In less than a week, barring an unforeseen act of God or the governor, the state of California will, in semi-secrecy, poison a man and kill him. So certain is the fate of Darrell Keith Rich that his attorneys did not even bother to attend a pro forma hearing that theoretically could have saved his life.
Despite the recent rush of media documenting the capricious nature of the death penalty and the nascent steps that have been taken to curb executions of the innocent around the country (a governor-imposed moratorium in Illinois, and similar stops under consideration elsewhere), Rich’s case has received minimal coverage outside Shasta County, where the crimes occurred.
That’s probably because Rich is a particularly poor candidate for sympathy.
Like most of the seven men the state has systematically executed since the death penalty was reinstated nearly 25 years ago, Rich has been convicted of multiple murders. Over the course of two months during the summer of 1978, he preyed on women and girls in the semirural Northern California community where he lived. One of his victims was 11-year-old Annette Selix, who died after he threw her off a bridge. Shortly after committing the crimes, Rich led police to the bodies. He was ultimately convicted of four murders and the sexual assaults of five other women.
Unlike previous, more camera-ready inmates bound for execution, Rich is not a monk, a Vietnam vet or a darling of the religious right. His is not a case of mistaken identity that some revolutionary DNA testing could resolve. His mental stability, while certainly compromised at the time he committed the crimes, is now attested to both by prison psychiatrists and his own attorneys. Pleas for mercy, such as those that have been made on behalf of other condemned inmates — from victims’ family members, former wardens, the pope — have not materialized.
Rich’s pending execution, more than any other in recent California history, strips the question of executions to its core: Should the state, in peacetime, be in the business of killing people, no matter how heinous their crimes?
“This is actually, oddly, a perfect case for us,” says Lance Lindsey, head of Death Penalty Focus, an advocacy organization opposed to capital punishment. “Often we’re sucked into the details of a case, about someone’s mental state or flaws in their defense. Our movement has never been about the details. The death penalty is about the gratuitous, needless killing of persons — it lowers us to the level of the crimes we abhor.”
Florene Allen, whose daughter was raped and killed by Rich, her skull crushed with a rock, told a reporter for the Record Searchlight, the local paper in Redding, how she felt about Rich’s execution: “I think they should let me go in there with a big rock.”
No one involved in Rich’s defense wants him ever released from prison. Rich’s attorney, James S. Thomson, a former president of California Attorneys for Criminal Justice, points out that Rich, who goes by the name Young Elk, is part Cherokee. In his plea for clemency to the governor, Thomson writes that Native Americans have been severely wronged in this country and that no Native American tribe employs the death penalty. He also says that one of the arguments prosecutors made to persuade the jury to sentence Rich to death — that he posed a “future danger” to other inmates and prison staff — has, in Rich’s almost 20 years on death row, proved groundless.
But whatever points can be made in Rich’s favor, the likelihood that he will be spared is nearly nil — despite the fact that the U.S. is the only industrialized democracy to sanction executions; despite the fact that it has been conclusively shown that capital punishment does not deter crime, that it costs more to try a capital case than it does to keep someone in prison for life. Despite the existence of a life-without-parole law in California that ensures that such prisoners will never be free.
“Spending the rest of your life in a 6-foot-by-8-foot cell under pretty gruesome conditions is not an easy sentence,” says Thomson, who has worked on capital cases for more than 20 years, including those of Tommy Thompson and Keith Daniel Williams, who are among those who have been executed in California in recent history.
On March 6, the governor-appointed Board of Prison Terms, made up of five former police officers and chaired by former state Senator James W. Nielsen, held a clemency hearing in Sacramento on Rich’s case. The hearings are supposed to give the condemned one last chance to plead for mercy. The recommendation of the board, which is confidential, is passed along to the governor. During his eight years in office, former Governor Pete Wilson never commuted a death sentence, and thus far, Governor Gray Davis hasn’t either. (Two men have been executed during his tenure.)
This time, defense attorney Thomson made an unprecedented decision — he did not request a hearing for his condemned client, and when it was scheduled anyway, he decided not to appear. Thomson declined to discuss his decision, saying only that he had submitted his written arguments to the governor. Lindsey, of Death Penalty Focus, says the hearings merely build up false hope for the family of the condemned. “They are there to plead and beg,” Lindsey says, “yet that politically entrenched tribunal is doing nothing but going through the motions. I don’t think there’s anything more cruel than making the family members of the convicted person — people who have done nothing wrong — of putting them through that.”
For the past four years, executions in California have been performed by injecting a deadly mix of three chemicals into the veins of the condemned man. The execution is open to victims’ families, the family of the condemned person, and selected members of the press.
Traditionally, those in attendance have watched the entire ordeal. They’ve seen the condemned man walk into San Quentin’s death chamber, speak his last words and breathe his final breath. Since the gas chamber gave way to lethal injection, however, most of the process is conducted behind a curtain — by the time it is opened, the condemned man is already strapped into a gurney, the poison flowing into his veins. When William Bonin was executed in 1996, prison officials admitted they had problems inserting intravenous tubes into Bonin’s arms, but because of the limited access, the witnesses had not seen it and the press could not report it first-hand.
The warden argues that concealing part of the execution is the only way to avoid a struggle with an unruly inmate and to protect the identities of the attending prison guards, though no such problems occurred during the one execution that was made completely visible by court order.
In a lawsuit now being considered in U.S. District Court, the California First Amendment Coalition is hoping to force the prison to make the entire process visible from here on out. “If this is to be anything other than a kind of formalistic sham, observers have to be able to tell what the execution process looks like,” says Terry Francke, the coalition’s general counsel. “It cuts both ways — for those who would like to see him suffer, seeing him simply set forth, trussed up and apparently unconscious in the showcase, deprives them of that.” Those who want to safeguard against cruel and unusual punishment are deprived as well.
If the prison is allowed to continue performing the active part of the execution behind a curtain, the public will continue to be removed from the reality of what Francke calls “the most drastic act possible by the government in the life of a human being.”
U.S. District Court Judge Vaughn Walker may reach a decision before midnight March 15, when Rich is scheduled to die.