Wednesday, July 18, 2018

Ohio completes its first execution since botched execution of another inmate late last year

As reported in this local article, Ohio managed to get its machinery of death functioning again this morning. Here are the details and context:

Robert Van Hook horrifically murdered a Cincinnati man, but he seemed remorseful as he died by lethal injection on Wednesday at the Southern Ohio Correctional Facility.

Van Hook, 58, was strapped to the gurney in Ohio’s death house and the lines carrying the deadly drugs had been inserted in his arms when he turned his head to three witnesses from the family of his victim, David Self....

Van Hook served a violence-plagued 32 years in prison after a death-penalty conviction for what now could be considered a hate crime — of the utmost violence.

On Feb. 18, 1985, Van Hook met Self in a gay bar in downtown Cincinnati and went home with him. Van Hook’s clemency report says he lured Self into a vulnerable position and strangled him into unconsciousness. “He then took a paring knife from the kitchen and stabbed the victim behind the right ear, aiming the thrust upward toward the brain, accompanied by a blade-twisting movement,” the report said....

During his incarceration Van Hook amassed a disciplinary record of more than two dozen incidents, including stabbing another inmate in the face and chest, threatening to kill corrections officers and damaging property.

Joe D’Ambrosio served 22 years on death row with Van Hook until D’Ambrosio was exonerated and released in 2010. “He had mental problems, I don’t care what anyone says,” said D’Ambrosio who was at the prison Wednesday to protest Van Hook’s execution. “He would go for long periods of time and then he would explode.”

In their unsuccessful bid for clemency, Van Hook’s attorneys cited his difficult childhood. His mother, who had a history of mental illness, abused alcohol and drugs and became enmeshed in repeated, mutually abusive relationships. His father also drank heavily, beat Van Hook and was a virulent homophobe, the lawyers wrote.

Van Hook’s father, a musician, introduced his son to alcohol and drugs when Van hook was 11 or 12, his lawyers said. At 14, Van Hook moved with his father to Florida and eventually ran away. He lived on the streets, sometimes supporting himself by having sex for money with men....

D’Ambrosio said there was no point in killing Van Hook. “It was unneeded, unnecessary, cruel, unusual,” he said. “It’s barbaric.”

But three members of Self’s family, who sat quietly holding hands through the execution, wanted Van Hook to die. They declined comment on Wednesday. But Self’s sister, Janet Self, told the parole board that her brother’s murder reduced him in the public mind to nothing more than a gay man in a bar, when in reality he was an intelligent, witty person. She also noted that Self was abused by his own father and had to face prejudice because he was gay.

Van Hook’s execution was the first in Ohio in 2018. The last attempted execution — of Alva Campbell in November — was called off when corrections workers could not find a suitable vein for intravenous drugs. He died earlier this year of natural causes.

Gary Otte and Ronald Phillips were executed last year. They were the first to be killed in Ohio’s death chamber after a three-year moratorium following the 2014 execution of Dennis McGuire, 53, who gasped, choked, clenched his fists and appeared to struggle against his restraints for about 10 minutes before being pronounced dead.

Van Hook was the 56th man to be executed in Ohio since 1999. Two more executions are scheduled for later this year. A total of 137 people remain under death sentences in Ohio.

July 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Wednesday, July 11, 2018

Drug company succeeds in getting Nevada execution using its drug postponed

As reported in this local article, "Nevada’s plan to execute a convicted murderer with a never-before-used combination of drugs is on hold for at least 60 days." Here is more:

The state was planning to use three drugs — midazolam (a sedative), fentanyl (the high-potency opioid) and cisatracurium (a paralytic) — to execute Scott Dozier on Wednesday night.

Clark County District Judge Elizabeth Gonzalez ruled in favor of the company that makes midazolam, which sued the state, saying Nevada had illegitimately acquired the product for the execution. It wants the state to return its stock of the drug to the company. Gonzalez granted a temporary restraining order. “If the state is permitted to use the midazolam manufactured by plaintiff, plaintiff has shown a reasonable probability it will suffer irreparable damages,” Gonzalez said in her Las Vegas court.

The drug maker, Alvogen, and the state are scheduled to return to court September 10 for another hearing in the case.

The execution would have been the first time that fentanyl, one of the central drugs in the US opioid epidemic, has been used in a capital punishment case in the United States, said Robert Dunham, executive director of the Death Penalty Information Center. It would likely have been a first for cisatracurium to be used as well, he said.

Dozier, 47, is not making legal challenges to halt his execution. “Life in prison isn’t a life,” he told the Las Vegas Review-Journal. “This isn’t living, man. It’s just surviving.”... His attorney, Thomas Ericsson, told CNN that his client wants to be executed.

Although Dozier is not trying to stop his execution, there is opposition to the drug cocktail the state plans to use in carrying out the death sentence. “Nevada should not use prisoners as guinea pigs in experimental executions, even if they ask to die,” tweeted the ACLU of Nevada.

Dozier was convicted of first-degree murder in the death of Jeremiah Miller, who was killed and dismembered in 2002. The victim’s torso was found in a suitcase dumped in a trash bin in Las Vegas, according to the Nevada Department of Corrections. Dozier was also convicted of second-degree murder in the death of another victim found buried in the Arizona desert.

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July 11, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9)

Tuesday, July 10, 2018

Drug maker sues Nevada seeking to prevent state from using its drug in state's first execution in a dozen years

As reported in this local article, the "maker of a sedative set for inclusion in a Nevada execution on Wednesday — the state’s first in 12 years — is suing to stop it from being used to kill Scott Dozier." Here is more:

American pharmaceutical company Alvogen filed a lawsuit Tuesday in Clark County District Court, saying the Nevada Department of Corrections purchased the drug on false pretenses even though they knew Alvogen objected to its use for executions. The company is asking a judge for a temporary restraining order, for the drug midazolam to be impounded and for it to be barred from any use in capital punishment.

“Defendants intentionally defrauded Alvogen’s distributor by, on information and belief, concealing the April 2018 letter from the distributor and/or the fact that Defendants intended to use the Alvogen Midazolam Product for purposes of an execution,” the lawsuit said. “Defendants omitted relevant information and implicitly made the false representation that they had legitimate therapeutic rationale to purchase the Alvogen Midazolam Product.”

A spokeswoman for the Nevada Department of Corrections didn’t immediately respond to a request for comment on Tuesday, and it’s unclear whether the suit — filed a little more than 24 hours before the execution — will prompt a delay.

Alvogen says on its website that it tries to prevent its product midazolam from use in executions. But the Nevada Department of Corrections announced last Tuesday that it was adding midazolam to its three-drug lethal injection combination after another drug expired, and on Friday it distributed photos of the packaging with Alvogen labels — a response to a request from the American Civil Liberties Union of Nevada for more information about the drugs’ origins.

The pharmaceutical company said it learned its product would be used when it started to receive press inquiries on July 7. “Alvogen does not market, promote or condone the use of any of its approved prescription drug products, including midazolam, for use in state sponsored executions,” spokesperson Halldór Kristmannsson said in a statement on Monday. “To avoid any improper, off label use of our products, Alvogen does not accept direct orders from prison systems or departments of correction. Alvogen works with our distributors and wholesalers to restrict any resale, either directly or indirectly, of our midazolam product to any prison system or department of correction.”

Alvogen’s suit said the state has refused to return the products, and added that the prison agency “was aware of and actively fought disclosure of certain execution-related information because such information had been used to persuade manufacturers to cease selling their products for executions.” NDOC’s actions “have caused, and will continue to cause unless enjoined, substantial and irreparable injury to Alvogen, its reputation, and its goodwill,” the lawsuit said.

The 80-page complaint can be found at this link.

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July 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6)

Monday, July 09, 2018

Texas proves, yet again, where there is a will to get executions drugs, there seems to be a way

This local article from Texas, headlined "With 7 execution dates on the calendar, Texas just got more lethal injection drugs," spotlights yet again how the folks in Texas are uniquely able to continue with capital justice without much of a hitch. Here are the details and some context:

Amid speculation about its ability to carry out the flurry of new executions on the calendar, state records show the Texas prison system in recent weeks received 15 more doses of the powerful barbiturate used in its Huntsville death chamber.  The additional vials ensure that the state can now carry out all the currently scheduled death dates, but some experts say it raises questions about how officials obtained new doses of pentobarbital at a time when drug-makers have backed away from its use in executions.

"That I'm aware of, there is no legal source for pentobarbital, compounded or otherwise. None," said Maurie Levin, a defense attorney with expertise in lethal injection litigation. "All the companies that previously provided compounded pentobarbital are now subject to end-use controls by the manufacturers and if they are distributing it to a prison for use in executions they are violating that contract."

The state pushed back against that suggestion.  "The Texas Department of Criminal Justice complies with all state and federal laws," said department spokesman Jeremy Desel.

But whatever the provenance of the added supplies, the fact that they exist could impact death-sentenced inmates in other states. Weeks before the new doses showed up on the state's logs, a group of prisoners in Arkansas asked Texas to turn over the name of its lethal injection supplier, in the hope of convincing their own state to switch to the drug the Lone Star State uses.  Midazolam, one of the drugs currently used in Arkansas, has been repeatedly linked to "botched" executions.

Since 2012, Texas has relied on a single drug — compounded sodium pentobarbital — to carry out lethal injections.  The state came close to exhausting its supplies with executions still on the calendar in spring 2015. But in the end, TDCJ got more without needing to push back any death dates, prison officials said previously.

Then in January of this year, the state's stash of drugs was set to expire days before a scheduled execution. The state replenished its supply in time.  But it wasn't immediately clear whether they'd obtained new doses or established a new expiration date for the ones they already had, a possibility that's been raised repeatedly in lawsuits seeking to challenge the state's lethal injection procedures.

Again by May, Texas seemed poised to run out of drugs with three executions scheduled beyond the expiration date of the drugs.  Then on June 18, records show the addition of 15 five-gram vials.

In recent years, drug-makers have put up roadblocks to states seeking execution drugs, forcing states to switch protocols in some places.  "Every major pharmaceutical manufacturer in the U.S. has policies against the distribution of its medicines for unapproved medical purposes, and killing prisoners has never been an approved medical purpose," said Robert Dunham, executive director of the Death Penalty Information Center.  Many drug-makers, he said, also specifically prohibit the sale of their drugs for use in executions.

"If Texas is getting these drugs legally that's important to know for death penalty cases across the country," Dunham said.  "If they're getting them illegally or by making misrepresentations to pharmaceutical distributors that's also important to know because states should not be violating the law or breaching contracts in the name of law enforcement."

It's not clear exactly where the state is getting its drugs, and state secrecy laws keep the department from revealing its source.

July 9, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Thursday, June 28, 2018

Texas completes execution of serial killer, its seventh of 2018

As reported in this local article, headlined "'Burn in hell for eternity': Houston serial killer Danny Bible executed in Huntsville," Texas completed another execution last night.  Here are the details:

Shaking from Parkinson's tremors, voice quavering as he muttered "it hurts," Houston serial killer Danny Bible took his last gasping breaths on the gurney in Huntsville before closing one eye, snoring and falling forever silent.  He offered no final statement Wednesday night, but protesters outside shouted angrily into a megaphone, defending the aging four-time killer.

Afterward, in a quiet conference room above the warden's office, the family of one of Bible's victims offered a final word.  "Danny Paul Bible is as a vile and evil a person that has ever drawn breath," said Larry Lance, whose sister fell prey to Bible's wrath in 1983. "We are glad to have witnessed him draw his last breath.  I know that he will burn in hell for eternity."

Despite concerns about the difficulty of finding a vein on the ailing murderer, the lethal injection team hooked up IV lines in under 15 minutes.  After the lethal dose began at 6:17 p.m., Bible started breathing heavily before saying it "burned."  He stopped moving three minutes later and was pronounced dead at 6:32 p.m.  He was the seventh killer to die in Huntsville this year.

Bible was sent to death row in 2003 after a crime spree zig-zagging across the country for the better part of 20 years.  Though he murdered two other women and a baby, raped five young relatives and claimed an assortment of other violent crimes, it was his first killing -- back in 1979 -- that sent him to the death chamber....

In the weeks leading up to his scheduled execution, his defense team launched a flurry of legal claims, arguing that the aging prisoner might be too sick to execute by injection. Instead, they said, he should die by firing squad or nitrogen gas. In the end, the lethal injection team found viable veins in Bible's hands.

The so-called ice pick killer had a "galaxy of medical issues" that raised the possibility of a prolonged and painful lethal injection process his lawyers argued would violate the Eighth Amendment's ban on cruel and unusual punishment.  "Texas will almost certainly join Alabama and Ohio and add itself to the unconscionable list of botched executions in America," his attorney Jeremy Schepers predicted beforehand....

Bible's attorneys on Wednesday took his case all the way up to the Supreme Court.  Denying his challenge, they argued, could shut the door on any other similar claims from ailing prisoners who could suffer botched executions. But the high court denied his plea just after 5:30 p.m....

The Lone Star State has now executed seven men this year, including another Houston serial killer, Anthony Shore.  There are seven other death dates on the calendar in Texas.

Notably, Texas only had seven executions through all of 2017, but it has hit that number through just the first part of 2018.

June 28, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Thursday, June 21, 2018

Nevada now scheduled to conduct execution, its first in a dozen years, using an opioid lethal injection cocktail

This new AP piece, headlined "Nevada sets 1st execution in 12 years after fight over drugs," reports on the latest development in Nevada's efforts to restart its machinery of death. Here are details:

Nevada plans to carry out its first execution in 12 years using a never-before-tried combination of drugs that drew a court challenge over concerns that a convicted murderer could suffer during the lethal injection.  Scott Raymond Dozier is scheduled to die July 11, Department of Corrections spokeswoman Brooke Santina said Wednesday, a day after a judge in Las Vegas signed the death warrant.

It comes after the state Supreme Court decided last month not to stop the execution on procedural grounds despite challenges by lawyers and a rights group, who argued that the procedure would be less humane than putting down a pet.  There also were concerns that some of the state's drugs would have expired.  "We have what we need to complete the execution order," Santina told The Associated Press.  "The same three drugs. We have some that are not expired."

Dozier's death warrant was signed Tuesday by Clark County District Court Judge Jennifer Togliatti, who last November blocked the scheduled execution over concerns that one drug in the three-drug cocktail would immobilize the inmate and mask any signs of pain and suffering.  The warrant didn't address her previous concerns.

Batches of the disputed muscle paralytic called cisatracurium began expiring April 1, but Santina has said the state had supplies that were good until Nov. 30.  The sedative diazepam, the powerful painkiller fentanyl and the paralytic cisatracurium have never been used for lethal injections in any state.  Diazepam is commonly known as Valium. Fentanyl is synthetic opioid that has been blamed for overdose deaths nationwide during an opioid epidemic....

Dozier, 47, has been on death row since 2007 for convictions in separate murders in Phoenix and Las Vegas. He has said repeatedly that he wants to be put to death as soon as possible and doesn't care what drugs are used.  Dozier, who also used the name Chad Wyatt, would become the first person put to death in Nevada since 2006.  His death would mark the first lethal injection since a new execution chamber was completed in 2016 at Ely State Prison, 250 miles (402 kilometers) north of Las Vegas.

Aides to Republican Gov. Brian Sandoval and state Attorney General Adam Laxalt did not immediately respond to messages Wednesday.  Jonathan Van Boskerck, a chief deputy Clark County district attorney involved in nearly a year of court hearings over Dozier's fate, pointed to the death sentence by a jury and the state high court ruling last month. "The decision of this jury deserves respect," he said.

Prior related posts:

June 21, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Monday, June 18, 2018

Ailing "ice pick killer" in Texas, seeking to halt his scheduled execution, points to failed efforts in Alabama and Ohio

As reported in this Reuters piece, headlined "Too frail for death row? Texas inmate seeks execution reprieve," a notorious capital defendant has a notable new claim in federal court in an effort to avoid execution. Here are the details:

After two recent botched U.S. executions of inmates with compromised veins, a convicted murderer and rapist is arguing he is too ill to be put to death by lethal injection in Texas later this month.  Lawyers for Danny Bible, a 66-year-old inmate set to be executed on June 27, said in a federal court filing in June that his health and vein access were worse than inmates in Alabama and Ohio whose executions were called off after IV placements failed.

The cases have capital punishment critics questioning whether justice is served by executing a person convicted of horrific crimes but who is now too weak or sick to be considered a threat....  Some death penalty proponents counter that sympathy should not be shown to inmates who they accuse of trying to game the system by filing appeals that take decades to wind through the courts, denying justice to the victims’ families.

The average age of death row inmates has increased in the United States as the number of executions has trended downward, as fewer states conduct lethal injections and appeals take more time.  More than 40 percent of U.S. death row inmates are 50 years of age or older, according to U.S. data and the nonprofit Death Penalty Information Center.

In recent years, death row inmates were just as likely to die awaiting execution as they were to be executed.  Last year, 24 death row inmates across the country died in prison awaiting execution, mostly due to natural causes, while 23 inmates were executed, according to data compiled by Reuters.

Of the first group, six of those inmates died awaiting executions in California, which has the largest death row of 746 inmates but has not conducted an execution since 2006.

In 2016, there were 19 non-execution deaths and 20 executions in the United States, according to the Bureau of Justice Statistics.

Bible was sentenced to death in Texas for a string of rapes and murders that started in the Houston area in 1979 and earned him the nickname “ice pick killer” for the weapon he used.

His lawyers now are seeking to halt his execution, saying he is confined to a wheelchair after he fractured his spine in a prison bus crash in 2003 and has coronary artery disease, diabetes and hypertension.  “Under the current circumstances, attempts to place IVs in Mr. Bible would be futile and likely result in significant pain and suffering,” his lawyer wrote in their court filing.

The Texas Attorney General’s Office did not respond to a request for a comment, and the Texas Department of Criminal Justice said it had full confidence in its ability to complete Bible’s execution.

Lawyers for the inmates whose lethal injections were aborted in the past year say those cases offer a cautionary tale. The execution of convicted murderer Doyle Hamm, 61 and suffering from terminal cancer and chronic illnesses, was called off in February after medical personnel tried for 2-1/2 hours to place an intravenous line. The effort left Hamm with more than a dozen puncture wounds, court records showed, and came after his lawyers argued that any lethal injection attempt would be futile due to his compromised veins.

Ohio also called off the execution of convicted murder Campbell, 69, because death chamber personnel could not find a suitable vein in the inmate, frail from cancer and other diseases. Campbell died about four months later in prison.

Recent prior related posts:

June 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Friday, June 01, 2018

Making the case against nitrogen as an execution method

Download (14)Charles Blanke, an oncologist and professor of medicine, has this notable new commentary in Newsweek headlined "Death by nitrogen should not be america's new capital punishment method." Here are excerpts:

Ever since the first recorded state punishment, when the Jamestown colony executed a Spanish spy by firing squad more than 400 years ago, Americans have tinkered with the technologies used to kill condemned prisoners....  Since 2015, three states, Oklahoma, Alabama and Mississippi, trying to improve upon the current methods of execution in America — gas chamber, hanging and lethal injectio n— have added nitrogen gas asphyxiation to their capital punishment arsenals.

Nitrogen, which makes up about 78% of the air we breathe, is a colorless, odorless, tasteless gas used in a broad commercial range that includes ceramics manufacturing and steelmaking.  While it is not poisonous, breathing in pure nitrogen keeps the brain from getting enough oxygen, which itself is directly fatal.  In fact, a number of lethal industrial accidents involving inhaled nitrogen are reported every year.  Though its potential use in executions has not been formally studied, advocates have already suggested legal death via nitrogen inhalation would be quick, peaceful, and humane.

We need to ask three questions about the possible use of nitrogen in capital punishment cases.  Would it work? Does it offer advantages over current methods? And, is it cruel and unusual, violating the Eighth Amendment to the U.S. Constitution? The answers are yes, maybe, and we don’t know (but probably yes).

Though it has not yet been used in a death penalty case, there is no doubt using nitrogen to execute prisoners would be highly effective.  Placed into a pure nitrogen environment, the convict would be unconscious within a minute (possibly even after a breath or two) and would be dead soon after.  Its failure rate, that is, cases in which the prisoner survives, would likely be much lower than what we see with current death penalty methods.

The second question, whether or not using nitrogen is better than what we currently do, is harder to answer. We need to be cautious in adopting new methods for use in capital punishment cases.  Every technique embraced to date, no matter what advantages they were thought to offer in theory, has been fraught with real-life shortcomings, ranging from modest to heinous.  Convicts in the electric chair have burst into flames, or required multiple jolts. The gas chamber, adopted by 12 states as being humane, fails in five percent of cases, with some prisoners observed to gasp for air for prolonged periods. Others have convulsed.

Lethal injection, the go-to procedure in every state with a capital punishment provision, has the highest fail rate of any method, exceeding seven percent. It can require multiple needle pokes to access veins in prisoners scarred from drug abuse or chronic illness, and one recent botched execution attempt in Alabama reportedly led to profuse bleeding and a punctured bladder....

There are many unanswered questions on what could go wrong with nitrogen use. If prisons forced the convicts to wear a tight fitting mask, would this increase the feeling of suffocation?  Could they still leak?  Or, would an entire room need to be filled with pure nitrogen? Would accidental dilution with oxygen-containing room air (mask or room) slow or even prevent death, leaving prisoners in comas or brain-damaged?

Also, nitrogen use isn’t medically regulated, and it’s hard to imagine much quality control would be applied to inspecting the gas used in death penalty cases.  What happens if prisons buy contaminated product?  Finally, would the nitrogen manufacturers take their cue from those making medications used in lethal injection and restrict sales to penitentiaries?...

Humans normally breathe in life-sustaining oxygen and breathe out carbon dioxide produced during respiration.  Choking victims, who cannot get enough oxygen, say it is agonizing.  Supporters of using nitrogen in capital punishment cases believe the feeling of suffocation actually comes not from lack of oxygen (known as hypoxia), but from the buildup of carbon dioxide.  Since prisoners could still blow off carbon dioxide while breathing pure nitrogen, advocates say they wouldn’t suffer from air hunger.

What if they are wrong? Some studies suggest that fatal low oxygen levels alone do cause anxiety and the fear of suffocation.  And, it wouldn’t actually matter, even if they are right.  Hypoxia itself can cause severe nausea, disorientation, confusion, dizziness, inability to move, and seizures, regardless of what the carbon dioxide levels are doing.

Nitrogen gas doesn’t put people to sleep as do the medicines used in anesthesia, so prisoners could be painfully aware.  To be sure, sedating them first would prevent any distress from the hypoxia, but it would leave all the other problems associated with lethal injection.

It should be noted that nitrogen was previously used to kill animals, but it’s not a method that’s used anymore—the American Veterinary Medical Association does not recommend nitrogen euthanasia because evidence suggests gassed dogs and cats can actually suffer horribly before dying. Determining in advance whether or not nitrogen asphyxiation offers a “peaceful” death is impossible. We don’t have a lot of interviews with survivors of industrial nitrogen accidents, and experimentation is unethical—we can’t partly gas convicts and ask them how it went.

If our old-fashioned methods are not ideal, and nitrogen asphyxiation is not proven humane, are there other alternatives? Yes. I testified in hearing where the United States District Court for the Northern District of Alabama recently ruled in the case of Doyle Lee Hamm that oral drugs used medically in states allowing terminally ill patients to take their own lives — “death with dignity”. This method could lawfully be employed in capital punishment cases. Though Alabama still ultimately tried (unsuccessfully) to use standard intravenous injection following the legal action spawning that ruling, medications given by mouth are under consideration in death penalty cases elsewhere in the south....

Capital punishment remains constitutional, and it isn’t going away any time soon.  However, our Supreme Court has ruled the death penalty cannot involve unnecessary or wanton infliction of pain, and that there must be a constitutional means of applying it.  We need to put more thought into the methods used, especially since there are no means to scientifically test in advance whether or not they violate the Eighth Amendment.  We don’t and can’t know that nitrogen asphyxiation would be painless, and it simply doesn’t qualify as an acceptable means of carrying out a death sentence.

A few (of many) prior related posts:

June 1, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (10)

Monday, May 07, 2018

Examining whether nitrogen gas could be a viable new method for executions

538143779The New York Times has this extended new article about the latest innovation in execution methods under the headline "States Turn to an Unproven Method of Execution: Nitrogen Gas."   The piece is worth reading in full, and here are excerpts:

Hamstrung by troubles with lethal injection — gruesomely botched attempts, legal battles and growing difficulty obtaining the drugs — states are looking for alternative ways to carry out the death penalty. High on the list for some is a method that has never been used before: inhaling nitrogen gas.

Oklahoma, Alabama and Mississippi have authorized nitrogen for executions and are developing protocols to use it, which represents a leap into the unknown.  There is no scientific data on executing people with nitrogen, leading some experts to question whether states, in trying to solve old problems, may create new ones....

In March, Oklahoma’s attorney general, Mike Hunter, said that using nitrogen was “the safest, the best and the most effective method available.”  There is scant scientific data to back up that statement. What little is known about human death by nitrogen comes from industrial and medical accidents and its use in suicide.  In accidents, when people have been exposed to high levels of nitrogen and little air in an enclosed space, they have died quickly.  In some cases co-workers who rushed in to rescue them also collapsed and died.

Nitrogen itself is not poisonous, but someone who inhales it, with no air, will pass out quickly, probably in less than a minute, and die soon after — from lack of oxygen.  The same is true of other physiologically inert gases, including helium and argon, which kill only by replacing oxygen....

(Although nitrogen itself would be novel, gas chambers have existed as an American execution method since the 1920s. The last case was in 1999, when Arizona used clouds of hydrogen cyanide to execute an inmate.  Coughing and hacking, he took 18 minutes to die.)

Death from nitrogen is thought to be painless.  It should prevent the condition that causes feelings of suffocation: the buildup of carbon dioxide from not being able to exhale.  Humans are highly sensitive to carbon dioxide — too much brings on the panicky feeling of not being able to breathe.  Somewhat surprisingly, the lack of oxygen doesn’t trigger that same reflex.  Someone breathing pure nitrogen can still exhale carbon dioxide and therefore should not have the sensation of smothering.  Before passing out, a person may feel lightheaded, dizzy or maybe even a bit euphoric, and vision may dim.

Dr. Charles D. Blanke, who has studied data on physician-assisted dying, said it was not at all clear that nitrogen inhalation would bring a peaceful death.  Dr. Blanke, a medical oncologist and professor at Oregon Health and Science University, said he had consulted colleagues in pulmonary medicine and anesthesiology, and they had concerns that carbon dioxide actually could build up and cause feelings of suffocation....

Unlike lethal injection, the use of nitrogen would not require that the execution team dig around for a vein.  An anesthesiologist, who requested anonymity because medical societies bar members from participating in executions or providing information to encourage them, said that nitrogen inhalation was less cruel than lethal injection.  And since it presumably would involve no paralytic agent, witnesses would be able to see whether the person seemed to be suffering, he said.  Seizures might occur from inhaling nitrogen, he said. But if the technique appears to go smoothly, he predicted that other states would quickly adopt it. 

In fact, according to state documents, in May of 2016, an Arizona company sent a sales-pitch letter for nitrogen gas executions to Nebraska corrections officials. Among the standout features of its Euthypoxia Chamber: It “produces calm and sedation followed by inebriation and euphoria;” it “requires no medical expertise;” and it guarantees “the demise of any mammalian life in 4 minutes.” In passing along the letter to another official, a state corrections department executive hand-wrote: “I’m not intending to respond — just thought it was an odd correspondence.”

Ms. Moreno, of the Berkeley Law Death Penalty Clinic, said that implementing nitrogen gas is not as simple as states suggest.  There are different grades of nitrogen, including medical and industrial, she said, with commensurate purities and regulations.  Observers of the execution would need protection.  Officials would have to figure out how to safely clear nitrogen from the room before a physician could declare death and the staff could remove the body.

The Final Exit Network, a volunteer organization that supports the rights of people with terminal illness or intractable suffering to end their lives, considers nitrogen inhalation a reasonable method, and directs people to information about it.  The technique involves putting a plastic bag over one’s head and pumping in nitrogen.  Janis Landis, president of the network, said: “The science behind inert gases is quite well settled. Any inert gas, one can breathe it in, in place of oxygen. You don’t have air hunger.  You can keep breathing. You pass out and you die.”

A few (of many) prior related posts:

May 7, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (8)

Monday, April 30, 2018

Following a stay last month, SCOTUS grants cert on a method of execution Eighth Amendment case from Missouri

The US Supreme Court this morning issued this order list this morning that includes a trio of grant of certiorari.  The only criminal case of the three is Bucklew v. Precythe.  Interestingly, Bucklew only first came to SCOTUS last month when, as noted in this prior post, the Supreme Court Justice split 5-4 when granting Russell Bucklew a stay from his execution in Missouri based in part on his claim that any lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he has "blood-filled tumors [growing] in his head, neck, and throat."  

Here is how this SCOTUSblog case page describes the issues presented by Bucklew's cert petition: 

Issues: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; and (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.

Interestingly, on the order list when granting cert, the Supreme Court asked the parties to brief some additional issues.  Here is what the Court said when granting cert:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. In addition to the questions presented in the petition, the parties are directed to brief and argue the following Question: Whether petitioner met his burden under Glossip v. Gross, 576 U. S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution.

This Bucklew case likely will not be argued until October or November 2018, and likely will not produce an opinion from the Court until probably around this time next year. So, stay tuned.

April 30, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Tuesday, March 27, 2018

Texas completed fourth execution on 2018

As reported here, a "man dubbed Lubbock’s 'suitcase killer' was executed Tuesday evening, one day after his 38th birthday." Here is more:

Rosendo Rodriguez was sentenced to death in the 2005 murder and sexual assault of Summer Baldwin, a newly pregnant prostitute, according to court records. Baldwin’s body was found folded inside a suitcase at the city’s landfill. Rodriguez was also implicated in the 2004 murder of 16-year-old Joanna Rogers, whose body was also found in a suitcase in the landfill after Baldwin was discovered.

Just minutes before his execution was scheduled at 6 p.m., the U.S. Supreme Court denied his final appeal, and the process to put Rodriguez to death began on time. He was placed on a gurney, connected to an IV, and uttered his last words while his family and the parents of Baldwin and Rogers watched on through a glass pane. In his final statement, Rodriguez called for an investigation into the Lubbock County district attorney and medical examiner, saying they were involved in thousands of wrongful convictions. He also called for a boycott of Texas businesses until the death penalty is stopped....

He died at 6:46 p.m., 22 minutes after a lethal dose of pentobarbital was injected into his veins. He was the fourth person executed in Texas this year and the seventh in the nation.

March 27, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3)

After botched effort last month, Alabama agrees not to try again to execute Doyle Lee Hamm

As reported in this NBC News piece, an "Alabama death-row inmate who survived a botched lethal injection will not face another date with death under a settlement his attorney struck with the state." Here is more:

Doyle Lee Hamm filed a civil rights action last month after the prison medical team repeatedly punctured him in an effort to place an IV before calling off the execution just before his death warrant expired.

His attorney, Columbia law professor Bernard Harcourt, said the procedure amounted to "torture" and was so painful that the 69-year-old Hamm hoped for a quick death. "During this time Mr. Hamm began to hope that the doctor would succeed in obtaining IV access so that Mr. Hamm could 'get it over with' because he preferred to die rather than to continue to experience the ongoing severe pain," Dr. Mark Heath, who was retained by Harcourt to examine Hamm, wrote in a report after examining the inmate.

Hamm was sentenced to death for the 1987 murder of hotel clerk Patrick Cunningham.

His legal team warned the state that his veins were in such bad shape from drug use and cancer treatment that it would be very challenging, if not impossible to place the needle that would deliver the lethal drugs.

After that prediction proved true, Harcourt and the state began confidential negotiations. The result is that the state won't set another execution date and Hamm will drop his legal challenges.

Prior related post:

March 27, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

Tuesday, March 20, 2018

SCOTUS, by 5-4 vote, stays Missouri execution

As reported here by Amy Howe at SCOTUSblog, "over the objection of four justices, the Supreme Court tonight blocked Missouri from executing Russell Bucklew, who was scheduled to die tonight."  Here is more:

Bucklew was convicted for the 1996 murder of Michael Sanders, who was living at the time with Bucklew’s former girlfriend, Stephanie Ray. Bucklew kidnapped and raped Ray, and he wounded a state trooper during the shootout that preceded his capture.

Bucklew argues that allowing the state to execute him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat.”  If Bucklew has trouble breathing when the execution begins, he contends, the tumor in his throat could rupture, filling his mouth and airway with blood.  As a result, he tells the justices, his “execution will very likely be gruesome and painful far beyond the pain inherent in the process of an ordinary lethal injection.”

The U.S. Court of Appeals for the 8th Circuit rejected Bucklew’s challenge to the constitutionality of his execution, holding that he had not shown that his suggested alternative method of execution —  lethal gas —  would significantly reduce the likelihood that he would suffer unnecessarily.

Last week Bucklew filed a petition asking the Supreme Court to review that ruling, which he described as resting on “3 distinct misreadings and dangerous extensions of this Court’s” earlier decisions on lethal injection. The state filed a brief opposing review, and Bucklew has filed his reply, but the case has not yet been scheduled for consideration at one of the justices’ private conferences. Tonight’s order staves off Bucklew’s execution to allow them to consider his petition. If the justices deny the petition, the stay will automatically end and the state can go forward with his execution; if they grant it, the stay will continue until the justices rule on the merits of his case.

I am inclined to speculate that the recent execution difficulties of Alabama and Ohio may have played at least some role in the willingness of swing Justice Anthony Kennedy in joining his colleagues voting for a stay in this case.

March 20, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Wednesday, March 14, 2018

Oklahoma embracing nitrogen gas instead of lethal drugs as method of execution

Images (3)As detailed in this new CNN piece, headlined "Oklahoma plans to use new execution method," the Sooners are soon to be trying a novel execution protocol. Here are the details:

Unable to obtain drugs to use for its lethal injections, Oklahoma will use inert gas inhalation as the primary method for death penalty executions once a protocol is developed and finalized, the state's attorney general announced Wednesday. Oklahoma is the first state to adopt this method.

"As you know, in Oklahoma, a bill that was signed back in 2015 by the governor states that if lethal injection is held unconstitutional or is unavailable, an execution shall be carried out by nitrogen hypoxia," Attorney General Mike Hunter said. "We are exercising that option." Nitrogen is one of several inert gases that can cause hypoxia, an oxygen deficiency that causes death.

Oklahoma Department of Corrections Director Joe M. Allbaugh said his office will prepare the legal documents within the next 90 to 120 days and, if that's acceptable, the attorney general will move forward with the protocol. Hunter said the state is "at the very beginning of this process ... and will provide updates as they become available."

Currently, 49 people sit on death row in Oklahoma; 16 have exhausted their ability to appeal their cases, Allbaugh said. The state has struggled to find legally obtainable lethal injection drugs, he said. It previously used a three-drug combination: an anesthetic (either sodium thiopental, pentobarbital or midazolam), a paralytic agent (pancuronium bromide) and a heart-stopping agent to cause death (potassium chloride), according to the nonprofit Death Penalty Information Center....

The bipartisan Oklahoma Death Penalty Review Commission issued a study of the death penalty in the state on April 25. The report concluded that the moratorium should remain in place until significant reforms to the death penalty process are made, and recommended a one-drug barbiturate execution protocol.

But Hunter said inert gas inhalation is used in countries that have legalized assisted suicide. A 2010 Journal of Medical Ethics study, based on experiments performed by Swiss organization Dignitas, found that the dying process of oxygen deprivation caused by an inert gas is "potentially quick and appears painless." "It also bypasses the prescribing role of physicians, effectively demedicalizing assisted suicide," the researchers wrote.

Hunter said that "using an (inert gas inhalation) will be effective, simple to administer, easy to obtain and requires no complex medical procedures." "Research has shown that individuals exposed to an excessive amount of inert gas experience fatigue, dizziness, perhaps a headache, loss of breath and eventual loss of consciousness," he said, citing the US Air Force Flight Surgeon's Guide, which looks at cases of pilots breathing excessive amounts of inert gas.

Hunter said that people who die by inhalation of inert gases are dead within just a few minutes. The method is "safest, best and most effective," he said.

By contrast, the American Veterinary Medical Association's Guidelines for the Euthanasia of Animals recommend the use of nitrogen for chickens, turkeys and pigs but say it's unacceptable for other mammals. "These gases create an anoxic environment that is distressing for some species," the authors say.

Oklahoma re-enacted the death penalty in 1973 and, since 1976, has performed 112 executions. Hunter noted that an overwhelming majority of the Oklahoma electorate voted to amend the Constitution and guarantee the state's power to impose capital punishment two years ago.

March 14, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (11)

Monday, March 05, 2018

Spotlighting the modern realities and challenges of geriatric executions

Adam Liptak has this new Sidebar piece in the New York Times headlined "Too Old to Be Executed?  Supreme Court Considers an Aging Death Row." Here is how the piece gets started:

The nation’s death rows are starting to look like geriatric wards. Condemned inmates in many states are more likely to die of natural causes than to be executed.  The rare ones who are put to death often first spend decades behind bars, waiting.

It turns out that executing old men is not easy.  In November, Ohio called off an attempt to execute Alva Campbell, 69, after the execution team could not find a suitable vein into which to pump lethal chemicals.  The state announced that it would try again in June 2019, by which time he would have been 71.

But Mr. Campbell suffered from what one judge called an “extraordinary list of ailments.”  He used a walker, could barely breathe and relied on a colostomy bag.  He was found lifeless in his cell on Saturday, having died in the usual way, without government assistance.

In Alabama last month, state officials called off the execution of Doyle Lee Hamm, 61, also because they could not find a suitable vein. Mr. Hamm has at least two kinds of cancer, cranial and lymphatic, and he may not have long to live with or without the state’s efforts.

Last week, the Supreme Court agreed to hear the case of another Alabama inmate, Vernon Madison, 67, who suffers from dementia and cannot remember the crime that sent him to death row.  The court, which has barred the execution of juvenile offenders and the intellectually disabled, is now turning its attention to old people.

Prior related posts:

March 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, March 03, 2018

With death of Alva Campbell, Ohio need no longer worry about trying to execute ill prisoner after first botched attempt

As reported in this local article, "Alva Campbell, "an inmate on Ohio’s death row who had his scheduled execution halted in November after a medical team could not find an accessible vein for the lethal injection, has died." Here is more:

Franklin County Prosecutor Ron O’Brien said the office of Gov. John Kasich notified him that Campbell died early Saturday of natural causes . No other information was available, and the Ohio Department of Rehabilitation and Correction could not immediately be reached.

Campbell, 69, was a twice-convicted killer, one that O’Brien has often called the “poster child” for the death penalty. Campbell was on parole from another murder conviction when, on April 2, 1997, he killed 18-year-old Charles Dials.  At that time, Campbell was on his way to court to face a series of armed-robbery charges but had been faking paralysis. When he was taken to the courthouse, he sprang from his wheelchair, seized a deputy’s gun and carjacked Dials outside.  The two drove around Columbus for hours before Campbell forced Dials onto the floor of his truck and executed him. Campbell was sentenced to die for that.

Over the years, authorities objected to and grumbled about Campbell’s attempts to delay the justice that a judge and jury had ordered for him.  Upon hearing of Campbell’s death Saturday, O’Brien said, “Due to 20 years of frivolous post-conviction litigation, he successfully ran the clock out on justice due to the state and the victim’s family.”

After the failed execution in November, Campbell’s attorneys had said it was unlikely he could live to see another execution attempt.  They said he suffered from a host of serious cardiopulmonary problems and ailments.  He was returned to Death Row.

Recent prior related posts:

March 3, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

Monday, February 26, 2018

Alabama joins Ohio as only modern state to truly botch an execution

As long time readers know, I try to draw a distinction between ugly and botched executions: ugly executions are those that do not go smoothly, but still result in the condemned prisoner ending up dead (as in Oklahoma in 2014); botched execution are those that involve prison official actively seeking to complete an execution and ultimately failing.  Leaving aside a botched electrocution in Louisiana in the 1940s, my own state of Ohio had the distinction of being the only jurisdiction with a modern botched execution history and, as noted here, has had two inmates return to death row after failed lethal injection attempts.

But now, as this NBC News piece details, Alabama is clearly a new player in this sad universe as details of its execution efforts last week are emerging.  The press report is headlined "Lawyer describes aborted execution attempt for Doyle Lee Hamm as ‘torture’," and here are some details (as well as a reminder Ohio is still beating Alabama in botched executions) :

An Alabama execution team left a death-row inmate with more than a dozen puncture marks in his legs and groin and may have penetrated his bladder and femoral artery before the lethal injection was called off, the prisoner's attorney said Sunday. "This was clearly a botched execution that can only be accurately described as torture," attorney Bernard Harcourt said in a statement after a doctor examined his client, convicted murderer and cancer survivor Doyle Lee Hamm, in prison.

State officials did not respond to a request for comment following the examination. Last week, they said that after the execution started late Thursday because of last-minute appeals, the team wasn't sure it could find a good vein before the death warrant's midnight expiration. "I wouldn't necessarily characterize what we had tonight as a problem," Corrections Commissioner Jeff Dunn told reporters at the time.

Afterward, Harcourt went to federal court and convinced a judge to permit a doctor of his choosing to examine Hamm, who has been on death row for 30 years for the 1987 murder of a motel clerk. The attorney said that while Hamm was strapped to the gurney, the IV team "simultaneously worked on both legs at the same time, probing his flesh and inserting needles."

"The IV personnel almost certainly punctured Doyle’s bladder, because he was urinating blood for the next day," he said. "They may have hit his femoral artery as well, because suddenly there was a lot of blood gushing out. There were multiple puncture wounds on the ankles, calf, and right groin area, around a dozen." During the execution, Hamm "was lying there praying and hoping that they would succeed because of the pain, and collapsed when they took him off the gurney," Harcourt said. In addition to the puncture marks, Hamm has bruising and swelling in his groin and pain from his abdomen to upper thigh, the lawyer said. He was still limping on Sunday....

Before Thursday, Harcourt had warned that due to Hamm's history of drug abuse and his illnesses, it would be impossible to find good veins to deliver the deadly drugs. A judge ruled the execution could proceed as long as the IV wasn't inserted in Hamm's arms. The U.S. Supreme Court, with three justices dissenting, then declined to stop the lethal injection.

Prison officials have given few details about what went on in the death chamber before Hamm got a reprieve. Dunn told reporters Thursday that he did not think the trouble the team had finding a vein would prevent the state from killing Hamm in the future.  "The only indication I have is that in their medical judgement it was more of a time issue, given the late hour," the commissioner said.

Harcourt wanted to examine the execution chamber and the notes prison workers took during the procedure, but the judge turned him down.  The judge did, however, order the Department of Corrections to preserve the notes and any other material from the execution try, including the clothing Hamm was wearing.

Hamm is not the first inmate to survive an execution attempt because of bad veins.  Three months ago, Ohio called off the execution of Alva Campbell after the medical team tried for 30 minutes to find an access point without success.  And in 2009, another Ohio inmate, Romell Broom, was spared after the execution worked for two hours to insert a needle. In appeals, he argues a second attempt would constitute cruel and unusual punishment.

February 26, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

Friday, February 23, 2018

Only one of three planned executions completed: Florida carries out death sentence, Texas Gov commutes at last minute, and Alabama misses deadline

As noted in this prior post, yesterday there were executions scheduled in Alabama, Florida and Texas. If all three had been carried out, it would have marked first time in eight years that three killers were all executed on the same day. But, and the press stories below detail, only Florida completed its planned execution:

Texas: "Gov. Greg Abbott commutes death sentence minutes before Bart Whitaker's scheduled execution":

Kent Whitaker was praying when he got the news: The governor had spared his son. In an unexpected last-minute decision, Gov. Greg Abbott granted clemency to the Sugar Land man slated for execution Thursday, just minutes before he was to be strapped to the gurney in Huntsville.

Thomas "Bart" Whitaker was sent to death row for targeting his own family in a 2003 murder-for-hire plot aimed at landing a hefty $1 million inheritance.

Florida: "Eric Branch's last words target governor, AG: 'Let them come down here and do it'":

Convicted murderer Eric Branch used his final moments before he was executed to make a political statement, falling into unconsciousness as he shouted "murderers" between blood-curdling screams on the execution gurney.

The state of Florida carried out the execution of Branch, 47, on Thursday evening at the Florida State Prison in Raiford — roughly 335 miles from where he abducted, sexually assaulted and killed University of West Florida student Susan Morris as she was leaving a night class in January 1993.

Branch, who was on death row for nearly 25 years, was pronounced dead of a lethal injection at 6:05 p.m. Central Standard Time.

Alabama: "Execution of Alabama inmate Doyle Lee Hamm called off"

Doyle Lee Hamm survived his date with the executioner Thursday, as Alabama was unable to begin the procedure before the death warrant expired at midnight.

It was after 11:30 p.m. when word came that the execution had been called off. Alabama Department of Corrections Commissioner Jeff Dunn said medical personnel had advised officials that there wasn't enough time to ensure that the execution could be conducted in a humane manner. However, Dunn declined to detail the exact medical factors behind the decision, and said he didn't want to characterize them as a problem.

Hamm, 61, was convicted of killing Cullman hotel clerk Patrick Cunningham in January 1987. Recent appeals in his case involved the question of whether cancer had left him healthy enough to be executed without excessive suffering. His advocates had argued that his veins were in such bad shape that it wouldn't be possible for the state to carry out its lethal injection protocol cleanly.

One of Hamm's attorneys, Bernard Harcourt, was among those waiting outside death row at Holman Correctional Facility near Atmore. Afterward, via Twitter, he speculated that "they probably couldn't find a vein and had been poking him for over 2 1/2 hours."

Also worth noting is that the Alabama inmate's appeals to the Supreme Court generated some comments from some Justices detailed in this order: Justice Breyer issued a short statement respecting the denial of a stay which spoke to the defendant's lengthy time on death row; Justice Ginsburg issued a dissent, which Justice Sotomayor joined, expressing concerns "about how Hamm’s execution would be carried out."  Since the execution was not carried out, it will be interesting to see now if and when courts get asked again to scrutinize Alabama's execution plans and protocols.

February 23, 2018 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (2)

Thursday, February 22, 2018

How many of the executions scheduled today in Alabama, Florida and Texas will be completed?

The question in the title of this post is prompted by this Reuters article which begins, "Alabama, Florida and Texas plan to execute inmates on Thursday and if carried out, it would be the first time in eight years that three people on death row have been executed on the same day."  Here is more about what could be a busy day in both courts and execution chambers:

But in each state there are reasons why the executions could be halted, including an unprecedented clemency recommendation in Texas, where all three of this year’s U.S. executions have been carried out.

In Florida, questions were raised about holding an execution based on a majority, not unanimous, jury decision. In Alabama, lawyers have said the death row inmate is too ill to be executed.

Alabama plans to execute Doyle Hamm, 61, at 6 p.m. local time for the 1987 murder of motel clerk Patrick Cunningham.

Hamm’s lawyers have said he has terminal cancer, adding years of intravenous drug use, hepatitis C, and untreated lymphoma have made his veins unstable for a lethal injection. However, a court-appointed doctor examined Hamm on Feb. 15 and found he had “numerous accessible and usable veins in both his upper and lower extremities,” according to court filings.

Texas plans to execute Thomas Whitaker, 38, for masterminding a 2003 plot against his family in which his mother Tricia, 51, and brother Kevin, 19, were killed.  His father Kent Whitaker was shot in the chest and survived.  The father, 69, a devout Christian and retired executive, has said he forgives his son and his family does not want him to be executed. In a clemency petition, he said if the death penalty is implemented, it would make his pain worse.

On Tuesday, the Texas paroles board in a unanimous decision recommended clemency, largely based on the request of a victim’s forgiving family.  Republican Governor Greg Abbott has final say, and has not yet announced if he plans to halt the execution.

Florida plans to execute Eric Branch, 47, for the 1993 murder of University of West Florida student Susan Morris. Lawyers for Branch appealed to the U.S. Supreme Court on arguments including that the court has previously blocked a Florida provision that allows executions for a non-unanimous jury decision and it should do so again in this case.

February 22, 2018 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Monday, January 22, 2018

Documentary film about capital punishment, "The Penalty," starts screening in Ohio

Ohio+Tour+The+PenaltyI had heard some time ago that a documentary film was being made that included former student of mine, Allen Bohnert, who has spent the last decade defending persons on Ohio's death row as they approach execution dates. That film, called The Penalty, is complete and is now about to start a week-long Ohio series of showings.

An extended preview of the film is available at this link, and here are parts of the film's official description from its website:

Three extraordinary people embark on journeys of recovery, discovery and rebellion and find themselves centre stage in the biggest capital punishment crisis in modern memory.

The Penalty is a feature documentary film following three people with extraordinary experiences of America's modern death penalty and goes behind the scenes of capital punishment's most recent headlines....

America’s most divisive issue — capital punishment — is running into some trouble. With drug supplies for lethal injections drying up and public support at an all-time-low, the struggle to keep executing is taking its toll.

The Penalty follows three people caught in the crosshairs of capital punishment and the political landscape that could decide their fate.  Going behind the scenes of some of the biggest headlines in the history of America's death penalty, the film follows the lethal injection protocol crisis that resulted in a botched execution; the rehabilitation of a man who spent 15 years on death row for a crime he didn't commit, and the family of a young woman — brutally murdered — split by the state's pursuit of the ultimate punishment.

And here are details about this week's Ohio screenings (with links from the original):

We're very excited to announce that in 2018 we'll be taking The Penalty on tour around the US, starting with a week long tour of Ohio from the 22nd-28th of January. 

Ohio currently has over 25 executions scheduled up to 2022 with the next one scheduled for just a few weeks time on February 13th. After the last attempted execution ended in disarray, there couldn't be a better time to take this film around the state. 

We've teamed up with Ohioans to Stop Executions and The Inter-community Justice and Peace Centre to put on 9 FREE SCREENINGS around the state. Each screening will be followed by a talkback session with the film's co-director Will Francome and special guests, plus the opportunity to take action. 

For those of you in Ohio, or who have friends or family in the state, go to this link to reserve your free tickets. 

If you're not in Ohio - don't fear - there will be more screenings this year, with multiple state tours and one-off screenings. 

January 22, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Wednesday, January 10, 2018

Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed?

The Wall Street Journal has this notable article today headlined "U.S. to Seek Death Penalty More Often for Violent Crimes; Attorney General Jeff Sessions authorizes federal prosecutors to seek capital punishment in two murder cases and is said to be weighing it in others, including Manhattan terror attack." Here are excerpts (with two particular lines emphasized):

The Justice Department has agreed to seek the federal death penalty in at least two murder cases, in what officials say is the first sign of a heightened effort under Attorney General Jeff Sessions to use capital punishment to further crack down on violent crime.

In a decision made public Monday, Mr. Sessions authorized federal prosecutors to seek the death penalty against Billy Arnold, who is charged with killing two rival gang members in Detroit.  The decision followed the first death-penalty authorization under Mr. Sessions, made public Dec. 19, when he cleared prosecutors in Orlando to seek a death sentence against Jarvis Wayne Madison, who is charged with fatally shooting his estranged wife in 2016.

The Justice Department is also considering seeking death sentences against Sayfullo Saipov, accused of killing eight people in November by driving a truck onto a Manhattan bike lane, and against two defendants in the 2016 slaying of two teenage girls by MS-13 gang members on Long Island, outside of New York City, according to people familiar with the deliberations.

Mr. Sessions views the death penalty as a “valuable tool in the tool belt,” according to a senior Justice Department official. The official said the death penalty isn’t only a deterrent, but also a “punishment for the most heinous crimes prohibited under federal law.” The Justice Department under President Donald Trump expects to authorize more death penalty cases than the previous administration did, the official said....

The last federal execution was in 2003. Since 1963, three federal defendants have been executed. The federal government has secured 25 death sentences since 2007, down from 45 death sentences between 1996 and 2006....

Only 2% of death-penalty cases are sentenced in federal court. Several types of murder cases fall under federal jurisdiction, including those involving drug trafficking, racketeering or — in Mr. Madison’s case — interstate domestic violence and interstate stalking.

The Obama administration sought the federal death penalty in at least four dozen cases, fewer than the Bush administration, according to the Federal Death Penalty Resource Counsel, a federally funded program to assist death penalty lawyers. The cases authorized under the previous administration included ones involving terrorism, the killing of children or law-enforcement officers, and murders by prisoners already serving life sentences.

But in recent years, a Justice Department review of the drugs used to execute prisoners prompted an effective moratorium on federal executions.

Mr. Sessions appears to be seeking the death penalty against a broader set of violent crimes. Former Justice Department officials under President Barack Obama said they typically wouldn’t have authorized capital punishment in a case like Mr. Arnold’s, which involves gang-on-gang violence. Murder cases with “victims who were themselves involved in criminal activity” are the ones where death penalty decisions tend to fluctuate by administration, said David Bitkower, a former Justice Department official under Mr. Obama who prosecuted two death-penalty gang cases.

Eric Holder, who served as attorney general from 2009 to 2015, personally opposed the death penalty. Loretta Lynch, Mr. Holder’s successor, called capital punishment “an effective penalty” at her confirmation hearing.

Mr. Sessions has put combating violent crime at the center of his agenda, encouraging prosecutors to pursue longer prison sentences and approving the hiring of dozens of new violent-crimes prosecutors.

The moves come as the death penalty on the state and federal level has been in decline. State executions are hovering near 26-year lows, partly due to dwindling supplies of lethal drugs and growing legal scrutiny from courts....

Former prosecutors say an increase in death-penalty cases could be time-consuming and expensive for both government and defense lawyers. Appeals in death penalty cases can take decades.

There are 61 prisoners on federal death row, compared with more than 2,800 in the states.

The de facto federal moratorium on executions got started more than a decade ago in the run up to the Supreme Court's first review of the constitutionality of lethal injection protocols in Baze.   After Baze resolved the basic constitutionality of lethal injection protocols, and especially after Glossip back in 2015 had the Supreme Court making pretty clear that jurisdictions could lawfully use a number of potential lethal injection drugs, the justification for continuing the de facto federal moratorium on executions became shaky at best.  Consequently, if AG Sessions is really serious about the death penalty as a "valuable tool in the tool belt," he needs to make an effort to make sure that the tool is actually fully operational.  Sending folks to US death row when there are no executions going forward is really just another way to impose LWOP while perpetuating a functional legal fiction.

Notably, this helpful list of all 61 federal death row prisoners from the Death Penalty Information Center reveals that 10 condemned have been languishing on federal death row for two decades or longer, and most have been there more than a decade.  Especially given that Justice Breyer has often argued that long stays on death row violate the Eighth Amendment, AG Sessions might even suggest he is duty bound to try to speed up the federal execution process in order to avoid possible constitutional violations.

January 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Friday, December 22, 2017

Noting executions uncompleted in 2017

This recent Houston Chronicle story, headlined "71 percent of scheduled executions not carried out in 2017," provides another perspective on US execution data for the year winding down. Here are some details:

Nearly three out of four death dates scheduled nationwide in 2017 were cancelled, after courts and governors intervened in 58 executions across the country.  That's one of the striking takeaways from a pair of end-of-year reports that offer sweeping overviews of capital punishment in 2017.

The broader trends offer no surprises: executions are down, but Texas is still the nation's killingest state. Nearly a third of the year's 23 executions took place in Texas....

"The process is better than it was a decade ago," said Robert Dunham of DPIC. "And there were some potentially wrongful executions that resulted in stays this year that would have resulted in executions a decade ago, but there are still significant and troubling failures."

Ohio and Texas both contributed significantly to the number of cancelled executions, Dunham said.  The Lone Star state saw nine prisoners' execution dates called off this year, many due to claims of false or misleading testimony or forensic evidence. San Antonio death row inmate Juan Castillo had three dates called off, including one delayed due to Hurricane Harvey and another cancelled in light of claims that his conviction was based on false testimony.

Prior recent related post:

December 22, 2017 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Wednesday, December 20, 2017

Lamenting that the "law descends into a ghoulish inferno" as it contemplates the execution of a condemned Alabama murderer

LawProf Bernard Harcourt has this lengthy new op-ed in the New York Times under the headline "The Ghoulish Pursuit of Executing a Terminally Ill Inmate."  Both the substance and style of the commentary is compelling, and here are excerpts:

When judges schedule a lethal injection for a terminally ill prisoner whose struggle against lymphatic cancer and extensive medical history has left him without any easily accessible veins, our law descends into a ghoulish inferno.  It is a dreadful place where our most august jurists ruminate over catheter gauges and needle sizes, and ponder whether to slice deep into the groin or puncture internal jugular veins. History will not judge us favorably.

Last week, only a few hours after the stunning electoral victory of a Democratic candidate in the Alabama senatorial race, the justices of the Alabama Supreme Court signed a death warrant in the case of a 60-year-old man who has been languishing on death row for 30 years and fighting cranial cancer since 2014.

I had barely managed to absorb the news from Alabama’s election when I got the call at noon the next day. I recognized the Alabama area code but thought it was a reporter seeking a comment on the election.  Instead, a clerk from the Alabama Supreme Court dryly notified me that the justices had just set an execution date for my longtime client, Doyle Lee Hamm.

Mr. Hamm has been on Alabama’s death row since 1987, after being convicted of murdering a motel clerk, Patrick Cunningham, during a robbery.  For over three years now, he has been battling a fierce lymphatic and cranial cancer.  In February 2014, Mr. Hamm was found to have a large malignant tumor behind his left eye, filling the socket where the nerves from his brain went into his eye.  The doctors found B-cell lymphoma, a type of blood cancer of the lymph nodes, with a large mass protruding through the holes of his skull. They also discovered “numerous abnormal lymph nodes” in the abdomen, lungs and chest....

His medical treatment and history has left him without any usable peripheral veins.  Back in late September, an anesthesiologist from Columbia University Medical Center, Dr. Mark Heath, conducted an extensive physical examination to determine whether there were any veins suitable to deliver a lethal injection.  Dr. Heath found no usable veins. He also found that Mr. Doyle’s lymphatic cancer was likely to interfere with any attempt to utilize his central veins.  In Dr. Heath’s expert opinion, “the state is not equipped to achieve venous access in Mr. Hamm’s case.”

Yet, without even addressing the risks associated with attempting venous access for a man who will be 61 years old with no usable veins in his arms or legs, the justices of the Alabama Supreme Court set an execution date.  Some other judges — perhaps on the federal bench — now will have to deal with the bloody mess.  And a bloody mess it would be.

Those other judges will have to pore over medical reports and sonograms — as a federal judge did in the case of David Nelson, another Alabama death row inmate, in 2006, before he died of cancer — to decide whether they can insert an 18-gauge catheter into Mr. Hamm’s femoral vein in his groin, or scalpel him open to find a subclavian vein, or poke around his neck to find his internal jugular vein; whether the thickness of the catheter would preclude pricking a vein in his hand where a butterfly needle can no longer enter; and how to navigate around malignant lymph nodes while trying to achieve percutaneous access to his central veins....

This is justice today. Court opinions filled with ghastly details about how we prick and poke, and slice and cut, and poison other human beings. Opinions that, someday soon, we will look back on with embarrassment and horror.  Our justice is so engrossed with how we kill that it does not even stop to question the humanity of executing a frail, terminally ill prisoner.

In Doyle Hamm’s case, the lack of peripheral veins and lymphatic inflammations create the unconstitutional risk of a cruel and unnecessarily painful execution.  But the constitutional violation is only half of it.  It is justice itself that is in peril.

You may recall the machine that Franz Kafka brilliantly described in the haunting pages of “The Penal Colony.” That machine tattooed the penal sentence on the condemned man’s body, over hours and hours, before sucking the life out of him.  Our machinery of death today makes Kafka’s imaginative machine seem almost quaint.  Ours not only tattoos the condemned man’s body with needles and scalpels but also irremediably taints our justice for years to come.

Stories like these continue to reinforce my belief that states seriously interested in continuing with the death penalty ought to be seriously involved in exploring execution alternatives to lethal injection.

Meanwhile for more background on this particular lawyer's work to prevent his client from being executed, one should check out this New Yorker post  headlined, "The Decades-Long Defense of an Alabama Death-Row Prisoner Enters a Final Phase."

December 20, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (10)

Monday, December 11, 2017

Will any state really start conducting executions with opioids?

The question in the title of this post is prompted by this lengthy Washington Post article, headlined "States to try new ways of executing prisoners. Their latest idea? Opioids." Here is how it gets started:

The synthetic painkiller fentanyl has been the driving force behind the nation’s opioid epidemic, killing tens of thousands of Americans last year in overdoses. Now two states want to use the drug’s powerful properties for a new purpose: to execute prisoners on death row.

As Nevada and Nebraska push for the country’s first fentanyl-assisted executions, doctors and death penalty opponents are fighting those plans. They have warned that such an untested use of fentanyl could lead to painful, botched executions, comparing the use of it and other new drugs proposed for lethal injection to human experimentation.

States are increasingly pressed for ways to carry out the death penalty because of problems obtaining the drugs they long have used, primarily because pharmaceutical companies are refusing to supply their drugs for executions. The situation has led states such as Florida, Ohio and Oklahoma to turn to novel drug combinations for executions. Mississippi legalized nitrogen gas this spring as a backup method — something no state or country has tried. Officials have yet to say whether it would be delivered in a gas chamber or through a gas mask. Other states have passed laws authorizing a return to older methods, such as the firing squad and the electric chair.

“We’re in a new era,” said Deborah Denno, a law professor at Fordham University. “States have now gone through all the drugs closest to the original ones for lethal injection. And the more they experiment, the more they’re forced to use new drugs that we know less about in terms of how they might work in an execution.”

Supporters of capital punishment blame critics for the crisis, which comes amid a sharp decline in the number of executions and decreasing public support for the death penalty. States have put 23 inmates to death in 2017 — the second-fewest executions in more than a quarter-century. Nineteen states no longer have capital punishment, with a third of those banning it in the past decade.

“If death penalty opponents were really concerned about inmates’ pain, they would help reopen the supply,” said Kent Scheidegger of the Criminal Justice Legal Foundation, which advocates for the rights of crime victims. Opponents “caused the problem we’re in now by forcing pharmaceuticals to cut off the supply to these drugs. That’s why states are turning to less-than-optimal choices.”

Prison officials in Nevada and Nebraska have declined to answer questions about why they chose to use fentanyl in their next executions, which could take place in early 2018. Many states cloak their procedures in secrecy to try to minimize legal challenges. But fentanyl offers several advantages. The obvious one is potency. The synthetic drug is 50 times more powerful than heroin and up to 100 times more powerful than morphine.

“There’s cruel irony that at the same time these state governments are trying to figure out how to stop so many from dying from opioids, that they now want to turn and use them to deliberately kill someone,” said Austin Sarat, a law professor at Amherst College who has studied the death penalty for more than four decades.

Another plus with fentanyl: It is easy to obtain. Although the drug has rocketed into the news because of the opioid crisis, doctors frequently use it to anesthetize patients for major surgery or to treat severe pain in patients with advanced cancer. Nevada officials say they had no problem buying fentanyl. “We simply ordered it through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” Brooke Keast, a spokeswoman for the Nevada Department of Corrections, said in an email. “Nothing out of the ordinary at all.”

Notably, Nevada has not had an execution since 2006 and Nebraska has not had an execution from 1997, and that reality leads me to question whether these states are likely to be conducting opioid-based executions anytime soon. But, as the Post article details, Nevada was fully geared up for a fentanyl-included execution last month before a court intervened, and they may have plans for another execution early in 2018.

December 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

Sunday, November 26, 2017

Is California finally going to get it machinery of death operational come 2018?

The question in the title of this post is prompted by this new Los Angeles Times article headlined "Pace of executions in California may be up to Gov. Jerry Brown." Here are excerpts:

When the California Supreme Court upheld a voter initiative in August to speed up executions, some death penalty advocates assumed lethal injections would resume before the end of the year. Three months after the court’s action, both backers and opponents of the death penalty concede that executions might be more than a year away.

Gov. Jerry Brown’s administration has yet to finalize an execution protocol, which is necessary to resolve a federal court case that has blocked lethal injection in California for nearly 12 years.  An injunction stopping executions also is pending in state court.

“Brown is the shot caller” in the litigation over lethal injection, said Michele Hanisee, president of the Assn. of Deputy District Attorneys for L.A. County. Hanisee expects the state to finalize a lethal injection protocol by January, but if Brown “doesn’t want it to move forward quickly, it won’t move forward quickly,” she said.

Although no one can now predict when executions will resume, UC Berkeley law school Dean Erwin Chemerinsky said “it is just a matter of time.”

“The uncertainty in all of this,” he added, “is what will Jerry Brown do.”  Brown personally opposes the death penalty but enforced it as attorney general.  He took no position on two recent and unsuccessful ballot measures that would have ended the death penalty.

Chemerinsky and other lawyers said it was conceivable that Brown and defense lawyers could delay executions until Brown steps down as governor in January 2019. Brown also could try to commute death sentences to life without parole, but his power is limited by the California Constitution. Unlike former Illinois Gov. George Ryan, who just before leaving office in 2003 commuted the death sentences of all of Illinois’ condemned inmates, Brown would need the support of the state Supreme Court to spare inmates with multiple felonies on their records.

Lawyers estimate that at least half of all death-row inmates have committed two felonies. The governor would need the support of four of the seven California high court justices to commute those inmates’ sentences. Brown has three appointees on the court and a fourth vacancy to fill. But whether his appointees would support commutations is questionable. Two of them — Justices Goodwin Liu and Mariano-Florentino Cuéllar — are moderately liberal, but Justice Leondra Kruger, the third, has voted with conservatives on criminal justice issues.

Ronald Reagan was the last California governor to commute a death sentence, deciding in 1967 to move Calvin Thomas off death row because Thomas had serious brain damage. Under former Gov. Pat Brown, Jerry Brown’s father, 35 death row inmates were executed. The elder Brown commuted the capital sentences of 20 others.

Among the most famous executions under Pat Brown’s watch was that of Caryl Chessman, convicted of robbery, sexual assaults and kidnapping. He was sentenced to death under a law, later repealed, that made certain kidnappings capital offenses. Chessman, who represented himself at trial, wrote four books on death row and attracted international sympathy. The elder Brown tried to commute Chessman’s sentence, but the California Supreme Court refused to go along, on a 4 to 3 vote.

Jerry Brown has never faced the wrenching decisions that confronted his father over executions, and the issue also is new for Atty. Gen. Xavier Becerra, appointed by Brown after Kamala Harris was elected to the U.S. Senate. Becerra, now the top law enforcement officer in California, has testified that he supports the death penalty, but not “the way it is being executed,” and would enforce Proposition 66, the execution speed-up measure largely upheld by the state supreme court in August. Becerra also has said he would run for election to continue as attorney general.

Prosecutors are expected to press Becerra to move quickly to overturn the injunctions preventing executions, but his role is to represent Brown’s Department of Corrections and Rehabilitation in the case, a Becerra press aide said. Prosecutors, who sponsored Proposition 66, and crime victims also are considering trying to intervene in the two court cases preventing executions....

“There is no enthusiasm inside the administration to do anything” to hasten executions, said Michael D. Rushford, the founder and top executive of the Criminal Justice Legal Foundation, a conservative nonprofit that helped write Proposition 66. Voters narrowly approved the measure a year ago. The state Supreme Court ruling that permitted its enforcement became final only a few weeks ago, delayed by an unsuccessful request from challengers for the court to reconsider. “There are laws in this state that if the administration doesn’t want to enforce, they don’t,” Rushford said, “and this is one of them.”

Rushford’s group sued to force the Brown administration to produce a single-drug lethal injection method, which has not yet been made final, and has warned it would sue the administration again if it does not move toward executions.

There are about 18 inmates who could immediately be executed because they have no appeals left. But these inmates have obtained federal stays to prevent their executions until the lethal injection case overseen by Seeborg is concluded. For the stays to be lifted, Seeborg would have to decide that California’s new single-drug method of execution, once finalized, did not violate the U.S. Constitution’s ban on cruel and unusual punishment. Whatever he decides could then be appealed....

Brown’s press office referred questions about executions and possible commutations to the Department of Corrections and Rehabilitation, which said it was revising a lethal injection protocol but declined to estimate how long that might take.

Ana Zamora, a policy director of the ACLU of Northern California, said she does not expect executions to resume soon. “The D.A.s and the proponents of Prop. 66 really sold voters a false bill of good,” she said. “Nothing has changed. There are still significant problems around lethal injection, and those are not going to go away anytime soon.”

If I understand the sequence of events that needs to take place before a California execution goes forward, it includes (1) California officials finalizing an execution protocol, (2) the federal district court approving that protocol, (3) the Ninth Circuit and SCOTUS affirming a decision about the protocol. and (4) setting a real execution date by California officials.  I am inclined at this moment to predict that California will not complete these tasks (in part because it seems many do not wish to) before the end of 2018.

November 26, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

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 (17)

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 (9)

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)