CHICAGO (AP) — When the U.S. prisons director visited the penitentiary in Terre Haute, Indiana, this past week, she stopped by the federal death row where Bruce Webster is in a solitary, 12-by-7 foot cell, 23 hours a day.
Webster’s not supposed to be there. A federal judge in Indiana ruled in 2019 that the 49-year-old has an IQ in the range of severe intellectual disability and so cannot be put to death.
But four years on, the Justice Department and the Federal Bureau of Prisons haven’t moved him to a less restrictive unit or different prison.
Why? His own lawyer, who secured a rare legal win in persuading a court to vacate Webster’s 1996 death sentence in the kidnapping, rape and killing of a 16-year-old Texas girl, says she’s baffled.
“How can I not get this guy off death row?,” an exasperated Monica Foster said in a recent interview. “Well, I did get him off death row. But why can’t I physically get him off death row?”
Asked about Webster’s continued placement on death row, a Justice Department official said only that “the Bureau of Prisons is considering Mr. Webster’s designation determination.”
Michael Conroy
FILE - A sign is displayed at the federal prison complex in Terre Haute, Ind., on Aug. 28, 2020. A judge tossed 49-year-old Bruce Webster's death sentence in accordance with a 2002 Supreme Court decision that executing anyone with an intellectual disability violated Eight Amendment protections against “cruel and unusual” punishment. But Justice Department still hasn’t authorized his transfer to a less restrictive unit. (AP Photo/Michael Conroy, File)
Webster’s case illustrates chronic bureaucracy in the prisons system and the difficulties in getting anyone off death row. There’s sometimes additional reluctance to act in death row cases given the nature of inmates’ crimes.
In Webster’s case, he and three accomplices kidnapped a sister of a rival drug trafficker in 1994, kicking their way into an Arlington, Texas, apartment as Lisa Rene frantically dialed 911. They raped her over two days, then stripped her, bludgeoned her with a shovel and buried her alive.
Bureau of Prisons Director Colette Peters has said she’s committed to reforms. Her visit to Terre Haute was part of regular inspections of U.S. prisons. It came months after a lawsuit filed by the American Civil Liberties Union of Indiana seeking to end the solitary confinement of federal death row inmates, saying that practice results in severe psychological damage.
Several death row inmates told The Associated Press by email that Peters came through their unit on Tuesday and spoke to some prisoners. It’s not known whether she saw Webster or discussed his case.
The Biden administration should see moving Webster as an uncontroversial if modest step toward fulfilling President Joe Biden’s campaign pledge to stop federal executions for good, Foster argued.
“This case is a no brainer,” the Indianapolis-based federal defender said. “There is zero political liability for doing the right thing here and moving him off death row.”
Webster, who wants to be transferred to a prison near his hometown of Pine Bluff, Arkansas, must be resentenced. It’s supposed to be a formality because life in prison is the only available sentence.
When his lawyers and the Justice Department asked in joint 2021 motion for U.S. judge in Texas where Webster was tried in 1996 to resentence him, the judge refused, saying he lacked jurisdiction.
Judge Terry Means also chided his Indiana counterpart, Judge William Lawrence, for tossing Webster’s death sentence, saying Lawrence had “brushed aside” jurors’ finding, including that most rejected Webster’s intellectual disability claims.
“That judgment is final,” the government said about Means’ ruling, adding that it is the department’s position “that Mr. Webster is not currently subject to a valid death sentence.”
Responsibility to get Webster off death row lies squarely with the Justice Department, Foster said.
The Justice Department executed 13 U.S. death row inmates, some of them Webster’s friends, in the last months of Donald Trump’s presidency. While Biden’s Justice Department paused the executions and reversed decisions to seek death sentences in some cases, it continues to seek them in others.
Lawrence based his Webster ruling on Atkins v. Virginia, a landmark Supreme Court decision in 2002 ruling that executing those with intellectual disabilities violated Eighth Amendment protections against “cruel and unusual” punishment.
That decision hasn’t prevented some inmates with such disabilities from being executed, according to the Death Penalty Information Center. It identifies 25 cases where that’s happened since that ruling, including two federal inmates executed under Trump, Alfred Bourgeois and Corey Johnson.
Whether Webster qualified as intellectually disabled centered on three questions: Was his IQ significantly below average, did he show an inability to learn basic skills and was the onset of the disability apparent before age 18?
In his ruling, Lawrence cited tests putting Webster’s IQ between 50 and 65, below the benchmark score for intellectual disability of 70. The average is 100.
During arguments, Webster’s lawyers said he relied on others to tie his shoes late into childhood, and, as a teenager, had trouble playing card games because he couldn’t distinguish between clubs and spades.
Prosecutors accused Webster of playing dumb. They said he intentionally answered IQ questions incorrectly to avoid the death penalty. They said proof of his aptitude included how, during a jail stint, he figured out how to pick locks on a food chute to slip into a women’s section.
“Webster also has been able to hold a job, albeit it criminal in nature,” a government filing added. “Being a successful drug dealer is no less demanding than holding any number of legitimate jobs.”
The decisive evidence, however, were newly obtained Social Security records from before the killing indicating Webster’s IQ was within the intellectually disabled range. That evidence, despite requests for it, wasn’t made available at his trial.
Foster worries what could happen if Webster doesn’t get off death row soon. Even though past rulings should prevent it, she fears that if Trump wins the presidency, his administration could seek to restore the death sentence.
If that happens, she said, “I’m concerned it could be carried out.”
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Inmate stuck on US death row despite vacated death sentence
AP file
CHICAGO (AP) — The image of gunmen in a row firing in unison at a condemned prisoner may conjure up a bygone, less enlightened era.
But the idea of using firing squads is making a comeback. Idaho lawmakers passed a bill this week seeking to add the state to the list of those authorizing firing squads, which currently includes Mississippi, Utah, Oklahoma and South Carolina.
Fresh interest comes as states scramble for alternatives to lethal injections after pharmaceutical companies barred the use of their drugs.
Some, including a few Supreme Court justices, view firing squads as less cruel than lethal injections, despite the violence involved in riddling bodies with bullets. Others say it's not so cut-and-dry, or that there are other factors to consider.
AP file
CHICAGO (AP) — The image of gunmen in a row firing in unison at a condemned prisoner may conjure up a bygone, less enlightened era.
But the idea of using firing squads is making a comeback. Idaho lawmakers passed a bill this week seeking to add the state to the list of those authorizing firing squads, which currently includes Mississippi, Utah, Oklahoma and South Carolina.
Fresh interest comes as states scramble for alternatives to lethal injections after pharmaceutical companies barred the use of their drugs.
Some, including a few Supreme Court justices, view firing squads as less cruel than lethal injections, despite the violence involved in riddling bodies with bullets. Others say it's not so cut-and-dry, or that there are other factors to consider.
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Inmate stuck on US death row despite vacated death sentence
AP file
WHEN WAS THE LAST EXECUTION BY FIRING SQUAD?
Ronnie Lee Gardner was executed at Utah State Prison on June 18, 2010, for killing an attorney during a courthouse escape attempt.
Gardner sat in a chair, sandbags around him and a target pinned over his heart. Five prison staffers drawn from a pool of volunteers fired from 25 feet (about 8 meters) away with .30-caliber rifles. Gardner was pronounced dead two minutes later.
A blank cartridge was loaded into one rifle without anyone knowing which. That's partly done to enable those bothered later by their participation to believe they may not have fired a fatal bullet.
Utah is the only state to have used firing squads in the past 50 years, according to the Washington, D.C.-based Death Penalty Information Center.
AP file
WHEN WAS THE LAST EXECUTION BY FIRING SQUAD?
Ronnie Lee Gardner was executed at Utah State Prison on June 18, 2010, for killing an attorney during a courthouse escape attempt.
Gardner sat in a chair, sandbags around him and a target pinned over his heart. Five prison staffers drawn from a pool of volunteers fired from 25 feet (about 8 meters) away with .30-caliber rifles. Gardner was pronounced dead two minutes later.
A blank cartridge was loaded into one rifle without anyone knowing which. That's partly done to enable those bothered later by their participation to believe they may not have fired a fatal bullet.
Utah is the only state to have used firing squads in the past 50 years, according to the Washington, D.C.-based Death Penalty Information Center.
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Inmate stuck on US death row despite vacated death sentence
AP file
WHAT HAS CAUSED THE LETHAL DRUG SCARCITY?
Under Idaho’s bill, firing squads would be used only if executioners can’t obtain the drugs required for lethal injections.
As lethal injection became the primary execution method in the 2000s, drug companies began barring use of their drugs, saying they were meant to save lives, not take them.
States have found it difficult to obtain the cocktail of drugs they long relied on, such as sodium thiopental, pancuronium bromide and potassium chloride. Some have switched to more accessible drugs such as pentobarbital or midazolam, both of which, critics say, can cause excruciating pain.
Other states have reauthorized the use of electric chairs and gas chambers — or are at least considering doing so. That's where firing squads come in.
AP file
WHAT HAS CAUSED THE LETHAL DRUG SCARCITY?
Under Idaho’s bill, firing squads would be used only if executioners can’t obtain the drugs required for lethal injections.
As lethal injection became the primary execution method in the 2000s, drug companies began barring use of their drugs, saying they were meant to save lives, not take them.
States have found it difficult to obtain the cocktail of drugs they long relied on, such as sodium thiopental, pancuronium bromide and potassium chloride. Some have switched to more accessible drugs such as pentobarbital or midazolam, both of which, critics say, can cause excruciating pain.
Other states have reauthorized the use of electric chairs and gas chambers — or are at least considering doing so. That's where firing squads come in.
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Inmate stuck on US death row despite vacated death sentence
AP file
ARE THEY MORE HUMANE?
Supreme Court Justice Sonia Sotomayor is among those who say firing squads are a more humane method of execution.
That idea is based on expectations that bullets will strike the heart, rupturing it and causing immediate unconsciousness as the inmate quickly bleeds to death.
“In addition to being near instant, death by shooting may also be comparatively painless,” Sotomayor wrote in a 2017 dissent.
Her comments came in the case of an Alabama inmate who asked to be executed by firing squad. A Supreme Court majority refused to hear his appeal. In her dissent, Sotomayor said lethal drugs can mask intense pain by paralyzing inmates while they are still sentient.
“What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet,” she wrote.
AP file
ARE THEY MORE HUMANE?
Supreme Court Justice Sonia Sotomayor is among those who say firing squads are a more humane method of execution.
That idea is based on expectations that bullets will strike the heart, rupturing it and causing immediate unconsciousness as the inmate quickly bleeds to death.
“In addition to being near instant, death by shooting may also be comparatively painless,” Sotomayor wrote in a 2017 dissent.
Her comments came in the case of an Alabama inmate who asked to be executed by firing squad. A Supreme Court majority refused to hear his appeal. In her dissent, Sotomayor said lethal drugs can mask intense pain by paralyzing inmates while they are still sentient.
“What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet,” she wrote.
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Inmate stuck on US death row despite vacated death sentence
AP file
BUT IS DEATH BY FIRING SQUAD REALLY PAINLESS?
In a 2019 federal case, prosecutors submitted statements from anesthesiologist Joseph Antognini, who said painless deaths by firing squads are not guaranteed.
Inmates could remain conscious for up to 10 seconds after being shot depending on where bullets strike, Antognini said, and those seconds could be “severely painful, especially related to shattering of bone and damage to the spinal cord.”
Others note that killings by firing squad are visibly violent and bloody compared with lethal injections, potentially traumatizing victims' relatives and other witnesses as well as executioners and staffers who clean up afterward.
AP file
BUT IS DEATH BY FIRING SQUAD REALLY PAINLESS?
In a 2019 federal case, prosecutors submitted statements from anesthesiologist Joseph Antognini, who said painless deaths by firing squads are not guaranteed.
Inmates could remain conscious for up to 10 seconds after being shot depending on where bullets strike, Antognini said, and those seconds could be “severely painful, especially related to shattering of bone and damage to the spinal cord.”
Others note that killings by firing squad are visibly violent and bloody compared with lethal injections, potentially traumatizing victims' relatives and other witnesses as well as executioners and staffers who clean up afterward.
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Inmate stuck on US death row despite vacated death sentence
AP file
ARE FIRING SQUADS MORE RELIABLE?
If reliability means the condemned are more likely to die as intended, then one could make that argument.
An Amherst College political science and law professor, Austin Sarat, studied 8,776 executions in the U.S. between 1890 and 2010 and found that 276 of them were botched, or 3.15%.
The executions that went wrong included 7.12% of all lethal injections — in one notorious 2014 case in Oklahoma, Clayton Locket writhed and clenched his teeth after midazolam was administered — as well as 3.12% of hangings and 1.92% of electrocutions.
By contrast, not a single one of the 34 firing squad executions was found to have been botched, according to Sarat, who has called for an end to capital punishment.
The Death Penalty Information Center, however, has identified at least one firing squad execution that reportedly went awry: In 1879, in Utah territory, riflemen missed Wallace Wilkerson’s heart and it took 27 minutes for him to die.
AP file
ARE FIRING SQUADS MORE RELIABLE?
If reliability means the condemned are more likely to die as intended, then one could make that argument.
An Amherst College political science and law professor, Austin Sarat, studied 8,776 executions in the U.S. between 1890 and 2010 and found that 276 of them were botched, or 3.15%.
The executions that went wrong included 7.12% of all lethal injections — in one notorious 2014 case in Oklahoma, Clayton Locket writhed and clenched his teeth after midazolam was administered — as well as 3.12% of hangings and 1.92% of electrocutions.
By contrast, not a single one of the 34 firing squad executions was found to have been botched, according to Sarat, who has called for an end to capital punishment.
The Death Penalty Information Center, however, has identified at least one firing squad execution that reportedly went awry: In 1879, in Utah territory, riflemen missed Wallace Wilkerson’s heart and it took 27 minutes for him to die.
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Inmate stuck on US death row despite vacated death sentence
AP file
WERE FIRING SQUADS EVER IN WIDE USE?
Firing squads have never been a predominant method of carrying out civilian death sentences and are more closely associated with the military, including the execution of Civil War deserters.
From colonial days through 2002, more than 15,000 people were put to death, according to data compiled by death penalty researchers M. Watt Espy and John Ortiz Smykla. Just 143 died by firing squad, compared with 9,322 by hanging and 4,426 by electrocution.
AP file
WERE FIRING SQUADS EVER IN WIDE USE?
Firing squads have never been a predominant method of carrying out civilian death sentences and are more closely associated with the military, including the execution of Civil War deserters.
From colonial days through 2002, more than 15,000 people were put to death, according to data compiled by death penalty researchers M. Watt Espy and John Ortiz Smykla. Just 143 died by firing squad, compared with 9,322 by hanging and 4,426 by electrocution.
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Inmate stuck on US death row despite vacated death sentence
AP file
HAS THE SUPREME COURT WEIGHED IN?
High court rulings have required inmates who oppose an existing execution method to offer an alternative. They must prove both that the alternative is “significantly” less painful and that the infrastructure exists to implement the alternative method.
That has led to the spectacle of inmate attorneys bringing multiple cases in which they argue the merits of firing squads.
In 2019, the Supreme Court ruled in Bucklew v. Precythe that some pain does not automatically mean a method of execution constitutes “cruel and unusual" punishment, which is prohibited by the Eighth Amendment.
The Constitution "does not guarantee a prisoner a painless death — something that, of course, isn’t guaranteed to many people,” Justice Neil Gorsuch wrote for the 5-4 majority.
Key factors in deciding whether a method is “cruel and unusual” include whether it adds extra pain “beyond what’s needed to effectuate a death sentence,” Gorsuch said.
AP file
HAS THE SUPREME COURT WEIGHED IN?
High court rulings have required inmates who oppose an existing execution method to offer an alternative. They must prove both that the alternative is “significantly” less painful and that the infrastructure exists to implement the alternative method.
That has led to the spectacle of inmate attorneys bringing multiple cases in which they argue the merits of firing squads.
In 2019, the Supreme Court ruled in Bucklew v. Precythe that some pain does not automatically mean a method of execution constitutes “cruel and unusual" punishment, which is prohibited by the Eighth Amendment.
The Constitution "does not guarantee a prisoner a painless death — something that, of course, isn’t guaranteed to many people,” Justice Neil Gorsuch wrote for the 5-4 majority.
Key factors in deciding whether a method is “cruel and unusual” include whether it adds extra pain “beyond what’s needed to effectuate a death sentence,” Gorsuch said.
