By Lyle C. May / Prism
After more than 24 years on North Carolina’s death row, I have lived through and been tormented by the execution of 33 human beings. Some of them were people I called friends because they helped me grow up on death row. Together, we experienced the daily psychological impact of a death sentence.
Mental decay exacerbates many mental illnesses on death row, and it made some of my peers unable to effectively assist in their own defense and led to others dropping their appeals to “volunteer” for execution—state-assisted suicide, in other words. In this nightmare of powerlessness, stress, fear, and dehumanization through objectification, anxiety consumes conscious thought. Will I be executed? Will I suffer as others have before me? Will I be abandoned? Will it hurt? The answer to all of these questions, as many before me discovered, is “yes.”
Torture is often viewed as an assault on the body rather than the mind. However, modern definitions of the term include psychological elements as well. When you live with the thought, “the state kills in cold blood because it can and plans to carry it out no matter how long it takes,” there is no peace of mind. There is only a never-ending sense of impending death.
As long as North Carolina—or any state or the federal government—has a death penalty statute, there is no safety for anyone charged with a crime. Ordinarily, capital punishment is limited to first-degree murder, but at least two states—Florida and South Carolina—have passed or pursued statutes to expand the charges eligible for execution. The most striking example is South Carolina, which has sought to apply the death penalty to people who have an abortion.
This should terrify all Americans, not just people who can give birth in South Carolina. Although the law did not pass this time, there will be a next time—on and on until punishment returns to its original form: applicable to just about anything the state or federal government wants. This is not fearmongering in the least, but an observation from a person in a place where safety from populist politics and extremism does not exist.
It doesn’t matter that executions have been in abeyance in North Carolina since 2006 or that many states with a death penalty have inactive execution chambers. We saw in 2020 how easily a long-dormant execution chamber can be restarted when then-President Donald Trump and his Attorney General Bill Barr put to deatha dozen federal prisoners with little thought or consideration. It is irrelevant that seven people have been exonerated from North Carolina’s death row since I was sent here in 1999, or that 87% of death penalty sentences that received full review on appeal have been reversed. These facts ignore the capricious reality of the death penalty; it’s a political weapon wielded by populist elected officials fanning the flames of the next moral panic. GOP presidential nominee hopefuls such as Gov. Ron DeSantis lend legitimacy to that fear through rhetoric and misinformation—but the real danger lies in the average citizen believing the law protects them from having a death penalty. It does not.
Extensive time in prison draws out suffering, but the additional threat of a death sentence creates a crucible of dehumanization that no one should have to experience and no one has the right to inflict. The psychological torture inflicted on those given death sentences does not diminish in cruelty even if you believe a person “deserves it” in some perversion of “justice.”
The threat of execution and its subsequent psychological torture should be sufficient to prove the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Yet, in Glossip v. Gross (2015), the U.S. Supreme Court upheld the constitutionality of capital punishment because the petitioners could not provide an alternative method of capital punishment that carries a lower “risk of pain.”Justice Antonin Scalia, in a concurring opinion, held that the Eighth Amendment bars only those punishments that add “‘terror, pain, or disgrace’ to an otherwise permissible capital sentence.” In Atkins v. Virginia (2002), Justice Scalia also claimed the Eighth Amendment is meant to address “‘cruel’ punishments, such as the rack and the thumbscrew”—an explicit reference to physical torture, which completely ignores the psychological kind.
Terror, pain, and disgrace are the foundation of the death penalty. This is amplified through the uncertainty, arbitrariness, and racist application of the process. The Supreme Court’s misguided interpretation of the Eighth Amendment does, however, have a solution: one that can be found in the greater protection provided by state constitutions.
Two North Carolina Supreme Court decisions from 2022 (State v. Conner and State v. Kelliher) determined that the state constitution provides more protection against extreme punishment than the federal Constitution. This is because the federal Constitution requires two elements to prove the death penalty violates the Eighth Amendment: cruel and unusual. However, in many state constitutions, only one element is required to prove the death penalty is unconstitutional. This means it needs only to be cruel or unusual.
The psychological torment and inherent cruelty of capital punishment belies the standard of decency necessary for a free world. The conservative majority will not put an end to state-sanctioned murder and will ignore precedent to make it easier to kill U.S. citizens. It’s incumbent upon state supreme courts to adhere to the greater protection of their state’s constitution. This is the true path to abolition. Human decency demands it.
This op-ed is based on the article, “The Constitutionality of Life Under the Credible Threat of Death by Execution: A View from Death Row,” which will be published in the “NYU Review of Law and Social Change,” issue 48.2, in early 2024.
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Lyle C. May
Lyle C. May is an Ohio University alum, member of the Alpha Sigma Lambda Honor Society, and currently finishing his bachelor’s degree. He is a freelance journalist whose writing has appeared in Scalawag Magazine, Perspectives on Politics, The Intercept, America Magazine, Meal Magazine, and the Copper Nickel. Lyle routinely guest lectures on the politics, policies, and experiences of mass incarceration and America’s harshest punishments, speaking with university and high school classes, church groups and podcasts, and at conferences both nationally and internationally. Through his writing and public lectures, Lyle pulls back the curtain on the criminal legal system to bridge the gap between what the public thinks it knows about crime and punishment, and what actually occurs to generations of Americans.