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October 20, 2012

Effective review of evolution in lethal injection execution processes in the states

Web101912LethalDrugsFINALThe Austin American-Statesman has this lengthy article on modern state lethal injection protocols, which is headlined "Execution changes occur without public scrutiny, input." Here are excerpts:

On July 9, when Texas switched from three drugs to just one to execute its most heinous criminals, Rick Thaler, the state’s No. 3 corrections official, signed off on the change without fanfare after consulting with prison officials in other states.

No public hearings. No legislative action. No public vote by the prison system’s nine-member governing board, which routinely votes on tweaks to prison policies, such as hazardous-duty pay bumps for individual employees and donations of vegetable and Bibles.

Under a state law enacted years ago, Thaler — a former guard and warden with no medical training — alone decided the change on how Texas’ ultimate punishment is administered. His signature on the revised 10-page execution policy was all it took to upend almost three decades of precedent using three drugs in executions.

Lethal injection faces increasing scrutiny nationwide with states scrambling to keep their death chambers operating as their supplies of drugs run short, and because of that, critics of the death penalty say, the execution process is much more haphazard than it once was....

For their part, Texas prison officials say they are simply doing what they must to carry out the law, and they echo the response of colleagues across the country: Courts have approved all the changes so far. The changes occur at a time when the death penalty appears to be under increasing siege across the country. Five states have suspended executions because of pending court challenges, five others have in recent years abolished executions altogether and, by some polls, public support for the death penalty appears to be at its lowest point in decades....

For the [last] three decades, the three-drug cocktail was the execution norm in most states: Sodium thiopental, a fast-acting barbiturate that put the convict to sleep; pancuronium bromide, a paralytic that stopped breathing, and potassium chloride, a drug that stopped the heart.

Court challenges to the execution drugs dead-ended, and prison officials in Texas and other states kept their death chambers buzzing. Of the 848 prisoners executed nationally by lethal injection in 30 years, 487 of them died in Texas — a state that executed just 361 convicts in its electric chair in 40 years.

By this summer, as its existing lethal drug supply expired, Texas found pancuronium bromide unavailable. It was then, on July 9, just days before a scheduled execution, that Thaler signed off on using a single drug. The change was approved without public notice, with little explanation and without even the agency’s nine-member governing board voting on it. Under agency policy, Thaler, director of the prison agency’s Correctional Institutions Division, is delegated sole responsibility for the execution procedure.

As Texas Department of Criminal Justice spokesman Jason Clark explained it, the reason for the July change was that “the agency’s stock of the second drug expired and the agency was unable to obtain a new shipment.”...

Other states also have made the switch to different drugs or one drug without much, if any, public debate. In fact, several states, including Oklahoma, have enacted laws keeping most details about their execution process secret — the suppliers, the amounts on hand and the expiration dates....

Megan McCracken, an attorney and death penalty expert with the University of California’s Berkley School of Law, said the fast-changing methods and drugs used in executions highlight a flaw in the system: There is no solid medical justification for the selection and use of specific drugs. “(Texas) is able to change protocols with little or no oversight, no public input, little or no public knowledge,” she said. “When the Legislature delegates rule-making authority to an agency, that should not take it completely out of the light of day.”

She and Denno said the fast switches of drugs could portend legal issues ahead — because, as McCracken says, it seems to be occurring “with little or no medical examination or input. … Are (states) approaching this from the standpoint of what’s most humane, or are they just looking at what’s most expedient?”

“This has always been a sloppy process from the start, and recently it seems to have gotten worse now than it ever was,” Denno said. “Any attorney now worth their salt will be challenging the lethal injection procedure.”

October 20, 2012 at 11:25 AM | Permalink

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Comments

Perhaps those in the know can judge the title of the piece: how much does "execution changes occur without public scrutiny, input"?

The list of states is very helpful.

Posted by: Joe | Oct 20, 2012 12:09:10 PM

Doug, this article is very slanted. First of all, the idea that the one-drug protocol somehow hasn't been vetted is ridiculous---the barbituate is given in a lethal dose. It knocks the guy out, and then kills him. Second, the anti-capital punishment crowd (including Denno and Dieter) has trumpeted the single drug method as safer.

Doug, how did you miss the slant here?

Posted by: federalist | Oct 20, 2012 2:22:09 PM

Where, except among academics and abolitionists, is there a call for public input into lethal injection methods?

The article also contains its share of howlers. Here's one: "...by some polls, public support for the death penalty appears to be at its lowest point in decades...."

Translation: Support trumps opposition by a mere 2-1.

Here's another: "...critics of the death penalty say, the execution process is much more haphazard than it once was...."

And critics of Obama say he was born in Kenya, and critics of Bush say he was in on 9-11, etc. It's the oldest journalistic ploy on earth to cite "critics."

Oh, BTW, the process is anything but haphazard. It's either one drug or the three-drug cocktail. A choice between two is "haphazard?"

Here's another one: "Megan McCracken, an attorney and death penalty expert with the University of California’s Berkley School of Law, said the fast-changing methods and drugs used in executions highlight a flaw in the system..."

Oh, so she gets palmed off as an "expert." That's nice. What she is is a dyed-in-the-wool abolitionist. Why is that omitted?

This is exactly the same kind of dishonesty as the Death Penalty Information Center palming itself off as just a font of "information." Sure.

And another: "She and Denno said the fast switches of drugs could portend legal issues ahead..."

Give it a rest. If the state had chosen to impose the DP by singing a lullaby, that too would "portend legal issues ahead." There will be "legal issues ahead" as long as the abbies are out there. They're the ones who pushed for legal injection to replace the gas chamber to begin with, remember? Once they got it, were they satisfied? It's their whole schtick to refuse to be satisfied, so, you bet, there'll be "legal issues ahead."

Posted by: Bill Otis | Oct 20, 2012 2:24:04 PM

Perhaps, particularly now that it might lead to long court battles and other complications arise such as shortages of drugs etc., some sort of public input would be helpful in this context? Just like congressional hearings or notice periods for administrative regulations have such "public input," often focused upon a limited part of the public?

Why is the rest of the sentence cut off? The article explains what it means by "haphazard":

"Lethal injection faces increasing scrutiny nationwide with states scrambling to keep their death chambers operating as their supplies of drugs run short, and because of that, critics of the death penalty say, the execution process is much more haphazard than it once was."

Such things cause the process, for good or ill, to be more "irregular" or "haphazard." It does not say the actual procedure, if the drugs were present in proper quantities, is "haphazard." I would add that litigation, part of the "increasing scrutiny," again for good or ill, might cause the process to be haphazard.

Also, do "experts" have to be on one or the other side? Are dye in the wool death penalty supporters "palmed off" too? I reckon the suspicious might think people on either side of any issue would be biased.

The article was written by someone "covering criminal justice issues for three decades" but it does lean a certain way. This is fairly normal in media articles across the board. Doug repeatedly has provided articles that lean a certain way w/o comment. I'm not sure what he is 'missing' here. The list of states alone make it worth posting. If it is too biased for someone and a reporter of such veteran status wrote it, that too might be notable.

Posted by: Joe | Oct 20, 2012 4:36:44 PM

Joe --

"Also, do 'experts' have to be on one or the other side?"

Nope. But when they are, it would be more forthcoming to say what their views actually are, rather than leave the unwary reader thinking that we've just heard from an impartial "expert."

"Are dye in the wool death penalty supporters 'palmed off' too?"

Academics can be thought of as unbiased; indeed, that's why the press goes to them. Both Kent and I have been interviewed and quoted by the national press, but so far as I can recall, we have always been presented as pro-DP. That's fine. But every other expert should also have his/her views noted.

"I reckon the suspicious might think people on either side of any issue would be biased."

The problem is that not everybody is as suspicious of reporting as they should be.

Posted by: Bill Otis | Oct 20, 2012 5:35:15 PM

This is so true bill.

"The problem is that not everybody is as suspicious of reporting as they should be."

Now me. I figure media are like politicians. How can you tell they are lieing?

Their lips are moving.

Posted by: rodsmith | Oct 21, 2012 12:51:50 AM

Austin American-Statesman LOL...a liberal rag who is never objective...

Posted by: DeanO | Oct 21, 2012 11:13:33 AM

Though it simply isn't done, I'll take note of your personal experience, full disclosure works for me as is educated readers of the media. That is a neutral ideal. Whatever they can be "thought" to be, I reckon by your lights academics really aren't unbiased if they have an opinion on the matter at hand.

What put up a flag was your comment she is "palmed off" as an expert. Her position for or against the death penalty doesn't make her a non-expert. The implication is she lets her opinions corrupt her duty as a scholar. If I suggested someone was "palmed off" as an expert and followed up by noting she was for the death penalty, it might raise some hackles. Why am I assuming her position corrupts her academic obligations to fairly judging things?

Scholars have opinions on what they study. Your bottom line as to full disclosure and grain of salt reading is fine with me.

Posted by: Joe | Oct 22, 2012 10:28:22 AM

The bigger issue is whether the current "problem" with lethal injection can be solved. Drug manufacturers are, for all intents and purposes, by banning sale or re-sale to state Departments of Corrections, giving themselves a veto over state laws authorizing the death penalty.

As long as these manufacturers are doing so, the attempt to carry out executions by lethal injection has become a race. How much supply can a state get (and can they beat the inevitable legal challenges to their new mix of drugs before their supply gets stale) before the manufacturer cuts them off? Given that limited window, how many of the people waiting for an execution date (i.e. with no further state or federal review pending) can be scheduled to have their lawful sentence carried out during that window?

There seems to only be two readily apparent solutions to this rule by pharmaceutical companies: 1) Federal regulation -- if you want to sell any of your products in this country, you have to make them available to state Departments of Corrections for all purposes; 2) Recognize that lethal injection is no longer a viable alternative and go back to some other method.

Posted by: tmm | Oct 22, 2012 12:01:25 PM

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