Tuesday, April 15, 2014
"Secret Drugs, Agonizing Deaths"
The title of this post is the headline of this New York Times op-ed published yesterday. Authored by Megan McCracken and Jennifer Moreno, here is how it starts:
Facing a critical shortage of lethal injection drugs, prison officials in a number of states have recently engaged in an unseemly scramble to obtain new execution drugs, often from unreliable and even illegal sources. Not only does this trend raise serious questions about the constitutionality of executions, it also undermines the foundations of our democratic process. In the name of security, states are now withholding vital information about their death penalty procedures — from death row prisoners’ lawyers and from judges, whose stamp of approval they need to impose the ultimate sanction, as well as from the public, in whose name the sentence is carried out.
States have long shielded the identities of executioners, a reasonable policy that should not interfere with judicial review of execution procedures. But in the past year, Georgia, Missouri, Tennessee and other states have expanded the reach of their secrecy laws to include not just the execution drugs used, but even the pharmacies that supply them.
These laws hide the information necessary to determine if the drugs will work as intended and cause death in a humane manner. For states to conceal how they obtain the execution drugs, whether those purchases comply with the law and whether the drugs themselves are legitimate prevents courts from analyzing the legality and constitutionality of death penalty procedures. And that deprives the public of informed debate.
Thursday, April 03, 2014
Serial killer hoping SCOTUS will be troubled by execution drug secrecy in Texas
As highlighted in this AP article, a legal challenges based on execution drug secrecy is now before the Supreme Court after a Texas death row defendant has won and then lost on lower courts in his effort to block his execution. Here are the basics:
Attorneys for a serial killer asked the U.S. Supreme Court to halt his execution set for Thursday in Texas as they challenge that state's refusal to release information about where it gets its lethal injection drug.
Lawyers for Tommy Lynn Sells made the plea after a federal appeals court allowed the execution to stay on schedule. A lower court had stayed the execution Wednesday, ordering Texas to reveal more information about its drug supplier, but the ruling was quickly tossed on appeal. "It is not in the public interest for the state to be allowed to be deceptive in its efforts to procure lethal injection drugs," Sells' attorneys told the high court.
The appeal was one of two separate issues pending before the justices. Another before the court since last month asked for the punishment to be stopped to review whether Sells' legal help at his trial was deficient, and whether a court improperly denied him money to hire investigators to conduct a probe about his background.
Sells, who was sentenced to death for fatally stabbing a 13-year-old South Texas girl in 1999, claims to have committed as many as 70 killings across the U.S. The 49-year-old is scheduled to be lethally injected Thursday evening in Huntsville. Sells' attorneys argue that they need to know the name of the company now providing the state with pentobarbital, the drug used during executions, in order to verify the drug's quality and protect Sells from unconstitutional pain and suffering.
But 5th U.S. Circuit Court of Appeals sided with Texas prison officials, who argued that information about the drug supplier must be kept secret to protect the company from threats of violence. It also found that the stock of the pentobarbital, a powerful sedative, falls within the acceptable ranges of potency. The court said that had Texas wanted to use a drug never used before for executions or a completely new drug whose efficiency or science was unknown, "the case might be different."
It's unclear how the Supreme Court would rule. Last month it rejected similar arguments from a Missouri inmate's attorneys who challenged the secrecy surrounding where that state obtained its execution drugs, and the condemned prisoner was put to death....
A batch of pentobarbital that Texas purchased from a compounding pharmacy in suburban Houston expired at the end of March. The pharmacy refused to sell the state any more drugs, citing threats it received after its name was made public. That led Texas to its new, undisclosed suppler.
The court case challenging the state's stance also included 44-year-old Ramiro Hernandez-Llanas, who is scheduled for execution next week. But the 5th Circuit ruling affected only Sells. Maurie Levin, an attorney for the inmates, said Sells' case would be appealed to the U.S. Supreme Court. Levin said the lower court ruling, which had ordered the Texas Department of Criminal Justice to give defense attorneys details about the drug supplier and how the drug was tested, "honors the importance of transparency in the execution process."
If Sells' execution is carried out Thursday, it would be the fifth lethal injection this year in Texas, the nation's busiest death-penalty state.
Sells had dubbed himself "Coast to Coast," a nod either to his wandering existence as a carnival worker or to his criminal history. Court documents said he claimed as many as 70 murders in his lifetime in states including Alabama, California, Arizona, Kentucky and Arkansas. "We did confirm 22 (slayings)," retired Texas Ranger John Allen said this week. "I know there's more. I know there's a lot more. Obviously, we won't ever know."
UPDATE: This AP story reports that Sells "was put to death Thursday in Texas after the U.S. Supreme Court rejected his lawyers' demand that the state release information about where it gets its lethal injection drug."
Saturday, March 29, 2014
"What’s the Best Way to Execute Someone?"
The title of this post is the headline of this lengthy new Slate commentary. Here is an excerpt:
Without an expert in the room, states often rely on executioners who don’t really know what they’re doing. As one anesthesiologist told me, “the executioners are fundamentally incompetent. They have neither the technical skill nor the cognitive ability to do this properly.” Another added, “In medicine, the burden of proof is on the doctor to show that something is safe. We would never give a new drug to a patient until it’s been tested, approved by the FDA, etc. With the death penalty, the burden of proof has been inverted. These compounds, which are clearly causing patients to suffer, are deemed safe until proven otherwise. Yet the department of corrections prevents the release of information pertaining to how the lethal injection is carried out, making it impossible for a lawyer to make a strong case that this method is cruel and unusual.” Georgia is in fact working on a Lethal Injection Secrecy Act.
As our understanding of cruelty continues to evolve — let’s not forget that drawing and quartering was once an acceptable method of execution — future generations may wonder why lethal injection was performed so poorly and carelessly, and with so little oversight. Part of the problem is the terminology: Words like injection and cocktail and gurney give the illusion that this form of capital punishment is civil. This allows, regrettably, for a softening of the perception of what is actually happening: Medications that were designed to heal have been repurposed to kill.
And it’s not just the wrong doses — it’s the wrong drugs. A professor of anesthesiology at a large academic medical center said, “We have the drugs to do it in a way that doesn’t cause suffering. I read the doses they were using and thought, ‘That’s not enough! Who is coming up with this? Whoever did certainly doesn’t do this for a living.’ You need two components for lethal injection: amnesia and analgesia. This ensures the person is not aware and not in pain. Drugs like potassium chloride and pancuronium (a paralytic) — the drugs approved by the Supreme Court — are unnecessary. When they euthanize a dog, they don't use potassium or a paralytic. You don’t even need an anesthesiologist! Any physician could look up the proper dosing in a textbook.”
While I was researching this piece and discussing with friends the nuances of optimizing lethal injection, a number of them stopped me midsentence and asked, “Who cares?” Should it be our concern that a monster may have experienced profound discomfort in his or her final minutes? Recounting precisely what happened to Dennis McGuire — who was convicted of the 1989 rape and murder of 22-year-old Joy Stewart, who was about 30 weeks pregnant at the time — led some to express the hope that he did suffer. But regardless of your stance on the death penalty, the story of McGuire’s slow asphyxiation should lead you to wonder whether it violated our Constitution’s ban on cruel and unusual punishment....
A compelling case can be made that based on efficacy, diffusion of responsibility, and inexpensiveness, death by firing squad is a better option. (Or perhaps the guillotine.) Some organs would remain intact for donation, and although it might appear grisly, it’s quick, and it is the only method of execution for which we already train people. Interestingly, in states that have offered both shooting and hanging — which also fulfills many of the above criteria — inmates usually opt for the firing squad. One could argue that if properly done, lethal injection would be more humane than either of these methods, but we can no longer expect that it will be properly done.
Friday, March 28, 2014
Could Oklahoma ruling declaring drug secrecy unconstitutional impact execution plans nationwide?
The question in the title of this post is prompted by this new Reuters article, headlined "U.S. executions set for possible delay after Oklahoma court decision." Here are excerpts:
An Oklahoma judge ruled on Wednesday the state's secrecy on its lethal injections protocols was unconstitutional, a decision that could delay executions in other states where death row inmates are planning to launch similar challenges.
County district court judge Patricia Parrish ruled the state violated due process protections in the U.S. Constitution by not providing the name of the drug supplier, the combination of chemicals and the dosages used in executions. Oklahoma's attorney general said the office will appeal.
Oklahoma and other U.S. states have been struggling to obtain drugs for executions. Many pharmaceutical firms, mostly in Europe, have imposed sales bans because they object to having medications made for other purposes used in lethal injections. The states have looked to alter the chemicals used for lethal injection and keep the suppliers' identities secret. They have also turned to lightly regulated compounding pharmacies that can mix chemicals.
But lawyers for death row inmates argue drugs from compounding pharmacies can lack purity and potency and cause undue suffering, in violation of the U.S. Constitution. "Judge Parrish's decision is a major outcome that should have a reverberating impact on other states that are facing similar kinds of transparency issues," said Fordham Law Professor Deborah Denno, who specializes in the legalities of lethal injections....
Legal experts expect more states to face challenges that will delay executions, but if they settle transparency issues, many will resume putting inmates to death. "Almost every state is hiding part of the process, or is attempting to," said Richard Dieter, the executive director of the Death Penalty Information Center....
For now, several of the 32 states with the death penalty are keeping mum about business transactions for execution drugs. Texas, which has executed more prisoners than any other state since the U.S. Supreme Court reinstated the death penalty in 1976, has obtained a fresh batch of the drug it uses for its executions. But Texas will not identify the supplier, citing "previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process," the Texas Department of Criminal Justice said in a statement.
Alabama said this week it has run out of one of the main drugs it uses, putting on hold executions for 16 inmates who have exhausted appeals and face capital punishment. It is also looking at ways to keep the name of drug providers secret. Inmates in Missouri, which carried out an execution this week, have sued the state over execution protocols that include layers of secrecy.
Arizona said on Wednesday it had to change its lethal injection cocktail because it could not obtain the drugs it once used. "Being lost in the conversation and political maneuvering is the fact that family of murdered loved ones are paying the ultimate price as they wait for justice to be carried out," Arizona Attorney General Tom Horne said in a statement.
Some related prior posts:
- Is undue "secrecy" in the execution process a constitutional problem?
- "Lethal Injection Secrecy Post-Baze"
- "Compound Sentence: States keep mum on where lethal injection drugs are made"
Tuesday, March 25, 2014
Could 2014 be a "comeback" year for state executions?
Because last Saturday my fantasy baseball league had its annual auction, I have spent time recently thinking about which MLB players might have a big "comeback" year after struggling through 2013. (As I Yankee fan, I am hoping Derek Jeter has a great comeback; as a fantasy GM, I am hoping Beckett might reward me for using a roster spot to pick him up.) With comeback concerns in mind, I have lately been thinking about whether state executions might also end up staging something of a comeback after struggling through varied challenges with lethal injection protocols and drug shortages though 2013.
As detailed in this yearly execution chart from the Death Penalty Information Center, there were only 39 executions in 2013. That was the second lowest yearly total in nearly two decades, and the other recent year with less than 40 executions (2008) was the direct result of SCOTUS halting all executions for a number of months while it considered the constitutionality of lethal execution protocols in Baze. Opponents of the death penalty celebrated the low number of executions in 2013, and they surely were hoping execution difficulties would drive down execution numbers even further in 2014.
Details from DPIC here and here, however, report that there have already been 12 executions in 2014 and that there are another 12 "serious" execution dates scheduled for the next six weeks. If most of these executions go forward, and especially if states like Texas and Florida continue to be able to find drugs to continue with executions, it seems very possible that there could end up being 50 or more executions in 2014.
Thursday, March 20, 2014
Texas officials get hooked up by special secret (capital) drug dealer
As reported in this AP story, headlined "Texas finds new execution drug supply," Texas officials seem to have special abilities to acquire the drugs needed to continue with executions. Here are the (cloak-and-dagger?) details:
Texas has obtained a new batch of the drugs it uses to execute death row inmates, allowing the state to continue carrying out death sentences once its existing supply expires at the end of the month. But correction officials will not say where they bought the drugs, arguing that information must be kept secret to protect the safety of its new supplier. In interviews with The Associated Press, officials with the Texas Department of Criminal Justice also refused to say whether providing anonymity to its new supplier of the sedative pentobarbital was a condition of its purchase.
The decision to keep details about the drugs and their source secret puts the agency at odds with past rulings of the state attorney general's office, which has said the state's open records law requires the agency to disclose specifics about the drugs it uses to carry out lethal injections. "We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process," said Texas Department of Criminal Justice spokesman Jason Clark.
The dispute in the state that executes more inmates than any other comes as major drugmakers, many based in Europe, have stopped selling pentobarbital and other substances used in lethal injections to U.S. corrections agencies because they oppose the death penalty. Until obtaining its new supply from the unknown provider, Texas only had enough pentobarbital to continue carrying out executions through the end of March. Earlier this week, a court rescheduled two executions set for this month in Oklahoma — another leading death penalty state — because prison officials were having trouble obtaining the drugs, including pentobarbital, needed for its lethal injections.
Such legal challenges have grown more common as the drug shortages have forced several states to change their execution protocols and buy drugs from alternate suppliers, including compounding pharmacies that are not as heavily regulated by the U.S. Food and Drug Administration as more conventional pharmacies....
Alan Futrell, an attorney for convicted murderer Tommy Sells, whose scheduled April 3 execution would make him the first to be put to death with Texas' new drug supply, said the issue could become fodder for legal attempts to delay his sentence. "This might be good stuff," he said. "And the roads are getting very short here."
But Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, an anti-capital punishment organization, said it was doubtful that Texas would get to a point where a lack of drugs led officials to fully suspend capital punishment. "There are a lot of drugs, and Texas can be creative in finding some," he said.
Texas' current inventory of pentobarbital, the sedative it has used in lethal injections since 2012, will expire April 1. The state executed one inmate, Ray Jasper, on Wednesday evening and has scheduled executions for five more, including one next week. That execution, like Wednesday's, will draw from the existing stockpile purchased last year from a suburban Houston compounding pharmacy, Clark said. The new batch of drugs presumably would be used for three Texas inmates set to die in April, including Sells, and one in May.
Sixteen convicted killers were executed in Texas last year, more than in any other state. Jasper's execution was Texas' third this year, bringing the total to 511 since capital punishment in the state resumed in 1982. The total accounts for nearly one-third of all the executions in the U.S. since a 1976 Supreme Court ruling allowed capital punishment to resume....
Policies in some states, like Missouri and Oklahoma, keep the identities of drug suppliers secret, citing privacy concerns. Clark, in refusing AP's request to answer any specific questions about the new batch of drugs, said after prison officials identified the suburban Houston compounding pharmacy that provided its existing supply of pentobarbital, that pharmacy was targeted for protests by death penalty opponents. It sought to have Texas return the pentobarbital it manufactured, and prison officials refused.
Texas law does not specifically spell out whether officials can refuse to make the name of drug suppliers public, but Texas Attorney General Greg Abbott's office has on three occasions rejected arguments by the agency that disclosing that information would put the drug supply and manufacturers at risk. In a 2012 opinion, his office rejected the argument that disclosing the inventory would allow others to figure out the state's suppliers, dismissing the same kind of security concerns raised this week....
Clark said the prison agency planned to ask Abbott to reconsider the issue. "We're not in conflict with the law," Clark said. "We plan to seek an AG's opinion, which is appropriate in a situation like this, and the AG's office will determine whether it's releasable."
Wednesday, March 19, 2014
Oklahoma court postpones two executions due to drug shortages
As reported in this AP article, an "Oklahoma court on Tuesday rescheduled a pair of executions set for this week and next, so state prison officials will have more time to find a supply of drugs for the lethal injections." Here is more about the latest challenge facing a state trying to carry out a death sentence:
The decision came in a lawsuit in which two inmates had sought more information about the drugs that would be used to execute them later this month. The inmates had sought a stay of their executions, but the Oklahoma Court of Criminal Appeals said that request was moot because the state Department of Corrections doesn't have enough drugs on hand to carry out their death sentences. "The attorney general's attestations give this court no confidence that the state will be able to procure the necessary drugs before the scheduled executions are carried out," the court wrote.
Oklahoma and other states that have the death penalty have been scrambling for substitute drugs or new sources for drugs for lethal injections after major drugmakers — many based in Europe with longtime opposition to the death penalty — stopped selling to prisons and corrections departments. While the judges didn't rule on the merit of the inmates' stay request, they pushed their executions back a month — Clayton Lockett to April 22 and Charles Warner to April 29....
Oklahoma Attorney General Scott Pruitt said he is upset the executions have been delayed, but said Warner and Lockett will ultimately still be punished for their crimes. "This delay is not about the facts of the case, nor does it seek to overturn the convictions of these two murderers. Instead, it's about outside forces employing threats, intimidation, and coercion to keep the state of Oklahoma from imposing the punishment handed down for these heinous crimes," Pruitt said. "It's not a matter of if these punishments will be carried out, but it is only a matter of when."
Lockett, who was to be executed Thursday, was found guilty in the 1999 shooting death of a 19-year-old Perry woman. Warner was set to be executed on March 27 for the 1997 rape and murder of his girlfriend's 11-month-old daughter. In their lawsuit, Lockett and Warner said they feared the drugs to be used might be contaminated and cause them undue harm, in violation of a constitutional guarantee against cruel or unusual punishment. A hearing in Oklahoma County District Court is set for March 26 on whether it's proper for the state to keep execution procedures behind a "veil of secrecy."
"We are relieved that the OCCA's decision allows Mr. Warner and Mr. Lockett to proceed on their constitutional challenge to Oklahoma's execution-secrecy law and execution protocol," Madeline Cohen, a federal public defender who previously represented Charles Warner, said. "We hope that no execution will go forward until we are able to obtain full information about how Oklahoma intends to conduct those executions, including the source of its execution drugs."
In briefs filed with the Court of Criminal Appeals on Monday, the state attorney general's office said prison officials were having difficulty finding pentobarbital, a sedative, and vecuronium bromide, a muscle relaxant. The state also uses potassium chloride to stop an inmate's heart. "The state declared it had pursued 'every feasible option to obtain the necessary execution drugs' but its 'Herculean' efforts so far had been unsuccessful," the court wrote.
State lawyers warned that, if it is required to find different drugs, it would have to write a new execution protocol that would likely face another court challenge. Judge Gary L. Lumpkin dissented Tuesday's decision. He said the inmates had failed to meet their burden for a stay but said the court shouldn't have granted a delay because the state hadn't asked for one.
Monday, March 10, 2014
Should death penalty abolitionists or proponents be more troubled by "Wild West" response to troubles with execution drugs?
The question in the title of this post is the prompted by this lengthy new USA Today article headlined "Death penalty in U.S. spurs Wild West scramble for drugs; Capital punishment in the USA is in decline as states wrestle to find drugs for lethal injections." Here is how the piece starts:
Prison guards meet in the desert to hand off chemicals for executions. A corrections boss loaded with cash travels to a pharmacy in another state to buy lethal sedatives. States across the country refuse to identify the drugs they use to put the condemned to death.
This is the curious state of capital punishment in America today. Manufacturers are cutting off supplies of lethal injection drugs because of opposition to the death penalty, and prison officials are scrambling to make up the deficit — sharing drugs, buying them from under-regulated pharmacies or using drug combinations never employed before in putting someone to death.
At the same time, growing numbers of states are ending capital punishment altogether. Others are delaying executions until they have a better understanding of what chemicals work best. And the media report blow-by-blow details of prisoners gasping, snorting or crying out during improvised lethal injection, taking seemingly forever to die.
Legal challenges across this new capital punishment landscape are flooding courts, further complicating efforts by states that want to keep putting people to death. "I've done everything I can do to carry out the executions that have been ordered in my state, and if somebody has an idea of how we can do that, I'd like to hear it," says Arkansas Attorney General Dustin McDaniel.
The state has 33 people on death row, no executions since 2005 and a death penalty sidelined last month by a state judge complaining that the Arkansas law for lethal injection isn't clear about what drugs should be used. "I don't know where it will all end up," says an exasperated McDaniel. "I know that in the near future we will see more litigation. We will see fewer executions. We will see states scrambling to come up with alternative methods. And there will be a lot of finger-pointing."
Regular readers know that the difficulties states have had securing execution drugs, combined with the consistent efforts of capital defense lawyers to legally challenge the ways states plan to kill their clients, has produced a remarkable legal and practical hash of the application of the death penalty in nearly all states with death row defendants who have exhausted all other means of appeals. This lethal injection protocol capital hash has been going strong for nearly a decade now, and I do not see any end in sight.
I am inclined to guess that death penalty proponents are most troubled by all the new litigation and practical barriers in the way of carrying out death sentences. But I suspect lots of death penalty abolitionists are likewise troubled by how hard (and with questionable means) some states are trying to go forward with untried methods for ending like. So, I suppose this post is meant to suggest both a descriptive and normative question: who is most troubled with what is going on, and should be?
Wednesday, February 26, 2014
Mizzou completes fourth execution in last four months
While multiple states continue to have multiple problems securing the drugs needed for execution or deflecting litigation over execution protocols, Missouri has now succeeded in completing four executions in as many months. Here are the details of the latest one, via this AP story headlined "Missouri Executions Man in '89 Rape, Killing of Teen":
A Missouri inmate was executed early Wednesday for abducting, raping and killing a Kansas City teenager as she waited for her school bus in 1989, marking the state's fourth lethal injection in as many months.
Michael Taylor, 47, was pronounced dead at 12:10 a.m. at the state prison in Bonne Terre. Federal courts and the governor had refused last-minute appeals from his attorneys, who argued that the execution drug purchased from a compounding pharmacy could have caused Taylor inhuman pain and suffering.
Taylor offered no final statement, although he mouthed silent words to his parents, clergymen and other relatives who witnessed his death. As the process began, he took two deep breaths before closing his eyes for the last time. There were no obvious signs of distress.
His victim, 15-year-old Ann Harrison, was in her driveway, carrying her school books, flute and purse, when Taylor and Roderick Nunley abducted her. The men pulled her into their stolen car and drove her to a home, where they raped and fatally stabbed her as she pleaded for her life. Nunley was also sentenced to death. Ann's father and two of her uncles witnessed Taylor's execution. They declined to make a public statement.
In their appeals, Taylor's attorneys questioned Missouri's use of an unnamed compounding pharmacy to provide the execution drug, pentobarbital. They also cited concerns about the state executing inmates before appeals were complete and argued that Taylor's original trial attorney was so overworked that she encouraged him to plead guilty.
After using a three-drug execution method for years, Missouri switched late last year to pentobarbital. The same drug had been used in three earlier Missouri executions, and state officials said none of those inmates showed outward signs of distress. Still, attorneys for Taylor said using a drug from a compounding pharmacy, which unlike large pharmaceutical companies are not regulated by the U.S. Food and Drug Administration, runs the risk of causing pain and suffering during the execution.
The Oklahoma-based compounding pharmacy Apothecary Shoppe agreed last week that it wouldn't supply the pentobarbital for Taylor's execution, forcing Missouri to find a new supplier. Attorney General Chris Koster's office said a new provider had been found, but Koster refused to name the pharmacy, citing the state's execution protocol that allows the manufacturer anonymity. Taylor's attorneys said use of the drug without naming the compounding pharmacy could cause the inmate pain and suffering because no one could check if the operation was legitimate and had not been accused of any violations.
Pete Edlund doesn't want to hear it. The retired Kansas City police detective led the investigation into the teenager's death. "Cruel and unusual punishment would be if we killed them the same way they killed Annie Harrison," Edlund said. "Get a damn rope, string them up, put them in the gas chamber. Whatever it takes."
Tuesday, February 25, 2014
"Compound Sentence: States keep mum on where lethal injection drugs are made"
The title of this post is the headline of this article in the March 2014 issue of the ABA Journal. Here are excerpts:
Tony Rothert, legal director of the ACLU-Missouri ... says the group is troubled by the secrecy surrounding compounded drugs [to be used in executions]. “Our concern here is about transparency and the government not hiding what it’s doing, especially when it comes to compounded drugs,” he says. “There are serious questions about whether using compounded drugs is going to be cruel and unusual punishment.”
Hours before [convicted serial killer Joseph Paul] Franklin’s Nov. 21 execution, U.S. District Judge Nanette Laughrey in Jefferson City ordered a stay, ruling that the state’s protocol “presents a substantial risk of inflicting unnecessary pain.” The 8th U.S. Circuit Court of Appeals at St. Louis vacated that order, and the Supreme Court refused to reinstate it. Other prisoners in Missouri, meanwhile, are continuing to challenge the state’s lethal injection methods.
The same issues are playing out throughout the country. Six states — Georgia, Missouri, Ohio, Pennsylvania, South Dakota and Texas — have either used pentobarbital from a compounding pharmacy or announced plans to do so, according to the Washington, D.C.-based Death Penalty Information Center. Of those, Missouri and South Dakota have carried out executions with compounded drugs. Colorado also made inquiries about compounded drugs, but executions in that state are on hold as long as the current governor remains in office.
Other states have revised their protocols and are no longer using pentobarbital. Florida incorporated the drug midazolam into its lethal injection cocktail in an execution carried out in October, and Ohio has said it plans to do the same.
At the same time, state officials often refuse to provide information about lethal injections. In Georgia, where 95 prisoners sit on death row, lawmakers recently passed the Lethal Injection Secrecy Act, which makes the identities of compounding pharmacies a state secret. Arkansas, South Dakota and Tennessee also recently passed bills aimed at prohibiting disclosure of execution procedures and the identity of people as well as companies involved in executions.
Those changes to the lethal injection protocols, combined with new confidentiality laws, have spurred a wave of litigation, with defendants and their lawyers arguing that the new methods of execution could result in a painful death. “Any death penalty lawyer worth their salt would be challenging the method of execution in their particular state,” says Fordham University law professor Deborah Denno, who studies capital punishment.
But groups that support the death penalty say many of these challenges are meritless. “If you have pentobarbital, and if the supply you have has been tested and found to be in the right concentration, the challenges being raised should be dismissed,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, based in Sacramento, Calif. “There isn’t a good argument that the use of that method is in any way cruel.”
Scheidegger adds that state officials have good reason to keep the names of compounding centers a secret. “It is regrettably necessary to provide confidentiality for the sources, because of a conspiracy to try to choke off the supply by putting pressure on the suppliers,” he says. “Whatever it takes to defeat that conspiracy needs to be done.”
Friday, February 21, 2014
Is an executed murderer now haunting Missouri's efforts to carry out death sentences?
The somewhat tongue-in-cheek question in the title of this post is prompted by this notable new commentary by Andrew Cohen at The Atlantic. Here is the headline and subheadline of the article: "The Ghost of Herbert Smulls Haunts Missouri's Death Penalty Plans; It's been just three weeks since Missouri executed Herbert Smulls before his appeals were exhausted. And virtually nothing has gone right for the state in its efforts to implement the death penalty since." And here is how the lengthy piece gets started:
It has been only 21 days since Missouri began to execute convicted murderer Herbert Smulls some 13 minutes before the justices of the United States Supreme Court denied his final request for stay. And it is fair to say that the past three weeks in the state's history of capital punishment have been marked by an unusual degree of chaos, especially for those Missouri officials who acted so hastily in the days leading up to Smulls' death. A state that made the choice to take the offensive on the death penalty now finds itself on the defensive in virtually every way.
Whereas state officials once rushed toward executions—three in the past three months, each of which raised serious constitutional questions—now there is grave doubt about whether an execution scheduled for next Wednesday, or the one after that for that matter, will take place at all. Whereas state officials once boasted that they had a legal right to execute men even while federal judges were contemplating their stay requests now there are humble words of contrition from state lawyers toward an awakened and angry judiciary.
Now we know that the Chief Judge of the 8th U.S. Circuit Court of Appeals, as well as the justices of the Supreme Court of the United States, are aware there are problems with how Missouri is executing these men. Now there are fresh new questions about the drug(s) to be used to accomplish this goal. Now there are concerns about the accuracy of the statements made by state officials in defending their extraordinary conduct. Herbert Smulls may be dead and gone but his case and his cause continue to hang over this state like a ghost.
Tuesday, February 18, 2014
Execution news in many states thanks to drug shortages and lethal injection litigation
I have gotten more than a little fatigued trying to keep track of all the legal and political developments in states trying to get access to the drugs they need to carry out planned executions. Nevertheless, a new round of headlines about this topic filled up my news feeds this morning, so I could not resist reporting some of the news through a these stories and links:
Saturday, February 08, 2014
Lethal injection concerns leads Ohio Gov Kasich to postpone next execution for 8 months
As reported in this local article, "unresolved concerns about the drugs used to execute Dennis McGuire last month prompted Gov. John Kasich yesterday to postpone the scheduled March 19 lethal injection of Gregory Lott." Here is more:
Without comment, Kasich rescheduled Lott’s execution, delaying it for eight months, until Nov. 19. Kasich spokesman Rob Nichols said the governor wants to give the Ohio Department of Rehabilitation and Correction time to complete its internal review of McGuire’s Jan. 16 execution. “Gregory Lott committed a heinous crime for which he will be executed,” Nichols added.
It was the second execution that Kasich had postponed in recent months. On Nov. 13, Kasich pushed back Ronald Phillips’ execution to July 2 to give him an opportunity to pursue organ donation to a family member....
Attorneys for Lott, 51, quickly challenged his upcoming execution, arguing that the drugs could cause “unnecessary pain and suffering” in violation of the Eighth Amendment to the U.S. Constitution. A hearing has been scheduled for Feb. 19 in U.S. District Judge Gregory L. Frost’s court.
The next question involves what happens to four other convicted killers scheduled to be put to death before November. They are Arthur Tyler, May 28; Phillips, July 2; William Montgomery, Aug. 6; and Raymond Tibbetts, Oct. 15.
Lott was convicted and sentenced to death for killing John McGrath, 82, by setting him on fire in his Cleveland-area home in 1986. McGrath survived in a hospital for 11 days before dying. Lott came close to execution in 2004, but the U.S. Supreme Court blocked it to give his attorneys time to examine evidence they said had been withheld. “We are very grateful for the governor’s decision,” said Dana C. Hansen Chavis, an assistant public defender from Knoxville, Tenn., who is one of Lott’s attorneys.
Kevin Werner, executive director of Ohioans to Stop Executions, praised Kasich for showing “ leadership and careful consideration” by issuing a reprieve. State Rep. Nickie J. Antonio, D-Lakewood, urged Kasich to “use his executive power to grant a full moratorium on executions until the state can guarantee that humane and constitutional policies will be utilized. Ultimately, I think such guidelines would lead to the abolishment of the use of the death penalty.”
I see little reason why it should take more than a few weeks for the Ohio DRC to conduct a complete review of the execution of Dennis McGuire. In addition, I expect more delay before conducting the next Ohio execution will end up facilitating still more litigation over Ohio's latest execution protocols and its new use of a two-drug execution cocktail.
That all said, I wonder if this delay is primarily designed to give Ohio officials more time to try to secure Ohio's preferred execution drug, pentobarbital, from a compounding pharmacy. Missouri a few weeks ago completed an execution using just a batch of pentobarbital manufactured by a compounding pharmacy, and I suspect Ohio would prefer to find a way to follow that execution approach rather that try again with the two-drug approach use to put down McGuire.
As has been the reality in Ohio for a number of years now, it seems that legal and practical uncertainty will continue to surround the state's efforts to carry out death sentences. But now the next execution date to watch closely will be in May rather than March thanks to Gov. Kasich giving Lott at least eight more months to be alive.
A few recent related posts:
- Ohio completes execution using novel two-drug lethal injection protocol... UPDATED with media reports of problems
- "Family to file lawsuit after troubled execution"... seeking what remedy?
- Notable early legislative responses to Ohio's recent lethal injection struggles
- SCOTUS grants stay of Missouri execution because . . . ? UPDATE: Execution completed after many hours of legal wrangling
- Ohio prison officials now struggling with array of death penalty administration issues
Friday, February 07, 2014
Ohio prison officials now struggling with array of death penalty administration issues
This new Columbus Dispatch article, headlined "Execution legal issues put prisons in quandary," has me really feeling badly for the various well-meaning state government workers in Ohio who now have a unique set of unique challenges in discharging Ohio's capital punishment laws and regulations. Here are the basics of the latest dynamic chapter in a long-running story of death penalty difficulties:
Ohio prisons officials are faced with unique circumstances in the 15 years since the state reinstated the death penalty, dealing simultaneously with legal issues from a past execution, one scheduled next month and one being held up over organ transplants. The outcome of each case could be critical to the future of capital punishment in Ohio.
A preliminary staff review of Dennis McGuire’s execution on Jan. 16 concluded that the “process went very well” and found “no reasons for revision of policy for future executions.” However, the reports by Warden Donald R. Morgan at the Southern Ohio Correctional Facility, who observed McGuire’s execution, and Joseph Andrews, a former prisons official now with the Department of Public Safety, are not the final word on the execution, an agency official said. The final report is pending....
Meanwhile, the organ-transplant controversy, also a first in the U.S., involves inmate Ronald Phillips, 40, whose scheduled execution last Nov. 4 was postponed by Gov. John Kasich to allow time for Phillips to donate nonvital organs to his ailing mother. Kasich postponed his lethal injection until July 2 to allow time for the complicated surgery.
In the intervening two months, the state has received no documents or requests to proceed. Tim Sweeney, Phillips’ Cleveland lawyer, said the transplant procedure is under discussion, but he declined to elaborate.
Ohio Department of Rehabilitation and Correction officials have informed Phillips about transplant restrictions. Prisons policy allows a living organ donation only to a member of Phillips’ family, not to someone in the general public. The family member must be on a list maintained by the United Network for Organ Sharing, the national organization that oversees transplants. The procedure must be done at Ohio State University’s Wexner Medical Center, where the state has a health-care contract. Taxpayers would not pay for the surgery. Phillips would be returned to Death Row after recovering to allow the execution to proceed....
The third contested case involves Gregory Lott, 51, scheduled to be executed on March 16. A hearing opposing use of the same drugs for Lott that were used to kill McGuire will be held in U.S. District Court in Columbus on Feb. 19.
Lott, 51, was convicted and sentenced to death for killing John McGrath, 82, by setting him on fire in his Cleveland-area home in 1986. McGrath survived in a hospital for 11 days before dying. Lott came close to execution in 2004, but the U.S. Supreme Court blocked it.
Execution dates have been set for 10 other convicted Ohio killers, extending through January 2016.
Thursday, February 06, 2014
Tennessee now has more scheduled execution dates than it has had modern executions
Tennessee has only had six executions in the modern death penalty era, and it has not completed an execution in nearly five years. But, as reported in this local article, it now has 10 new execution dates scheduled:
The state of Tennessee plans to execute 10 death row inmates over the next two years after changing the drug protocol to be used in lethal injections, officials said Wednesday. The state is scheduled to execute the condemned prisoners between April 22, 2014, and Nov. 17, 2015, the Tennessee Administrative Office of the Courts confirmed. Three executions are scheduled this year and seven in 2015.
Gov. Bill Haslam, noting that three execution orders were handed down Friday by the state Supreme Court, told The Tennessean Wednesday that the decision to seek the executions didn’t go through him. But he said he agrees with it. “The death penalty has been approved by the state,” he said. “It’s been our policy. When I ran, I got asked that question, and I said I will follow what the juries decide.”...
Kelley Henry, who supervises capital punishment defense cases with the Federal Public Defender’s Office in Nashville, said it was unfortunate that so many death row inmates were being grouped together. Henry and other attorneys have asked a Davidson County judge to halt the executions over questions about the drug the state now plans to use. “Each and every one of these cases has a story that is an example of how the death penalty system in Tennessee is broken,” she said Wednesday. “They each have different stories of ineffective counsel, of evidence that was suppressed by the state, stories of trauma and mental abuse that were never presented to a jury or a judge.”
Saturday, February 01, 2014
"Botched executions undermine death penalty"
The title of this post is the headline of this recent op-ed in the Providence Journal authored by Austin Sarat. Here are excerpts:
This month’s execution of Dennis McGuire made headlines, and rightly so. The start of his execution was followed by a sudden snort and more than 10 minutes of irregular breathing and gasping. It took Ohio almost 25 minutes to end McGuire’s life. Newspapers labeled McGuire’s a “slow execution” and a “horrific death.” His lawyer said, “The people of the state of Ohio should be appalled at what was done here today in their names.” McGuire, a brutal killer, seemed to become, at least momentarily, an object of pity.
His execution occurred at a time when abolitionists have increasingly turned their attention away from the fate of the people like McGuire, whose guilt in the 1989 murder of pregnant 22-year-old Joy Stewart seems beyond doubt, to focus on those mistakenly and unjustly condemned to die. Doing so, they have had considerable success in changing attitudes toward America’s death penalty.
In this climate, should we care about what happened to Dennis McQuire? ... Why not treat McGuire’s execution as a freak accident, rather than a symptom of a deeper problem in the death penalty system?
Since the beginning of the republic, we have committed ourselves to punishing without cruelty, to restraining the hand of vengeance no matter how horrible the crimes that give rise to punishment. On all sides of the death-penalty debate people agree that no method of execution should be used if it involves, as the Supreme Court’s 1947 Francis v. Resweber decision put it, “torture or lingering death” or “something more than the mere extinguishment of life.”
From hanging to electrocution, from electrocution to lethal gas, from electricity and gas to lethal injection, over the course of last century America moved from one technology to another in the hope of vindicating the promise of the Francis decision.... Yet McGuire’s joined a long line of botched executions that have marked America’s use of the death penalty from its beginnings and continued unabated over the last century and more.
Of approximately 9,000 capital sentences carried out in the United States from 1890 to 2010, we know of 276 of them (just under 3 percent) that were botched — 104 of them occurring after 1980. We might assume that botched executions were more frequent when death came at the end of a rope or in an electric chair or gas chamber, but the percentage of botched executions is higher today, in the era of lethal injection (more than 7 percent), than it was when hanging, electrocution or gas were the predominant modes of putting people to death.
Botched lethal injection procedures are less obviously gruesome than a decapitation during a hanging or someone catching on fire in the electric chair, but they are no less troubling....
It is unacceptable for 3 percent of America’s executions to impose “something more than the mere extinguishment of life.” We should learn from our own history that there is no technological guarantee that we can kill humanely.
Wednesday, January 29, 2014
SCOTUS grants stay of Missouri execution because . . . ? UPDATE: Execution completed after many hours of legal wrangling
As detailed in this AP report, headlined "Supreme Court grants stay of execution for killer Herbert Smulls," it seems concerns about lethal injection drugs and plans in Missouri has gotten the attention of at least one Justice. Here are the details:
The U.S. Supreme Court has granted a stay of execution for Missouri death row inmate Herbert Smulls. Justice Samuel Alito signed the order, sent out late Tuesday night.
Smulls’ attorney, Cheryl Pilate, says the stay is temporary while the high court reviews the case, but she is hopeful it will become permanent. The execution team will reconvene at noon today, expecting the stay to have been lifted, said Mike O’Connell, spokesman for the Department of Public Safety.
Pilate had made last-minute pleas to spare Smulls, focusing on the state’s refusal to disclose from which compounding pharmacy it had obtained the lethal-injection drug, pentobarbital. Missouri has argued that the pharmacy is part of the execution team so its name can’t be released.
Smulls was convicted of killing a St. Louis County jeweler and badly injuring his wife during a 1991 robbery. Smulls had been scheduled to die at 12:01 a.m. today, at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre.“We’re happy to get the stay and we’re glad the court is reviewing it,” Pilate said.
A message late Tuesday seeking comment from Eric Slusher, a spokesman for Missouri Attorney General Chris Koster, was not immediately returned. Gov. Jay Nixon denied clemency on Tuesday afternoon for Smulls. “These crimes were brutal, and the jury that convicted Smulls determined that he deserved the most severe punishment under Missouri law,” he said in an email.
On Monday, a federal judge denied a stay of execution that Smulls’ lawyers had asked for 60 days to prove that Missouri’s injection would violate his Eighth Amendment protections against cruel and unusual punishment, by putting him at risk of an excruciating death.
Smulls, 56, of St. Louis, was sentenced to death for the 1991 murder of Chesterfield jeweler Stephen Honickman. He would be the third inmate to be executed in Missouri in three months using pentobarbital produced for the Department of Corrections by a compounding pharmacy in Oklahoma.
I cannot help but speculate that Ohio's recent lethal injection controversy somehow played a role in the granting of this stay. But this AP report suggests that Missouri was not planning to adopt Ohio's new execution method, but rather its already established method of using compounded pentobarbital. Therefore, I am a bit puzzled as to just why Justice Alito would intervene on this issue, especially after the Eighth Circuit had last week rejected en banc this condemned murderer's complaints abut the execution process.
Among my concerns about this stay is the message it seems to send to anyone scheduled to be executed by any method in any state. If Ohio's troubles using a different execution method prompts SCOTUS to stop or delay Missouri's distinct execution plans, then I think any and every lawyer for a capital defendant arguably has an obligation to re-raise (and re-raise and re-raise) in state and federal courts any and all possible claims about one state's execution methods after each and every execution anywhere else in the US.
UPDATE: I have now heard from a knowledgeable source that Smulls also had a Batson claim before the Supreme Court and that it may be Batson issues, not any Eighth Amendment claim, that is serving as the basis for the stay.
ANOTHER UPDATE: This AP report notes the stays were all finally lifed and that Smulls was executed late Wednesday night:
Late Wednesday night, Smulls was put to death with a lethal dose of pentobarbital, Missouri's third execution since November and the third since switching to the new drug that's made by a compounding pharmacy the state refuses to name.
Smulls, 56, did not have any final words. The process was brief, Smulls mouthed a few words to his two witnesses, who were not identified, then breathed heavily twice and shut his eyes for good. He was pronounced dead at 10:20 p.m.
Florence Honickman spoke to the media after the execution, flanked by her adult son and daughter. She questioned why it took 22 years of appeals before Smulls was put to death. "Make no mistake, the long, winding and painful road leading up to this day has been a travesty of justice," she said.
His attorneys spent the days leading up to the execution filing appeals that questioned the secretive nature of how Missouri obtains the lethal drug, saying that if the drug was inadequate, the inmate could suffer during the execution process. The U.S. Supreme Court granted a temporary stay late Tuesday before clearing numerous appeals Wednesday -- including the final one that was filed less than 30 minutes before Smulls was pronounced dead, though the denial came about 30 minutes after his death....
Like Joseph Paul Franklin in November and Allen Nicklasson in December, Smulls showed no outward signs of distress in an execution process that took about nine minutes. Missouri had used a three-drug protocol for executions since 1989, but makers stopped selling those drugs for executions. Missouri ultimately switched late last year to a form of pentobarbital made by a compounding pharmacy. The state claims that since the compounding pharmacy is part of the execution team, it is not required to disclose its name....
Smulls' legal case was protracted over several appeals and over several years, finally ending in 2009 with the death sentence. His accomplice, Norman Brown, was sentenced to life in prison without parole. "It was a horrific crime," [[St. Louis County prosecutor Bob] McCulloch said. "With all the other arguments that the opponents of the death penalty are making, it's simply to try to divert the attention from what this guy did, and why he deserves to be executed."
Compounding pharmacies custom-mix drugs for individual clients and are not subject to oversight by the U.S. Food and Drug Administration, though they are regulated by states. Smulls' attorney, Cheryl Pilate, contended the state's secrecy regarding where the pentobarbital is made makes it impossible to know whether the drug could cause pain and suffering during the execution process.
Pilate also said she and her defense team used information obtained through open records requests and publicly available documents to determine that the compounding pharmacy is The Apothecary Shoppe, based in Tulsa, Okla. In a statement, The Apothecary Shoppe would neither confirm nor deny that it makes the Missouri drug.
Pilate said the possibility that something could go wrong persists, citing recent trouble with execution drugs in Ohio and Oklahoma. She also said that previous testimony from a prison official indicates Missouri stores the drug at room temperatures, which experts believe could taint the drug, Pilate said, and potentially cause it to lose effectiveness.
Some Missouri lawmakers have expressed reservations about the state's execution procedure. On Tuesday, Missouri Senate Democratic Leader Jolie Justus introduced legislation that would create an 11-member commission responsible for setting the state's execution procedure. She said ongoing lawsuits and secrecy about the state's current lethal injection method should drive a change in protocol.
Tuesday, January 28, 2014
A useful reminder that many states still have lots of execution methods on the books
This lengthy AP article, headlined "Stated Consider Reviving Old-Fashioned Executions," provides an effective review not only of recent problems with lethal injection as an execution method, but also of the options that lots of states still have available. Here are excerpts:
With lethal-injection drugs in short supply and new questions looming about their effectiveness, lawmakers in some death penalty states are considering bringing back relics of a more gruesome past: firing squads, electrocutions and gas chambers.
Most states abandoned those execution methods more than a generation ago in a bid to make capital punishment more palatable to the public and to a judicial system worried about inflicting cruel and unusual punishments that violate the Constitution. But to some elected officials, the drug shortages and recent legal challenges are beginning to make lethal injection seem too vulnerable to complications....
States began moving to lethal injection in the 1980s in the belief that powerful sedatives and heart-stopping drugs would replace the violent spectacles with a more clinical affair while limiting, if not eliminating, an inmate's pain.
The total number of U.S. executions has declined in recent years — from a peak of 98 in 1999 to 39 last year. Some states have turned away from the death penalty entirely. Many have cases tied up in court. And those that carry on with executions find them increasingly difficult to conduct because of the scarcity of drugs and doubts about how well they work. In recent years, European drug makers have stopped selling the lethal chemicals to prisons because they do not want their products used to kill.
At least two recent executions are also raising concerns about the drugs' effectiveness. Last week, Ohio inmate Dennis McGuire took 26 minutes to die by injection, gasping repeatedly as he lay on a gurney with his mouth opening and closing. And on Jan. 9, Oklahoma inmate Michael Lee Wilson's final words were, "I feel my whole body burning."...
Some states already provide alternatives to lethal injection. Condemned prisoners may choose the electric chair in eight states: Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia. An inmate named Robert Gleason Jr. was the most recent to die by electrocution, in Virginia in January 2013.
Arizona, Missouri and Wyoming allow for gas-chamber executions. Missouri no longer has a gas chamber, but Attorney General Chris Koster, a Democrat, and Missouri state Sen. Kurt Schaefer, a Republican, last year suggested possibility rebuilding one. So far, there is no bill to do so.
Delaware, New Hampshire and Washington state still allow inmates to choose hanging. The last hanging in the U.S. was Billy Bailey in Delaware in 1996. Two prisoners in Washington state have chosen to be hanged since the 1990s - Westley Allan Dodd in 1993 and Charles Rodman Campbell in 1994.
Firing squads typically consisting of five sharpshooters with rifles, one of which is loaded with a blank so the shooters do not know for sure who fired the fatal bullet. They have been used mostly for military executions. Since the end of the Civil War, there have been three civilian firing squad executions in the U.S., all in Utah. Gary Gilmore uttered his famous final words, "Let's do it" on Jan. 18, 1977, before his execution, which ended what amounted to a 17-year national moratorium on the death penalty. Convicted killers John Albert Taylor in 1996 and Ronnie Lee Gardner in 2010 were also put to death by firing squad.
Utah is phasing out its use, but the firing squad remains an option there for inmates sentenced prior to May 3, 2004. Oklahoma maintains the firing squad as an option, but only if lethal injection and electrocution are deemed unconstitutional.
In Wyoming, Republican state Sen. Bruce Burns said death by firing squad would be far less expensive than building a gas chamber. Wyoming has only one inmate on death row, 68-year-old convicted killer Dale Wayne Eaton. The state has not executed anyone in 22 years.
Jackson Miller, a Republican in the Virginia House of Delegates, is sponsoring a bill that would allow for electrocution if lethal injection drugs are not available. Miller said he would prefer that the state have easy access to the drugs needed for lethal injections. "But I also believe that the process of the justice system needs to be fulfilled."
Monday, January 27, 2014
"Officials investigate whether executed killer faked suffocation"
The title of this post is the headline of this notable new Columbus Dispatch article, which includes these interesting details and developments:
One of Dennis McGuire’s state public defender attorneys was temporarily suspended last week while officials investigated whether he told the condemned man to fake symptoms of suffocation during the early stage of his execution. Attorney Rob Lowe was scheduled to return to work today after the inquiry found “no wrongdoing,” Ohio Public Defender Tim Young said in a memo sent last Thursday to his staff and obtained by The Dispatch. McGuire was represented by Lowe, from Young’s office, plus two federal public defenders.
Young took the initial allegation so seriously that he called back his attorneys who were scheduled to attend the Jan. 16 execution at the Southern Ohio Correctional Facility near Lucasville. Young’s initial memo, sent about six hours after McGuire’s execution, said he had been contacted by Gov. John Kasich’s legal counsel with information that “a correctional officer overheard Mr. McGuire tell family members that an OPD attorney had encouraged him to feign suffocation when the lethal injection drugs were first administered.”
Incident reports obtained by The Dispatch from the Department of Rehabilitation and Correction show two officers said they overheard McGuire talking with his ex-wife, Darlene Thomas, the day prior to the execution describing what he had been instructed to do by his attorney when he began feeling the effects of the chemicals. “When I begin to gasp for air I will have my thumb in the air per my attorney...If it wasn’t for my daughter I would really put on a show.”
A third, more detailed report came from the unidentified execution team leader recounting a conversation he had with McGuire the night before his execution. McGuire said Lowe told him that if things went wrong during the execution, he “would be the sole reason that executions no longer happen in Ohio and all his buddies on death row would be saved.”
McGuire angrily rejected Lowe’s request to be allowed to witness the execution, the report said. “He (Lowe) wants me to put on this big show in front of my kids all right when I’m dying. I ain’t gonna do this. It’s about me and my kids, not him and him and his cause.” McGuire declined to let Lowe witness, but did as he was requested, giving a “thumbs up” briefly as he looked toward his family members before turning his head away and apparently losing consciousness.
Minutes later, he repeatedly gasped for air, snorted, choked and clenched his fists before succumbing to a lethal two-drug combination that had not previously been used in a U.S. execution. McGuire’s struggles did not begin immediately, but several minutes after the chemicals began flowing into his veins.
Amber and Dennis McGuire, the executed man’s children, who witnessed the execution, filed a lawsuit last week in U.S. District Court claiming their father’s constitutional rights were violated because the two-drug lethal injection triggered a reaction that amounted to “cruel and unusual punishment.” The lawsuit also goes after Hospira Inc., the Chicago drug manufacturer.
In a Dispatch interview today, Young confirmed the details of what happened, but vehemently denied that Lowe or anyone on his staff urged McGuire to fake suffocation. “Absolutely not,” he said. “We would never in any way try to corrupt this process or ask our client to feign any symptoms.”
An internal investigation led by Elizabeth Miller, deputy director in Young’s office, involved interviews with 11 people and reviews of emails and phone messages. “We concluded that there wasn’t any substantial proof or evidence” that McGuire was coached to feign symptoms, Young said. Young said that in McGuire’s execution, as with all death penalty cases, public defenders discuss the process step-by-step with the inmate. “We want to make sure we tell them exactly what is going to occur.
“We did ask Mr. McGuire to signal us so we would know when he lost consciousness,” Young said.
Some recent related posts on Ohio's recent controversial execution:
- Ohio completes execution using novel two-drug lethal injection protocol... UPDATED with media reports of problems
- "Family to file lawsuit after troubled execution"... seeking what remedy?
- Lots of notable reactions to and predictions after Ohio's latest struggles with lethal injection
- Notable early legislative responses to Ohio's recent lethal injection struggles
Saturday, January 25, 2014
"Bring back the firing squad for the death penalty: The best way to dispatch the monsters among us"
The title of this post is the headline of this interesting and provocative new commentary by Tammy Bruce appearing in the Washington Times. Here is much of the discussion:
Has the left’s attempt to use the lethal-injection process to ban the death penalty backfired? Consideration of firing squads for implementing the death penalty is not a fringe issue and would bring back the humaneness the left claims it wants in the process.
As often as I can, I laud the importance, value and decency of the death penalty. As a feminist, I’ve spent a great deal of my adult life as an advocate for women, educating on violence against women and agitating for justice for women in a system that far too often forgets the victims on the receiving end of a beast’s rage.
Wiping monsters from the face of the earth is a good thing, and the death penalty provides the ultimate statement from society that we refuse to pamper the heinous and cold-blooded among us. Victims’ families also deserve the closure and respect of a society that takes decisive action against those who dared to rip their worlds apart.
Now, with the use of DNA evidence to confirm guilt, the argument of mistakenly executing an innocent man is also off the table. We all want to eliminate doubt, and modern science now allows us to do just that.
So last week I was especially pleased to see lawmakers in Missouri and Wyoming arguing for the use of the ultimate in fast and humane executions — the firing squad. Finally, common sense is prevailing after years of trying to placate the left by doing everything possible to make an execution seem like a visit to the spa. The only thing we aren’t doing while “putting to sleep” the most craven among us was reading them a bedtime story and surrounding them with puppies.
This renewed call for firing squads hasn’t come out of the blue. A shortage of the drugs (owing to the one U.S. drug manufacturer responding to pressure from anti-death penalty activists) used in the three-drug execution cocktail has forced states to determine exactly how they can carry out the process while making sure the condemned doesn’t get too uncomfortable.
Me? I’d feed the jerks more than a few cocktails (martinis to be exact), put them behind the wheel of a Pinto and let them loose in one of those crash-dummy test ranges. I’d enjoy telling them freedom is just past that brick wall over there and invite them to hit the gas. Next.
A case in point just last week: Dennis Maguire was finally put to death after being found guilty of the torturous and sadistic murder of Joy Stewart in 1989. Joy was seven months pregnant when Maguire raped and sodomized her, slit her throat and stabbed her to death. Her body was then dumped in the woods.
The coroner thinks her unborn baby possibly survived the initial assault and could have lived hours more in his dead mother’s womb. Carl would have been his name. Joy’s husband, Kenny, unable to cope with the atrocity of what happened to his family, killed himself a week before Maguire’s trial.
Finally last week, Ohio got on with the business of execution a quarter of a century after Maguire had been sentenced to die. Yet the media and anti-death-penalty trolls were beside themselves when Ohio opted to execute Maguire with a two-drug cocktail instead of the usual three. The hand-wringing over the possibility that rapist-murderer-child-killer Maguire wouldn’t see kittens in his dreams before dying in his sleep was pathetic....
The lethal-injection system, by its very process, gives credence to the notion that executing someone is a bad thing and, therefore, needs to be made “nice.” Executing the evil among us is a necessary thing, but for those who insist it be compassionate, the firing squad is the answer. Quick, painless and inexpensive, it is, in fact, the ultimate in humane dispatching.
I can hear those, some of whom are well-meaning, who worry about the lives of monsters, appalled about the imagined cruelty and inhumanity of my argument. I’ll tell you what’s inhumane — forcing the innocent to watch society herald the murderers in our midst.
The inhumanity is ignoring the innocent whose worlds were destroyed by craven savages like Maguire, condemning their families to lives devoid of closure and whatever peace might be possible. The death penalty provides justice to those who deserve it. It’s time we take that seriously, end the atrocious delays in executions and bring back the humaneness of the firing squad.
Some recent related posts on Ohio's struggles and execution by firing squad:
- Ohio completes execution using novel two-drug lethal injection protocol... UPDATED with media reports of problems
- "Family to file lawsuit after troubled execution"... seeking what remedy?
- Lots of notable reactions to and predictions after Ohio's latest struggles with lethal injection
- Notable early legislative responses to Ohio's recent lethal injection struggles
- Making a potent argument for executions by firing squad rather than lethal injection
- Shouldn't we celebrate condemn's request that he "would like the firing squad, please"?
- "Executioner: Death by firing squad is '100 percent justice'"