During the 19th century executions were public spectacles. Hangings were often witnessed by large crowds. Children propped on their parent’s shoulders to see the last bit of life strangled out a convicted criminal. The last public execution in the United States was carried out on Aug. 14, 1936 in Owensboro, Kentucky. It was reported that nearly 20,000 people crowded around the gallows to witness the execution of Rainey Bethea. He was convicted of the rape and murder of a 70-year-old woman.
The murder was committed on June 7, 1936. Bethea pled guilty, was sentenced and his state and federal appeals were disposed of by Aug. 5, 1936. He was executed a little more than a week later. The state of Kentucky was portrayed in a less than favorable light by the throng of media that descended on Owensboro for the hanging. The Kentucky legislature, embarrassed by the unfavorable attention, moved to abolish public executions.
In the years leading up to Owensboro, in many towns across America, the actual execution was the jaw-dropping spectacle that attached itself to the ultimate punishment meted out by the criminal justice system. In modern America, the spectacle is not the execution, those are conducted behind prison walls, but rather the incongruous legal maneuvering that results in endless delays and intense pain for the family and friends of victims.
Kenneth Biros may be the nation’s best example of the modern spectacle of capital punishment. Biros admitted to killing Tami Engstrom. He contended that the murder occurred as a result of a drunken rage. The facts indicated that Biros had inflicted 91 injuries upon Engstrom prior to her death by strangulation. Her body was dismembered and buried in several places across two states. Biros was convicted of first-degree murder by a Trumbull County jury. Eighteen years later he remains alive in an Ohio prison. Rainey Bethea was executed 68 days after his crime.
Biros was originally scheduled to die on March 20, 2007. The witnesses were notified. Transferred to Lucasville Prison, the site of Ohio’s death chamber, Biros even had his last specially requested meal right down to the blueberry ice cream.
The governor refused his clemency request and the Federal 6th Circuit Court of Appeals dismissed Biros’, and eight other inmates, lawsuit challenging the constitutionality of lethal injection. They suggested that the three-drug cocktail that anesthetizes, paralyzes and ultimately stops the heart were volatile of the Eighth Amendment ban against cruel and unusual punishment.
The Ohio attorney general asked the court to permit the state to execute Biros even though he had an appeal pending. The 6th Circuit, the same court that tossed out Biros’ claim, also tossed out the attorney general’s request to lift the stay of execution. A desperate appeal by the attorney general to the United States Supreme Court was denied in a one line order hours after the scheduled time for Biros’ execution.
While Biros continued to sit on death row, the U.S. Supreme Court, in the case of Baze v. Rees, rejected a challenge to Kentucky’s method of lethal injection. The court held that lethal injection did not violate the Eighth Amendment.
In the wake of a botched execution in September, Ohio became the first state in the nation to adopt a single-injection method for executing condemned inmates; a process that state officials believe will avoid violating the constitutional ban on cruel and unusual punishment and prevent any further embarrassing execution malfunctions. The single large dose of anesthetic is similar to the method used by veterinarians to euthanize pets and livestock.
So who do you think Ohio scheduled to be the first person executed under this new method of execution? Kenneth Biros. He is scheduled for execution on Tuesday and on Thursday Gov. Ted Strickland again rejected his appeal for clemency.
Biros previously challenged the three-drug cocktail as cruel and unusual punishment. Now he is challenging the constitutionality of the single drug injection. Biros’ attorney said, “The state should not make his client a guinea pig.” Just as reasonable people in Kentucky were dismayed by the spectacle of a public execution, so too are reasonable people today dismayed by a death penalty that been eviscerated by vexatious claims and dilatory practices.
X Matthew T. Mangino is the former district attorney of Lawrence County and a featured columnist for the Pennsylvania Law Weekly. He can be reached at firstname.lastname@example.org.