© 2020 Texas Public Radio
Real. Reliable. Texas Public Radio.
Play Live Radio
Next Up:
0:00
0:00
Available On Air Stations

Autopsies Spark Legal Fight Over Meaning Of Cruel And Unusual Punishment

AILSA CHANG, HOST:

Today the federal government plans to execute William LeCroy at a high-security prison in Terre Haute, Ind. He'll die by lethal injection, the predominant method of execution in the U.S. for decades. Since it was first introduced in 1977, there's been a perception that lethal injection goes something like this. An inmate lies down, quietly receives medication and dies a peaceful, painless death.

But an NPR investigation reveals a much different story. We have obtained the largest collection of lethal injection autopsies ever assembled in the U.S. And what this collection shows is that in the vast majority of executions, inmates' lungs are filling with fluid while they are still alive. Medical experts say many are likely experiencing the sensation of drowning before they die, even though it can look like they're just sleeping. This is a condition known as pulmonary edema, and signs of it are present in 84% of the autopsies a team at ALL THINGS CONSIDERED collected over the past two years.

Yesterday, we laid out the science behind our findings, and today, we bring you the legal fight over pulmonary edema as judges grapple with the definition of cruel and unusual punishment. We begin in a small town in Ohio, where I went with producer Noah Caldwell to meet a man caught in the middle of that legal fight. And just a warning here - this story contains details of a violent crime that some listeners might find upsetting.

Norman Stout has been waiting 36 years to watch the man who killed his wife die. He's 90 now and lives in New Concord, Ohio, just a few miles from the house he and his wife Mary Jane used to share.

Hi, Norm.

NORMAN STOUT: Hello. Welcome. Come in.

CHANG: Hi.

Norman's home today is a living memorial to Mary Jane. It's an old Freemason lodge that's been converted into a museum of sorts, jam-packed with shelves and shelves of the Holly Hobbie figurines she once treasured.

STOUT: There's over 1,200 different items here.

CHANG: He and Mary Jane first met when he was just 21 and still in the Air Force.

STOUT: I probably had the only brand-new automobile on the base.

CHANG: So that made you quite the eligible bachelor.

STOUT: Might have been. She must have found something. I couldn't figure out why, but I'm extremely proud that she did.

CHANG: What was it about her that made you fall in love?

STOUT: Well, it was just - she was a beautiful person, mentally, physically. I had been a draftsman. I understood good lines and design.

(LAUGHTER)

CHANG: Norman and Mary Jane raised three sons together, who all happened to be out of the house on the night of May 14, 1984. That's when two young men appeared on the Stouts' doorstep.

STOUT: One had a mustache, and the other one - there was nothing distinguished about him.

CHANG: The men asked to use the telephone. They said they were having trouble with their car. After Norman let them in, they suddenly drew guns and announced it was a robbery.

STOUT: After the chill run down my spine, I knew I was in trouble because I had no way of protecting my wife.

CHANG: The Stouts were ordered into the back bedroom. Then Norman lunged at one of the men.

STOUT: He shot me from across the bed right there.

CHANG: On the top of your head.

STOUT: That bullet is still in there - full, complete bullet.

CHANG: They shot him in the head again. Mary Jane started screaming, and then Norman heard the men turn their guns on her.

STOUT: I heard four shots because I couldn't shut my ears. I could shut my eyes but not my ears.

CHANG: His wife was dead. Norman would spend three weeks in a coma, only to wake up to learn he would never again be able to control the left side of his body. Months after that horrific night, a man named John Stumpf was sentenced to death for the murder of Mary Jane Stout. And for the next 3 1/2 decades, Norman Stout has watched Stumpf's execution date get pushed back over and over again.

STOUT: What is the system that takes 35 years? I don't know. You have to admire that that can get away with 35 years of doing nothing.

CHANG: Norman has marveled at how the courtroom debate over cruel and unusual punishment has stalled justice for him because this case involving John Stumpf is now at the forefront of a new legal battle unfolding over lethal injection. Courts are taking a closer look at something that ALL THINGS CONSIDERED has also spent the last two years investigating - evidence that inmates' lungs are filling with fluid while they are still alive in the execution chamber. This is where producer Noah Caldwell picks up the story.

NOAH CALDWELL, BYLINE: I'm in the federal courthouse in Dayton, Ohio, and a team of lawyers representing John Stumpf is rolling boxes of documents through security.

UNIDENTIFIED PERSON: Where you headed, sir?

CALDWELL: Buried inside those boxes are autopsies.

ALLEN BOHNERT: The autopsy records are genuine, legitimate, unassailable scientific evidence that shows what is actually happening to these inmates as they're being executed.

CALDWELL: That's lawyer Allen Bohnert. And he says what's actually happening is akin to torture.

BOHNERT: These inmates are fighting and struggling, gasping to breathe as if they are drowning and suffocating, being waterboarded.

CALDWELL: Being waterboarded - that's what Bohnert says is facing his clients, all of whom are inmates on death row in Ohio, including John Stumpf. Now, lawyers for the state declined to speak with me, but they argue in court that the way Ohio executes inmates is entirely constitutional and that the drugs they use block any pain the inmate might feel. It's up to Bohnert and his team to convince the judge otherwise. They argue that during lethal injections, inmates' lungs are filling with fluid and that the drugs don't block any of that pain, which they say is a clear violation of the Eighth Amendment, which prohibits cruel and unusual punishment.

BOHNERT: We can't ask the clients what is happening to them during the course of their executions, obviously.

CALDWELL: So these autopsies have become a way for the dead to speak as witnesses for death row inmates still awaiting execution.

BOHNERT: That evidence continues to build and continues to get better every time another execution happens, unfortunately.

CALDWELL: It's evidence we've seen in our investigation, too. We reviewed hundreds of autopsies from around the country and found inmates' lungs filling with fluid in 84% of the cases. It's a condition called pulmonary edema, which you wouldn't expect to see in most autopsies. In early 2019, the district court here in Dayton took Bohnert's side. For the first time, a federal judge ruled that the pain of pulmonary edema constituted cruel and unusual punishment. And he likened it to, quote, "waterboarding." And citing that decision, the governor of Ohio then delayed all upcoming executions, including John Stumpf's.

CHANG: These delays are what Norman Stout finds maddening. To him, these courts have agonized far more about what his wife's murderer will endure than what Mary Jane suffered 36 years ago.

STOUT: I just consider that stupidity. Cruel and unusual punishment is laying out there in the cemetery.

CHANG: But I wanted to ask Stout about the findings of our investigation and the evidence presented in court in Dayton. Would he care if he knew the lungs of inmates were filling with fluid during lethal injections, enough to make those inmates feel as if they were drowning?

STOUT: How long is that going to last? I don't care for a few moments or a few minutes. He's going to be dead anyhow. He's not going to complain. It is only the bleeding hearts and the half-wits that are involved in this discussion.

CHANG: As Stout has watched judges struggle with that discussion about cruel and unusual punishment, he wonders why they don't see the simple solution, the one he believes would cut through the endless debate. Forget lethal injection, he says. Just shoot them.

STOUT: That sniper can be anyone that belongs to a rifle club or has qualified as an expert in the military, which includes me. And, boy, I work cheap.

CHANG: If this whole debate is about a more humane death, Stout says, why wouldn't a precisely aimed bullet get the job done?

STOUT: There is absolutely no suffering whatsoever. He doesn't know what hit him. He is dead.

CHANG: And as it turns out, on this issue, Stout has an unexpected ally. Here's producer Noah Caldwell again.

CALDWELL: Yeah. I heard almost the exact same thing at the courthouse in Dayton.

BOHNERT: He would be dead before his brain would be able to process the pain of being hit with a bullet.

CALDWELL: That's Allen Bohnert again - remember, the lawyer for the man convicted of murdering Norman Stout's wife. Now, he doesn't actually want anyone to be shot. But if he's going to argue that lethal injection is cruel and unusual, he's required by the courts to identify an alternative method that would be less painful. And so for him, that alternative method is the firing squad.

BOHNERT: Why firing squad? It's uncontested that it would be literally painless or very nearly so.

CALDWELL: The last time an inmate was executed by firing squad was 2010. But last year in Tennessee, two inmates did choose to be executed by electric chair because they were so concerned about the pain of lethal injection.

CHANG: So what kind of pain is acceptable during an execution? Well, legally speaking, that is a question without an easy answer.

DEBORAH DENNO: Judges may vary on how one views pain, period.

CHANG: That's Deborah Denno, a law professor at Fordham University and one of the leading experts on death penalty law. She says there's never been a coherent constitutional standard for assessing pain - one that spells out, like, how long can the pain last, or, when does the method violate our sense of decency?

DENNO: Somebody might think that suffocation certainly constitutes pain, and another judge may think it's not - that suffocation alone doesn't qualify as severe pain and needless suffering.

CALDWELL: Severe pain and needless suffering - that's one standard the Supreme Court has set out for whether an execution method is cruel and unusual under the Eighth Amendment. And the case in Ohio shows just how subjective these evaluations of pain can be from court to court. After the judge in Dayton ruled that the pain of pulmonary edema was cruel and unusual punishment, the appeals court in Cincinnati saw the same evidence and overturned the decision.

CHANG: So currently, no court is standing in the way of John Stumpf's execution, which is scheduled for next year, a day Norman Stout is determined to witness if he lives long enough.

STOUT: I'm trying my best, even though I've had a heart attack. We never know when we're going.

CHANG: Meanwhile, the legal battle over pulmonary edema continues in Alabama, Tennessee, Mississippi and Arkansas. And in recent months, the U.S. Supreme Court has allowed federal executions to resume. The high court has been presented with evidence of pulmonary edema in lethal injection cases, but it's never issued a ruling on whether it constitutes cruel and unusual punishment. So nationwide, it is still constitutional to execute inmates even if their lungs fill with fluid as they die.

CALDWELL: And public opinion is still behind lethal injection. Polling shows that the majority of Americans support the death penalty, and an overwhelming number believe lethal injection is the most humane method of execution.

I'm Noah Caldwell.

CHANG: And I'm Ailsa Chang. You can read our entire investigation at NPR.org.

(SOUNDBITE OF BRAD MEHLDAU'S "OLD WEST") Transcript provided by NPR, Copyright NPR.