Sentencing Law and Policy

Democrats kill death penalty reform proposals in California

As reported in this local article, "legislation to shorten death penalty appeals in California, and bring back the gas chamber, has been rejected by a state Senate committee." Here are the details:

The bill, sponsored by the California District Attorneys Association, was defeated by the Public Safety Committee on Tuesday on a party-line 5-2 vote.

Backers of SB779, including its author, state Sen. Joel Anderson, R-Alpine (San Diego County), said the bill would speed up executions in California, which have been blocked by court orders since 2006.  It was introduced following the narrow defeat in November of a ballot measure to repeal the state's death penalty law.

The bill would have limited most condemned prisoners to one round of appeals in the state court system and another in federal court.  Other provisions would have eliminated public review of regulations on execution procedures, barred disclosure of the suppliers of drugs used in executions and authorized a new method of gas chamber executions.

California's last execution by cyanide gas was in 1993.  A federal judge ruled a year later that the gas chamber at San Quentin caused excruciating pain and violated the constitutional ban on cruel and unusual punishment.

Lethal injections at the prison were halted in 2006 when another federal judge ruled that the executions, carried out by poorly trained staff in a dimly lit chamber, posed an undue risk of a prolonged and agonizing death.  The court-imposed moratorium is likely to remain in place at least through 2013 as the state tries to validate new regulations and cope with a shortage of execution drugs.

Ohio execution process under review as drug procurement issues create new looming problems

I have been strongly disinclined to blog at all about any aspects of my on-going work as a member of the Joint Task Force to Review the Administration of Ohio’s Death Penalty (background here).  But there was some very interesting news presented at yesterday's public meeting of the Task Force which I thought important to cover in this space.  Part of the story is revealed via this AP article headlined "Ohio wants doctors at executions":

Ohio's prison agency says it wants doctors or other medical professionals to assist with executions, saying it will help promote humane procedures.   Prisons attorney Greg Trout also says state law should be changed to protect any doctor who helps with an execution from sanctions by the state medical board.  Trout said that assistance from a doctor or nurse is unlikely without such protection.

Trout also told a state Supreme Court committee reviewing Ohio's death penalty law that protection should be offered pharmacies that mix supplies of execution drugs.

Trout said in remarks Thursday that without such protection Ohio might not be able to obtain drugs to carry out future executions. The state's current supply of its execution drug runs out in September.

The Ohio DP Task Force has been spending its time and energies considering only the law and practices for the imposition and review of death sentences and had not, before yesterday, given any attention to the actual execution process.  I thought this was a sensible decision given (1) the extensive (and, I believe, still on-going) federal litigation over Ohio's execution protocols, and (2) my belief that Ohio was among the few states without major problems procuring the drugs needed to carry out executions.

But the comments by Greg Trout at the public Ohio DP Task Force meeting yesterday made clear that, as of this writing, Ohio is only going to be able to use its current drug supply to carry out, at most, the four executions scheduled before the end of September 2013 (details here); some other execution plans are going to be needed for the state to be able to carry out the nine subsequent scheduled executions.

Unspoken at yesterday's meeting, but well known to regular readers of this blog, any changes in execution protocols in Ohio (or elsewhere) are sure to be heavily litigated. In other words, stay tuned while dusting off your post-Baze litigation files.

Some related posts concerning Ohio's most recent lethal injection litigation: 

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Ohio decides not to appeal federal district court ruling in Smith halting execution
• Ohio ready to try to get its machinery of death back in operation
• Federal judge again halts Ohio execution because state not following its own protocol
• Ohio completes "the most documented execution in the United States" 
• Ohio finally gets its execution protocol in order (and praised)

Notable account of capital realities when death penalty is truly rare

In California and some other states, various challenges presented by the administration of the death penalty might be traced to the fact that there are too many capital cases and not sufficient human resources to deal with them all soundly.  This new AP story from New Hampshire, in contrast, discusses challenges presented by having so very few capiral cases.  The piece is headlined "NH officials discuss the prospect of execution," and here is how it starts:

New Hampshire — which last executed an inmate more than 70 years ago, by hanging — would likely carry out an execution in a prison gymnasium rather than construct a costly death chamber for its lone death row prisoner, Corrections Commissioner William Wren said Wednesday.

Addressing a symposium on the death penalty at the University of New Hampshire School of Law, Wren said he and his staff are ‘‘dusting off’’ execution protocols from the 1930s but the $1.8 million needed to build a lethal injection chamber isn’t in the cards in a state where inmates are so rarely condemned to death.

The symposium offered a rare, behind-the-scenes look at the case of Michael Addison, sentenced to death in 2008 for gunning down Manchester Police Officer Michael Briggs following a violent crime spree. If the state’s highest court upholds his conviction and death sentence, Addison could be the first convict executed in New Hampshire since 1939.

Wren said Addison doesn’t really live on "death row" because the state no longer has one. He is housed in the state prison’s maximum security unit, living alongside other convicts.

The last person executed in New Hampshire was Howard Long, an Alton shopkeeper who molested and beat a 10-year-old boy to death. He was hanged — still a viable form of execution in New Hampshire if lethal injection is not possible.

Panelists made it clear Addison’s case threw a curve at a state criminal justice system that had no modern-day experience with capital litigation.

Attorney Chris Keating, who supervised Addison’s defense, said there was no legal "infrastructure" in place for a death penalty case — no bank of motions built from other cases, no expertise and a severe dearth of resources to handle the astronomical costs of such a case. He likened it to being told to build a nuclear bomb for the first time. "The stakes are really high if I get it wrong," he said.

Keating said he and former Attorney General Kelly Ayotte had to approach the Executive Council to fund their case. "The difference was, Ayotte was welcomed and people were very anxious to provide her with the funding necessary," Keating said. "I had to sheepishly ask for my $137,000 for initial spending."

Will California ever have an active death chamber?

The question in the title of this post is inspired by this new article from the San Jose Mercury News which is headlined "California death penalty: Will state follow Arizona, which has resumed executions after a long hiatus?".  Here are excerpts:

When Arizona prison officials injected condemned rapist and murderer Richard Stokley with a single, fatal drug dose last month, it marked the state's sixth execution of the year in the nation's second busiest death chamber.

Now that California voters in November narrowly preserved the death penalty, Arizona's path could foreshadow the future for this state, where not a single one of the 729 death row inmates have marched to execution in seven years.

As in California, interminable legal tangles once shut down Arizona's death penalty system as the state executed only one inmate, who volunteered to die, from 2001 to 2010. But Arizona emerged from numerous court battles that removed all of the legal roadblocks....

The result has been 11 executions since October 2010, nearly the number California has carried out since it restored the death penalty in 1978. Significantly, the 9th U.S. Circuit Court of Appeals, often the last word for death penalty appeals in the Western states, has not intervened.

Now, legal challenges holding up California's executions are expected to resume this year. "I do think eventually the cases all come to an end," said Dale Baich, who heads a unit representing Arizona death row inmates. "But (in California) it might be later than sooner."

In fact, the timetable may still be measured in years, not months. Chief Justice Tani Cantil-Sakauye in December told reporters it could take three years for executions to resume, particularly because of the lingering legal cloud over the state's lethal injection procedures.

At least 14 inmates have exhausted all of their legal appeals and would be eligible for immediate execution if California resolves the broader legal challenges over the death penalty. Those include Bay Area condemned killers Harvey Heishman (Alameda County), Robert Fairbank (San Mateo County) and Royal Hayes (Santa Cruz). Several more are close to their last chance in the courts, as the 9th Circuit, which used to overturn death sentences with regularity, has after recent U.S. Supreme Court rulings made it tougher to tamper with death judgments....

Kent Cattani, head of death penalty appeals in the Arizona attorney general's office, notes that Arizona had it easier than California because prison officials could switch to the single-drug option with a stroke of a pen, rather than going through California's lengthy administrative process. But, he adds, if California resolves the lethal injection issue, it appears the 9th Circuit's decisions allowing Arizona executions to proceed would also apply in California.

Death penalty opponents, however, are not conceding California will become the next Arizona. Natasha Minsker, campaign manager for Proposition 34, which sought to repeal the death penalty, promises a return to the voters, although it may be a few years.

And Michael Laurence, head of the California agency that represents death row inmates, considers all of the roadblocks insurmountable. "We're stuck with this dysfunctional system."

Prosecutors and death penalty supporters disagree. Senior Assistant Attorney General Ronald Matthias, who heads the state's death penalty unit, said "there is no significant difference between Arizona and California" other than that Arizona has an approved execution method.

Is the death penalty now essentially dead in North Carolina?

The question in the title of this post is prompted by this lengthy and thorough article from the Fayetteville Observer, which is headlined "Capital punishment under close scrutiny in Fayetteville, statewide."  Here are excerpts:

Convicted murderer Marcus Robinson of Fayetteville was hours away from execution in 2007.  But his life was spared by a court-ordered stay to give him and other death row inmates a chance to challenge the constitutionality of the state's method of execution.  The delay turned into an unofficial moratorium on executions that nearly six years later remains unresolved in the courts.

For Robinson, the delay provided enough time to save him from the executioner's needle. This year, he became the first — and, so far, the only — North Carolina death row inmate to use a new law, the Racial Justice Act of 2009, to have his death sentence commuted to life in prison without parole. 

Now, the Racial Justice Act, other changes to death penalty law and a decline in jurors' willingness to sentence inmates to death are raising questions about the future of executions in the state.  It's unclear when the state will resume administering its ultimate punishment.

"It's been over six years now since an execution has been carried out, so we're a state that still has the death penalty as a law but does not have executions as a reality," said Ben David, district attorney in New Hanover County. David is president of the N.C. Conference of District Attorneys and a death penalty supporter....

Since the [state's capital] law took effect, North Carolina juries have sentenced 400 people to die.  The state has executed 43 of them, according to Department of Public Safety data.  The state is tied at ninth place with South Carolina in the total number of executions carried out in the modern era, according to the Death Penalty Information Center in Washington....

According to an Elon University poll, a majority of state residents support the death penalty.  But statistics show a growing reluctance to hand down the penalty in court. In 1999, 24 people were sentenced to death.  In 2009, two were sentenced.  This year, no one has been sentenced to death in the state, and no more capital trials are scheduled this year.  This will be the first year since the 1977 law when no one in the state has been sentenced to die.

Jurors are not as likely these days to hand down a death sentence, said Ken Rose, a lawyer with the Center for Death Penalty Litigation.  In 1994, North Carolina eliminated parole for people sentenced to life in prison.  Rose thinks that when jurors are comfortable that a killer will never go free, they are less prone to vote for death.  Meanwhile, high-profile exonerations in the past 15 years and television dramas that focus on crime labs have made jurors more skeptical of prosecutors and police, Rose said....  "I think people are more aware that the system is not infallible," Rose said. "They're more aware of the flaws in the system. They're more aware that people make mistakes, and law enforcement officials are human beings and they're going to make mistakes like the rest of us."...

And a law that took effect in 2001 led to a steep decrease in death penalty prosecutions. The law allows prosecutors discretion in seeking the death penalty.  Before the law took effect, if any of 11 specified circumstances applied in a murder case — for example, more than one person was killed — prosecutors were required to seek death and could not accept a plea bargain to a life sentence.

Now that prosecutors have the option, they often choose not to pursue capital punishment. Or they may use the threat of the death sentence to push a murder defendant into pleading guilty and accepting life in prison.

District court rejects 400-pound Ohio inmate's weighty effort to block execution

As reported in this AP piece, a "condemned killer trying to delay his execution because of his extreme weight hasn't raised enough new issues to warrant the legal challenge, a federal judge ruled Monday." Here are the basics of the case and ruling concerning the next scheduled execution in Ohio:

Death row inmate Ronald Post, who weighs more than 400 pounds, is asking the courts to stop his January execution on the grounds his weight could cause him to suffer severe pain during the procedure. Post is prohibited from challenging his execution by injection because he raised similar claims in his first set of federal appeals in 1997, Judge Lesley Wells said Monday in Cleveland.

In general, death row inmates are only allowed one federal appeal when alleging the same set of facts. Post "has not demonstrated in his new petition that his medical condition has changed so significantly, or that Ohio's new lethal injection procedures have changed so radically, since he filed his first petition in 1997 that his original core complaints are transformed into something new," Wells wrote.

However, the judge sent the question to a federal appeals court in Cincinnati for a final determination according to federal law governing this type of appeal. The state is opposing Post's requests to delay his execution....

Post's attorneys declined to comment Monday. They have previously argued that Post's medical condition hasn't been stable.  At issue, they say, is his condition around the time of his execution, not at the time of an original court challenge.  Post "could not have raised this claim in his earlier petition because the execution was not imminent and his physical and medical condition have not been stable in relation to an execution date," his attorneys wrote in earlier court filings....

Post has tried losing weight, but knee and back problems have made it difficult to exercise, his lawyers say.  They also say Post's request for gastric bypass surgery has been denied, he has been encouraged not to walk because he's at risk for falling, and severe depression has contributed to his inability to limit how much he eats.   A doctor who examined Post for his defense team says Post does not have accessible veins in his arms or hands because of his weight and could not receive a lethal injection in his legs because he is so obese.

More buzz about possible death penalty repeal in Maryland

Sunday's Washington Post has this lengthy article discussion the state and fate of Maryland's death penalty.  The piece is headlined "As O’Malley eyes repeal, Md. death row remains at ‘impasse’," and here are excerpts:

Coming off some high-profile wins at the ballot box this month, Maryland Gov. Martin O’Malley is considering another run at repealing the death penalty when lawmakers reconvene in January, aides say.  It’s an issue that could add to his progressive legacy.

But even if the law remains on the books, advocates on both sides agree that O’Malley (D) is all but certain to finish his two terms in office without having presided over a single execution of one of the state’s five condemned prisoners.

That’s largely because O’Malley’s administration has yet to implement regulations required for executions to resume, nearly six years after Maryland’s highest court halted use of capital punishment on a technicality.  And there’s little reason to believe the politically ambitious governor will do so in his remaining two years, as drug shortages and other factors have complicated the mechanics of lethal injection in other states.

“It’s legislating by inaction,” said Sen. Joseph M. Getty (R-Carroll), a member of the Senate Judicial Proceedings Committee and an O’Malley critic.  “I’m among the members of the General Assembly who would like to see the law followed.”...

While it’s unclear if there are enough votes to repeal the law altogether, many lawmakers doubt there are enough votes, particularly in the House of Delegates, to adopt a new law that would restart executions.  “I think there’s an impasse,” said Del. Anne Healey (D-Prince George’s), a death penalty foe.

Recent related post:

• Talk (again) of possible death penalty repeal in Maryland

"Cal prosecutors seek to jump start death penalty"

The title of this post is the headline of this AP article. (Hat tip: How Appealing.)   Here is how it starts:

Earlier this year, the U.S. Supreme Court rejected Robert Fairbank's appeal of his death sentence for the 1985 rape and murder of college student Wendy Cheek.   With that rejection, Fairbank joined at least 13 other death row inmates who have completed the decades-long capital punishment appeals process and are eligible for execution.

Nonetheless, none of the 14 death row inmates who have "exhausted" their appeals will receive a lethal injection any time soon — even though 53 percent of the California electorate reinforced its support of the death penalty with the rejection of Proposition 34 on Nov. 6. 

Lawsuits in federal and state courts have halted executions since January 2006 and it will take months, maybe years, to resolve the litigation.  Judges have ordered a halt to executions and lawyers with the state's attorney general's office have promised not to pursue any executions until the cases are resolved.

Still, a growing number of prosecutors, law enforcement officials and capital punishment proponents are pushing for the quick resumption of execution, citing the defeat of Proposition 34 as a mandate from the voters.  They're calling for an end-run around the legal hang ups, calling for the scrapping of the three-drug lethal injection at the center of the litigation and replacing it with a single-drug execution.  Six other states have already abandoned the three-drug process and adopted the single-drug execution.

In recent months, Los Angeles County District Attorney Steve Cooley and San Mateo County District Attorney Steve Wagstaffe have formally asked local judges for death warrants for three death row inmates and an order to execute them with a single, lethal dose of pentobarbital, a drug previously used to euthanize animals.

But a Los Angeles judge rejected Cooley's motion and Wagstaffe is expecting the same treatment in San Mateo Superior Court, conceding his legal maneuver to have Fairbank's executed soon is more symbolic than realistic. "I am simply trying to get the system moving," Wagstaffe said. "I'm trying to shake the tree a little bit to get people to pay attention."

Ohio finally gets its execution protocol in order (and praised)

As reported in this local article, headlined "Judge praises execution policies; Ruling that allows next Ohio death to proceed also commends state protocol," the Buckeye state now is getting kudos for its lethal injection administration.  Here is how the article starts:

A federal judge who has skewered Ohio over the way it carries out executions heaped unusually warm praise on the system and the state prisons director in a recent ruling.  The comments by U.S. District Judge Gregory Frost raise the possibility that successful challenges focusing on the process of putting inmates to death in the state could be coming to an end.

Frost has delayed executions over such challenges, though he has also let some proceed when it appeared as if the state had fixed problems.  Frost’s most recent ruling last week declined to stop the execution of Brett Hartman, scheduled to die Tuesday for stabbing an Akron woman to death in 1997.

The ruling doesn’t mean that problems in carrying out executions that might crop up in the future couldn’t spur new challenges.  Though Ohio executions generally go as smoothly as such procedures can, it has had some notable exceptions.  The best-known of those was the botched attempt in 2009 to execute Rommel Broom, whose execution was halted after two hours during which he was jabbed with IV needles 18 times.  Broom is back on Death Row fighting a second attempt to put him to death.

Also looming for the state: the expiration next year of its execution-drug supply. New lawsuits will inevitably follow any attempt to switch to a new drug.

In his ruling last Monday, Frost said prisons director Gary Mohr has created a command system with himself as lead enforcer that finally seems able to stop major changes to the state’s written execution policy. “Mohr in particular warrants credit for demonstrating significant, continuing leadership in this new approach,” Frost wrote.  “More than one witness testified that Mohr’s increased management of the execution process represents a sea change in director involvement.”

At another point, Frost said that everyone at the April 18 execution of Mark Wiles seemed to understand that there can be no deviations from policy, and any potential changes must go up the chain of command to Mohr.  Contrast that with Frost’s comments in July 2011 that stopped the execution of Kenneth Smith: “ It is the policy of the state of Ohio that the state follows its written execution protocol, except when it does not. This is nonsense.”

UPDATE:  Kent at Crime & Consequences provides this link to the latest opinion from Judge Frost in this litigation, and he this commentary:

The opinion is quite long but worth reading for anyone involved in this type of litigation. Frost recounts his earlier criticisms of the state officials, but he hammers the inmate's lawyers as well for playing games.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An update on just some of the uncertainty surrounding North Carolina's death penalty

North Carolina is not only a notable election swing state, but also a state in which the modern intricate history of its administration of the death penalty is almost impossible to sort trough. This new local article, "Unresolved challenges put death penalty on hold in N.C.," reports on part of this lengthy story:

North Carolina has not executed an inmate in six years because issues with the state medical board and unresolved litigation have led to a de facto moratorium. So while the state continues to pay for costly capital trials, no one is actually being put to death.

New Hanover County District Attorney Ben David, who is also president of the N.C. Conference of District Attorneys, said the moratorium has become a point of concern among prosecutors.  "Any decision to move forward (with the death penalty) has to include a frank discussion with the victim's family about the realistic possibility of the punishment being carried out," he said....

Prosecutors face a litany of hurdles when seeking death.  For one, jurors have shown a growing reluctance to impose the penalty, a shift that some scholars attribute to a string of highly publicized exonerations.  Even after a death sentence is secured, ongoing appeals and litigation challenging the constitutionality of lethal injection, the state's sole execution method, have tied up executions for the indefinite future.

Critics say pursuing capital punishment amid a moratorium is an expensive gamble.  That argument has gained traction as shrinking budgets and the frustratingly slow growth of the economy prompt some states to re-examine their criminal justice policies.... 

With 46 executions since 1976, North Carolina had been among the most active users of capital punishment, according to data from the nonprofit Death Penalty Information Center, based in Washington, D.C.  But recent years have seen a turnaround. Even before the state's moratorium took hold, executions had grown exceedingly rare for several reasons.  The number of death sentences handed out has trended downward since 2000, dropping from 18 that year to three in 2007, according to Isaac Unah, a political science professor at the University of North Carolina at Chapel Hill.

Notably, this story leaves out all the litigation and legislative debate over the application of the Racial Justice Act in North Carolina.  I am unsure where that litigation now stands, but I am sure that one could devote volumes to the (non)application of capital punishment in just this one state in recent years.

A few older and more recent posts on battles over the NC death penalty:

• Will NC's new Racial Justice Act effectively kill the state's death penalty?
• NC death row defendant prevails in first case decided under state's Racial Justice Act
• Reviewing the uncertain state of capital justice in the state of North Carolina
• North Carolina legislature trying again to cut back on state's consequential Racial Justice Act
• NC Gov Perdue again vetoes effort by legislature to reform state's Racial Justice Act
• NC legislatue overrides Gov veto of its changes to state's Racial Justice Act

"for the first time, we’re going to elect a candidate from a state that does not execute prisoners"

The title of this piece is a fascinating tidbit of presidential trivia drawn from this intriguing local article headlined "Why The Death Penalty Is Not An Issue In This Campaign."  Here are excerpts from the effective piece:

The death penalty used to be an important issue in presidential politics. In 1988, Vice President George Bush used his Democratic opponent Michael Dukakis’s opposition to the death penalty to portray him as soft on crime....

Running against Bush four years later, Arkansas Gov. Bill Clinton didn’t make the same mistake. He flew back to Little Rock to ensure the execution of Ricky Ray Rector, who had killed a police officer and then shot himself in the head. Rector was so brain damaged that he didn’t finish his last meal, saving his pecan pie “for later” before he was led to the execution chamber.

The death penalty also became an issue for Bush’s son, George W. Trying to establish that he was a friend to black voters, Bush boasted that the killers of James Byrd, a Texas man who had been dragged behind a truck by white supremacists, were “going to be put to death.”...

Capital punishment will not be an issue in this year’s campaign. For the first time, both candidates are from states that have abolished the death penalty. Which means that, also for the first time, we’re going to elect a candidate from a state that does not execute prisoners. (Illinois did not abolish capital punishment until 2011, three years after President Obama was elected. As governor of Massachusetts, Romney proposed a bill to restore the death penalty, but his legislature rejected it, denying him an achievement he could tout to conservatives.) Below is a list of such presidential candidates throughout American history. It’s hard to argue that any of them have lost specifically because they opposed the death penalty, but they generally came from states more liberal than the nation as a whole, so their stances were part of a political philosophy that voters did not accept.

Lewis Cass, Michigan, 1848

Robert M. La Follette, Wisconsin, 1924

Hubert Humphrey, Minnesota, 1968

Walter Mondale, Minnesota, 1984

Michael Dukakis, Massachusetts, 1988

John Kerry, Massachusetts, 2004

Barack Obama, Illinois, 2012

Mitt Romney, Massachusetts, 2012

Significantly, I think the death penalty should be an issue in the 2012 presidential campaign because the federal death penalty has been in a mysterious state of suspension even since the Baze lethal injection litigation created a moratorium on executions more than five years ago.  As detailed here at the DPIC website, there are more than 50 persons on federal death row, including an handful sentenced to death during the Obama Administration.  Thus, the federal chief executive (and his appointed Attorney General) has some unique death penalty responsibilities and thus ought to at some point in a campaign speak to his views on how best to discharge these responsibilities.

Related post (from 2010!):

• Wondering about the state and fate of the federal death penalty

After "quiet" summer season, a busy execution fall gets started today

There has not been any executions in the US for almost six weeks now, and there were only a total of five executions in the summer months.  But, as reported in local article here and here, there are executions scheduled today in both Ohio and Texas.

This DPIC page shows that an additional 15 serious execution dates are on the calendar for the remainder of 2012 (eight of which are in Texas).  If all these scheduled executions are if fact carried out this year (which seems somewhat unlikely), then there would be a very slight uptick (from 43 to 44) of the total number of executions this year compared to last year.  However, if even a few of these scheduled executions get postponed, 2012 could be the third straight year with a decline in the total number of executions in the US.

UPDATE:  This AP story reports that Ohio's execution was completed this morning.  The AP piece starts this way:

An Ohio death-row inmate used his last words Thursday to repeatedly apologize to the family members of his two victims and tell them that he hopes they can let their pain die with him.  Donald Palmer, 47, was executed by lethal injection at the state prison in Lucasville in southern Ohio about 23 years after he shot and killed two men he didn't know along a rural road.

ANOTHER UPDATE: This AP story reports that Texas's execution was completed late Thursday. This AP piece starts this way:

An ex-convict who confessed to killing five people at a Dallas-area car wash a week after he was fired from his job there 12 years ago was executed Thursday evening. Robert Wayne Harris, 40, received lethal injection less than two hours after the U.S. Supreme Court refused appeals to halt his punishment.

Harris expressed love to his brother and three friends who were watching through a window. "I'm going home. I'm going home," Harris said. "Don't worry about me. I'll be alright. God bless, and the Texas Rangers, Texas Rangers."

"Ohio inmate says he's too obese for execution"

I am not sure I need to add much the to above-quoted headline from this new Columbus Dispatch story, but full story actually includes a number of weighty details:

A condemned Ohio inmate who weighs at least 480 pounds wants his upcoming execution delayed, saying his weight could lead to a "torturous and lingering death."

Ronald Post, who shot and killed a hotel clerk in northern Ohio almost 30 years ago, said his weight, vein access, scar tissue and other medical problems raise the likelihood his executioners would encounter severe problems. He's also so big that the execution gurney might not hold him, lawyers for Post said in federal court papers filed Friday.  "Indeed, given his unique physical and medical condition there is a substantial risk that any attempt to execute him will result in serious physical and psychological pain to him, as well as an execution involving a torturous and lingering death," the filing said.

Post, 53, is scheduled to die Jan. 16 for the 1983 shooting death of Helen Vantz in Elyria....

Inmates' weight has come up previously in death penalty cases in Ohio and elsewhere. In 2008, federal courts rejected arguments by condemned double-killer Richard Cooey that he was too obese to die by injection. Cooey's attorneys had argued that prison food and limited opportunities to exercise contributed to a weight problem that would make it difficult for the execution team to find a viable vein for lethal injection. Cooey, who was 5-foot-7 and weighed 267 pounds, was executed Oct. 14, 2008.

In 2007, it took Ohio executioners about two hours to insert IVs into the veins of condemned inmate Christopher Newton, who weighed about 265 pounds. A prison spokeswoman at the time said his size was an issue.

In 1994 in Washington state, a federal judge upheld the conviction of Mitchell Rupe, but agreed with Rupe's contention that at more than 400 pounds, he was too heavy to hang because of the risk of decapitation. Rupe argued that hanging would constitute cruel and unusual punishment. After numerous court rulings and a third trial, Rupe was eventually sentenced to life in prison, where he died in 2006.

Ohio executes inmates with a single dose of pentobarbital, usually injected through the arms. Medical personnel have had a hard time inserting IVs into Post's arms, according to the court filing.  Four years ago, an Ohio State University medical center nurse needed three attempts to insert an IV into Post's left arm, the lawyers wrote.

Post has tried losing weight, but knee and back problems have made it difficult to exercise, according to his court filing.  While at the Mansfield Correctional Institution, Post "used that prison's exercise bike until it broke under his weight," according to the filing.

Montana state judge finds state's execution protocol unconstitutional

As reported in this local article, late last week a state "judge [said] Montana must change the way it executes prisoners after ruling that the current method is unconstitutional." Here is more:

The decision came in the case of Ronald Allen Smith, a Canadian citizen from Red Deer, Alberta, who is awaiting execution.  The American Civil Liberties Union had filed the case in 2008, arguing that lethal injection protocol amounts to cruel and unusual punishment under the U.S. and Montana constitutions.

Helena District Judge Jeffrey Sherlock ruled Thursday that aspects of it fail to pass constitutional muster.  He said the protocol doesn’t ensure qualified individuals are making key decisions, such as verifying that the inmate is unconscious and incapable of feeling pain before administration of the death drugs.  Sherlock said the warden is charged with that decision, although there is no training requirement in place to ensure he can properly determine the inmate is unconscious.

The judge said the job requirements for the setup officer are also lacking.  And he pointed out there is inconsistency between what state law requires of an execution procedure, and what the Department of Corrections manual says.

But the judge said needed changes can be easily made by the state — although it could require legislative changes if the state law on the method needs adjustments to comply with requirements.  The Legislature meets again in January.

State assistant attorney general C. Mark Fowler said his office is studying the opinion and deciding what options there are to modify the protocol.  In the meantime, no executions are scheduled.  “Judge Sherlock’s ruling upholds most of Montana’s lethal injection protocol as constitutional,” Fowler said in a statement.  “Modifying the three areas of concern identified by the court can, in the judge’s words, be done ‘easily’ and ‘quickly’ and ‘if done, the modified protocol could not be found in violation of the Montana Constitution.'”...

The ACLU said it thinks changes to state law by the legislature will be needed. Such changes, which require a bill to pass both chambers of the legislature and clear the governor’s desk, will be a more time-consuming and difficult task for the state than a simple rewrite of Corrections Department procedures.  “We are pleased that the court recognizes the insufficiencies of the state’s lethal injection protocol and that those insufficiencies create a situation where executions could inflict pain and suffering,” ACLU attorney Ron Waterman said in a statement.  “If the state insists on carrying out this most extreme sentence, it has an obligation to do so in a manner that upholds the U.S.and Montana Constitutions.”

New lethal injection drug means more delays for Missouri execution plans

As reported in this local article, headlined "Missouri execution dates postponed because of suit over new drug," litigation over lethal injection protocols is slowing down the machinery of death yet again in the Show Me State. Here are the basics:

Twenty-one men on death row — including six who may be next in line to die — say in a lawsuit that Missouri’s new lethal injection drug is unconstitutionally cruel and could force them to spend their final moments screaming in pain.

The latest challenge to the state’s long-troubled injection protocol caused the Missouri Supreme Court on Tuesday to postpone the setting of execution dates for the six, saying it would be premature with the case pending....

Some others states with the death penalty also have switched to using a single drug, but none uses propofol.... The suit was filed in June after news leaked out the month before about the Department of Corrections’ change.

"It’s an excuse to delay and, from their perspective, someday hopefully abolish the death penalty," St. Louis County Prosecuting Attorney Robert McCulloch told the Post-Dispatch in an interview Monday, before the Supreme Court announcement. "And its a specious argument."

But Rick Sindel, a lawyer representing four of the plaintiffs, said the state’s own expert admitted in court that propofol could cause "excruciating pain."... He complained that the Department of Corrections and attorney general’s office "surreptitiously" hatched the plan without regard for pain....

The inmates’ chief argument is that propofol would cause the "unprecedented, substantial likelihood of foreseeable infliction of excruciating pain," violating their rights with cruel and unusual suffering. Sindel said that 60 to 70 percent of medical patients receiving propofol report pain. For some, "pain is excruciating, causing them to cry out and struggle vigorously," or "scream at the top of their lungs," the suit alleges.

Plantiniffs’ lawyers also have raised issues about the legality of non-doctors using lidocaine, letting corrections Director George Lombardi select the execution method and effectively changing the punishment for crimes after the fact.

Many of those claims have been rejected in court before, the attorney general’s office argued in court filings.... "Plaintiffs seem to contend that despite propofol’s general acceptance and widespread use, the means of execution must have zero pain and zero risk of pain," they continued. "Plaintiffs offer no alternative to propofol that satisfies these criteria."

Notable assessment of California's ugly lethal injection litigation

Debra Saunders always brings an interesting perspective to sentencing debates, and her latest piece  discussing California litigation over lethal injection protocols is no exception. The piece is headlined "As Sacramento dawdles, district attorneys revolt," and here are excerpts:

California's death penalty has been in limbo since 2006, when a federal judge stayed the execution of Michael Morales, who was sentenced to death for the brutal 1981 murder and rape of 17-year-old Terri Winchell. The judge was fearful lest the state's three-drug lethal injection protocol would cause Morales undue pain. Since then, a number of states have switched to a one-drug protocol. Why hasn't California? The answer could be that Gov. Jerry Brown and Attorney General Kamala Harris don't want the death penalty to work.

Brown and Harris are personally opposed to the death penalty, but when they campaigned for office in 2010, both pledged to carry out the law. They're not exactly knocking themselves out to do so.

In 2009, Ohio adopted a one-drug protocol for executions. By administering a lethal dose of barbiturates, Ohio made it harder for frivolous appeals to keep the state from enforcing its laws. Several states followed suit, including Washington. Washington is important because the U.S. Court of Appeals for the 9th Circuit refused to stay a single-drug execution there in 2010.

California officials still are sticking with a three-drug protocol mired in legal challenges. Sacramento has been so ineffective that Los Angeles District Attorney Steve Cooley asked a Los Angeles Superior Court judge to make the state order the single-drug executions of multiple murderers Tiequon Cox and Mitchell Sims....

Believe it or not, a California deputy attorney general actually showed up in court to fight Cooley's effort -- in the name of Brown's Department of Corrections. The California Department of Justice argued that Cooley's gambit, if successful, would put Corrections in an "impossible position" because of Marin Superior Court Judge Faye D'Opal's injunction against executions pending new regulations. Hanisee counters that D'Opal doesn't have the authority to stop all executions. Besides, D'Opal faulted the state's rejection of a one-drug protocol.

"The murderer and the state's chief law enforcement officer were both on the same side," observed a disgusted Michael Rushford, president of the tough-on-crime Criminal Justice Legal Foundation....

San Mateo County District Attorney Stephen Wagstaffe ... also has asked a superior court to order a single-drug execution, of convicted killer Robert Fairbank. "At present," the San Mateo brief argues, "the laws of this state are not being enforced by the agency designated to do so."...

Death penalty foes have succeeded in placing a measure on the November ballot to repeal California's death penalty. As it is now, the more than 720 inmates on California's death row are likelier to die from natural causes or suicide than they are from lethal injection. Advocates then can point to the de facto death penalty moratorium and argue that capital punishment is an expensive failure.

Their spokesmen can point to gestures Brown and Harris have made to uphold the law, but Rushford believes that the governor and attorney general are deliberately failing to carry out California's death penalty law. Brown "doesn't want to enforce the death penalty," Rushford said. "That's what I believe, and everything he's done proves it."

Georgia Supreme Court grant stay on protocol litigation, not MR issues, for Warren Hill

As reported in this Atlanta Journal-Constitution article, the ""Georgia Supreme Court on Monday stayed the execution of condemned killer Warren Hill, but not for the reason his case attracted national attention." Here are the basic details:

For more than a decade, Hill’s lawyers have sought to halt the execution on grounds the 52-year-old is mentally disabled. But Monday, with less than two hours to spare, the state high court unanimously granted the stay to determine whether a recent change to Georgia’s lethal-injection protocol violates state law. The court agreed to hear Hill’s appeal of a Fulton County judge’s decision issued earlier in the day.

Separately, by a 6-1 vote, the court declined to hear Hill’s appeal challenging the state’s standard to determine whether an inmate is mentally disabled and thus ineligible for execution. Justice Robert Benham, the lone dissenter, said he would not allow the execution because Hill has been found to have a mental disability.

Hill is on death row for the 1990 bludgeoning death of a fellow inmate at a southwest Georgia prison. At the time, he was serving a life sentence for killing his 18-year-old girlfriend in 1985. Hill’s case attracted the attention of national and state advocacy groups for the developmentally disabled, who had asked for Hill to be allowed to serve the rest of his life in prison without parole. Former President Jimmy Carter and his wife, Rosalynn, had made a similar plea for mercy....

Hill learned his 7 p.m. execution had been called off after he had already eaten what he must have thought was going to be his final meal. He had decided to eat the same fare served Monday to inmates at the state prison in Jackson: bean and beef burrito, rice, corn, collard greens and cookies. He was given his pre-execution physical and had been taken to a holding cell near the death chamber.

“I’m just profoundly grateful the Supreme Court granted this stay,” Brian Kammer, one of Hill’s lawyers, said. “A terrible miscarriage of justice was avoided, for now.” It could be months before the state Supreme Court decides Hill’s appeal. The court’s self-imposed deadline calls for a decision by April 14 of next year, perhaps enough time for advocates for the developmentally disabled to ask the state Legislature to change the state’s burden of proof for “mental retardation” claims.

Kentucky considering one-drug protocol four years after Baze approved its three-drug approach

This local article, headlined "Kentucky proposes single-drug execution method," reports that the state which successfully defended its three-drug execution protocol before the Supreme Court in the Baze case is now changing its execution plans.  Here are the basics:

Kentucky Justice Cabinet officials filed the regulatory changes Friday, outlining a new protocol that would allow wardens to execute inmates with an intravenous solution of either sodium thiopental or pentobarbital, instead of the combination of sodium thiopental, pancuronium bromide and potassium chloride.

Death penalty opponents and inmates have argued that the three-drug mixture violates the constitutional prohibition on cruel and unusual punishment by producing more pain compared to the one-drug method.

The fight over Kentucky’s method has been going on for a year and a half, and the debate has been one of the factors that have held up executions in recent years in the state. Executions cannot resume until the state’s protocol passes muster.  In April, Franklin Circuit Judge Phillip Shepherd ordered the cabinet to change the protocol within 90 days or defend the mixture in his court....

The proposals are scheduled for a public hearing Sept. 25 and could appear before the state’s Administrative Regulation Review Subcommittee as soon as October.  But any controversy could push the proposed regulations’ effective date as far back as January....

David Barron, an assistant public advocate with the Kentucky Department of Public Advocacy, said death-row inmates would continue legal fights against lethal injection under the proposed regulations, which he said leave many issues unresolved and create new problems. “They appear to be attempting to carry out executions in a way that no state has even attempted, let alone done before,” Barron said.

The new rules provide wardens with a second option for executing inmates if the single-drug injections are not available seven days prior to a scheduled execution.  In those cases, a two-drug protocol involving a mixture of midazolam and hydromorphone would be permitted, but the warden would have to notify inmates seven days in advance of which option will be used. “That itself invites last-minute litigation because you don’t know if you are going to be executed with one drug or the two drugs” until a few days beforehand, Barron said.

At least seven other states have switched to the one-drug method for lethal injections. Deborah Denno, who has studied execution methods from around the country, told the Associated Press that states now use a half-dozen ways to carry out executions.  “States are so panic-stricken about not being able to execute, they’re creating this Frankenstein-type of procedure of killing at all cost, whatever it takes,” Denno said.

Kentucky’s regulations are similar to Ohio’s and cover a variety of details about how an execution is carried out, ranging from when an inmate is moved from death row to the holding cells where the execution chamber is housed to who pronounces the inmate dead and how.

As regular, long-time readers know, many supporters of the aggressive litigation against states using three-drug protocols for lethal injections would often assert that the litigation was not designed to halt or delay executions but to prod states to adopt better execution protocols such as those involving only one-drug.  Indeed, calls for a switch to a one-drug protocol were common in the Kentucky litigation that made it to the Supreme Court in Baze v. Rees in 2008, though Kentucky succeeded in getting the Justices to approve its then-in-place three-drug method.

Now, four years later, most as a result of still continuing aggressive litigation about three-drug protocols, Kentucky appears poised to adopt a new execution method that embraces the one-drug protocol previously championed by many on the defense side.  And, as far as I can tell, the state which have used this kind on one-drug protocol to date have yet to experience any obvious or serious problems with this method of completing death sentences.  Nevertheless, as Kentucky and perhaps others states finally begin to line up to adopt this apparently improved method of execution, there are still claims that states are "creating [a] Frankenstein-type of procedure of killing at all cost."  These assertions confirm my long-standing view and fear that the litigation over lethal injection protocols was more about obstructing any and all executions rather than about truly improving the means for how these executions would be completed.

Drug scarcity, not litigation, has Texas moving to one-drug execution protocol

The last decade has seen huge (and hugely expensive) constitutional litigation in state and federal courts throughout the nation concerning three-drug lethal injection execution protocols.  Capital defendants in these cases often claimed they hoped only to push states to adopt a one-drug protocol rather than give up executions altogether; rarely did they succeed in this mission, though often they did managed to achieve (their true goal of?) a delay in a scheduled execution.  This lethal injection litigation twice made it to the Supreme Court docket, though the SCOTUS rulings in Hill and Baze did relative little to clarify or conclude (still on-going) constitutional litigation over three-drug execution protocols.

Against the backdrop of this litigation history, I find more than a little irony in various aspects of this new AP story coming from the state with the most active death chamber.  The story is headlined "Texas switches to 1-drug execution due to shortage," and here are the basics:

Texas, the nation's most active death penalty state, announced Tuesday that it would become the latest to switch to single-drug executions amid a drug shortage that has left states scrambling for acceptable alternatives.

The Texas Department of Criminal Justice said it will begin using a single dose of the sedative pentobarbital to carry out death sentences. It had been using that drug in combination with two others, but its supply of one of the other drugs expired.

Texas began using pentobarbital last year after another drug, sodium thiopental, became unavailable when its European supplier bowed to pressure from death penalty opponents and stopped making it. But pentobarbital is now in short supply after its Danish manufacturer said it would try to prevent its use in executions.

An Oklahoma inmate asked a federal court on Tuesday to halt his upcoming execution because that state has only one dose of pentobarbital left. A lawyer for Michael Hooper said Oklahoma has no backup plan if the drug fails to render Hooper unconscious, and that creates a risk of cruel and unusual punishment.

Texas officials said in May that they have enough doses of pentobarbital to carry out 23 executions. No one has been executed in the state since....

Four other states - Arizona, Idaho, Ohio and Washington - have used a single drug to carry out executions, according to the Death Penalty Information Center. Ohio was the first to use just pentobarbital, during a March 2011 execution. Other states, such as Missouri, plan to use propofol, the anesthetic blamed for Michael Jackson's death, to do single-drug executions.

Death penalty opponents claim single-drug executions may be less humane. They point to an April execution in Arizona, where an inmate shook for several seconds after receiving a lethal dose of pentobarbital. The drug was used by itself in that case.

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, said three-drug cocktails kill quicker than a single anesthetic like pentobarbital. "The person still goes to sleep and gradually loses mental capacity and dies, but it may take a slightly longer time," Dieter said. "I think the idea originally was to cause death quickly, but you needed the anesthetic to make those next two drugs painless."

Texas has carried out more executions than any other state, 482 since the state reinstated capital punishment in 1982. Its next scheduled lethal injection is July 18, when Yokamon Hearn is set to die for killing a 23-year-old stockbroker from Plano, north of Dallas, in 1998.

Hearn's lawyer, Richard Burr, said he was studying the switch to a single drug and hadn't decided yet whether to file an objection to it. Texas has nine executions, including Hearn's, scheduled between now and mid-November. Clark said switching to a single-drug method now will ensure that all can be carried out as planned.

Dieter said Texas' switch might influence other states and provide more evidence for whether a one-drug procedure works better than previous methods. "Either way, it provides more evidence that this is or is not the way to go," Dieter said. "Everybody thinks of Texas as the leading execution state. It's a question of numbers."