appointed leaders are wasting their time talking about menus on death row when we have important issues like potential innocence and the validity of the entire death-penalty system that desperately need to be looked at.”
Former prison chef Brian Price prepared over two hundred last meals for Texas death row and wrote a book about his experiences, Meals to Die For. He tried to introduce an element of reality into the fray, denying that last meals were an extravagance.
“They only get items in the commissary kitchen. If they order lobster, they get a piece of frozen pollock. They quit serving steaks in 1994. If they order a hundred tacos, they get two or three,” he pointed out. “Whitmire’s just getting on a political soapbox.”
Soapbox or no, Whitmire got his way, and Texas, the state responsible for more than a third of all US executions, no longer honors the age-old tradition.
10
A MORATORIUM ON EXECUTIONS
When forty-eight-year-old Luis Josè Monge went to the gas chamber at Colorado State Penitentiary in Canon City on June 2, 1967, he made history of a sort. He was the 101st convict to be executed in Colorado, missing out the landmark century by one. He was also the 14,489th person to be executed in the United States since 1607. But it was not for this that he was noteworthy. Monge was the last person executed before a moratorium on the death penalty stopped all executions for more than a decade. The moratorium ended the golden era of the electric chair; when executions eventually resumed, the chair had gone into a decline, replaced by lethal injection.
Monge was a salesman, originally from Puerto Rico. He grew up in New York, then settled in Denver with his wife. They started a family and didn’t know when to stop. They eventually had ten children. But Monge began an incestuous affair with one of his elder daughters. When his wife Leonardo discovered the affair, it was the trigger that pushed him over the edge. He waited until evening, then beat his pregnant wife to death with a steel bar. He then killed three of their children: Alan, aged six; Vincent, aged four; and Teresa, just eleven months old. He stabbed Teresa, choked Vincent, and bludgeoned Alan. As he sat in his home surrounded by the carnage, he picked up the phone and called the police.
Monge had no previous felony convictions and there was little in his past to indicate the violence that he was capable of. The only anomaly in an otherwise conventional life was that he had walked out on the family for a brief period in 1961 and ended up in county jail for vagrancy.
At the trial, Monge pleaded not guilty by reason of insanity, a notoriously difficult defense. A team of psychiatrists evaluated him for the court and found him sane. After that, he stopped protesting and changed his plea to guilty of first-degree murder. The jury recommended the death penalty and his appeal was rejected.
Events from the outside world almost intervened. In January 1966, Governor John Arthur Love suspended all executions in Colorado pending a referendum on capital punishment. Monge’s sentence was on hold, with a reasonable chance it would end up commuted to life in prison. But on November 8, the voters decided overwhelmingly to retain the death penalty. Monge was back on death row.
He decided to go out with a flourish and garnered national headlines when he requested that he be hanged—at high noon—on the front steps of the Denver City and County Building. Not surprisingly, this request was denied. He would go to the gas chamber like everyone else. In the late sixties the appeals process was not as prolonged as it is now, but it was still lengthy. But Monge short-circuited the process by firing his legal team and chose that no attempts should be made to save his life. He wanted to be executed. His surviving seven children appealed for clemency, but to no avail. A week before the execution, he was allowed to share a final meal with the children, a poignant affair. Then, on June 2, 1967, he went to the gas chamber. Seventy members of the Colorado Council to Abolish Capital Punishment protested on the steps of the State Capitol building in Denver in the hours leading up to the execution.
One of Monge’s final requests was that his cornea be transplanted in order to save the sight of a teenage reformatory inmate.
The gas chamber, not used since Monge’s execution, is now on permanent exhibit at the Museum of Colorado Prisons in Canon City. Its retirement came a little late for Monge and was a response to a nationwide campaign that eventually ended up before the Supreme Court. The court agreed to consider whether the death penalty in a number of cases was unconstitutional. While the cases were being reviewed, lower courts in all states stayed all pending executions. This created a moratorium on the death penalty throughout the country. This unofficial moratorium began with the execution of Monge and would last a decade.
The key cas
e that the Supreme Court considered was Furman v. Georgia.
William Henry Furman was a poorly educated black man, described as “emotionally disturbed and mentally impaired.” He left formal education at sixth grade (age twelve) and was barely literate. He drifted into a life of crime. On August 11, 1967, he broke into the home of twenty-seven-year-old Walter Micke in Savannah, Georgia. He intended to rob the house, but Micke woke up and disturbed him. Furman gave differing accounts of what happened next. His first statement said that when Micke disturbed him, he fired blindly into the dark and ran. His next statement said that he turned and ran, then tripped over a piece of furniture and his handgun went off. The bullet accidentally struck the victim. The first account is more probable; the later account was an attempt to lesson his responsibility. But, in either case, he did not intend to kill the homeowner.
Such niceties do not concern the law. The killing occurred during the course of a felony, so it was first-degree murder whether Furman intended to shoot or not. At the end of a one-day trial, he was sentenced to death. That was in September 1968. Fifty years earlier, he would have been on death row in hours and have sat in the chair within weeks. But by the late sixties the appeals process had become prolonged. It would be a year or more before he was due for execution. His legal team had plenty of time to play the courts and buy him extra precious months.
A few years previously, in 1962, the Supreme Court had handed down a decision in Robinson v. California. Robinson had been stopped by a traffic cop, who spotted needle marks on his arm, indicating drug use. He was jailed for ninety days as a drug addict. The Supreme Court decided that being an addict in itself was not enough to justify being jailed, and that to jail Robinson for what was essentially a medical condition (addiction) was cruel and unusual and against his Eighth Amendment rights. This paved the way for other Eighth Amendment challenges.
One of the cards Furman’s attorneys played was an appeal to the Supreme Court, where they argued that the death penalty was not applied consistently. A disproportionate number of black men were on death row. In Georgia, of the thirty-three men facing the chair, twenty-seven were black and only six were white. This violated Furman’s Eighth Amendment rights as he was essentially being given a harsher sentence because of his color. They also argued that it denied Furman due process, violating his Fourteenth Amendment rights. At the same time, the Supreme Court considered two other cases, Jackson v. Georgia and Branch v. Texas. They had been due to consider a fourth case, Aikens v. California, but the California State Supreme Court had already ruled that the death penalty violated the state constitution, so Aikens found his sentence commuted to life imprisonment.
Jackson was sentenced to death for raping a white woman during the course of an unsuccessful armed robbery. He was a black defendant from Georgia. Elmer Branch was also black. He broke into the home of a widow in Vernon, Texas, and violently raped her, before stealing money from the house. She did not suffer serious physical injuries in the attack but he was condemned to death for raping a white woman. There were definite racial undertones in the case.
The three cases were considered together by the nine-man Supreme Court, but they focused mostly on Furman’s case. It was close. The final decision was five to four—in Furman’s favor. He would not go to the chair. Neither would Jackson, Branch, or anyone else for the next decade.
The court issued a one-page per curiam opinion, holding that the death penalty in the three cases was a cruel and unusual punishment and violated the Constitution. By a five-to-four majority, the death penalty was struck out for Furman and also in the other two cases considered with it. The per curiam opinion was an indication of how divisive the subject was. Normally the Supreme Court issues a decision with a majority opinion, written and signed by one of the justices. Per curiam decisions are more rare and take the form of a brief and unsigned document. It is always a sign that the court was deeply divided over the decision. In the Furman case, all nine justices wrote a separate opinion outlining their reasoning. The five that agreed to overthrow the death penalty were quite divided on why.
Two of the justices, Brennan and Marshall, believed the death penalty to be unconstitutional in all cases, given evolving standards of decency in society. We had moved beyond such barbaric practices. Others held that the problem was the arbitrary nature with which the death penalties had been imposed, which often showed a racial bias against black defendants. Justice Douglas felt that the inequality in application was what made the death penalty unconstitutional, and this opened the possibility of a return to the electric chair if the inequalities, which condemned more of the poor and the “colored,” could be eliminated. Justice Byron White felt that the infrequency of execution prevented capital punishment from serving as an effective deterrent, and thus it was not meeting the legitimate social need for retribution.
The most influential opinion came from Justice Potter Stewart, who said, “The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.”
He went on, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race … I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”
He rejected the sentences on Furman, Jackson, and Branch, because he believed the sentences had been imposed capriciously. The juries in these cases had been given complete discretion to do what they wished when it came to sentencing, with the result that the death penalty was “wantonly and freakishly imposed.” He felt that the death sentence was cruel and unusual in the same way that being struck by lightning was cruel and unusual; it was randomly imposed rather than fairly imposed.
Four justices dissented. These were Chief Justice Burger, and Justices Harry Blackmun, Lewis Powell, and William Rehnquist. All four were recent Nixon appointees. They were more in agreement than the five on the majority side. They felt that capital punishment had always been regarded as appropriate under the legal system in the United States and the British system they inherited it from. It was appropriate for serious crimes such as rape and murder and that the text of the Constitution implicitly allowed the death penalty. There was a reference in the Fourteenth Amendment to the taking of life, in section two: “… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
They held that the State was entitled to deprive a citizen of life if there was due process and equal protection.
The bottom line was that individual states, and the national legislature, now had to rethink their statutes for capital crimes, to ensure the death penalty was not administered in a discriminatory way.
The ruling was messy, but sufficient to halt executions immediately.
Upon the verdict being handed down, Furman, Jackson, and Branch had to find new accommodations; they were no longer to be housed on death row. In fact, there was an unofficial moratorium on the death penalty across the country. At the time, there were executions pending in many of the thirty-nine states that permitted capital punishment, and all these were stopped immediately. A total of 697 men and women came off death row. The thirty-nine states faced three choices in response to the split decision from the Supreme Court. They could impose manda
tory death sentences for certain classes of crime, which would have to be carefully defined and not open to discretion; they could develop proper and fair jury guidelines to prevent jurors acting improperly or arbitrarily; or they could abolish capital punishment.
The decision was handed down in 1972, but the moratorium had been in place since 1967, as states watched and waited for the verdict. In the four years following the decision, thirty-seven states introduced new legislation aimed at overcoming the concerns of the Supreme Court. One of the solutions explored by several of the states was splitting the trial process into two sections. There was the first phase, when guilt or innocence was established. If the defendant was found guilty, they moved on to a second, and separate, sentencing phase. Other states imposed standards on judges to ensure that the death penalty, if it was ever imposed again, would be applied consistently and never again along racial lines.
It would be four years before the Supreme Court tested these new legal processes.
And what of William Furman? He served sixteen years before being released on parole in 1984. He stayed out of trouble for the next two decades, but in 2004 he pleaded guilty to a burglary charge in Bibb County Superior Court, Georgia. He was sentenced to twenty years and is currently in prison.
11
SUPREME COURT CHANGES ITS MIND—EXECUTIONS ARE BACK ON
Troy Leon Gregg has one of the most fascinating stories of all the death row convicts. His case was crucial to the reinstatement of the death penalty—but he escaped the executioner in a unique and tragic-comic manner.
Old Sparky Page 13