Hector Ortiz sat on the edge of his cot, smoking a cigarette, because why not.
For as long as he cared to remember, “why not?” had been the chief consideration on any of the few life decisions permitted to him, which did not extend much beyond personal habits like smoking. On Death Row, even if you’re not constitutionally partial to smoking, you almost certainly smoke anyway, in part because you have no reason not to, and in part because it is something to do with your hands. There was always a shortage of things to do with your hands. You can brush your teeth, you can tidy up your cell, you can do your pushups, you can read if you’re the kind who reads, you can eat what they give you, and you will, after that, still find that there’s still a full day left to find things that can be done with those hands. Ultimately there’s only so much masturbation one man can do. Smoking was, if nothing else, another activity. So he’d smoked, smoked until his teeth turned yellow and his voice became a gravelly rasp and there was always a tight rumble in his chest, and he’d waited out the months and years until today, when his time had contracted to a last few hours where there was still nothing left to do but smoke, because why not.
Only a few years earlier, smoking had been prohibited in prisons, nationwide. The pendulum had swung the other way, in part because of lobbying from a tobacco industry that protested the restraint of trade against a captive audience. A business-friendly administration had found this an excellent point and so Hector now got an allotment, paid for by the taxpayer. Whee. Something to do, even if it did little to alleviate the main torment of being held in isolation, the awareness always lurking at the edges of his consciousness that time was passing and that a creature breathing oxygen really did need to be doing more.
He stubbed out one butt and was about to light another when the guards came and said he had people waiting for him. Even as he took this distraction gladly, cooperating with the familiar procedure for all journeys outside his cell. As his wrists and ankles were cuffed together with an interlocking chain, he wondered who the guards could mean, by “people.” He had a lawyer, one Miranda White—whose name had always secretly amused him, the specific combination of “Miranda” and “White”—who had started with him early in his sentence, and who had aged with him, from fresh faced in her twenties to a more lined middle age. He had parents who were dead, a brother who had visited once a month for a couple of years before the two of them ran out of things to say to one another and Hector banished him for his own good, and a girl with whom he’d had a beautiful baby boy, before he also told her to stop coming and especially to stop subjecting the poor kid to the trip. Miranda was the only one who’d defied his orders to give up on him, and for a long time now the only person outside the penal system who’d still come to visit. He’d always expected to see her today, right at the end. But when she came, the guards always said, “Your lawyer’s here.” People meant people, plural.
They led his shuffling form down the puke-green corridor and around the bend to the separate visiting room reserved for Death Row inmates, a place where the chairs were bolted to the floor before tables equipped with rings where wrist-cuffs could be anchored. It was a chamber with one perpetually blinking light fixture and a high window with wired glass with a remarkable gift for turning even the brightest sunlight into a more jaundiced yellow. The room smelled of paint and dust and disinfectant, and one of the good things about knowing he’d die in a few hours was the awareness that it was one of the places he’d never have to see again. It did have a snack machine, one of the kind where the chips and cookies are arrayed in coils that turned to force them over the edge, and this also never failed to amuse him, as it struck him as a grand model for the system’s plans for him.
Miranda sat at the usual table, in her usual gray suit, her now-graying hair in the usual fraying bun, a look that had once struck him as adorably dorky and girlish but which had over the last few years begun to cross the border into matronly. Miranda, whose smiles had always been brief and forced, now looked more uncomfortable than he’d ever seen her. Not unhappy, but uncomfortable. She might have been straddling a pineapple and trying to hide it, with that wince. Hector empathized. He didn’t think of Miranda as a friend, not exactly; and he was pretty sure she didn’t think of him as one, so much as a problem to be solved. But it had to be difficult for her to retain her composure, on this day where it was all coming to an end.
She sat with a big white man whose face struck Hector as being disproportionately dominated by his jaw. It was a steam-shovel, that jaw. He looked like he’d built it up gnawing on concrete, and it gave the impression that he was smirking, even though he was not.
The guards led Hector to the table and lowered him into the seat, with the usual just-a-bit-more emphasis than they required.
“Free his wrists,” Miranda said.
“Day of execution,” one of the guards replied. “Against regulations.”
“You know what we’re here for. Free his wrists.”
This demand landed with no authority whatsoever.
Then the man with the big jaw said, “You can go ahead,” and they jumped to obey. They came in close, undid the handcuffs and took away the X-chain, but left his ankles bound. Neither Miranda nor the big man said anything during the minute or so this entailed. Hector didn’t either. The procedure itself was an invasion, but one he had long ago grown inured to, if not quite used to. It could not be helped. He did, however, take that time to access the man with the juice to command his keepers, this man with stubble-cut scalp and crisp gray suit that it was impossible to imagine him out of: this man whose very demeanor possessed a rubber-stamp of the official. In prison you develop a sixth sense separating those occasional presences in suits into the category that included low manifestations of state authority, and those with real power. Whoever this man was, he belonged on that second list.
The guards left.
Miranda said, “Hello, Hector.”
He said, “Hello, Miranda.”
She extended a foil bag. “I bought you chips.”
Hector glanced at her offering. It was the brand he liked, but Ranch, which he detested. He had told Miranda this more than once, never with any special heat, and she had a long history of forgetting. He did not want to take up any of his last day making her feel bad about getting him the wrong flavor of chips. She’d meant well; had meant well and worked hard for him, for well over a decade after he’d told her that while she could still knock herself out fighting on his behalf, if she wanted, he no longer wanted to be tortured with the details of her glacial progress. Nobody in all the world had ever tried harder, on Hector’s behalf, for such minimal award. Refraining from being pissy about the chips was one the lesser ways he could repay that. So he uttered a soft, “Thank you.”
“I’ll have it with dinner.”
The big man said, “Want to smoke?”
Hector did, of course; he could no longer go five minutes without feeling the urge. But he had also long since perceived that it repelled Miranda, and today of all days he was determined to exert himself, as much as he could, to make her comfortable. “I’m good.”
If she realized he’d just shown consideration on her behalf, she did not show it. She just indicated the man with the big jaw. “This is Andrew Ellis, from the State Attorney’s office.”
“Hello,” said the big man.
Hector nodded at him, offering acknowledgment but not judgment. He knew cons who would have thrust out their own jaws and immediately demand to know the mission of this interloper, but his years in a cinderblock room had moved him in the other direction, toward silence; toward the withholding of any helpful reaction except when it could no longer be avoided. The information would come eventually.
Miranda said, “There have been some last-minute developments in your case.”
Hector was the rock in the surf, unmoving in the face of all waves, whether ripples or tsunami. What difference did it make? In two hours, they’d bring his last meal; in a little more than four, they’d collect him and bring him to the room where the long process of erasing him would finally reach its culmination. Last-minute developments. He was sure they interested Miranda a lot more than they interested him. “Oh?”
“You’ve been cleared.”
Hector blinked. It sounded like Miranda said he’d been cleared. It had been years since he’d even allowed himself to have a fantasy, something now so insane that she might as well have said that the sky had rained stones, or that the seas that turned to milk. It failed to compute. He tried to speak, failed, tried again and this time accomplished all that he could, an attempt to put off comprehension for the duration of one conversational exchange. “. . . what?”
“You heard her,” Ellis said.
“You’ve been cleared,” Miranda repeated, and this still didn’t make sense to him, because from what he understood, this had been the single most persistent crusade of her entire professional life, starting from her days as a minor young associate in the firm first appointed to represent him, and continuing after they lost and declared themselves out of the Hector business. Hector still had no idea what that hungry young lawyer had seen in him that would be worth two decades of her own life, but she’d seen it, she’d professed his innocence long after he gave up on saying it, she visited him after he told her he didn’t want to hear any more, and she’d fought on his behalf after he’d become a being as hard to stir as the walls that had defined his life since his twenty-second year.
And not just because his personal model of the universe had long been that of a giant hammer intent on pounding him into insignificance, with every wasted breath of his existence. But also because she didn’t look like someone delivering good news. If Miranda was really telling the truth and had really finally won her life’s one great crusade, she should have been glowing. She should have been hooting at the thunderstruck look on his face. She should have been inviting him to share tears of joy. And yet she seemed no happier than on her prior visits. He could only wonder if this was what happened even on the outside, when you could do anything you wanted every day, but still had something to beat your head against for twenty years. Had all that time taken as much out of her as his twenty-three hours a day in isolation had taken out of him?
He could only put off comprehension by the duration of one more word. “Cleared.”
“She’s not lying,” Ellis said, and this, more than anything else, introduced fear into the conversation, because along with Miranda’s lack of ebullience there was also this man’s smirk, which had grown worse now that he actually seemed to be intending one.
Hector said, “How?”
Miranda could not keep a quaver from her voice. “There’s been a lot going on behind the scenes, these last few years, things I didn’t always tell you about because reasons to hope seemed to hurt you too much. You said that unless it was something definitive or something I needed your input on, you didn’t want to know. I tried to respect that.”
There was enough of an apology there that he could only murmur, “Thank you.”
“But the evidence was proven to be tainted. Key testimony was proven to be coerced. The prosecutor was convicted of concealing exculpatory evidence, leading to years of other cases including yours being re-opened for examination. Most recently, we found out that another man confessed to the crime fourteen years ago and that the authorities have been deliberately repressing it ever since. When that came out, it led to more discoveries supporting his claim, and, well, let’s just say that I could spend days just telling how your case completely unraveled, every single aspect of it, more than I ever could have wanted. It’s taken far more time than it should have. But the way things stand, as of today, it’s no longer only a case of reasonable doubt. Even the state sees that it’s virtually impossible that you committed the crime.”
“Th-they say this?”
“They didn’t want to. Once the state convicts, it always hates reversing. It would rather put two people in prison for the same crime, even if each case makes the other impossible, than admit one of the two defendants must be innocent. Even when the state attorney had enough on this other man to see to his execution ten times over—multiple murders—he still came damn close to leaving your count off the indictment, as a means of preserving your own conviction. It was a fight. But I found a way to corner him, to keep him from going forward with this other case until he first saw to justice in yours. It’s complicated, and I’m way oversimplifying things just to get to the bottom line. Which is that your conviction’s been thrown out, and the state is even now readying a judicial declaration of actual innocence.”
“Congratulations,” Ellis said.
The man’s demeanor was still that of a spoiled child smiling over his mother’s angry declaration that he should have saved his little sister that last piece of cake; yes, it was technically true, but thanks to his trespass he’d gotten to eat it himself, and no amount of parental disapproval could deprive him.
There was still bad news coming from him, no question.
But meanwhile, Hector could hardly think. For two decades of his life, almost half of it, he had lived the life of a convicted murderer, a man who the iron stamp of the state had defined as a person who could have committed an act he could hardly even bear to picture. It was not that he’d ever considered himself a good man, not exactly. The troubles he’d been in as a teenager had been one of the factors that first rendered him a suspect, and he’d been enough of a petty asshole as a young man that nobody had had any difficulty buying the prosecution’s implication that this was a piece of crap who always was going to kill somebody someday. Following that implication to the conclusion that he’d certainly committed the atrocity under discussion struck everybody including the jury as a natural next step. He’d been a piece of crap, certainly. But he hadn’t been the piece of crap who would have done that thing they said he’d done, and even if possessed by raging madness on the worst day of his life wouldn’t have done it like that. The gulf between being an aimless piece of crap and being that kind of inhuman raging monster had always been the argument he was forbidden to win, and the news that it was won, that he was now recognized as something else, that . . .
. . . and only at this point in the thought process did the even more important shoe drop.
He whispered, “They’re not going to execute me?”
Miranda gulped. She didn’t collapse into hysterics. She didn’t wail. She was too tough for that. But the burden visible since the onset of the conversation continued to manifest, those gray eyes of hers now glassy with tears.
She said, “I’m sorry. If you’d only been cleared three years earlier, y-you . . .”
And her voice broke, and she covered her eyes with her hand.
Ellis stirred. “Well, this looks like the best juncture for my involvement.”
Hector’s ruined voice cracked, not out of runaway emotion but because the damage years of chain-smoking had done to it had introduced a brittleness that never went away, now. “You know I’m innocent and you’re still going to execute me on schedule? What the fuck, man?”
Ellis said, “I’m aware that you’re upset. I’m also aware that I’m not obligated to endure it. Please speak to me with a civil tongue or I’ll forego the courtesy of an explanation.”
Hector wanted to rip out the man’s throat with his teeth. But just across from him, Miranda was crawling her way back to composure. Hector found that he was almost as furious with her, for putting him through this on his last day, as he was at this Ellis, who seemed to be the face of it. But the better part of himself resisted. And he was chained by the ankles, still, a creature still accustomed to being handled, controlled, moved from place to place and ordered to sit.
Ellis said, “I’m aware that you’ve deliberately avoided news from the outside world. It strikes me as the healthiest possible response to your circumstances. But that means you haven’t followed recent political developments. You’ve existed in such isolation, both systemic and self-imposed, that you haven’t even gotten the news from any of your fellow inmates. You have no way of knowing that the American criminal justice system has been streamlined. May I catch you up to date?”
Hector provided an angry nod.
“I’ll take that as a yes. A couple of years ago, following a flurry of judicial reverses, multiple incidents of convicted killers like yourself cleared by new forensic evidence and the subsequent pain this caused to the survivors of those who’d fallen to the crimes they’d been convicted of, the public frustration with all these interruptions in the process led to a widespread demand for a return to Law and Order. A new administration recognized that the Death Penalty possessed an actual inherent value to civilization, was indeed an absolute good quite separate from the accuracy with which it’s administered, and that exonerations like yours threatened all the good the institution does by undermining the faith our society has in it. Eighteen months ago, an executive order upheld by the Supreme Court established that revelations of innocence or of procedural misconduct no longer matter, because it is now illegal for any sentence of death to be commuted or overturned, under any circumstances. What happens instead is the verdict is revised to Not Guilty but Collateral Damage, with your death now classified as a murder and added to the charges pressed against the true culprit, if found. As yours has been found, this charge will be added to his list of indictments as soon as you are pronounced dead.”
Hector stared at the man, aware that they existed on different planets, and that no form of transportation existed that could bridge the distance. “That’s crazy.”
“You’re biased, sir. Your reasonable expectation of justice does not outweigh the right of the people to closure. You will be executed on schedule, except that the occasion will also include a public acknowledgement of your innocence. I’m aware you have a brother somewhere, and a now grown son; they will receive documents to the effect, and a small cash settlement in addition to the deepest regrets of their country.”
“I’ll still be dead!”
Ellis let that pass. “One of the provisions of the new law is that your execution will now be televised. It will follow a tasteful dramatic presentation, cast with known television personalities, re-enacting the crime. The coverage will include the information that you were adjudicated not guilty, though I must warn you that this will be conveyed in a text banner moving across the bottom of the screen and that very few people reading it will mostly consider this a technicality not worth getting into. Even those who accept the information will assume that if you were not guilty of this crime that you must be guilty of others. However, you will have gotten your denial on the record, one last time. Your rights, as currently measured, will have been respected.”
Hector had never been an eloquent man, not even to start with, and his life had not provided him with the practice that once might have made him one. When reduced to near-incoherent rage, as he was right now, his first impulse was to shout the same two words that such moments often devolve to. They did want to come out of his mouth more than any other words he’d ever said. But he’d learned something about those words early in life, that had been cemented in place during his years in prison. Their effectiveness was always relative. They were an assault when flung at someone who lived in fear of you, a provocation to violence when hurled at someone on your own level, and a pathetic manifestation of your own impotence once the target was someone like Ellis, who had control over you. Ellis would smirk, or shake his head sadly, or walk out of this room telling himself that he tried to speak truth to the simple-minded, semi-literate convict, only to be barked at by the animal incapable of appreciating it. There was no point. Hector could deliver those words in the most enraged tones of his entire existence, and Ellis would still sleep well tonight, thinking no more of it.
So he said nothing. He bit it back and let it burn, deep in the heart of him where the years had never snuffed out the flame.
And then Ellis made it worse. “Alternatively, you could choose to get into the spirit of the thing.”
“You could refrain from trying to make this a miscarriage of justice. You could recognize that the people need this and confess that you do deserve what’s about to happen to you. Even if you are innocent of the one crime you’ve been convicted of —”
“—even if, Hector. It remains true that this country currently experiences about 18,000 murders annually, of which something like 7,000 go unsolved. It would be ideal to have one execution for each, though that will of course never happen, as a certain number of those killings are committed by people responsible for multiples, not just serial killers but those who kill as part of the cost of doing business: drug dealers and thieves and the like. Still, that leaves us with thousands of tragedies that will never approach closure, and if you’d like your death to impact your country in some positive way, as well as ameliorate any damage your innocence does to the institution, you could confess to one or two of those.”
Hector’s head was about to explode. “I told you I didn’t kill anybody!”
Ellis flashed a smile, and what hurt Hector most was that it was not a cruel smile, nor a superior one. It was a smile of fraternity, to go along with the sharing of a confidence.
He said, “I keep telling you I know that, Hector. It’s only because I know you’re innocent that I’m offering you this opportunity. At the risk of repeating myself yet again, your execution is going to happen. If it’s retribution for a brutal crime, then it’s retribution for a brutal crime. If it’s a miscarriage of justice, then fine, it’s a miscarriage of justice. If it’s a fraudulent pageant we’re putting on in the hope that some relative of a murder victim will feel better, and some other potential murderer will think twice, then, fine, it’s a fraudulent pageant. You can’t change what’s happening. You can only change what it means, whether it does any good in the long run.
“And that,” he said, wrapping up, “is why my Department has done what it now does in every case like yours, for every condemned man or woman who faces this choice. We’ve come up with a small assortment of unsolved murders you could be liable for, murders that happened to take place in your community and in surrounding areas while you were free: murders that are because of insufficient evidence or limited police resources are unlikely to ever be solved, to the satisfaction of a community of loved ones who will forever be denied the satisfaction of an identified culprit.
“You can help people heal, Hector. You can agree to confess, on live television, that one or two of these are yours. You will still be acknowledged as innocent of the crime you’re being executed for, but you will lend meaning and resonance to the occasion by offering the divine gift of closure on these others. And by showing everybody who might think of committing murder that the vengeful hand of Justice will always come, even if it takes years.”
Hector failed multiple attempts to speak. “But I didn’t kill anybody.”
“Be an example, Hector. Your brother and son will receive a further stipend for every name you agree to, up to a maximum of five. They’ll live without the sense of violation that comes with believing you a railroaded victim of the state. It’ll be good for the institution, and therefore good for the country. Of course, if it’s against your principles, you don’t have to. We’re just making the offer in good faith.”
There was absolutely no possibility of Hector agreeing to such a thing. Of that, there was no doubt, though he could easily imagine others, some perhaps even more fatalistic than himself, taking the deal. What he really wanted to do, murder this man in some elaborate manner and go to his grave declaring his pride in the act, felt good to imagine, but was of course impossible, and not just because of the physical chains he wore, or his remaining concern for Miranda. He now knew something that had been the cause of any number of descents into despair, in this place where the lights were always burning: that even when presented with all possible provocation, he was not what they said he was. Murder was not in him, and never had been in him.
He turned his gaze away from Ellis, and toward Miranda, who was once again dry-eyed, but hollow, like an old house that still stood but which had been hollowed out by fire.
He said, “Did this really happen to the world when I wasn’t looking?”
Her gaze was bereft but unapologetic. “While all of us weren’t looking.”
“Why did you still continue to work for me, if it no longer matters?”
At this point, her eyes went shiny again. But the tears refused to spill over, and when she spoke it was with rage and a look of pure loathing, in Ellis’s direction. “It still matters, Hector.”
Hector had always liked Miranda, in his uncomplicated way, but this was as close as he’d ever come—and, he knew, would now ever come—to falling in love with her. It had been a long time since he’d felt that emotion for anybody, and he considered its arrival now a gift, something to remind him what he’d be giving up, when he passed from this world to the next.
He said, “Are you planning to be with me, tonight?”
“Until the end, Hector.”
“Don’t. You don’t have to do it to yourself, and you need to keep what you have for the next guy, because there will be a next guy.”
She lowered her eyes. “I don’t know if I can still do this, the way things are.”
“That’s up to you,” Hector said, and for the first time he felt his own composure slip, something he avoided only because he didn’t want to give this other son of a bitch the satisfaction. “But it sounds to me like the way things are going, there’s gonna be a lot of guys like me, and not enough people like you. Take my thanks and let me die thinking you’ll be there.”
“You don’t want me to stay here for the rest of this?”
“Especially not for the rest of this.”
“I’m sorry,” she said.
“I know. Thanks for being my friend.”
She came around the table and offered him one of those chaste visiting-room hugs, the kind that were possible to get away with before one of the watchers came in and told you to quit it. It struck him that it would be interesting to see what happened if she held it just a little longer. It brought to mind a very old joke, one that he’d been told by at least three other inmates and one guard during his time here, the one about the man standing before a firing squad who, just before the end, took his opportunity to scream an obscenity. In the joke, the leader tells his men to lower their rifles, and approaches the blindfolded man to offer the warning, “Do that again, and you’re in big trouble.” In a way, this was the same surreal situation facing him. What could they do to him, if this one farewell embrace by a woman he’d known half his life lasted just a little bit longer?
It did last just a little bit longer than the prescribed safe interval, without any interruption, and then she straightened, gave him a sad smile and threw Ellis a look that in any sane world would have left him bleeding.
Another last glance and she was gone. Hector found himself under absolutely no illusion that she would quit. There would be doubts, in what little time remained. But right now he was sure, and he would do everything he could to hold on to this feeling, between now and the lights going out.
Ellis said, “You haven’t told me what you’ve decided to do.”
Hector faced him and put everything he had in memorizing that face, one he wanted to be picturing at the end. “Can you answer a couple of questions?”
Ellis said, “All right.”
“Is this easier because I’m brown?”
The man gave Hector the same bland smile he would have given the arrival of those two impotent words, the ones that Hector knew useless against anyone with more power than himself. “The rules would be the same no matter who you were.”
But he’d provided his answer, even if he didn’t know it.
“What’s your other question?”
Hector said, “Will you be there?”
“It’s my job to attend. I’m the one who makes sure the condemned remains aware of his options, all the way up to the very end. You may not believe this, but I consider it a serious responsibility. I conduct it with as much respect for the solemnity of the occasion as I possibly can.”
“That’s good,” Hector said. “Me, I didn’t know what I was going to do, if I was gonna panic or wet my pants or walk in screaming that you were making a big mistake. I hear that some guys make brave little jokes, like that guy named French who sat in the chair and said, ‘French Fries.’ That one’s famous. And other guys make total disgraces of themselves, screaming for mercy the whole time. I was always afraid I’d do that. But you’ve given me a reason to be okay. Because of you, I’m gonna give everybody the smallest possible show they ever saw, and I want you to pay special attention, the whole time. To learn from it.”
Ellis kept his bland smile. “Why?”
“That’s it. I wanna go back to my cell now. I’m dying for a cigarette.”
Ellis called the guards, who returned and put him back in the full chains he wore for in-house transport. It was a part of the routine he wouldn’t miss, and yet he found a certain pathos in the awareness that this too was a passage, another set of experiences that had always been finite and were now drawing to a permanent close. It was another of many things happening today that were happening for the last time, and he found himself recording it with special care, as if there really were a place he was taking it to, where it could be recorded and played back at leisure. But no, not something he was going to miss, whatever came after this.
He asked to take the chips and they allowed that. He held the little foil bag between two fingers as they each took an arm and led him to the door, leaving Ellis and his smirk still at the table. But just as they were about to exit, Hector murmured a request and the guards turned him around, so he could say, “Because someday it’ll be coming for you.”
The big man’s smirk didn’t falter. But for a heartbeat, even if only for a second, it left his eyes.
“Watch me,” Hector said. “I’m gonna be a good example.”
And then he let the guards take him, to the few hours he had left.