Saturday, November 18, 2017

Reviewing Ohio's unique execution difficulties ... which perhaps explains seemingly ho-hum reaction to latest botched Ohio execution

As detailed in this DPIC listing, this past week, there were scheduled executions in Nevada, Ohio and Texas, but two of these planned lethal injections were stayed.  And in Ohio, as first reported here, Ohio tried but failed to complete the lethal injection of a double murderers.  Only thrice in recent US history has the execution process been started and then halted with the condemned inmate living on, and two of those cases have taken place in the last decade in Ohio.  Moreover, as reviewed in this recent ACLU posting, Ohio has an extraordinary recent history with troubled executions (links from the original):  

Ohio’s lethal injection team spent more than 30 minutes poking Alva Campbell’s decrepit body in search of any decent vein into which they could inject their lethal cocktail to no avail. They finally relented — but only temporarily.  Hours later, Gov. John Kasich announced not a commutation — or a plan to investigate what went wrong — but that Campbell’s execution would be rescheduled for 2019....

It was predictable and avoidable not only because of information furnished to the state by the defense, but because Ohio had already committed a similar bungle in 2009 when it failed to find a suitable vein to execute Rommell Broom after sticking him with needles for over two hours.

The ability to find a suitable vein is basic to lethal injection. When it cannot be done — because of lack of training and qualifications of the lethal-injection team or the health of the prisoner — the process becomes impossible and the risk of a failure or botch undeniable.

The botched two-hour execution of Christopher Newton in 2007 also stemmed from the execution team’s inability to access a suitable vein. The state’s botched execution of Dennis McGuire in 2014 has been attributed to the use of midazolam — great if you need a sedative for a medical procedure but unsuitable for executions.

The takeaway should be clear. Ohio cannot be trusted to use the death penalty, as time and time again the state fails and causes needless pain and unconstitutional torture. But Ohio is forging ahead.  The state’s schedule of more than two dozen lethal-injections through 2022 gives Ohio the dubious distinction of maintaining the longest list of upcoming executions in the nation. A second attempt to take Campbell’s life is now set for 2019, while Rommell Broom’s new date is in 2020. Last year, a divided Ohio Supreme Court ruled that Ohio could attempt to execute Broom, yet again....

Because I know and have respect for lots of folks involved in Ohio's criminal justice system, I am somewhat amazed and greatly troubled that Ohio has a uniquely disconcerting recent record in the carrying out of executions. At the same time, I have this week also been somewhat intrigued that Ohio's latest botched execution has not received all that much attention in Ohio or nationwide.

As highlighted via this post and this one, when Oklahoma had an ugly execution in 2014, it engendered lots of national attention and commentary and calls for a national moratorium on executions.  Of course, that ugly execution was arguably more grotesque that what happened this past week in Ohio, and surely death penalty abolitionists figured in 2014 they had more national leaders who were sympathetic to their capital punishment criticisms.  Still, I think it is notable and telling that the reaction to Ohio's latest execution difficulties is relatively "ho-hum."

Recent prior related posts:

November 18, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4)

Wednesday, November 15, 2017

Ohio unable to complete execution for elderly murderer once called death penalty “poster child”

As detailed in this AP report, headlined "Ohio calls off execution after failing to find inmate's vein" the state of Ohio had the wrong kind of eventful lethal injection experience this morning.  Here are the details:

It was only the third time in U.S. history that an execution has been called off after the process had begun.

The execution team first worked on both of Alva Campbell's arms for about 30 minutes Wednesday while he was on a gurney in the state's death chamber and then tried to find a vein in his right leg below the knee.  Members of the execution team used a device with a red flashing light that appeared to be a way of locating veins while also periodically comforting Campbell, patting him on the arm and shoulder.

About 80 minutes after the execution was scheduled to begin, the 69-year-old Campbell shook hands with two guards after it appeared the insertion was successful. About two minutes later, media witnesses were told to leave without being told what was happening.

Gary Mohr, head of the Ohio Department of Rehabilitation and Correction, said the team humanely handled the attempt, but the condition of Campbell's veins had changed since checks in Tuesday.  He said he called off the execution after talking with the medical team. "It was my decision that it was not likely that we're going to access veins," Mohr said.

Campbell, who was scheduled to die for killing a teenager during a carjacking two decades ago, shook hands with execution team members and wiped away tears after being informed the execution was being called off, said his attorney, David Stebbins.  "This is a day I'll never forget," Campbell said, according to Stebbins. 

Stebbins said he doesn't know what will happen next, but he added that Campbell's health problems and poor veins are a continuing problem.  Campbell, who was scheduled to die for killing a teenager during a carjacking two decades ago, will be sent back to death row and there will be some consideration for a future execution date, Mohr said....

Campbell's attorneys had warned the inmate's death could become a spectacle because of his breathing problems and because an exam failed to find veins suitable for IV insertion.  They argued he was too ill to execute, and also should be spared because of the effects of a brutal childhood in which he had been beaten, sexually abused and tortured....

Franklin County prosecutor Ron O'Brien called Campbell "the poster child for the death penalty." Prosecutors also said Campbell's health claims were ironic given he faked paralysis to escape court custody the day of the fatal carjacking.  On April 2, 1997, Campbell was in a wheelchair when he overpowered a Franklin County sheriff's deputy on the way to a court hearing on several armed robbery charges, records show. Campbell took the deputy's gun, carjacked the 18-year-old Charles Dials and drove around with him for several hours before shooting him twice in the head as Dials crouched in the footwell of his own truck, according to court records....

Earlier this month, Campbell lost a bid to be executed by firing squad after a federal judge questioned whether lawmakers would enact the bill needed to allow the method.

Perhaps unsurprisingly, the ACLU of Ohio already has issued this press release headed "Ohio Must Enact Moratorium on Executions."  It will be interesting to see if the rhetoric at the start of the press release becomes used by abolitionists throughout not just Ohio but the country:

After nearly 30 minutes of torture as medical personnel attempted to find a useable vein for the lethal injection of Alva Campbell, Jr the Ohio Department of Rehabilitation and Corrections called off his execution. This comes after weeks of advocacy from Campbell’s counsel explaining that he was too ill and death by lethal injection would be tortuous. The following statement can be attributed to ACLU of Ohio Senior Policy Director Mike Brickner:

"This marks the fifth botched execution for Ohio in recent years, and the second time the state could not complete an execution.  This is not justice, and this is not humane.  Campbell was poked and prodded for nearly two hours as prison officials and medical personnel attempted to find a useable vein.  This type of state-sponsored torture is not acceptable and the state of Ohio must place a moratorium on executions immediately.  Today the state made a spectacle of a man’s life, and the cruel and unusual practice of lethal injection must end."

Recent prior related post:

November 15, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

Friday, November 10, 2017

Nebraska moving forward with execution plans involving a new four-drug(?!) lethal injection protocol

The state of Nebraska has not had an execution in two decades, and the state's legislature actually abolished the death penalty back in 2015.  But voters in 2016 brought the death penalty back, and this local article reports on recent work by the state's Attorney General to carry out the will of the people.  And the article, headlined "State of Nebraska moves closer to executing Jose Sandoval by lethal injection, but legal challenges appear likely," explains why the novel execution method adopted in the state seems sure to engender litigation:

The State of Nebraska took a big step Thursday toward executing its first death-row inmate in 20 years, using an untried combination of lethal-injection drugs.

Attorney General Doug Peterson said Thursday that he is prepared to request a death warrant for Jose Sandoval after at least 60 days, which is the minimum notice period for condemned inmates under the state’s execution protocol. The Nebraska Supreme Court issues death warrants if an inmate has no pending appeals. A check of state and federal court records Thursday showed that Sandoval’s last legal challenge was decided against him in 2011 and that he has no active appeals. It’s unclear whether he currently has a lawyer or will contest the state’s plan to execute him.

But experts say the new four-drug combination officials unveiled Thursday has never been used by another state in a lethal injection execution. Legal challenges over the drugs could further delay what would be the first time Nebraska has used lethal injection to carry out an execution. Twenty years ago, the state relied solely on the electric chair. “It’s yet another experimental protocol. Now the lawsuits begin,” said Robert Dunham, director of the Death Penalty Information Center in Washington, D.C.

The Nebraska Department of Correctional Services notified Sandoval that it will inject four drugs in the following order: diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride. Diazepam (brand names include Valium) is a benzodiazepine that is used to produce a calming effect. Fentanyl citrate is a general anesthetic that has been used since the 1960s. As an opioid, it also blocks pain, which has made it a popular a street drug linked to lethal overdoses.

Cisatracurium besylate (brand name: Nimbex) relaxes or paralyzes muscles and is used along with a general anesthetic when intubating patients or doing surgery. The final drug, potassium chloride, is used to stop the inmate’s heart. It was the only drug that was also used in Nebraska’s former three-drug combination.

Dunham said the four drugs selected by Nebraska have not been used in combination by another death penalty state. The third drug, cisatracurium besylate, has not been used before in an execution, he added.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, California, said that in 2015 the U.S. Supreme Court established “a fairly high hurdle for those who would stop a lethal injection.” In deciding a lethal injection dispute in Oklahoma, the court said that to prevent an execution, the drug must present a “demonstrated risk of causing severe pain” in the inmate and the risk must be substantial compared with known alternative drugs, Scheidegger said. “The objection that a drug has never been used before is not valid by itself,” he said.

The announcement that Sandoval had been selected for execution was somewhat surprising, given that several other inmates have been on death row longer than he has. Sandoval was the ringleader of a 2002 botched bank robbery that left five people shot to death. He was later convicted of killing two men before the bank shootings. Vivian Tuttle, whose daughter, Evonne, was gunned down by Sandoval as she stood in line to cash a check, said she had been waiting for this day. “He needs to be executed, and Nebraska has the drugs to do it now,” Tuttle said Thursday....

State Sen. Ernie Chambers of Omaha, the leading opponent of capital punishment in the state, said the new and untested protocol would inspire lengthy legal action. “They’re far from being at the point at which an execution can be carried out,” Chambers said. “I think the rough ride has just begun.”

The senator said he thought that Thursday’s announcement was more a “political and public relations” move tied to Gov. Pete Ricketts’ bid to win a second term as governor. The Republican governor helped organize and fund a petition drive to reinstate capital punishment last year after the Legislature in 2015 overrode his veto to repeal the death penalty.

Danielle Conrad, director of the ACLU of Nebraska, said she was “horrified” that the state plans to use Sandoval as a test subject for an unproven lethal drug combination. Her organization, she said, will closely evaluate the constitutional questions raised by the state’s plan. “This rash decision will not fix the problems with Nebraska’s broken death penalty and are a distraction from the real issues impacting Nebraska’s Department of Corrections: an overcrowded, crisis-riddled system,” she said in a press release....

Sandoval was considered the leader of four men who attempted to rob the Norfolk bank. He shot and killed three of the victims. He is one of 11 men on death row, which is at the Tecumseh State Prison.

November 10, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (4)

Thursday, November 09, 2017

Florida and Texas carry out executions on same night

As reported in these two articles, two states carried out two death sentences via lethal injection yesterday:

I believe this is the first time since January 2015 in which two different states carried out executions on the same day. (Arkansas back in April carried out two executions in one state in one day.)

This development is not quite conclusive proof that machineries of death are humming along again, but it serves as still more evidence to support my belief that the results of the 2016 election cycle — especially the vote in support of improving the operation of the death penalty in California and the election of Donald Trump as President — may have significantly turned around the declining fortunes of the death penalty in the US.  I doubt we will get back to 1990s levels of death sentences and executions in the US absent a huge spike in homicides.  But there are still over 2800 condemned persons on death rows throughout the US, and it seems quite possible we could before long start seeing 50 or more executions per year again (which was, roughly speaking, the average during the administrations of Bill Clinton and Geotge W. Bush).

November 9, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

Monday, November 06, 2017

A number of executions in a number of states generating a number of notable stories and commentary

As detailed in this DPIC listing of upcoming executions, there are scheduled five executions in five different states over the next 10 days.  As is always the reality, each of these cases involve notable stories that can generate notable news.  Here are a few recent stories and commentaries about some of the cases in some of these states (in the order of planned executions):

In the case from Texas: "Mexico says upcoming U.S. execution of national is 'illegal'"

In the case from Arkansas: "Arkansas Death Row Inmate Wants Brain Examined If Executed"

In the case from Nevada: "Against a 'Cruel and Unusual' Death: Nevada must not allow a death-row inmate to 'volunteer' for execution by fentanyl and other drugs."

In the case from Ohio: "Ohio death row inmate wants firing squad as execution alternative"

November 6, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

Sunday, October 22, 2017

Lengthy look into latest significant(?) execution in Alabama

This lengthy local article, headlined "'I hate you': Inside the execution chamber as Alabama cop-killer put to death," provides an extended account of the lethal injection process to complete the sentence given to Torrey McNabb for murdering a police officer back in 1997. The folks at the Death Penalty Information Center suggest in this posting that the execution is significant because of how long the lethal injection process took.  In contrast, as evidenced by posts here and here, Kent Scheidegger at Crime & Consequences instead found significant the willingness of the Supreme Court to vacate lower court stays concerning executions protocols to ensure this execution went forward.

I have put a question mark in the title of this post because I am not sure any individual executions or individual stay ruling are really all that significant in the long-running litigious lethal injection wars.  Some lower court judges still seem inclined to find problems in nearly every possible state lethal injection plan, while a majority of the Supreme Court Justices seem now content that the latest standard approaches states have been adopting are sufficient for constitutional purposes. This leads me to predict continued lower-court legal wrangling that gums up the works of the machinery of death, but still allows a few states to complete an execution or two every so often.

Notably, this DPIC review of yearly executions indicates that this latest Alabama execution was the 21st of 2017, meaning this year already represents an uptick in execution compared to 2016.  But it also means that we are still on pace this year to have the second or maybe third fewest years executions in a quarter century. 

UPDATE: This new USA Today article, headlined "Executions rise in 2017, but downward trend continues," provides a broader context for recent developments. It starts this way:

The nation's rapidly declining rate of executions has leveled off, but opponents of capital punishment say the death penalty remains on borrowed time. The execution Thursday of Alabama cop killer Torrey McNabb was the 21st this year, marking the first time that number has risen since 2009. The 2017 total could approach 30 before the year is out, depending on last-minute legal battles.

That ends a relatively steady drop in executions since 2009, when there were 52. Only three times has the annual number increased since executions peaked at 98 in 1999.

Several factors have contributed to this year's hiatus in the broader trend. Eight states carried out executions, a spike from recent years. Among them were Arkansas, which executed four prisoners over eight days in April before its supply of lethal injection drugs expired, and Florida, which had halted executions for 18 months after the Supreme Court found its sentencing procedure unconstitutional.

Other executions this year have illustrated the problems opponents highlight in their quest to end capital punishment. Claims of innocence and requests for additional forensic testing went unheeded. Faced with complaints from pharmaceutical companies, some states used secretive methods to obtain drugs for lethal injections. And amid charges of racial disparities, nearly all the murder victims were white.

Yet another issue will be on display during oral arguments at the Supreme Court next week: whether indigent defendants in capital cases must prove they need more experienced lawyers and resources before they will be provided.

Despite all those factors, death penalty opponents say they're not worried about the slight uptick in executions. They note that three-, five- and 10-year trends remain down.

October 22, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Wednesday, October 11, 2017

Judge Kozinski, in dissent, laments the "cruel and expensive hoax" of the death penalty in California

A divided Ninth Circuit panel issued an extended opinion yesterday in Kirkpatrick v. Chappell, No. 14-99001 (9th Cir. Oct. 10, 2017) (available here), that keeps alive a habeas claim that of a California murderer trying to stay alive decades after being sentenced to death for a double murder committed in 1983. The bulk of the ruling, with a majority ruling by Judge Reinhardt and a dissent by Judge Kozinski, concerns the intricacies of appellate and habeas procedure. But the last four pages of Judge Kozinski's dissent are what make the opinion blog-worthy, and here is a taste from its start and end (without the copious cites):

But none of this matters because California doesn’t have a death penalty.  Sure, there’s a death row in California — the biggest in the Western Hemisphere. But there have been only thirteen executions since 1976, the most recent over ten years ago.  Death row inmates in California are far more likely to die from natural causes or suicide than execution....

Meanwhile, the people of California labor under the delusion that they live in a death penalty state.  They may want capital punishment to save innocent lives by deterring murders.  But executions must actually be carried out if they’re to have any deterrent effect.  Maybe death penalty supporters believe in just retribution; that goal, too, is frustrated if there’s no active execution chamber.  Or perhaps the point is closure for victims’ families, but these are surely false hopes.  Kirkpatrick murdered Rose Falconio’s sixteen-year-old son more than thirty years ago, and her finality is nowhere near.  If the death penalty is to serve whatever purpose its proponents envision, it must actually be carried out. A phantom death penalty is a cruel and expensive hoax.

Which is why it doesn’t matter what we hold today.  One way or the other, Kirkpatrick will go on to live a long life “driv[ing] everybody else crazy,” while copious tax dollars are spent litigating his claims.  And my colleagues and I will continue to waste countless hours disputing obscure points of law that have no relevance to the heinous crimes for which Kirkpatrick and his 746 housemates continue to evade their lawful punishment.  It’s as if we’re all performers in a Gilbert and Sullivan operetta.  We make exaggerated gestures and generate much fanfare. But in the end it amounts to nothing.

October 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (25)

Could poor health help save the live of Ohio's "poster child for the death penalty”?

The question in the title of this post is prompted by this Columbus Dispatch article headlined "Ohio killer says he’s too ill to be put to death."  Here are excerpts:

Death-row inmate Alva Campbell, once dubbed “the poster child for the death penalty” for a deadly carjacking outside the Franklin County Courthouse 20 years ago, is now too sick to be put to death, his attorneys and advocates say.

The convicted killer is slated for execution Nov. 15, but Campbell has so much fluid in his lungs that he can’t lie flat on the execution table for a lethal injection, one of his attorneys, David Stebbins, said Tuesday. “He’ll start gasping and choking,” Stebbins said. Stebbins said that for Campbell to sleep in prison, “he has to prop himself up on his side. It’s not very good.”

Stebbins said he has communicated his concerns to the Ohio Department of Rehabilitation and Correction, which didn’t immediately respond to questions about how to deal with Campbell’s condition.

Campbell, 69, has twice been convicted of murder, most recently in the 1997 execution-style slaying of 18-year-old Charles Dials behind a K-Mart store on South High Street.

Long before that, Campbell had cardiopulmonary issues that in the past few years have become debilitating, his attorneys say. Most of his right lung has been removed, and he has emphysema, chronic obstructive pulmonary disease and possibly cancer in much of his remaining lung tissue, Campbell’s application for executive clemency says. In addition, his prostate gland has been removed, as has a gangrenous colon. A broken hip last year has confined him to a walker. “The severity of these combined illnesses have left Alva debilitated and fragile,” Campbell’s clemency application says. “Alva’s deteriorating physical condition further militates in favor of clemency.”

The health claims are only one reason why Campbell and his attorneys are asking that his sentence be commuted to life in prison without parole. They also cite the “nightmare” childhood that Campbell suffered at the hands of an alcoholic father who was both physically and sexually abusive.

If Gov. John Kasich doesn’t want to commute Campbell’s sentence, delaying his sentence would have the same effect because the inmate will die soon, advocates said. “He’s probably in the poorest health of any living death-row inmate in the country,” said Kevin Werner of Ohioans to Stop Executions....

Campbell is scheduled for a clemency hearing Thursday. A spokesman for Ohio Attorney General Mike DeWine said that, in advance of the hearing, his office will file a response rebutting the claims made in Campbell’s application.

Campbell argues that poor health is one reason he shouldn’t be put to death, but he used an earlier, false health claim to commit the crime that put him on death row. Campbell feigned paralysis from a glancing bullet wound suffered during a robbery arrest. As Campbell was being taken to the Franklin County Courthouse for a hearing on April 2, 1997, he sprang from his wheelchair, overpowered a deputy sheriff, took her gun and fled. He then carjacked Dials, who was at the courthouse to pay a traffic ticket. After driving Dials around for hours, Campbell ordered him onto the floor of his truck and shot him twice.

Franklin County Prosecutor Ron O’Brien, who at the time of Campbell’s trial called him “the poster child for the death penalty,” couldn’t be reached Tuesday for comment.

October 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, October 04, 2017

SCOTUS vacates by 6-3 vote lower federal court injunction which would have blocked planned Alabama execution

As reported in this local article, the "U.S. Supreme Court today cleared the way for Alabama's planned execution Thursday of inmate Jeffery Lynn Borden for the Christmas Eve 1993 shooting deaths of his estranged wife and her father in Gardendale." Here is more:

The U.S. Supreme Court issued an order granting the request of the Alabama Attorney General's Office to vacate the injunction blocking the execution that had been issued by the U.S. 11th Circuit Court of Appeals last week.  The Attorney General's Office had appealed the 11th Circuit's order to the U.S. Supreme Court on Monday.  In today's order from the U.S. Supreme Court three justices — Ruth Bader Ginsburg, Stephen Breyer, and Sonja Sotomayor — said they would have denied the Attorney General's request and kept the injunction blocking the execution in place.

The execution is scheduled for 6 p.m. Thursday at the Holman Correctional Facility in Atmore.

Over at Crime & Consequences, Kent Scheidegger has this post noting that the issue that led to the injunction concerned efforts by the condemned to contest lethal injection methods based on Alabama use of midazolam in its execution protocol.   Over at SCOTUSblog, Amy Howe has this post with a few additional particulars.

October 4, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Wednesday, September 13, 2017

Potential controversy brewing after Ohio completes its second execution of 2017

This updated AP report on Ohio's execution completed this morning suggest that another lethal injection controversy could be brewing in the Buckeye State.  Here are excerpts from the AP report providing the basics (which I have placed in temporal order):

An Ohio killer of two people sang a Christian hymn and quoted the Bible in the minutes before his death.

The last words of Gary Otte were derived from a Bible account of Jesus Christ's crucifixion. He said: "Father, forgive them for they know not what they're doing. Amen." He earlier professed his love for his family, said he was sorry and sighed deeply, then began singing "The Greatest Thing," with such words as "I want to know you Lord."

His singing stopped at 10:39, before he gave a thumbs-up sign. His stomach rose and fell several times, resumed after a consciousness check by guards at 10:42, then appeared to fall still a couple minutes later. The time of death for the 45-year-old Otte was 10:54 a.m.

Relatives of his two 1992 victims were among the witnesses. 

A federal public defender who witnessed the execution of a condemned Ohio killer of two says she thinks mistakes were made.  Defense attorney Carol Wright tried unsuccessfully to leave the witness room to alert a federal judge there appeared to be problems. Wright says she believes the rising and falling of Gary Otte's (OH'-teez) chest indicated he was suffering a phenomenon known as air hunger.

A spokeswoman for Ohio's prison system says the state followed proper security protocols when a lawyer witnessing an execution tried to leave the witness room.  JoEllen Smith, of the Ohio Department of Rehabilitation and Correction, says once attorney Carol Wright's intention and identity were confirmed she was allowed to leave.

Smith said Wednesday's execution of condemned killer Gary Otte was carried out in accordance with prison policy and without complication.

Wright tried unsuccessfully to leave the witness room to alert a federal judge there appeared to be problems. Wright says she believes the rising and falling of Otte's chest indicated he was suffering a phenomenon known as air hunger.  Wright says she believe mistakes were made. She reached the judge overseeing Otte's case, but it was too late.

UPDATE: This local article provides some expanded details on the concerns of Otte's attorney under the headline "Attorney for executed Parma murderer says she believes inmate suffered pain during lethal injection."

September 13, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (12)

Tuesday, August 22, 2017

Johnson & Johnson the latest drug company to balk about its drugs being used in lethal injection protocol

This notable new Wall Street Journal article reports on a notable new company expressing concern about an execution protocol. The piece is headlined "Johnson & Johnson Wades Into Death Penalty Debate For First Time: J&J’s Janssen Pharmaceuticals protests use of its drug in a lethal injection."  Here is how the piece gets started:

A Johnson & Johnson company opposes plans by Florida authorities to use one of its drugs in a coming execution, marking the first time the world’s largest pharmaceutical manufacturer has waded into the death-penalty debate.

Earlier this year, Florida amended its lethal-injection protocol to include etomidate, an anesthetic agent that has never been used in executions, after exhausting its supply of the sedative midazolam.  Florida authorities are slated to use the updated protocol for the first time on Thursday in the execution of Mark Asay, who was sentenced to death for the 1987 killings of Robert Lee Booker and Robert McDowell in Jacksonville, Fla.

Scientists at Johnson & Johnson’s Janssen Pharmaceuticals NV created etomidate in the 1960s.  The company never distributed the drug in North America and divested the rest of the business in 2016.  But the company protested on Monday Florida’s plan to use etomidate to render death-row inmates unconscious before injecting them with a paralytic agent and a third drug to stop their hearts.  “We do not support the use of our medicines for indications that have not been approved by regulatory authorities,” a Janssen spokesman said in an email.  “We do not condone the use of our medicines in lethal injections for capital punishment.”

No Johnson & Johnson drugs have been used so far in executions, according to Reprieve, an international-rights group that opposes the death penalty.  At least eight companies make etomidate. Florida, like many states, keeps the identity of its suppliers secret.

August 22, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8)

Wednesday, July 26, 2017

Will Ohio successfully get its machinery of death operational today after 3.5 years of delays?... UPDATE: Yes

The question in the title of this post is prompted by the fact that, after years of difficulties securing execution drugs and then litigation delays, Ohio appear poised to have its first execution today since January 2014.  This AP story, headlined "US Supreme Court denies stay of execution for Ohio convict," provides the basic backstory:

A condemned child killer was scheduled to die on Wednesday in the state's first execution in more than three years after the U.S. Supreme Court denied his requests for more time to pursue legal challenges. Ronald Phillips was transported to the death house at the Southern Ohio Correctional Facility in Lucasville on Tuesday morning, about 24 hours before his execution was planned. He was convicted of the 1993 rape and killing of his girlfriend's 3-year-old daughter in Akron.

Justices denied the 43-year-old Phillips a stay on three requests, with a pair of justices dissenting on a request by Phillips that was joined by two other death row inmates with upcoming execution dates. The inmates had asked the court for a delay while they continue challenging Ohio's new lethal-injection method. Justices Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented, arguing the inmates had demonstrated a likelihood of success at trial. Sotomayor objected to the court's "failure to step in when significant issues of life and death are present."

The death penalty has been on hold in Ohio since January 2014, when a condemned inmate repeatedly gasped and snorted during a 26-minute procedure with a never-before-tried drug combination. Republican Gov. John Kasich halted upcoming executions after that, and delays have continued because the state had trouble finding new supplies of drugs and death row inmates sued on the grounds the state's proposed new three-drug execution method represented "cruel and unusual punishment."

Phillips' arguments were backed up by 15 pharmacology professors, who stepped in Monday to argue that a sedative used in the process, midazolam, is incapable of inducing unconsciousness or preventing serious pain. A federal court last month upheld the use of midazolam, which has been problematic in several executions, including Ohio's in 2014 and others in Arkansas and Arizona.

Phillips also sought a delay based on his age at the time of the killing. He was 19, older than the Supreme Court's cutoff of 18 for the purposes of barring executions of juveniles. His request argued the age should be 21. His lawyers said he had such "psychosocial deficits" when he was picked up by police that they initially took him to a juvenile, rather than an adult, facility.

Attorneys for the state argued Phillips made meritless, often conflicting, legal claims. "Phillips argues that youth, like IQ, cannot be reduced to a number. But he also argues that the Eighth Amendment prohibits the execution of adults under age twenty-one," they wrote in a court document filed Tuesday. "He cannot have it both ways; if age cannot make one eligible for death, it cannot make one ineligible for death."...

Phillips has had several previous delays to scheduled executions, most notably in 2013, when he made a last-minute plea to donate his organs. He said that he wanted to give a kidney to his mother, who was on dialysis, and possibly his heart to his sister. His request was denied. His mother has since died.

If Ohio completes this execution and two more scheduled for 2017 without difficulties, the state could be poised to be the most active execution state in coming years. Ohio has 10 "serious" execution dates already scheduled for 2018, and I believe the state has enough lethal injection drugs to complete them all.

UPDATE:  This local story reports that "Akron child killer Ronald Phillips was put to death Wednesday ... by lethal injection at 10:43 a.m. Wednesday at the Southern Ohio Correctional Facility in Lucasville." According to the report, "there were no complications, and witnesses said Phillips showed no signs of gasping, choking or struggling."

July 26, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (15)

Wednesday, June 28, 2017

En banc Sixth Circuit reverses preliminary injunction that had been preventing Ohio from moving forward with executions

Unsurprisingly, the en banc Sixth Circuit today ruled for the State of Ohio in its appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  Here is how the majority opinion (per Judge Kethledge, who wrote the dissent in the original panel ruling) in  In re: Ohio Execution Protocol, No. 17-3076 (6th Cir. June 28, 2017) (available here) gets started:

Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed. See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995).  Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head.  Two nights later, Otte pushed his way into a woman’s home and did the same things to her. After each murder Otte went out partying. See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996).  Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back.  His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby. See State v. Tibbetts, 749 N.E.2d 226, 237-39 (Ohio 2001).

Phillips, Otte, and Tibbetts now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment.  In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted). The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court upheld in Glossip.  Every other court of appeals to consider that procedure has likewise upheld it, including most recently the Eighth Circuit, which rejected a nearly identical challenge in a procedural posture identical to the one here.  See McGehee v. Hutchinson, 854 F.3d 488, 492 (8th Cir. 2017) (en banc) (per curiam), cert. denied, 137 S. Ct. 1275 (2017); Glossip, 135 S. Ct. at 2739-40 (collecting cases); Brooks v. Warden, 810 F.3d 812, 818-22 (11th Cir. 2016); cf. Jordan v. Fisher, 823 F.3d 805, 811-12 (5th Cir. 2016).  Yet here the district court thought the same procedure is likely invalid.  We respectfully disagree and reverse the court’s grant of a preliminary injunction.

The chief dissent was penned by Judge Moore (who wrote the majority decision for the original panel upholding the stay).  This dissent runs about twice as long as the majority opinion, and it gets started this way:

There is a narrow question before this court: Should Gary Otte, Ronald Phillips, and Raymond Tibbetts have a trial on their claim that Ohio’s execution protocol is a cruel and unusual punishment, or should Ohio execute them without such a trial?  The majority has concluded that there is no need for a trial on the merits of Plaintiffs’ constitutional claim. I disagree.

There is no dispute that the second and third drugs in Ohio’s execution protocol cause immense pain.  There is significant evidence that the first drug, midazolam, cannot prevent someone from feeling that pain.  After a five-day hearing on Plaintiffs’ motion for a preliminary injunction, the district court determined that there should be a full trial on the merits of Plaintiffs’ claim that Ohio’s use of midazolam as the first drug in a three-drug execution protocol creates a constitutionally unacceptable risk of pain. Despite the deferential standard of review that this court should apply, the majority casts aside the district court’s determination that Plaintiffs should have a trial before the state executes them.  The majority also determines that despite Defendants’ unequivocal sworn testimony that they would no longer use pancuronium bromide or potassium chloride in executions, judicial estoppel does not prevent their renewed attempt to use those drugs. For the reasons discussed below, I would hold that Plaintiffs should have a trial on their Eighth Amendment and judicial-estoppel claims, and I respectfully dissent.

This Ohio DRC execution page details that Ohio is scheduled to execute Ronald Phillips on July 26 and has scheduled executions for more than two dozen other Ohio inmates running all the way through 2020. This Sixth Circuit will surely be appealed by Phillips to the US Supreme Court in the coming weeks, but I would be very surprised if SCOTUS takes up the case after it has recently allowed other midazolam executions to go forward. And if Ohio is able to to complete executions uneventfully with its current protocol, the state could now be on a path to having more executions in the next few years than perhaps any other state in the nation.

June 28, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Wednesday, June 14, 2017

Might judicial estoppel continue to preclude Ohio from moving forward with a three-drug lethal injection protocol?

As previously noted here, today is the day for the Sixth Circuit oral argument in its rehearing en banc of the State of Ohio's appeal of a lower court stay blocking Ohio from using its latest three-drug protocol to execute condemned murderers.  One basis for stay, as reported here, was the plan for Ohio to use midazolam as the first drug in its three-drug execution protocol.  But some recent uneventful executions by other states using midazolam may serve to make this foundation for the stay weaker than it was earlier this year.  So another issue sure to come up in this argument is the capital defendants' claim, also adopted in the initial stay order, that Ohio is judicially estopped from using a three-drug execution protocol after having years ago forsworn such a plan in favor of one-drug execution plans.

In this recent post at the ACS blog, titled "Ohio’s Lethal Flip Flop: Court Should Hold State To Consistent Legal Position on How To Execute," Virginia Sloan makes the case for the judicial estoppel arguments to block Ohio's execution plans.  Here are excerpts:

Outside of the legal profession, judicial estoppel, or the doctrine that prevents a party to a lawsuit from taking inconsistent positions about the same issue at different phases of the legal proceeding, is not particularly well-known. However, it speaks to the core value of integrity in the judicial system, preventing misuse of the courts and promoting equity among litigants. Non-attorneys unfamiliar with the legal doctrine of judicial estoppel need look no further than pending lethal injection litigation in Ohio to understand its crucial importance in our system.

In a remarkable series of losses and appeals, Ohio state officials are currently attempting to convince yet another federal court to allow them to use a lethal injection protocol which is in direct violation of representations state officials made eight years ago in order to prevail at an earlier phase of the ongoing litigation....

After [a] failed execution, and facing an imminent trial in July 2010 on the prisoners’ challenges to Ohio’s three-drug lethal injection method, Ohio announced in November 2009 that it would never again use the paralytic drug pancuronium bromide and potassium chloride in executions. State officials represented they would use a one-drug, barbiturate-only method instead. The same day Ohio announced this change, it filed a motion for summary judgment in the pending litigation, asking the federal court to dismiss all challenges to the three-drug protocol because, as the State argued, the change in execution drugs meant the claims about the two painful drugs were “moot.” The State’s filing unequivocally declared “there is no possibility here that the allegedly unconstitutional conduct will reoccur.” The federal courts accepted Ohio’s argument, and its representations, with the Sixth Circuit explicitly holding that “any challenge to Ohio’s three-drug execution protocol is now moot.” With the prisoners’ constitutional claims thus mooted in this way, the State proceeded to carry out 20 executions over the next eight years, including that of Mr. Biros in December 2009.

Fast forward to October 2016: Ohio reneged on its promises. State officials announced that their “new,” three-drug protocol will again include a paralytic and potassium chloride. Unsurprisingly, the courts did not look favorably upon Ohio’s flip-flopping. In his order, following a five-day evidentiary hearing in 2017, U.S. Magistrate Judge Michael R. Merz wrote that “the position the State of Ohio now takes — that it will execute [prisoners] using a paralytic agent and potassium chloride — is completely inconsistent with the position it took on appeal in Cooey (Biros) and on remand from that decision before Judge Frost. Ohio prevailed on its contrary position and is now judicially estopped from re-adopting a paralytic agent and potassium chloride as part of the Execution Protocol.”  On April 5, 2017, a three-judge panel from the U.S. Court of Appeals for the Sixth Circuit agreed, upholding the preliminary injunction.

The State petitioned for the full court to hear the case, and in coming weeks, Ohio will try for the third time to explain why it is acceptable to render litigation moot by making one representation, and then later in that same litigation to propagate actions in contravention of that representation.

Judicial estoppel prevents parties from manipulating legal proceedings, requiring parties to maintain consistency within the course of litigation. The changing of positions based on convenience or “exigencies of the moment” is not authorized by law, and is particularly reprehensible when the issue at hand is one of life or death. Ohio apparently needs a third ruling to remind officials that what they promised the federal courts in 2009 still binds them in 2017. The law demands that the State devise an execution protocol consistent with its word.

Even without hearing the outcome of today's oral argument, I am predicting that this judicial estoppel claim does not end up carrying the day with the full en banc Sixth Circuit.  Ohio officials are claiming that they have returned to a three-drug execution protocol because of a state legal obligation to carry out lawful death sentences AND a constitutional obligation to carry out executions in the least painful way possible. If Ohio officials reasonably and accurately assert they had to return to a three-drug protocol to comply with these obligations, I doubt the full Sixth Circuit will conclude a prior litigation position must now thwart these efforts.  

June 14, 2017 in Baze and Glossip lethal injection cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Friday, June 09, 2017

Alabama carries out second execution in as many weeks using midazolam as first lethal injection drug

A couple of weeks ago, as noted here, Alabama carried out the death sentence of Tommy Arthur for a 1982 murder-for-hire.  Last night, as this AP article reports, the state executed a "man convicted of killing three people during the 1994 robbery of an Alabama fast-food restaurant." Here are the basics:

Robert Melson, 46, was pronounced dead at 10:27 p.m. CDT Thursday at a southwest Alabama prison, authorities said. The execution was the state's second of the year. State prosecutors said Melson and another man who used to work at the restaurant, robbed a Popeye's in Gadsden, 60 miles northeast of Birmingham, and Melson opened fire on four employees in the restaurant's freezer. Nathaniel Baker, Tamika Collins and Darrell Collier were killed.  The surviving employee, Bryant Archer, crawled for help and was able to identify one of the robbers as the former worker which led police to Melson.

Collins' family members wore a badge with her photograph and the phrase "In Our Hearts Forever."  Her family issued a statement saying that three young people lost their lives for "a few hundred dollars" and criticized court filings on behalf of Melson that challenged the state's execution procedure as inhumane. Collins' mother and two sisters witnessed the execution. "He has been on death row for over 21 years being supported by the state of Alabama and feels he should not suffer a little pain during the execution. What does he think those three people suffered after he shot them, leaving them in a freezer?" the statement said.

Melson shook his head no when the prison warden asked if he had a final statement.  A prison chaplain knelt with him. Melson's hands quivered at the start of the procedure and his breathing was labored, with his chest moving up and down quickly, before slowing until it was no longer perceptible.

Melson's attorneys had filed a flurry of last-minute appeals seeking to stay the execution.  The filings centered on Alabama's use of the sedative midazolam which some states have turned to as other lethal injection drugs became difficult to obtain.  The U.S. Supreme Court temporarily delayed the execution to consider Melson's stay request, but ruled after 9 p.m. that the execution could go forward....

"Robert Melson's decades-long avoidance of justice is over. For twenty-three years, the families of the three young people whose lives he took, as well as a survivor, have waited for closure and healing. That process can finally begin tonight," Attorney General Steve Marshall said in a statement after the execution.

I have stressed in my post title the drug Alabama has used in its recent executions in part because that drug is sure to be at the center of discussions next week when the full en banc Sixth Circuit considers a current stay on Ohio executions based in part on concerns with the use of the drug midzolam. For basic background on that story, one can check out these posts:

June 9, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (5)

Thursday, May 11, 2017

Eleventh Circuit rejects effort to attack Alabama's lethal injection by suggesting hanging or firing squad as alternative execution methods

As reported in this local article, "condemned inmate Anthony Boyd asked the state of Alabama to carry out his execution by either hanging him or putting him in front of a firing squad. But the federal appeals court in Atlanta on Tuesday rejected Boyd’s request and cleared the way for his execution by lethal injection."  The Eleventh Circuit's lengthy ruling in Boyd v. Warden, No. 15-14971 (11th Cir. May 9, 2017) (available here), gets started this way:

It is by now clear in capital cases that a plaintiff seeking to challenge a state’s method of execution under the Eighth Amendment of the United States Constitution must plausibly plead, and ultimately prove, that there is an alternative method of execution that is feasible, readily implemented, and in fact significantly reduces the substantial risk of pain posed by the state’s planned method of execution.  Appellant Anthony Boyd, an Alabama death row inmate, appeals the district court’s dismissal of his federal civil rights lawsuit challenging the constitutionality of Alabama’s lethal injection protocol.  Boyd filed this lawsuit pursuant to Section 1983, alleging, among other things, that Alabama’s new lethal injection protocol, which substituted midazolam hydrochloride for pentobarbital as the first of three drugs, violates his Eighth Amendment right to be free from cruel and unusual punishment.  Notably, however, he did not allege that execution by a lethal injection protocol generally is unconstitutional.  Currently, Alabama law provides inmates sentenced to death with a choice between two methods of execution: lethal injection or electrocution. Instead of identifying an alternative method of lethal injection that would be feasible, readily implemented, and substantially less risky than the midazolam protocol or opting for death by electrocution, however, Boyd alleged that Alabama should execute him by hanging or firing squad.

The district court determined that Boyd had failed to state a claim under the Eighth Amendment because Boyd’s proposed alternative methods of execution -- firing squad and hanging -- are not authorized methods of execution under Alabama law and, therefore, are neither feasible nor readily implementable by that state.  It further held that Boyd’s remaining claims challenging Alabama’s execution protocol, the execution facilities, and the state’s decision to keep certain information about the protocol secret were time-barred by the statute of limitations.  Finally, the district court ruled that amending these claims would be futile and dismissed Boyd’s complaint.

We agree with the district court that Boyd has not come close to pleading sufficient facts to render it plausible that hanging and firing squad are feasible, readily implemented methods of execution for Alabama that would significantly reduce a substantial risk of severe pain.  The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution.  But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses an unconstitutional risk of pain.  Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad.  We also agree that Boyd’s remaining claims were filed well beyond the two-year statute of limitations governing § 1983 claims in Alabama.  Accordingly, we affirm.

May 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Monday, May 08, 2017

A lethal Ohio procedural question: are there any formal rules on when new circuit judges are to be involved in pending en banc matters?

The question in the title of this post came to mind this morning in the wake of the news that, as discussed here, two of President Trump's latest judicial nominees are slated to fill open slots on the Sixth Circuit: Justice Joan L. Larsen and John K. Bush.   As noted here a few months ago, Prez Trump's very first circuit court nomination was also to the Sixth Circuit via the naming of Judge Amul Thapar.  Assuming relatively swift and successful confirmations, the Sixth Circuit could have three new judges within the next few months.

Meanwhile, as regular readers may recall from this post, also scheduled to take place in the next few months in the Sixth Circuit is the rehearing en banc the State of Ohio's appeal of a lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  The Sixth Circuit has scheduled oral argument on these matters for June 14, and the full court will probably try to issue a ruling in the matter not too long thereafter given that Ohio has a long-postponed execution now scheduled for July 26.

I am inclined to guess that Judge Thapar — who has already coasted through his confirmation hearing — will be a member of the Sixth Circuit by the time of the en banc oral argument in June.  Given that Justice Gorsuch at SCOTUS has apparently been fully participating in cases in which oral argument took place after the time he joined the Court, I would further guess that everyone will think Judge Thapar can and should fully participate in the Sixth Circuit's en banc consideration of Ohio's lethal injection protocol if he is there in time for oral argument.

But what should happen if Justice Larsen and/or Mr. Bush are both confirmed in, say, late June.  Could they and should they be involved in the consideration of these lethal Ohio matters?   Adding to the potential intrigue and head-counting is the fact that I believe Judge David McKeague is technically now still an active judge, but will be only until his successor if confirmed. Arguably, Judge KcKeague should not be part of the en banc decision-making once and whenever Justice Larsen gets confirmed to the Sixth Circuit.

Perhaps the Sixth Circuit has some clear rules on these kinds of en banc transition issues, and I would welcome any and all input from knowing en banc mavens.  In addition, it is quite possible that there are sufficient votes currently on the Sixth Circuit one way or the other to make these transition issues relatively inconsequential to the outcome in this important en banc case.  Still, when it comes to review of lethal injection protocols or just about anything else dealing with the death penalty, it does not seem that anything ever really becomes inconsequential.  

(In addition, and surely not to be overlooked as the buzz over another SCOTUS retirement grows, if and when Judge Thapar and Justice Larsen join the Sixth Circuit, this court will have three of the remaining 20 persons from Prez Trump's SCOTUS short lists.  This fact alone makes anything the Sixth Circuit does in the coming months even that much more interesting.)

Prior recent related posts:

May 8, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Monday, May 01, 2017

Ohio Gov Kasich officially pushed back nine executions as lethal injection litigation comes before en banc Sixth Circuit

As noted in this post, last week the en banc Sixth Circuit took up the current stay in Ohio blocking executions, but set oral argument for a month after Ohio's scheduled execution.  Thus, unsurprisingly and as reported in this local piece, "execution dates for nine death row inmates have been delayed while the state continues its appeal of a court decision blocking use of its lethal injection protocol."  Here is more:

Nine executions were pushed back in a revised schedule released Monday by Gov. John Kasich. The next execution, of Akron child killer Ronald Phillips, was rescheduled for July 26.

On Jan. 26, a federal magistrate judge found the state's three-drug injection cocktail to be unconstitutional and stayed the next three executions. A three-judge panel for the U.S. 6th Circuit Court of Appeals agreed with the lower court and kept the stay in place. The full Cincinnati appeals court last week agreed to rehear the state's appeal. A hearing has been set for June 14.

The state had planed to execute Phillips and Gary Otte, who killed two people to death in back-to-back robberies in Parma, before that date. Otte's execution was moved to Sept. 13. The state has scheduled 33 executions through March 2021.

I think it reasonable for Gov. Kasich to expect the full Sixth Circuit to rule on the state's execution protocol within roughly a month after hearing oral argument.

Prior recent related posts:

May 1, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, April 28, 2017

Arkansas completes fourth execution in a week, but not without apparent problems

As reported in this new NBC News article, the "lawyer of a convicted killer who was put to death by lethal injection Thursday has demanded an investigation after his client repeatedly convulsed during the 'horrifying' execution." Here is more:

Media witnesses reported "coughing, convulsing, lurching, jerking" for a 10 to 20 second period during the execution of Kenneth Williams at the Cummins Unit, where the Arkansas death chamber is housed.

The allegations come amid questions around the use of the controversial lethal injection drug midazolam. The state's stocks of the drug were due to expire and it has been racing to execute a record number of inmates — Williams was the fourth to be executed inside of a week.

"This is the most I've seen an inmate move three or four minutes in," said Associated Press reporter Kelly Kissel, who witnessed his tenth execution Thursday night. Kissel explained that Williams "lurched" 15 times in quick succession, followed by five slower lurches, three minutes after the sedative midazolam was introduced.

Kissel said two other witnesses from local media organizations agreed with his assessment and also said that Williams could be heard after the microphone to the death chamber was turned off. Williams' attorney called for an investigation and called the descriptions "horrifying."

"This is very disturbing, but not at all surprising, given the history of the risky sedative midazolam, which has been used in many botched executions," said Shawn Nolan, an attorney who had taken up Williams case two weeks prior to the execution. "What's important right now is that all the information about tonight's execution must be meticulously documented and preserved so that we can discover exactly what happened in that execution chamber."

State officials pushed back against the allegations that the execution might have been "botched" and allegations it did not follow the protocol. J.R. Davis, spokesman for Arkansas Gov. Asa Hutchinson, described the lurches as "involuntary muscular reaction to the midazolam." Though he had not witnessed the execution, he said the medical community supported the drug's safe use and that this reaction did not mean the procedure had been painful....

Nolan, called Davis' explanation "trying to whitewash the reality of what happened" and he called for a full investigation. "We tried over and over again to get the state to comport with their own protocol to avoid torturing our client to death, and yet reports from the execution witnesses indicate that Mr. Williams suffered during this execution," Nolan said in a statement.

"Any amount of movement he might've had was far less than any of his victims," said Jodie Efird, one of the victim's daughters who attended the execution. Williams had been serving a life sentence for the Dec. 1998 murder of a University of an Arkansas-Pine Bluff cheerleader. Then 20, the inmate escaped after only serving a month at the Cummins Unit by hiding inside a barrel of pig slop that a garbage truck had removed from the prison grounds. The former gang member shot and killed Cecil Boren, stole his truck, led police on a high-speed pursuit and killed another man, Michael Greenwood, in a resulting car accident. A jury sentenced Williams to death for the 1999 murder of Boren, a 57-year-old former warden of the prison where Williams was executed....

Arkansas Department of Correction Spokesman Solomon Graves said that the lethal injection was administered at 10:52 p.m. local time (11:52 p.m. ET) and Williams was declared dead at 11:05 p.m. Williams, 38, was scheduled to die at 7 p.m. local time (8 p.m. ET). Williams' execution was delayed more than three hours because of attempts by his lawyers before a state court and the U.S. Supreme Court to stop it. Shortly after 10 p.m. the U.S. Supreme Court declined to stop the execution.

April 28, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (23)

Wednesday, April 26, 2017

Sixth Circuit to review en banc Ohio's execution protocol ... on a pace likely to preclude executions for at least a few more months

As indicated in this short order, yesterday the Sixth Circuit announced that it would be rehearing en banc the State of Ohio's appeal of the lower court stay issued earlier this year which blocked Ohio from using its latest three-drug protocol to execute condemned murderers.  A few weeks ago, a divided three-judge panel upheld the trial court's stay, but now the full Sixth Circuit (apparently absent one recused judge) will hear oral argument on these matters on June 14.

One key issue in the Ohio lethal injection litigation concerns that state's plan to use midazolam as the first drug in the execution process.  The apparent recent success that Arkansas has had with a similar protocol using midazolam now seems likely to be part of the discussion and debate before the full Sixth Circuit.

Because the lower court stay remains in place as the full Sixth Circuit take up this issue, Ohio's Gov Kasich is certainly going to have to reschedule at least two slated executions.  As detailed on this Execution Schedule page from the Ohio Department of Rehabilitation & Correction, Ronald Phillips is currently scheduled for execution on May 10, and another inmate has a June 13 execution date.  Though it seems likely the en banc Sixth Circuit will seek to rule not long after it hears oral argument (and it usually makes sense to assume that a vote for en banc review will lead to a different outcome than the prior panel decision), I am not sure it would be wise for Ohio to assume it will have an execution green light by its July 26 execution date.

As the Ohio DRC execution page details, Ohio has already scheduled executions for 33 Ohio inmates(!) running all the way through 2021(!).  So if the Sixth Circuit (and ultimately the Supreme Court) eventually upholds the state's latest execution protocol, Ohio could be on a path to having more executions in the next few years than perhaps any and every other state in the nation.

Prior recent related posts:

April 26, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Monday, April 24, 2017

Arkansas successfully completes two execution in one night

As reported in this AP article, Arkansas has completed the nation's first double execution in nearly two decades.  Here are the basic details:

Arkansas has put to death inmate Marcel Williams, marking the first double execution in the United States since 2000.

Williams was pronounced dead at 10:33 p.m. Monday, 17 minutes after the procedure began at the Cummins Unit in southeast Arkansas. Inmate Jack Jones was executed earlier in the evening.

Williams was sent to death row for the 1994 rape and killing of 22-year-old Stacy Errickson, whom he'd kidnapped from a gas station in central Arkansas....

Attorneys for Marcel Williams had questioned whether the night's first execution of Jack Jones went properly. U.S. District Judge Kristine Baker issued the stay for Williams, then, lifted it about an hour later — at 9:22 p.m....

Jones was pronounced dead at 7:20 p.m. Monday at the state's Cummins Unit in southeast Arkansas.... Jones was sent to death row for the 1995 rape and killing of Mary Phillips.  He was also convicted of attempting to kill Phillips' 11-year-old daughter and was convicted in another rape and killing in Florida.

UPDATE:  Bill Otis over at Crime & Consequences has this extended new post contending that the double execution in Arkansas "may be remembered as the moment the movement to abolish the death penalty started back downhill after many years of gaining ground."

April 24, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (12)

Capital procedure day at SCOTUS .... perhaps from early morning until late at night thanks to Arkansas

The Supreme Court this morning is hearing oral argument in two capital cases.  Here are the basics and previews via SCOTUSblog:

McWilliams v. Dunn

Issue: Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.

Argument preview: What kind of help does the Constitution require for defendants in capital cases?

Davila v. Davis:

Issue: Issue: Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

Argument preview: Another Texas capital case raising a nested ineffective assistance of counsel issue 

Meanwhile, as detailed in this AP report, two condemned inmates scheduled to be executed tonight in Arkansas have been pressing unsuccessfully a variety of claims in an effort to halt their executions.  Here are the basics on two cases now all but certain to be before the Justices of the Supreme Court in some posture before the night is over:

Two Arkansas inmates scheduled to be put to death Monday in what could be the nation's first double execution in more than 16 years asked an appeals court on Sunday to halt their lethal injections because of poor health that could cause complications. Lawyers for Jack Jones and Marcel Williams asked the 8th Circuit Court of Appeals on Sunday to grant them stays of execution.

Jones' lawyers say he suffers from diabetes and is on insulin, has high blood pressure, neuropathy and had one leg amputated below the knee. He is on heavy doses of methadone and gabapentin. They say he may be resistant to the lethal injection drug midazolam because of the drugs he is taking for his maladies and could suffer a "tortuous death." Lawyers for Williams say he weighs 400 pounds and it will be difficult to find a vein for lethal injunction, so the drugs are unlikely to work as intended.

The state said the appeals are just delaying tactics and should be denied. It was not clear when the appeals court will rule....

Also on Sunday, two lower court federal judges ruled against inmates in separate cases. Judge Kristine Baker denied a request from several inmates, including Jones and Williams, that the rules for witnesses to view the executions be changed. Judge J. Leon Holmes denied a stay of execution for Williams saying that the matter should be dealt with by the 8th Circuit Court of Appeals, because the inmate had already been appealed to the higher court.

Jones and Marcel Williams are scheduled to die on Monday and another inmate, Kenneth Williams, is set for execution Thursday. Both Jones and Williams have admitted they are guilty. Williams was sent to death row in 1994 for the rape and murder of Stacy Errickson. Jones was given the death penalty for the 1995 rape and murder of Mary Phillips.

April 24, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Friday, April 21, 2017

Arkansas finally navigates litigation to complete one execution

As reported in this new Washington Post piece, "Arkansas late Thursday night carried out the state’s first execution in more than a decade after the U.S. Supreme Court, in a last-minute series of orders, rejected requests by a death-row inmate to stay his lethal injection." Here is more:

The execution followed a wave of criticism and tumult in Arkansas, which had set an unprecedented scheduled of executions, plans that were imperiled by a series of court orders halting at least some of the eight lethal injections originally set for April.

As part of its aggressive scheduling, which the state attributed to expiring lethal-injection drugs, Arkansas had planned to carry out back-to-back executions on Thursday night at a state prison southeast of Little Rock.  But that was abandoned when a state court blocked one of those lethal injections, and officials instead focused solely on plans to execute Ledell Lee, 51, by lethal injection.

Lee was sentenced to death in 1995 for the killing of Debra Reese, who was beaten to death in her home two years earlier. According to court petitions and his attorneys, Lee has long denied involvement in Reese’s death, and he was seeking DNA testing to try and prove his innocence.

Lee’s execution was confirmed by state officials. His time of death was 11:56 p.m. local time, according to the Associated Press, which had a reporter serve as a media witness. He is the seventh person executed in the United States so far this year....

Appeals filed ... for Lee hoping to delay his execution were rejected by the U.S. Court of Appeals for the 8th Circuit after that court briefly stayed the lethal injection. Lee’s attorneys also petitioned the U.S. Supreme Court, not long after justices on Thursday night denied other stay requests filed by several Arkansas death-row inmates. The attorneys filed a volley of appeals at the high court seeking a stay of execution, saying that technology exists now that could verify his innocence and arguing that he has an intellectual disability that should prevent his execution.

The Supreme Court ultimately denied his stay requests in orders released by the court just before 11:30 p.m. at the Arkansas prison, following an hours-long delay imposed by Justice Samuel A. Alito Jr. so the high court could review the inmate’s appeals. Alito, who is assigned cases from the federal circuit covering Arkansas, then issued an order delaying Lee’s lethal injection “pending further order of the undersigned or of the Court.” He vacated his order after the justices declined all of the requests.

According to the orders, Alito referred the stay requests to the court, which denied them all without explanation. No justices logged dissents, though some had earlier Thursday said they would have granted stay requests from Lee and other inmates. Lee was pronounced dead about 30 minutes later....

Several death-row inmates in Arkansas, including Lee, appealed to the U.S. Supreme Court to stay the executions, but the justices earlier Thursday night released orders denying these requests. This marked the first time Justice Neil M. Gorsuch, who joined the court earlier this month, voted to create a conservative majority. In one of the orders, the court was split 5-4, with Gorsuch joining the majority in denying the stay and the court’s four liberal members saying they would have granted it.

Justice Stephen G. Breyer, who has previously questioned the “arbitrary” nature of the death penalty’s implementation, authored a critical dissent of Arkansas’ stated desire to carry out executions before its drugs expire. “I have previously noted the arbitrariness with which executions are carried out in this country,” he wrote. “And I have pointed out how the arbitrary nature of the death penalty system, as presently administered, runs contrary to the very purpose of a ‘rule of law.’ The cases now before us reinforce that point.”

The brief dissents authored by Justices Breyer and Sotomayor in one of the capital cases coming from Arkansas are available here and here.

April 21, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (28)

Wednesday, April 19, 2017

After Monday stays, Arkansas officials seemingly on path to complete next pair of scheduled executions... OR NOT, as updated below....

As reported in this new AP piece, "two Arkansas inmates set to die this week in a double execution filed more legal challenges Wednesday, but so far the pair is hitting roadblocks as a judge weighs a new attempt to prevent the state from using one of its lethal injection drugs in what would be the state's first executions in nearly a dozen years."  Here is more about the continuing litigation as the next set of execution dates approach:

Unless a court steps in, Ledell Lee and Stacey Johnson are set for execution Thursday night, and state prison officials have already moved them from death row to the nearby prison that houses the death chamber. It's the second time this week that Arkansas has moved forward with what originally had been a plan to execute eight men before April 30, when its supply of the drug midazolam expires.

On Monday, the Arkansas Supreme Court blocked the executions of two men set to die that night. A third man has received a stay from a federal judge over issues with his clemency schedule. Five inmates still face execution over the next two weeks, and they've filed a series of court challenges in hopes of stopping that.

The latest request, filed Wednesday, asks the U.S. Supreme Court to take the inmates' case that challenges the use of midazolam, a sedative used in flawed executions in other states. It's one of three drugs Arkansas plans to use in its executions. In 2015, justices upheld Oklahoma's execution protocol that used the same drug. "As pharmaceutical companies become increasingly resistant to allowing their products to be used in executions, states are likely to continue experimenting with new drugs and drug combinations, and death-row prisoners may challenge these new protocols as violating their constitutional rights," the filing before the U.S. Supreme Court said.

The Arkansas attorney general's office countered in a court filing Wednesday that the inmates' request was a last-minute effort to "manipulate the judicial process."...

Another case that could trip up Arkansas' plan was filed Tuesday by the medical supplier McKesson Corp., which says it sold the drug vecuronium bromide to the Arkansas Department of Correction for inmate medical care, not executions. The company sued to stop Arkansas from using the drug in the planned lethal injections, and a hearing over that issue was underway in Little Rock on Wednesday afternoon.

A state prison official testified that he deliberately ordered the drug last year in a way that there wouldn't be a paper trail, relying on phone calls and text messages. Arkansas Department of Correction Deputy Director Rory Griffin said he didn't keep records of the texts, but McKesson salesman Tim Jenkins did. In text messages from Jenkins' phone, which came up at Wednesday's court hearing, there is no mention that the drug would be used in executions.

Lee and Johnson both faced setbacks Tuesday in their quest to get more DNA tests on evidence in hopes of proving their innocence. Lee claims tests of blood and hair evidence that could prove he didn't beat 26-year-old Debra Reese to death during a 1993 robbery in Jacksonville. Johnson claims that advanced DNA techniques could show that he didn't kill Carol Heath, a 25-year-old mother of two, in 1993 at her southwest Arkansas apartment....

"It is understandable that the inmates are taking every step possible to avoid the sentence of the jury; however, it is the court's responsibility to administer justice and bring conclusion to litigation," Gov. Asa Hutchinson said Tuesday in an emailed statement. "It is that process that we are seeing played out day by day, and we expect it to continue."

UPDATE: This new Washington Post article, headlined "Arkansas courts stay execution, block state from using lethal injection drug," reports on why I reported too soon on the latest execution plans in Arkansas. Here are the latest details:

Arkansas courts on Wednesday dealt another pair of blows to the state’s plans to resume executions Thursday night, the latest in a series of legal rulings imperiling the scheduled flurry of lethal injections.

In one case, a state court halted an execution scheduled for Thursday night, while a state judge separately barred the use of a lethal injection drug, potentially blocking all of the planned executions.

The rulings come as Arkansas, seeking to carry out its first executions since 2005, has become the epicenter of capital punishment in the United States because of its frantic schedule. Gov. Asa Hutchinson (R) originally scheduled eight executions in 11 days, an unprecedented pace, which drew national scrutiny and criticism....

After the first planned executions were halted, Arkansas officials pointed to legal victories they won the same day and vowed to press on with them, beginning with two scheduled for Thursday night. “There are five scheduled executions remaining with nothing preventing them from occurring, but I will continue to respond to any and all legal challenges brought by the prisoners,” Arkansas Attorney General Leslie Rutledge (R) said in a statement after the U.S. Supreme Court denied her request to allow one execution to proceed Monday. “The families have waited far too long to see justice, and I will continue to make that a priority.”

Challenges to the executions are not only being brought by the inmates. McKesson, the country’s largest drug distributor, said a court on Wednesday granted its request for a temporary restraining order keeping Arkansas from using a drug the company says was obtained under false pretenses. The judge issued a verbal order from the bench, according to the Arkansas Democrat-Gazette; no injunction was filed in court records by early Wednesday night. A spokesman for Rutledge did not immediately have a comment on this order, but it is expected that she would appeal to the state Supreme Court....

The Arkansas Supreme Court also stopped one specific execution set for Thursday, saying just over 24 hours before it was scheduled to occur that it was staying it without explanation. In its order, the state Supreme Court narrowly blocked the execution of Stacey E. Johnson, 47, who has been on death row since 1994. The court said Johnson should be allowed to press on with his motion for post-conviction DNA testing. Johnson was sentenced to death for the murder of Carol Jean Heath, a woman brutally killed in her home.

Three justices dissented from the decision, with all three joining in a dissent saying the stay in this case “gives uncertainty to any case ever truly being final in the Arkansas Supreme Court.”...

Johnson is one of two inmates facing execution Thursday night. The other, Ledell Lee, has appealed his execution, arguing that he has an intellectual disability and seeking to prove his innocence. Both men are also among a group of death-row inmates who have petitioned the U.S. Supreme Court to stay the executions, one of several legal battles being waged between the state and the inmates.

April 19, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Monday, April 17, 2017

Lots of litigation leading to lots of uncertainty as Arkansas execution dates arrive

This CNN article, headlined "Arkansas inmate has last meal as courts decide fate," reports on some of the still-in-development litigation in the Natural State as it tries to get its machinery of death operational. Here are the highlights:

After the Arkansas Supreme Court stayed the execution of two inmates, the state's attorney general asked the US Supreme Court to overturn the ruling so the execution of one could proceed.

While Bruce Ward has one other stay in place, Don Davis -- who had his last meal -- could be the first executed over the next 10 days if Attorney General Leslie Rutledge prevails with the U.S. Supreme Court.

Amid the flurry, the 8th U.S. Circuit Court of Appeals overturned a Saturday ruling by a federal judge that temporarily halted all eight executions.

That U.S. District Court judge had ruled that the prisoners will likely succeed in demonstrating the state's proposed method of lethal injection is unconstitutional. But the appeals court said the use of the method of execution, which includes the drug, midazolam, did not create undue severe pain.

The executions were set for this month because Arkansas' supply of midazolam expires on May 1.

Gov. Asa Hutchinson issued a statement Monday evening that said, in part, "We have asked the US Supreme Court and hope to get a decision later tonight."

The attorney for Davis and Ward requested stays of execution until the US Supreme Court rules on an upcoming case concerning inmate access to independent mental health experts. The justices are set to hold oral arguments on April 24....

Late Monday, the Arkansas Supreme Court also overturned a temporary restraining order, issued by a state judge, that prevented Arkansas from using vecuronium bromide it had purchased from McKesson Medical-Surgical in executions. The company had argued the medication was not meant to be used in capital punishment.

The Arkansas Supreme Court had already blocked Ward's execution due to questions about his mental competency. As of Monday evening, that stay remained.

As officials awaited further court action, Davis had his "last meal" at the Cummins Unit, where the execution chamber is located. According to the Arkansas Department of Correction, Davis chose fried chicken, rolls, great northern beans, mashed potatoes and strawberry cake.

Davis' current execution warrant expires at 1 a.m. ET (midnight CT).

UPDATE: This New York Times article provides a more fulsome accounting of all of Monday's litigation that ended up with two scheduled executions being stay. And the lengthy article ends with a preview of what the rest of this week holds:

A spokesman for the state prison system, Solomon Graves, said the Arkansas authorities would be prepared to carry out the other executions that Mr. Hutchinson set.

“The Department of Correction’s attention now shifts to the executions that are scheduled for Thursday,” Mr. Graves said. “We are under the impression, and under the assumption, that those executions will be carried out as scheduled.”

They are scheduled for 7 p.m. on Thursday.

April 17, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, April 14, 2017

Is Arkansas really going to carry out seven (uneventful?) executions over the next two weeks?

The question in the title of this post is a slight variation on a question a student posed to me yesterday, and I really did not have a confident prediction.  But these two new pieces discussing Arkansas's plans highlight that others are feeling somewhat more confident about what lies ahead in the Natural State:

From the Arkansas News, "Arkansas governor confident executions will go smoothly"

Gov. Asa Hutchinson on Thursday said he is confident the state Department of Correction can successfully carry out seven executions over an 11-day span starting Monday and defended his decision to set the unprecedented schedule.

In a news conference at the Governor’s Mansion, Hutchinson also expressed confidence in the ability of the sedative midazolam to render the inmates unconscious and said he retains the option to halt any of the executions but does not expect to do so.

The governor told reporters he paid a visit Wednesday to the Department of Correction’s execution chamber in Lincoln County and was satisfied the staff can carry out the plan successfully. Arkansas last executed an inmate in 2005. “I’m not going to go into which staff is doing what at the Department of Correction, but as I was there yesterday, they are experienced, they work on it, they practice it, they don’t take it lightly,” he said. “They know what they’re doing.”

The plan has drawn international attention and has been criticized by groups and individuals who have called it an “assembly line” and a “train wreck.”

From the Washington Post, "Arkansas plans to execute 7 men in 11 days. They’re likely to botch one."

On April 17, Arkansas is scheduled to execute seven men over a period of 11 days. If carried out, that will be the most executions performed in such a short time since the modern death-penalty era began in 1976.

The reason: Arkansas’ supply of the controversial drug it is using for executions, midazolam, is set to expire April 30. Midazolam is medically used as an anti-anxiety sedative, not an anesthetic. Experts have concerns about the drug’s ability to render a person fully unconscious, heightening the risk of an unconstitutionally cruel punishment. The lawyers defending the men scheduled for death are arguing that the short time will limit their ability to provide effective counsel and that the execution team will be so stressed that they will probably make mistakes.

UPDATE: There have been consequential legal developments in Arkansas since I authored this post roughly 24 hours ago. This local article provides the highlights in its opening paragraphs:

A federal judge issued an injunction early Saturday to halt the executions of several condemned Arkansas inmates, creating another barrier to the state's plan to put them to death over an 11-day period starting Monday.

The Arkansas Attorney General's office called the decision "unfortunate" and filed a notice of appeal with the 8th U.S. Circuit Court of Appeals.

The ruling came a day after the Arkansas Supreme Court first issued an emergency stay blocking Bruce Ward's execution. That order didn't affect the other 6 condemned men, but Pulaski County Circuit Judge Wendell Griffen ruled a short time later that a separate complaint filed by a medical supplier was cause to issue a temporary restraining order blocking all the executions. The state Attorney General, though, on Saturday asked the state Supreme Court to reverse Griffen and to remove him from the case.

U.S. District Judge Kristine Baker's ruling, issued shortly after 6 a.m., applies to all of the scheduled executions. Click here to read the full order 📄.

Baker wrote that "there is a significant possibility that plaintiffs will succeed on the merits of their Eighth Amendment challenge to Arkansas’s lethal injection protocol."

April 14, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12)

Saturday, April 08, 2017

"Cruel Techniques, Unusual Secrets"

The title of this post is the title of this new paper authored by William Berry and Meghan Ryan now available via SSRN. Here is the abstract:

In the recent case of Glossip v. Gross, the Supreme Court denied a death row petitioner’s challenge to Oklahoma’s lethal injection protocol.  An important part of Justice Alito’s majority opinion highlighted the existence of a relationship between the constitutionality of a punishment and the requirement of a constitutional technique available to administer the punishment.

Far from foreclosing future challenges, this principle ironically highlights the failure of the Court to describe the relationship under the Eighth Amendment between three distinct categories of punishment: (1) the type of punishment imposed by the court — i.e., death penalty, life without parole, life with parole, (2) the method of punishment — the tool by which the state administers the punishment, and (3) the technique of punishment — the manner in which the state administers the punishment.  Because, as Justice Alito insists, a constitutional method and technique must exist for a constitutionally approved punishment, there is a constitutional relationship between these categories.

As such, this Article articulates a holistic model for applying the Eighth Amendment on three levels — the punishment type, method, and technique.  This Article develops this taxonomy, making explicit the concepts implicit in a number of Eighth Amendment cases.  To be sure, the Court has assessed types of punishments, punishment methods, and punishment techniques individually, but it has never offered a holistic framework by which to understand these related constitutional inquiries.  This Article develops such an approach.

In light of the applicable framework, the Article then explores the Court’s application of the Eighth Amendment with respect to the three categories, demonstrating how the Court deviates from its doctrine when considering punishment techniques.  It next describes use of secrecy in the context of lethal injection, uncovering the manner in which this secrecy frustrates the application of the Eighth Amendment framework.  Further, the Article argues that the state-instigated secrecy does more than create a doctrinal smokescreen — it raises serious constitutional and legitimacy questions concerning lethal injection protocols.  Finally, the Article concludes by exploring what transparency in execution methods might mean both in terms of restoring dignity to death row prisoners and for the future of capital punishment in America.

April 8, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Thursday, April 06, 2017

Split Sixth Circuit panel uphold injunction blocking Ohio lethal injection protocol

A split Sixth Circuit panel today In re: Ohio Execution Protocol, No. 17-3076 (6th Cir. April 6, 2017) (available here), upheld a preliminary injunction blocking Ohio from moving forward with a number of scheduled executions. Here is how the majority opinion authored by Judge Moore gets started:

Ohio’s current execution protocol allows for execution by lethal injection using a three-drug combination of (1) midazolam; (2) either vecuronium bromide, pancuronium bromide, or rocuronium bromide, which are paralytics; and (3) potassium chloride, which stops the heart.  R. 667-1 (Ohio DRC Execution Protocol, 01- COM-11 at 2) (Page ID #19813).  The purpose of the first drug is to ensure that the person being executed is insensate to the pain that the second two drugs cause. It is undisputed that if the first drug does not “render the prisoner unconscious,” then “there is a substantial, constitutionally unacceptable risk of suffocation . . . and pain” from the second two drugs. Baze v. Rees, 553 U.S. 35, 53 (2008) (plurality op.).  The ultimate question in this case is whether use of midazolam as the first drug in this three-drug protocol “entails a substantial risk of severe pain” as compared to “a known and available alternative.”  Glossip v. Gross, 135 S. Ct. 2726, 2731 (2015). The question before us at this preliminary stage, however, is much narrower.  We ask only whether the district court abused its discretion by granting a preliminary injunction to allow for further litigation regarding midazolam’s efficacy before Ohio executes Ronald Phillips, Raymond Tibbetts, and Gary Otte.  For the reasons discussed below, we AFFIRM the judgment of the district court granting the preliminary injunction.

Here is how the dissenting opinion by Judge Kethledge gets started:

Roughly two decades have passed since the plaintiffs in this case murdered their victims. Ronald Phillips raped a three-year-old girl and beat her so badly that her internal organs ruptured. For two days she suffered intense abdominal pain and vomiting, until her heart collapsed.  See State v. Phillips, 656 N.E.2d 643, 650-52 (Ohio 1995). Gary Otte entered the home of an Ohio man, robbed him, and then shot him in the head. Two nights later, Otte pushed his way into a woman’s home and did the same things to her.  After each murder Otte went out partying.  See State v. Otte, 660 N.E.2d 711, 715-16 (Ohio 1996).  Raymond Tibbetts killed an elderly man and his caretaker. Police found the man slumped in his chair with butcher knives protruding from his chest and back.  His caretaker lay on the floor in a pool of blood with her skull cracked open and its contents scattered nearby.  See State v. Tibbetts, 749 N.E.2d 226, 237–39 (Ohio 2001).

Phillips, Tibbetts, and Otte now claim that Ohio’s Execution Protocol would cause them to suffer severe pain in violation of the Eighth Amendment.  In a sense the claim is unprecedented: the Supreme Court “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015) (internal quotation marks omitted).  The State’s chosen procedure here is the same procedure (so far as the combination of drugs is concerned) that the Supreme Court refused to invalidate in Glossip.  Yet the district court thought we should likely invalidate that procedure, and today the majority agrees.  I respectfully disagree and would reverse the district court’s grant of a preliminary injunction.

A lengthy faculty meeting and a coming class mean I will not have a chance to read this extended opinion until late tonight, but I can already confidently predict that the State of Ohio will seek en banc review of this ruling and perhaps even Supreme Court review, if necessary.

April 6, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Thursday, March 30, 2017

Arkansas trial judge finds it "more than shameful" that state Supreme Court ruling required dismissal of condemned inmates suit over lethal injection

As reported in this local article, headlined "Suit over Arkansas execution drug gets dismissal; Griffen: Justices stole men’s rights," a trial judge in Arkansas is none-too-pleased he felt compelled to dismiss a challenge to lethal injection brought by state prisoners in the wake of a state Supreme Court ruling on the matter. Here are the basics of a notable ruling in a state seemingly poised now to conduct eight executions in the coming weeks:

The Arkansas Supreme Court's decision to lift a ban on the death penalty stole the rights of the nine convicted killers who filed suit to challenge the state's execution procedures, and it forces all state courts to continue that theft, Pulaski County Circuit Judge Wendell Griffen said in a ruling Tuesday.

"It amounts to theft of the rights guaranteed by the Constitution of this state and the Constitution of the United States to a trial," the judge wrote.

The ruling issued Tuesday by Griffen, a former Court of Appeals judge known for his outspokenness, formally ends 21 months of state-court litigation over the legality of the state's execution protocols. Griffen's dismissal of the inmates' Circuit Court lawsuit comes as eight of those inmates face lethal injection next month in four two-per-day execution sessions.

The prisoners have filed two federal lawsuits this week attempting to halt the process. On Tuesday, they sued to stop the ongoing clemency hearings, arguing that the state is moving forward with their executions so quickly that their clemency petitions are not getting the consideration required by law. A federal lawsuit that they filed Monday disputes that the anesthetic midazolam will give them the painless death they are entitled to under constitutional protections that bar the infliction of cruel and unusual punishment.

The inmates had disputed the effectiveness of midazolam at preventing suffering as part of their 2015 state-court lawsuit before Griffen. But they were not allowed to present their evidence in court because the Supreme Court ignored "decades" of case law to dismiss their entire lawsuit even before all of the issues the inmates had raised had been decided, Griffen wrote in Tuesday's order and memorandum.

"To think that the highest court in Arkansas would compel every other court in Arkansas to steal the last right condemned persons have to challenge the constitutionality of their execution illustrates the travesty of justice, and the damnable unfairness, this court is powerless to prevent," Griffen wrote.

State lawyers asked Griffen on March 16 to dismiss the killers' lawsuit based on the Supreme Court's June 2016 findings, a 4-3 decision written by Justice Courtney Goodson that reinstated the death penalty after a 10-year hiatus. Arkansas has not carried out an execution since 2005 because of litigation by inmates who have disputed the legality of changes the Legislature has made to the state's execution procedures over the past several years.

On March 17, the inmates' attorneys asked Griffen to rule in their favor on issues in the lawsuit that they stated the Supreme Court holding did not address. But the judge wrote that the Supreme Court decision required him to dismiss the lawsuit.

His 10-page ruling also states that the high court ignored decades of case law to deliberately deny the inmates their rights, and it suggests that the justices violated the oath all attorneys take to uphold the law to reach their conclusions. "It is an affront to, and dereliction of, the very oath every lawyer and judge swore before being admitted by the Supreme Court of this state. As such, it is more than troubling and more than shameful," Griffen wrote.

March 30, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thursday, March 16, 2017

Focused look at midazolam as the latest (but not greatest) execution protocol drug

Earlier this week, the New York Times had this extended article about a recent development in modern execution protocols. The piece is headline "When a Common Sedative Becomes an Execution Drug," and here are excerpts:

[D]ecades after the drug, known as midazolam, entered the market, a product more often used during colonoscopies and cardiac catheterizations has become central to executions around the country and the debate that surrounds capital punishment in the United States....

The most recent controversy is the extraordinary plan in Arkansas to execute eight inmates in 10 days next month. The state is racing the calendar: Its midazolam supply will expire at the end of April, and given the resistance of manufacturers to having the drug used in executions, Arkansas would most likely face major hurdles if it tried to restock.

In Arkansas, where no prisoner has been put to death since November 2005, midazolam is planned as the first of three drugs in the state’s lethal injections. The drug is intended to render a prisoner unconscious and keep him from experiencing pain later in the execution, when other drugs are administered to stop the breathing and heart.

Supporters of midazolam’s use, which the United States Supreme Court upheld in a case from Oklahoma less than two years ago, say it is a safe and effective substitute for execution drugs that have become difficult to purchase. Death penalty critics, citing executions that they say were botched, argue that midazolam puts prisoners at risk of an unconstitutionally painful punishment because the condemned may be insufficiently numbed to the agony caused by the execution drugs.

A major legal test is in Ohio, where a federal appeals court heard arguments last week about the drug’s future there. “The states will be watching the legal proceedings out of Ohio, but also the on-the-ground experiences out of Arkansas, Virginia and elsewhere,” said Megan McCracken, who specializes in lethal injection litigation at the law school of the University of California, Berkeley. “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.”

States have resisted such critiques, and during arguments last week before a federal appeals court in Cincinnati, Eric Murphy, the Ohio state solicitor, said midazolam’s use in a three-drug protocol “does not create a substantial risk of pain that is sure or very likely to occur.”...

[T]he drug’s critics have found limited solace in the courts, including the Supreme Court, which last month declined to hear cases from Alabama and Arkansas, both of which include midazolam in their lethal injection protocols. Those moves amounted to reinforcement of a ruling in 2015, when Justice Samuel A. Alito Jr., writing for a divided court, noted that the court had found “that the Constitution does not require the avoidance of all risk of pain.” He continued: “After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”

Indeed, some supporters of the death penalty, including people who have witnessed executions that included midazolam, have defended lethal injections and any pain they might cause violent offenders. Proponents also acknowledge that midazolam is far from a drug of choice for executions, but they blame abolitionists for effectively leaving states with limited choices. “No state would use it if they could get the barbiturates,” said Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation. “The opponents have created the situation where states are forced to use a drug that is not the optimum.”

March 16, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (10)

Friday, March 03, 2017

"The Return of the Firing Squad"

The title of this post is the headline of this lengthy new US News & World Report article, which carries this subheadline: "The execution method is making a comeback — but some argue that means the end of capital punishment is near." Here are excerpts:

An ongoing shortage of lethal injection drugs — coupled with the grisly spectacle of botched executions and a number of legal challenges to the use of less-effective substitute drugs — has several states, and at least one inmate, calling for the return of the firing squad.

In 2015, Utah Gov. Gary Herbert, a Republican, signed a bill that established firing squads as an execution option, reversing an 11-year ban....  In Mississippi, a bill authorizing firing squads cleared the state House in early February before the state Senate shot it down. Firing squads are on the books in Oklahoma, and lawmakers in other Southern states are said to be considering similar legislation.

Meanwhile, in late February, the U.S. Supreme Court denied the request by Thomas Arthur, an Alabama death-row prisoner who wanted the state to fatally shoot him rather than subject him to the likelihood of a painful death from secret, experimental lethal-injection drugs.

But Supreme Court Justice Sonia Sotomayor excoriated her colleagues for tacitly endorsing execution methods that could reasonably be considered as cruel or inhumane — and she pointed to firing squads as the way to go.  "Some might find this choice regressive, but the available evidence suggests that a competently performed shooting may cause nearly instant death," Sotomayor wrote in a blistering dissent.  "In addition to being near instant, death by shooting may also be comparatively painless.  And historically, the firing squad has yielded significantly fewer botched executions."

Death penalty opponents, however, say firing squads aren't fail-safe, the condemned don't always die immediately and the procedure smacks of tin-horn dictatorships, undermining America's global standing as a champion of human rights. That states are looking to salvage the practice, they say, is yet another sign that capital punishment is on its way out.

"I think that the death penalty is in big trouble in the United States," says Austin Sarat, an associate dean and law and political science professor at Amherst College. "The legitimacy of capital punishment has been sustained in part by the belief that we could find a way of execution that would be safe, reliable and sane," says Sarat, the author of "Gruesome Spectacles: Botched Executions and America's Death Penalty."  He notes the same arguments officials are making for the firing squad — it's quick, it's humane, it's reliable — were the same ones proponents used for lethal injections as its more clinical, civilized replacement. "It's a back-to-the-future [method] that was replaced for a reason," Sarat says....

"The elusive search in the modern era for humane methods of execution was a reaction to the perceived barbarity of death by methods like the firing squad," Phyllis Goldfarb, a George Washington University law professor, writes in an email. "Death by firing squad is not pain- and botch-free," Goldfarb writes, noting some marksmen have missed the heart target and hit other parts of the body, while others have fired prematurely. "The condemned dies from blood loss and loses consciousness when blood supplied to the brain drops precipitously. Even when the people in the firing squad hit their target as intended, it may take at least a couple of minutes for the condemned to die and sometimes much longer."

To that point, firing-squad proponents have a quick retort: So what? "How could a civilized society place a man before a firing squad, [opponents] ask," writes Joseph R. Murray II, a guest columnist for the Jackson, Miss., Clarion Ledger, commenting on the debate over the state's proposal to have inmates die by the bullet.

"To these folks, that's third-world justice. But isn't a firing squad the most humane way to execute a criminal? Isn't death instantaneous?" Murray asks. "Where lethal injection could go awry, causing prolonged pain, and electrocution could not work effectively, there is no doubt multiple bullets do the job quickly and safely."

Goldfarb says if authorities want to be absolutely certain that an inmate dies instantly without pain or suffering, they can choose another target on the body.  "Firing a gun at point blank range into the head" is 100 percent effective, and "would cause a near-instantaneous death.  But it would be exceedingly violent and destructive," Goldfarb writes. "But could we ask someone to inflict that kind of violence on another as part of their job as a state employee?  If the state were to authorize such a gruesome spectacle in the name of law, how could we maintain our standing in the world as a protector of human rights?"

Still, she predicts the firing squad debate could go far in the current law-and-order climate ushered in with President Donald Trump's inauguration. "I see the present moment as one in which fair debate based on factual evidence is being threatened and 'fear of the other' who would use violence to harm 'us' is being fanned for political gain," she writes. "These are the emotional conditions that have allowed the death penalty to persist in America — providing a simple answer to a complex problem."

Still, "there may be pockets of renewed death penalty support, using whatever methods are permitted," writes Goldfarb. "But I don't think that approach will become widespread again, as it degrades us as a society and depends on rhetoric that is divisive, cynical, extremely racialized, and ultimately corrosive to America."

March 3, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

Wednesday, March 01, 2017

Arkansas Gov signs proclamations that could lead to eight executions in less than two weeks in next month

There has so far been only four executions nationwide in 2017.  The just concluded month of February had no executions, and this Death Penalty Information Center list of upcoming executions suggests that there are only two serious execution dates (both in Texas) for March.  But this local article from Arkansas, headlined "Arkansas Governor schedules execution dates for 8 inmates," the Natural State could be poised for a record-setting April. Here are the details:

Arkansas’ governor on Monday set execution dates over a 10-day period in an attempt to resume the death penalty after a nearly 12-year hiatus, even though the state lacks one of three drugs needed to put the men to death.  Gov. Asa Hutchinson signed proclamations scheduling double-executions on four days in April for the eight inmates.  The quick schedule appears aimed at putting the inmates to death before another one of the state’s lethal injection drugs expire, and if carried out would mark the first time in nearly two decades a state has executed that many inmates in a month.

The move comes just days after the state’s attorney general told the governor the inmates had exhausted their appeals and there were no more legal obstacles to their executions. “This action is necessary to fulfill the requirement of the law, but it is also important to bring closure to the victims’ families who have lived with the court appeals and uncertainty for a very long time,” Hutchinson said in a statement.

The U.S. Supreme Court last week rejected the inmates’ request to review a state court ruling that upheld Arkansas’ lethal injection law. The state Supreme Court on Friday lifted the stay on its ruling, clearing the way for Arkansas Attorney General Leslie Rutledge to request the dates be set. Arkansas hasn’t executed an inmate since 2005 due to legal challenges and difficulties obtaining execution drugs.

The state’s supply of potassium chloride — one of three drugs used in lethal injections — expired in January. A prison system spokesman said Monday that the drug hasn’t been replaced, but Hutchinson’s office said officials were confident they could obtain more. And the state’s supply of midazolam lists an April 2017 expiration date, which pharmacy experts say is commonly accepted to mean the end of the month.  The state’s supply of vecuronium bromide expires on March 1, 2018.

The inmates late Friday filed an amended complaint in state court aimed at blocking the executions, again arguing the lethal injection law and the three-drug protocol are unconstitutional.  Attorneys for the inmates argued Monday in a letter to Hutchinson that the state Supreme Court’s stay is in place until that complaint is resolved. They said the current protocol “is almost certain to cause the prisoners excruciating suffering.”...

Since the U.S. Supreme Court reinstated the death penalty in 1976, only Texas has put eight people to death in a month — doing it twice in 1997.  Arkansas has had multiple executions in the past, including triple executions in 1994 and 1997.  At the time, the state Correction Department said multiple executions reduced stress on prison staff.

For a host of reasons, I will be surprised if Arkansas is able to move forward with eight executions over the last two weeks of April. But these developments certainly signal that the state is serious about getting its machinery of death up and running again ASAP.

March 1, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

Tuesday, February 21, 2017

Justice Sotomayor (joined by Justice Breyer) authors lengthy dissent to denial of cert in Alabama lethal injection protocol challenge

This morning, the US Supreme Court got back to work through the issuance of this lengthy order list.  The one cert grant was involves a federal criminal case, Class v. US, concerning whether a defendant who pleads guilty can still challenge the constitutionality his statute of conviction (SCOTUSblog case page here).  But the part of the order list likely to get the most attention is this lengthy dissent from the denial of certiorari  authored by Justice Sotomayor in a Alabama capital case concern lethal injection protocols.  Here is the start, heart and end of the extended opinion (which Justice Breyer joined in full):

Nearly two years ago in Glossip v. Gross, 576 U. S. ___ (2015), the Court issued a macabre challenge. In order to successfully attack a State’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the State’s chosen method risks severe pain, but must also propose a “known and available” alternative method for his own execution. Id., at ___, ___ (slip op., at 13, 15).

Petitioner Thomas Arthur, a prisoner on Alabama’s death row, has met this challenge. He has amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he has proposed an alternative — death by firing squad.  The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Arthur’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip.  Because this decision permits States to immunize their methods of execution — no matter how cruel or how unusual — from judicial review and thus permits state law to subvert the Federal Constitution, I would grant certiorari and reverse.  I dissent from my colleagues’ decision not to do so....

The decision below permits a State, by statute, to bar a death-row inmate from vindicating a right guaranteed by the Eighth Amendment. Under this view, even if a prisoner can prove that the State plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a State has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method.  This cannot be right....

The decision below is all the more troubling because it would put an end to an ongoing national conversation — between the legislatures and the courts — around the methods of execution the Constitution tolerates.  The meaning of the Eighth Amendment’s prohibition on cruel and unusual punishments “is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791” but instead derives from “‘the evolving standards of decency that mark the progress of a maturing society.’” Kennedy v. Louisiana, 554 U. S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)).  Evolving standards have yielded a familiar cycle: States develop a method of execution, which is generally accepted for a time.  Science then reveals that — unknown to the previous generation — the States’ chosen method of execution causes unconstitutional levels of suffering.  A new method of execution is devised, and the dialogue continues.  The Eighth Amendment requires this conversation.  States should not be permitted to silence it by statute....

Twice in recent years, this Court has observed that it “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze, 553 U. S., at 48 (plurality opinion); Glossip, 576 U. S., at ___ (slip op., at 3) (same).  In Glossip, the majority opinion remarked that the Court “did not retreat” from this nonintervention strategy even after Louisiana strapped a 17-year-old boy to its electric chair and, having failed to kill him the first time, argued for a second try — which this Court permitted. Id., at ___– ___ (slip op., at 3–4).  We should not be proud of this history.  Nor should we rely on it to excuse our current inaction.

February 21, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

Saturday, February 18, 2017

BYOD in Az: spotlighting Arizona's (cheeky?) drug acquisition provision in its latest execution protocol

This AP article reports on a notable an unusual provision in Arizona's new execution protocol.  The article is headlined "Arizona to death-row inmates: Bring your own execution drugs," and here are details:

The recent revelation that condemned prisoners in Arizona can now provide the lethal drugs to be used in their executions has received attention around the world and raised questions about the state's rules for the death penalty.

The novel policy has drawn sneers from defense attorneys who were puzzled as to why the state would think that they would assist in killing their clients.  It has inspired wisecracks about Arizona's penchant for taking on envelope-pushing criminal justice policies and left some readers on social media asking whether the bring-your-own-drugs policy was actually the product of a news parody website.

Criminal defense lawyers and death penalty experts say they have never heard of a state suggesting that condemned inmates can line up drugs to be used in their executions.  However unlikely it is that any of Arizona's 119 death-row inmates will take up the offer, the change is a reflection of the difficulties that Arizona, like other states, faces in finding execution drugs now that European pharmaceutical companies have blocked the use of their products for lethal injections.

Executions in Arizona have been on hold since the 2014 death of convicted killer Joseph Rudolph Wood, who was given 15 doses of the sedative midazolam and a painkiller and who took nearly two hours to die.  The state will not be able to carry out executions until the resolution of a lawsuit that alleges Arizona has abused its discretion in the methods and amounts of drugs used in past executions.

The state hasn't publicly explained its aim in taking on the new policy, which surfaced last month in the lawsuit. The Arizona Department of Corrections, which carries out executions, didn't respond to requests for comment. The Arizona Attorney General's Office, which is defending the state in the lawsuit, declined to comment.

Under the policy, the state's top prison official would be required, in one execution drug protocol, to use the barbiturate pentobarbital that's obtained by lawyers for inmates or someone acting on their behalf.  The corrections director also would have the choice of picking one of two drug protocols involving the sodium pentothal if the barbiturate is obtained on behalf of a prisoner....

Dale Baich, an assistant federal public defender who represents the inmates in the lawsuit,... explained that the policy is unfeasible because the Controlled Substances Act prohibits attorneys and inmates from getting the drugs. "As a lawyer, I just can't go to local Walgreens and pick up a couple of vials of pentobarbital," Baich said.

It's the responsibility of the state, not condemned prisoners, to carry out executions, Baich added. The policy would seem to appeal to inmates who have abandoned their appeals and want to speed up their executions. But Baich said the Controlled Substances Act would still prevent those prisoners from getting lethal-injection drugs.

Robert Dunham, executive director of the Death Penalty Information Center, which has been critical of the way executions are carried out in the United States, said the policy also raises ethical concerns. Death-penalty lawyers are supposed to zealously represent their clients and have a duty not to take actions that harm them, Dunham said. "No one has done it before, and the fact that it is impossible, impractical, illegal and unethical may have something to do with that," he said.

Timothy Agan, a longtime criminal defense lawyer in Phoenix who has handled several death penalty cases, said he can't imagine condemned prisoners lining up to seek their own execution drugs and couldn't foresee a situation in which the policy would be used.

Arizona's revised executions protocol is available at this link, and on page 28 one finds this language (with my emphasis added):

The Director shall have the sole discretion as to which drug protocol will be used for the scheduled execution. This decision will be provided to the inmate and their counsel of record in writing at the time the state files a request for Warrant of Execution in the Arizona Supreme Court. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical pentobarbital in sufficient quantity and quality to successfully implement the one-drug protocol with pentobarbital set forth in Chart A, then the Director shall use the one-drug protocol with pentobarbital set forth in Chart A as the drug protocol for execution. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are unable to obtain such pentobarbital, but are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical sodium pentothal in sufficient quantity and quality to successfully implement the one-drug protocol with sodium pentothal set forth in Chart B or the three-drug protocol with sodium pentothal set forth in Chart C, then the Director shall have the sole discretion as to which drug protocol (Chart B or Chart C) will be used for the scheduled execution.

February 18, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Saturday, February 11, 2017

Ohio Gov forced to delay scheduled executions yet again due to lethal injection ltigation

As this local article reports, "Gov. John Kasich has delayed eight scheduled executions because of continuing litigation over lethal injection drugs." Here are the details:

The governor used his executive clemency authority to reschedule the executions, beginning with Ronald Phillips who was to be put to death on Wednesday for the 1993 rape and murder of three-year-old Sheila Marie Evans. Phillips will now be executed on May 10, under the revised schedule.

The delays follow the Jan. 26 decision by U.S. District Court Magistrate Judge Craig Merz barred the state's use of a three-drug protocol, declaring it unconstitutional, and blocked the pending execution of Phillips and two other inmates. The state has appealed the ruling to the 6th U.S. Circuit Court of Appeals.

"While Ohio is confident its appeal will ultimately be successful ... the appellate court's scheduling will not allow the matter to be resolved in time to allow the state to move forward with its current execution dates," Kasich's office said in a statement this morning. "Accordingly, these delays are necessary to allow the judicial process to come to a full resolution, and ensure that the state can move forward with the executions."

Merz's lengthy order cited problems with executions in other states with the use of midazolam, one of the three drugs in Ohio's protocol, along with rocuronium bromide and potassium chloride.

Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked, gasped and struggled against his restraints for much of the 26 minutes it took for him to die. Midazolam was one of the drugs used to execute McGuire.

The revised schedule after Phillips [includes] Gary Otte, moved to June 13 from March 15 [and] Raymond Tibbetts, moved to July 26 from April 12.

Ever since Ohio announced it had acquired execution drugs and had a new execution protocol in early Fall 2016, I have been expecting and sort-of predicting that Ohio would finally find a way to get its machinery of death back up and running again in 2017. Given some prior Sixth Circuit and Supreme Court rulings, I continue to think Ohio will be able to complete some executions this year. But, of course, lethal injection litigation can be like Forrest Gump's box of chocolates: you never quite know what you are gonna get.

February 11, 2017 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Friday, February 10, 2017

Mississippi taking steps to have firing squad, electric chair and gas chamber as execution methods again

As reported in this new Fox News piece, "Mississippi lawmakers want to bring back the firing squad, electric chair and gas chamber as execution methods, a step three other states have taken recently, but for a different reason." Here is more:

Oklahoma reintroduced the gas chamber, Utah the firing squad and Tennessee the electric chair in response to a nationwide scarcity of lethal injection drugs for death row inmates.

Mississippi legislator Andy Gipson said he introduced House Bill 638 in response to lawsuits filed by “liberal, left-wing radicals” challenging the use of lethal injection drugs as cruel and unusual punishment. "I have a constituent whose daughter was raped and killed by a serial killer over 25 years ago, and that person's still waiting for the death penalty. The family is still waiting for justice," Gipson told the Associated Press.

Gipson’s bill passed the House Wednesday, 74-43, and moves to the Senate for more debate.

Mississippi hasn't been able to acquire the execution drugs it once used, and it last carried out an execution in 2012. The state has 47 people on death row, and some have been there for decades.

The 33 states with the death penalty all have lethal injection as the primary method of execution, according to the Death Penalty Information Center and its executive director, Robert Dunham. The center says only Oklahoma and Utah have firing squads as an option; eight states have electrocution, five have the gas chamber, and three have hanging.

The firing squad became an option in Utah in 2015. That same year, Oklahoma Gov. Mary Fallin signed legislation to use nitrogen gas as an option. Tennessee enacted a law bringing back the electric chair in 2014.

“It’s interesting that what we anticipated would happen is happening,” Dunham told FoxNews.com Friday. “As states are having difficulty obtaining drugs for lethal injections, they’re looking at different options.” He expects legal challenges in states that reintroduce old execution methods. “What you will see is when states change their method of execution, there are invariably legal challenges that arise,” Dunham said.

Jim Craig, an attorney who is suing Mississippi over lethal injection drugs, told The Associated Press on Wednesday that each of the proposed new methods of executions would be challenged in court. "Every single one, in essence, just injects a whole new series of issues in the existing case," said Craig, who is with the New Orleans-based Roderick & Solange MacArthur Justice Center. He said with the firing squad, for example, the state would have to set protocols and procedures to reduce the risk of torture, and he doubts the Department of Corrections has prepared to do that....

Oklahoma officials told Fox 25 in November they haven’t established protocols to use nitrogen gas as a backup execution method but have heard from a company offering pain-free and mistake-free gas chamber executions. The company sent a letter to Oklahoma Department of Corrections guaranteeing the “demise of any mammalian life within four minutes,” according to the station.

February 10, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15)

Thursday, January 26, 2017

Federal magistrate judge rules Ohio's new 3-drug lethal injection protocol is unconstitutional and blocks coming scheduled executions

As reported in this local piece, a "federal magistrate judge on Thursday barred the use of a three-drug cocktail the state of Ohio planned to use to execute death-row inmates, declaring the method the state prefers to be unconstitutional." Here is more about the opinion:

Magistrate Judge David Merz of Dayton also halted the executions of three inmates scheduled to be executed in the coming months, two of which came from Northeast Ohio. Merz, in his 119-page order, ruled that there were enough problems with all three of the drugs Ohio intends to use in its execution protocol to warrant this disallowance. Two states, Arizona and Florida, have discontinued the use of one of the drugs, named midazolam.

"The Court concludes that use of midazolam as the first drug in Ohio's present three-drug protocol will create a 'substantial risk of serious harm' or an 'objectively intolerable risk of harm' as required by (Supreme Court precedent)," Merz wrote.

The ruling is a success for the inmates challenging Ohio's execution protocols and anti-death-penalty advocates who have sought to chip away at the state's ability to execute people since executions resumed in 1999. It may be short lived, though, as the ruling is all but guaranteed to be appealed. A spokeswoman for Ohio Attorney General Mike DeWine's office said the office is reviewing the decision.

Ohio hasn't executed anyone since January 2014, when it took killer Dennis McGuire 25 minutes to die from a previously unused execution drug combination. McGuire was administered a cocktail that included midazolam. Witnesses said he appeared to gasp several times during his execution and made loud snorting or snoring sounds.

State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October. The challenge that led to Merz's ruling Thursday was also borne out of McGuire's execution. During a hearing earlier this month, Merz heard testimony on all three drugs. His ruling Thursday said that the state cannot use any cocktail that contained potassium chloride or rocuronium bromide, a paralytic agent, since the state told a court in a previous proceeding that it would not use such drugs during future executions....

Ohio has had trouble in recent years getting drugs to use for lethal injections in part because pharmaceutical companies don't want their products used for killing people. In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs. That law was challenged, though courts have declined to declare the law unconstitutional.

The full 199-page opinion In re Ohio Execution Protocol Litigation, No. 2:11-cv-1016 (S.D. Ohio Jan 26, 2017), is available at this link.  I have an inkling that the state of Ohio may get around to appealing the decision even before I get around to reading it in full because the state likely is eager to preserve the scheduled Feb 15 execution date for child murderer Ronald Phillips.

January 26, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (13)

Thursday, January 19, 2017

Using execution protocol with midazolam, Virginia completes second execution of 2017

As reported in this Reuters piece headlined "Virginia inmate executed despite arguments against drug 'cocktail'," Virginia carried out an execution last night that was notable in part because of the type of lethal injection drugs acquired and utilized.  Here are the details:

Ricky Gray, 39, died by lethal injection at 9:42 p.m. at the Greensville Correctional Center, Virginia Department of Corrections spokeswoman Lisa Kinney said in an emailed statement.

Gray's lawyers filed an emergency petition with the Supreme Court on Tuesday, saying that the three-drug combination could cause Gray unnecessary suffering and thereby violate constitutional guarantees against cruel and unusual punishment.  Kinney told reporters after the execution there did not appear to be any complications with the injection.

According to Gray's stay request, the execution marks the first time a U.S. state has used two of the drugs — midazolam and potassium chloride — provided by a compounding pharmacy. Gray's lawyers argue that compounding pharmacies typically follow an informal recipe attempting to approximate the patented process approved by the U.S. Food and Drug Administration....  Gray's attorneys say that midazolam has already failed to render prisoners unconscious during executions in Alabama, Arizona, Ohio and Oklahoma.

Pharmaceutical manufacturers have stopped making some drugs available for use in executions, and Virginia state law allows the vendor's identity to remain secret. Arizona last month reached a settlement with lawyers for death row inmates that would bar midazolam from use in executions.

Gray was sentenced to die for the 2006 slayings of sisters Ruby Harvey, 4, and Stella Harvey, 9, in Richmond. He also killed their parents, Bryan Harvey, 49, and Kathryn Harvey, 39. His accomplice, Ray Dandridge, was sentenced to life. The pair also killed Ashley Baskerville, 21, who had been a lookout when Gray killed the Harveys as well as her mother, Mary Tucker, 47, and stepfather Percyell Tucker, 55.

Gray has said he is willing to die by firing squad, which is not an option for executions in Virginia. Gray's execution marks the second in the United States this year.

I believe the execution protocol used in Virginia in this instance is similar to the protocol that Ohio wants to use to get back into the execution game next month, and thus I suspect Ohio correction officials are hoping this execution sets a precedent allowing Ohio to move forward. Ohio, notably, has had only one execution over the last three years because of problems acquiring lethal injection drugs. But if they get these problems worked out, there is every reason to suspect the state may get back into the habit of completing five or more executions every year because it has dozens of death row inmates with "serious" execution dates.

January 19, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, January 06, 2017

"Facing the Firing Squad"

The title of this post is the title of this notable new piece by Andrew Jensen Kerr available via the Georgetown Law Journal website. Here is the abstract:

The recent Supreme Court decision in Glossip v. Gross affirmed the legality of midazolam for use in lethal injection.  The 5–4 majority opinion reads the Constitution to require an available form of execution.  But it does little to counter Professor Denno’s claim in “Lethal Injection Chaos Post-Baze” that pragmatic supply-side concerns should dismantle the economy for lethal injection.  Off-brand substitutes for lethal injection drugs have led to recent high-profile botches.  Both Utah and Wyoming have proposed a return to the firing squad.  Lethal injection is comparatively sanitary and bureaucratic.  But I respond that the firing squad is more coherent with death penalty administration heuristic concerns of retribution and dignity.  The visibility of the firing squad also serves an abolitionist, information-forcing function by requiring a candid look at death penalty process from the perspective of the executed.

January 6, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Wednesday, January 04, 2017

"Texas sues feds over confiscated execution drugs"

The title of this post is the headline of this notable new Dallas Morning News article reporting on some notably different kind of execution drug litigation. Here are the details:

For nearly a year and a half, the U.S. Food and Drug Administration has detained a shipment of about 1,000 vials of execution drugs headed for Texas' death chamber. On Tuesday, Texas officials demanded an end to the delays, filing a lawsuit that seeks to force the feds to turn over the drugs. "My office will not allow the FDA to sit on its hands and thereby impair Texas' responsibility to carry out its law enforcement duties," Texas Attorney General Ken Paxton said in a statement.

Texas and other states that still execute inmates have been hard-pressed to find lethal injection drugs in recent years. American companies have stopped making the drugs, and European makers have stopped selling them to the U.S. Amid the drug shortage in 2012, Texas switched from the three-drug cocktail it used since 1982 to a single overdosing injection of pentobarbital, a barbiturate, but that drug, too, is in short supply.

In July 2015, the FDA intercepted about 1,000 vials of sodium thiopental, also a barbiturate, that Texas was attempting to import from a foreign seller at the George Bush Intercontinental Airport in Houston. FDA officials said that the drugs lacked the required warnings and directions for use and that they needed federal approval. The state responded to the FDA, explaining that the drugs were legal for importation for law enforcement use. In April 2016, the FDA issued a tentative decision denying admission of the drugs. But since then, the agency hasn't issued a final decision and has kept the drugs.

In the lawsuit filed Tuesday, Paxton argued the delays are unwarranted and should come to an end. "Because FDA's delay is unreasonable, TDCJ requests the Court to declare that the delay is unlawful and compel FDA to render a final admissibility decision," the lawsuit states.

As execution drugs have become harder to obtain, the state has turned to compounding pharmacies to make them, has sought drugs from foreign providers and has sought to restrict public access to information about where and how it gets drugs used in lethal injections....

"The Texas Department of Criminal Justice lawfully ordered and obtained the necessary license to import drugs used in the lethal injection process, yet the Food and Drug Administration stopped the shipment and continues to hold it without justification. This has left the agency with no other recourse than to challenge the unjustified seizure in court," Texas Department of Criminal Justice spokesman Jason Clark said in a statement.

Clark said the TDCJ has enough drugs on hand to complete the nine executions scheduled for the first six months of this year. "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process," Clark said.

January 4, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Saturday, December 31, 2016

Split Sixth Circuit ruling upholding protective order concerning lethal injection drugs might(!?!) enable Ohio to get back into execution game

As this local article reports, in the afternoon of the last business day of 2016, a Sixth Circuit panel "upheld a protective order shielding the state of Ohio from having to disclose the names of those who make or use the state's lethal-injection drugs."  Here is more about the ruling and its context:

In a 2-1 decision, the appeals court panel ruled that a district court judge was justified in issuing the secrecy order, which was made on the grounds that it was needed to protect lethal-injection drugmakers from public intimidation and harassment. The lawsuit, brought by more than 65 death-row inmates, contended that the state shouldn't be allowed to use drugs procured from anonymous suppliers and evaluators.

Ohio had postponed its next three executions by several weeks at the behest of a federal magistrate, who feared the appeals court wouldn't make this ruling before a Jan. 3 court hearing for the first three inmates scheduled to die. As a result, Gov. John Kasich delayed the resumption of executions from Jan. 12 to Feb. 15, starting with convicted child killer Ronald Phillips of Akron. It's unclear whether that revised schedule will stay in place now that the appeals court has ruled....

Ohio hasn't executed anyone since January 2014, when killer Dennis McGuire took 25 minutes to die from a previously unused execution drug combination. State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October....

In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs.

The full ruling is available at this link, and the fact that the panel opinion included a dissent could entail further en banc or SCOTUS appeals on just this semi-procedural issue involving a protective order. Even without further appeals, though, there is an evidentiary review on tap for the first week of January concerning Ohio's new execution drug protocol, and that litigation has already led in part to a short delay of scheduled executions. In other words, this Sixth Circuit panel ruling may clear one obstacle for Ohio resuming executions, but there are additional litigation road-blocks still ahead.

December 31, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, December 29, 2016

Will Ohio get back in the business of state killing in 2017?

The question in the title of this post is prompted in part by my awareness of lots of messy on-going litigation in the Buckeye State over execution protocols and in part by this new local AP article headlined "Court weighs challenge of order blocking Ohio execution info."  Here are excerpts from the AP piece:

A federal appeals court is weighing a challenge by attorneys for death row inmates of a judge's order blocking them from information about Ohio's new lethal injection process. The pending decision by the 6th Circuit Court of Appeals will help determine whether Ohio will proceed with its first executions in three years beginning in February.

Ohio plans to execute Ronald Phillips on Feb. 15 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another execution is scheduled for April.

At issue are new efforts the state is making to shield information about lethal injection in hopes of jumpstarting executions in Ohio, which have been on hold since January 2014. That's when it took condemned inmate Dennis McGuire 26 minutes to die from a never-before-used two-drug method while he repeatedly gasped and snorted.

For example, a 2015 law blocks anyone from getting information about individuals or entities participating in executions, including companies that make or mix drugs. The 6th circuit last year upheld that law while rejecting free speech allegations raised by death row inmates.

What's before the appeals court now is a protective order issued by a federal judge last fall that bars the release of information about lethal injection requested by attorneys for Phillips and two other inmates scheduled for execution in 2017.  That order, by retired Judge Gregory Frost, held that the state's need to obtain the drugs outweighs concerns by death row inmates that the information is needed to meaningfully challenge the source of the drugs, such as names of the manufacturers.

Federal Magistrate Judge Michael Merz in Dayton cited the current 6th Circuit case earlier this month when he put executions on hold. He said the hold could be lifted after the court rules. Attorneys for death row inmates argue they can't meaningfully challenge the use of the drugs without the information. They also said the secrecy protections are unnecessary given the history of lawsuits over lethal injection in Ohio....

The Department of Rehabilitation and Correction in October announced plans to use a new three-drug combination — midazolam, rocuronium bromide and potassium chloride — for at least three executions. Phillips and other inmates want to block the new procedure, arguing that it will result in a painful and barbaric death.

December 29, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, December 20, 2016

The grand capital problems in the Grand Canyon state

This local article, headlined "After 2½-year hiatus, death penalty still up in the air in Arizona," reviews at great length all the legal and practical challenges facing the Grand Canyon state in the arena of the death penalty. Here are excerpts from the start and end of the piece:

A federal judge has kept executions in Arizona on hold for 2½ years, and a flurry of year-end court actions in state and federal courts promise to prolong the chaotic status of the death penalty in the state.

While the state fights to resume executions of convicted murderers, litigation and court decisions challenge the way those executions are carried out, how capital cases are tried and how prosecutors decide when to seek death. Here is a digest of death-penalty issues at the close of 2016.

In July 2014, Joseph Wood snorted and gasped for nearly two hours on an execution gurney at the Arizona State Prison Complex in Florence because one of the drugs injected into him, midazolam, did not work as efficiently as the state of Arizona hoped it would.

U.S. District Judge Neil Wake was called while the execution was in progress. He held a telephonic hearing with attorneys for Wood and the state even as Wood was agonizing. Wake had been generally sympathetic to the Arizona Department of Corrections when it came to executions. But after the Wood execution, he set an injunction against executions in the state and demanded an analysis of the process. A year later, the U.S. Supreme Court approved the use of midazolam in an Oklahoma case despite another problematic execution with midazolam in that state.

More recently, midazolam was used Dec. 8 in a troublesome execution in Alabama, during which the condemned man coughed and flinched and took 34 minutes to die. Before pharmaceutical firms started refusing to sell them, more efficient drugs used to be available that led to death in 10 or so minutes. Those firms now refuse to sell midazolam to Arizona for future executions.

On Dec. 9, the Arizona Attorney General’s Office asked Wake to lift his injunction and declare the issues raised by Wood's case moot because it no longer has, and does not intend to obtain, midazolam. So far, Wake has refused to declare the case moot, reminding the Department of Corrections that it frequently veered from the protocol — the legal term for the specific method and drugs to be used — he had approved in court by changing execution drugs at the last minute. Defense attorneys who brought the case worry that the DOC will have the case mooted and then announce it has obtained a new drug. Corrections has yet to release a new protocol stating how it plans to carry out future executions. Drugs used before midazolam — thiopental and pentobarbital — also are no longer available.

The department has faced scrutiny for handling execution drugs in the past. In 2010, it purchased thiopental that was later ruled illegal from a supplier in England. In 2015, it tried to import the same drug from India. The shipment was stopped by federal officials at Sky Harbor International Airport.

A second federal lawsuit filed by a coalition of media outlets, including The Arizona Republic, seeks to force DOC to be more transparent in how it conducts executions, from revealing drug sources to allowing journalists to view all aspects of the execution, including how the prisoner is strapped to the execution gurney. At present, reporters and other witnesses can watch insertion of the catheters into the prisoner on closed-circuit TV and can watch the prisoner die through a glass window....

Corrections Director Charles Ryan has told reporters that he was looking into using firing squads in the event the state cannot not obtain any suitable drugs for execution by lethal injection. That change would require a voters’ initiative and an amendment to the Arizona Constitution.

Before the general election in November, The Republic polled voters about whether they would approve of firing squads as a means of execution. Sixty-eight percent said no. When respondents were broken down into subgroups, such as male and female, Republican and Democrat, the answer still was no.

UPDATE: This new BuzzFeed article reports on another new development in this arena. The headline and subhead tells the basic story: "After Botched Execution, Arizona Agrees To Never Use A Controversial Sedative Again: The state has agreed to stop using midazolam, a drug similar to valium that was linked to several botched executions in recent years. Without the drug, the state has few options on how to go forward with lethal injections."

December 20, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (4)

Friday, December 09, 2016

After split tied SCOTUS stay vote, Alabama completes last scheduled execution of 2016

As reported in this AP piece, the final scheduled execution in the United States in 2016 had a number of noteworthy events and elements for those who support and those who oppose capital punishment.  The AP article is headlined "Alabama inmate coughs, heaves 13 minutes into execution," though I think the SCOTUS action that proceeded the actual execution should be of particular interest for law geeks.  Here are some of the details:

A man who killed an Alabama convenience store clerk more than two decades ago was put to death Thursday night, an execution that required two consciousness tests as the inmate heaved and coughed 13 minutes into the lethal injection. Ronald Bert Smith Jr., 45, was pronounced dead at 11:05 p.m., about 30 minutes after the procedure began at the state prison in southwest Alabama. Smith was convicted of capital murder in the Nov. 8, 1994, fatal shooting of Huntsville store clerk Casey Wilson. A jury voted 7-5 to recommend a sentence of

life imprisonment, but a judge overrode that recommendation and sentenced Smith to death. Smith heaved and coughed repeatedly, clenching his fists and raising his head at the beginning of the execution. A prison guard performed two consciousness checks before the final two lethal drugs were administered.

In a consciousness test, a prison officer says the inmate's name, brushes his eyelashes and then pinches his left arm. During the first one, Smith moved his arm. He slightly raised his right arm again after the second consciousness test. The meaning of those movements will likely be debated. One of Smith's attorneys whispered to another attorney, "He's reacting," and pointed out the inmate's repeated movements. The state prison commissioner said he did not see any reaction to the consciousness tests....

Alabama uses the sedative midazolam as the first drug in a three-drug lethal injection combination. Smith and other inmates argued in a court case that the drug was an unreliable sedative and could cause them to feel pain, citing its use in problematic executions. The U.S. Supreme Court has upheld the use of the drug....

Wilson was pistol-whipped and then shot in the head during the robbery, court documents show. Surveillance video showed Smith entering the store and recovering spent shell casings from the bathroom where Wilson was shot, according to the record. In overriding the jury's recommendation at the 1995 trial, a judge likened the slaying to an execution, saying Wilson had already been pistol-whipped into submission and Smith ignored his pleas for mercy. Wilson had a newborn infant at the time of his death. "The trial court described Smith's acts as 'an execution style slaying.' Tonight, justice was finally served," Alabama Attorney General Luther Strange said in a statement after the execution.

U.S. Supreme Court justices twice paused the execution as Smith's attorneys argued for a delay, saying a judge shouldn't have been able to impose the death penalty when a jury recommended he receive life imprisonment. Four liberal justices said they would have halted the execution, but five were needed to do so.

Smith's attorneys had urged the nation's highest court to block the planned execution to review the judge's override. Smith's lawyers argued a January decision that struck down Florida's death penalty structure because it gave too much power to judges raises legal questions about Alabama's process. In Alabama, a jury can recommend a sentence of life without parole, but a judge can override that recommendation to impose a death sentence. Alabama is the only state that allows judicial override, they argued. "Alabama is alone among the states in allowing a judge to sentence someone to death based on judicial fact finding contrary to a jury's verdict," attorneys for Smith wrote Wednesday.

Lawyers for the state argued in a court filing Tuesday that the sentence was legally sound, and that it is appropriate for judges to make the sentencing decision....

Alabama has been attempting to resume executions after a lull caused by a shortage of execution drugs and litigation over the drugs used. The state executed Christopher Eugene Brooks in January for the 1993 rape and beating death of a woman. It was the state's first execution since 2013. Judges stayed two other executions that had been scheduled this year.

December 9, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Tuesday, November 08, 2016

Should and will SCOTUS take up Rommell Broom's constitutional claim that Ohio cannot try again to execute him after botched first attempt?

SCOTUSblog recently posted here its list of "Petitions to Watch" from the Supreme Court's scheduled conference of November 10, 2016, and all five cases on the list involve criminal justice issues. But the last of the listed petitions concerns a remarkable Ohio capital case that has been previously discussed on this blog, and is described this way:

Broom v. Ohio, No. 16-5580

Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.

I could discuss at great length not only why this case is so jurisprudentially interesting, but also why either a grant or a denial of cert at this stage of the litigation could prove quite interesting and controversial.  Rather than go off on such matters, however, I will be content for now to link to some of my prior posts on this this case:

November 8, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, November 04, 2016

Supreme Court (surprisingly?) grants last-minute stay of Alabama execution

As reported in this Washington Post article, the "Supreme Court stayed the execution Thursday night of an Alabama inmate who had been scheduled to die by lethal injection." Here is more about this interesting development and its context:

This marked the seventh time that Thomas D. Arthur — who was convicted of murder and is the second-oldest inmate on Alabama’s death row — had faced an execution date that was called off, according to the office of Alabama Attorney General Luther Strange. Arthur’s execution was scheduled for Thursday evening, but the uncertainty stretched into the night as officials in Alabama waited for the Supreme Court to consider his appeals.

Supreme Court Justice Clarence Thomas — the Supreme Court justice assigned to the 11th Circuit, which includes Alabama — said in an order shortly before 10:30 p.m. that he was halting the execution until he or the other justices issued another order. Thomas referred the case to the full court, and shortly before midnight, the justices issued an order granting Arthur’s stay request. The order included a statement from Chief Justice John G. Roberts Jr. explaining that while he did not believe this case merited a review from the Supreme Court, he had decided to vote for a stay anyway as a courtesy to his colleagues.

Roberts wrote that four of the other justices had voted in favor of staying the execution. “To afford them the opportunity to more fully consider the suitability of this case for review, including these circumstances, I vote to grant the stay as a courtesy,” he wrote. Roberts said Thomas and Justice Samuel Alito would have rejected the request; he did not explain why an eighth justice was not involved in the vote.

According to the court’s order, Arthur’s stay request would remain granted until the justices decide whether to consider the case. If they decide against it, the stay will be terminated. “We are greatly relieved by the Supreme Court’s decision granting a stay and now hope for the opportunity to present the merits of Mr. Arthur’s claims to the Court,” Suhana S. Han, an attorney for Arthur, said in a statement.

Arthur, 74, was sentenced to death for the 1982 killing of Troy Wicker, described in court records as the husband of a woman with whom Arthur had an affair. According to a summary of the case from the Alabama Supreme Court, Arthur was serving a life sentence for fatally shooting a relative of his common-law wife and, while on work release, had an affair with Wicker’s wife before killing Wicker. After three trials, Arthur was sentenced to death. One of his executions was called off after another inmate confessed to the killing, though a judge ultimately dismissed that inmate’s claim.

In appeals filed Thursday, Arthur’s attorneys argued that Alabama’s “deficient lethal injection protocol” would have had “torturous effects,” pointing to the state’s planned use of the sedative midazolam, which has been used in at least three executions that went awry. Last year, the Supreme Court upheld Oklahoma’s execution protocol in a case that hinged in part on that sedative.

Arthur’s court filings also argued that the state should execute him by firing squad, arguing that “execution by firing squad, if implemented properly, would result in a substantially lesser risk of harm” than the proposed lethal injection method. Strange’s office, in its response, noted that under Alabama state law, the Department of Corrections is only allowed to carry out executions by injection and electrocution.

Strange criticized the justices for their action late Thursday. “With all due respect to the Supreme Court, tonight’s order undermines the rule of law,” Strange said in a statement. “While I agree with Chief Justice Roberts that ‘This case does not merit the Court’s review,’ in my view, there is no ‘courtesy’ in voting to deny justice to the victims of a notorious and cold-blooded killer.”...

There have been 17 executions in the United States so far this year, according to the Death Penalty Information Center, and the country is on pace to have its fewest executions in a quarter-century. Arthur’s was one of four executions scheduled through the end of 2016, according to the center.

November 4, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Thursday, November 03, 2016

Death row defendants come up just short in big circuit panel rulings about lethal injection protocols

Though I am saddened that the lovable baseball club from Cleveland came up just short against a lovable baseball club from Chicago very early this morning, there are some death row defendants and lawyers who I suspect are much more troubled by a much more serious legal matter in which their arguments to federal circuit panels came up just short yesterday.   Specifically, two court panels, one in the Sixth Circuit and one in the Eleventh Circuit, yesterday handed down two split 2-1 rulings against death row defendants in Ohio and Alabama.  Here are links to the rulingsand the start of the majority opinions:

Phillips v. DeWine, No. 15-3238 (6th Cir. Nov. 2, 2016) (available here):

In this appeal, a group of inmates sentenced to death in Ohio challenge the constitutionality of the State’s newly enacted statutory scheme concerning the confidentiality of information related to lethal injection. The district court dismissed some of their claims for a lack of standing and the remainder for failure to state a claim. For the reasons stated below, we AFFIRM.

Arthur v. Alabama DOC, No. 16-15549 (11th Cir. Nov. 2, 2016) (available here):

It has been 34 years since Thomas Arthur brutally murdered Troy Wicker. During 1982 to 1992, Thomas Arthur was thrice tried, convicted, and sentenced to death for Wicker’s murder.  After his third death sentence in 1992, Arthur for the next 24 years has pursued, unsuccessfully, dozens of direct and post-conviction appeals in both state and federal courts.

In addition, starting nine years ago in 2007 and on three separate occasions, Arthur has filed civil lawsuits under 42 U.S.C. § 1983 challenging the drug protocol to be used in his execution.  This is Arthur’s third such § 1983 case, and this current § 1983 case was filed in 2011.  For the last five years Arthur has pursued this § 1983 case with the benefit of lengthy discovery. The district court held a two-day trial and entered two comprehensive orders denying Arthur § 1983 relief.  Those orders are the focus of the instant appeal.

After thorough review, we conclude substantial evidence supported the district court’s fact findings and, thus, Arthur has shown no clear error in them.  Further, Arthur has shown no error in the district court’s conclusions of law, inter alia, that: (1) Arthur failed to carry his burden to show compounded pentobarbital is a feasible, readily implemented, and available drug to the Alabama Department of Corrections (“ADOC”) for use in executions; (2) Alabama’s consciousness assessment protocol does not violate the Eighth Amendment or the Equal Protection Clause; and (3) Arthur’s belated firing-squad claim lacks merit.

November 3, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thursday, October 27, 2016

Defense attorneys assert Ohio's new execution protocol is akin to "burning at the stake"

As reported in this local AP article, capital defense attorneys in Ohio are not so impressed with the state's recently announced new execution protocol. The piece is headlined "Lawyers: Ohio Execution Plan Like Burning Inmates at Stake," and here are excerpts:

Ohio's new lethal injection system is akin to burning inmates at the stake or burying them alive, say federal defense lawyers rushing to stop the state's first execution in three years.

Ohio's three-drug method, announced Oct. 3, is worse than a similar procedure used years ago, and multiple problems remain with the way the state prepares and carries out executions, federal public defenders said in a Wednesday court filing.

The filing attacks the first drug in that process — midazolam, meant to sedate inmates — as unlikely to relieve an inmate's pain. The drug was used in problematic executions in Arizona and Ohio in 2014. But the U.S. Supreme Court last year upheld the use of midazolam in executions in a case out of Oklahoma.

According to the filing, because midazolam is not a barbiturate and cannot relieve pain, inmates are likely to experience "severe physical pain," mental suffering and anguish, As a result, "such an execution would be inhuman and barbarous, akin in its level of pain and suffering to being buried alive, burning at the stake, and other primitive methods long since abandoned by civilized society," the filing said.

Executions have been on hold in Ohio since January 2014, when death row inmate Dennis McGuire gasped and snorted during the 26 minutes it took him to die. It was the longest execution since Ohio resumed putting inmates to death in 1999. The state used a 2-drug method with McGuire, beginning with midazolam, but then discontinued it. Afterward, Ohio struggled for years to find new supplies of drugs, which have been placed off limits for executions by drug makers. Now the prisons agency says it will use midazolam; rocuronium bromide, which paralyzes the inmate; and potassium chloride, which stops the heart.

On Jan. 12, Ohio is scheduled to execute Ronald Phillips for the rape and murder of his girlfriend's 3-year-old daughter in Akron in 1993. The state also plans to carry out executions on Feb. 15 and March 15. But the federal defense lawyers say the new procedures are unconstitutional and executions in Ohio should be put on hold. The state will respond with its own filing, said Dan Tierney, a spokesman for Ohio Attorney General Mike DeWine.

Prior related post:

October 27, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (7)

Monday, October 24, 2016

Is the death penalty in the United States really "nearing Its end"?

The question in the title of this post is prompted by this notable new New York Times editorial headlined "The Death Penalty, Nearing Its End."  Here is the full text of the editorial:

Although the death penalty is still considered constitutional by the Supreme Court, Americans’ appetite for this barbaric practice diminishes with each passing year.  The signs of capital punishment’s impending demise are all around.

For the first time in nearly half a century, less than half of Americans said they support the death penalty, according to a Pew Research poll released last month.  While that proportion has been going down for years, the loss of majority support is an important marker against state-sanctioned killing.

At the same time, executions and new death sentences are at historic lows, and each year they go lower. In 2015 only 49 new death sentences were handed down, the lowest one-year total since the Supreme Court reinstated capital punishment in 1976.

Since there were about 14,000 murders around the country last year, it’s easy to imagine that the small number of newly condemned people shows that the justice system is focusing on the “worst of the worst.”  But that’s wrong. In fact the crimes of the people sentenced to death are no worse than those of many others who escape that fate. Rather, nearly all of last year’s death sentences came from a tiny fraction of counties with three common features: overzealous prosecutors; inadequate public defenders; and a pattern of racial bias and exclusion. This was the key finding of a two-part report recently issued by the Fair Punishment Project at Harvard Law School.

Even in the most death-friendly counties, public support appears to be fading. In two of the worst — Duval County in Florida and Caddo Parish in Louisiana — local prosecutors lost elections at least partly due to voters’ concerns about their stance on the death penalty. In other counties around the country, prosecutors are finding that aggressive advocacy for death sentences isn’t the selling point with the public that it once was.

In some of the biggest states, death-penalty systems are defunct or collapsing. Earlier this month, the Florida Supreme Court struck down a terrible state law that allowed nonunanimous juries to impose death sentences — increasing the likelihood that innocent people and those with intellectual or mental disabilities would be condemned.  A large number of Florida’s 386 death-row inmates could now receive new sentencing trials, or have their sentences thrown out altogether.

In California, which hasn’t executed anyone since 2006 even though more than 740 inmates sit on death row, voters will decide in November whether to eliminate capital punishment for good. A similar ballot initiative in 2012 was narrowly defeated. In 2014, a federal judge ruled that the state’s decades-long delays in capital cases violated the Eighth Amendment’s ban on cruel and unusual punishment. (The decision was overturned by an appeals court on technical grounds the following year.)

While capital punishment is used rarely and only in some places, only a definitive ruling from the Supreme Court will ensure its total elimination. How close is the court to such a ruling? In recent dissenting opinions, three of the justices — Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor — have expressed deep misgivings about the death penalty’s repeated failure to meet the requirements of due process and equal protection. Justice Breyer has said it is “highly likely that the death penalty violates the Eighth Amendment,” and has called for the court to consider whether it is constitutional at all.

The death penalty has escaped abolition before, but there are no longer any excuses: The nation has evolved past it, and it is long past time for the court to send this morally abhorrent practice to its oblivion.

I wonder if anyone who is a strong supporter of capital punishment will write (and get published) a response to this editorial which might be headlined something like "The Death Penalty, Poised for a Big Comeback."  That response might highlight that, according to polls in deep blue California, voters there are seemingly going to provide "majority support" for making more efficient in California "state-sanctioned killing."  That response might highlight that, in swing state Ohio, executive officials have been working extra hard to get the state's machinery of death operative again and have execution dates scheduled for nearly two dozen condemned murderers in 2017 and 2018.  That response might highlight that, in swing state Florida, the state legislature has been quick and eager to retain and revise its death penalty statutes every time a court has found constitutional problems with its application.  That response might highlight that, in deep blue Massachusetts, a federal jury in 2015 wasted little time in deciding that “worst of the worst” capital defendant Dzhokhar Tsarnaev should be condemned to die for his crime.  And that response might highlight that, in the most liberal national criminal justice administration of my lifetime, federal prosecutors of the Obama Administration were seemingly eager to pursue capital charges against the Charleston Church shooter Dylann Roof.

I could go on and on (mentioning, inter alia, developments in Alabama, Oklahoma, Nebraska and elsewhere), but my main point here is highlight the critical reality that the description of "death-penalty systems [as] defunct or collapsing" is largely a product of effective litigation by abolitionists and the work of courts, not really a reflection of a sea-change in public opinion or radical changes in the work of most legislatures and prosecutors in key regions of the United States.  The NYTimes editorial board my be right that we may soon see litigation by abolitionists achieve the ultimate success in the courts by having the Justices of the Supreme Court declare the death penalty per se unconstitutional.  But, absent some surprising political and social developments over the next few years, would-be abolitionists ought to be careful about counting chickens too soon.

October 24, 2016 in Baze and Glossip lethal injection cases, Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thursday, October 20, 2016

Georgia completes its seventh execution of 2016, bringing national execution total for year to 17

While many traditionally active death penalty states, such as Ohio and Oklahoma, have had their machineries of death inoperative in 2016 because of problems with lethal injection drugs or protocols, Georgia has had a record-setting peach of a year when it comes to carrying out executions.   This CBS/AP story reports on the latest Peach State execution and provides a little numerical and historical context for it:   

A man convicted of killing an Atlanta police officer and wounding a second officer with an AR-15 rifle was executed late Wednesday, becoming the seventh inmate put to death in Georgia this year. Gregory Paul Lawler, 63, was pronounced dead at 11:49 p.m. at the state prison in Jackson after he was injected with the barbiturate pentobarbital.  He was convicted of murder in the October 1997 slaying of Officer John Sowa and of critically wounding Officer Patricia Cocciolone.

The Georgia Supreme Court said in a statement Wednesday it had unanimously denied defense requests to halt the execution, originally set for 7 p.m.  Defense attorneys later appealed to the U.S. Supreme Court, which also declined to stop the execution late Wednesday night.

Lawler didn’t make a final statement and refused an offer of a prayer.  Then he lay on the gurney with his eyes closed as the lethal drug flowed, taking several deep breaths and yawning before becoming still.  Cocciolone arrived in a wheelchair and sat in the front row of the witness area, as did Fulton County District Attorney Paul Howard, whose office prosecuted Lawler.

The seven executions in Georgia this year are the most in a calendar year in the state since the death penalty was reinstated nationwide in 1976.  Georgia executed five inmates last year and five in 1987.

Georgia is one of five states that have carried out executions this year for a total of 17 nationwide.  Texas has executed seven inmates, while Alabama, Florida and Missouri have executed one apiece.

October 20, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)