Friday, July 03, 2015

If you want to go on gorging on Glossip gossip...

here is still more of the copious commentary one can find as the work week closes on the biggest death penalty ruling of the SCOTUS Term just concluded (listed here only by title/headline as with this prior review, sources and authors varied):

July 3, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (2)

Tuesday, June 30, 2015

If you are eager to gorge on Glossip gossip...

here is just a smidgen of some of the copious commentary one can find before the ink is really dry on the biggest death penalty ruling of the SCOTUS Term just concluded (listed here only by title/headline, sources and authors varied):

June 30, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0)

Monday, June 29, 2015

SCOTUS rules 5-4 against capital defendant's challenge to execution protocol in Glossip v. Gross

The Supreme Court handed down this morning the last big opinion of likely interest to sentencing fans via Glossip v. Gross, No. 14-7599 (S. Ct. June 29, 2015) (available here).  Here is how Justice Alito's opinion for the Court gets started:

Prisoners sentenced to death in the State of Oklahoma filed an action in federal court under Rev. Stat. §1979, 42 U.S.C. §1983, contending that the method of execution now used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain.  They argue that midazolam, the first drug employed in the State’s current three-drug protocol, fails to render a person insensate to pain.  After holding an evidentiary hearing, the District Court denied four prisoners’ application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective.  The Court of Appeals for the Tenth Circuit affirmed and accepted the District Court’s finding of fact regarding midazolam’s efficacy.

For two independent reasons, we also affirm.  First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-ofexecution claims.  See Baze v. Rees, 553 U.S. 35, 61 (2008) (plurality opinion).  Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.

Based on a too-quick read, the majority opinion seems like a big win for states seeking to move forward even with new and questionable execution methods. I doubt Glossip will halt all the lower-court litigation on state execution protocols, but it certainly should provide lower court judges a much clearer standard and basis for rejecting Eighth Amendment claims in this setting.

June 29, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Friday, June 12, 2015

Canvassing the "most likely outcomes" of the SCOTUS case on death penalty drugs

Though I think we are still a few weeks away from getting a ruling (and multiple?) opinions in the SCOTUS case (Glossip v. Gross) considering Oklahoma's lethal injection history and plans, it is certainly not too early to begin speculating about what that Court might end up doing in the case.  Helpfully, this extended new Vox article, headlined "The most likely outcomes of the Supreme Court's death penalty ruling," provides a great overview of what we might expect from the ruling. Here are excerpts, along with six possibilities for Glossip's outcome:

The Supreme Court is considering a legal challenge to Oklahoma's use of lethal injection this month — but chances are the effects of a ruling will be quite limited.

The case follows several botched executions in the past couple of years, particularly that of Clayton Lockett in April 2014.  Lockett's execution, in which experimental drugs were used because of a nationwide shortage of lethal injection drugs, took an excruciating 43 minutes.  It led Oklahoma inmates to file a lawsuit challenging the state's lethal injection protocol, eventually putting all executions in the state on hold once the Supreme Court accepted the challenge.

Specifically, the inmates are contesting the state's use of midazolam, a sedative used as part of a three-drug protocol to execute death row inmates.  Midazolam is supposed to put someone to sleep, allowing the painless application of other drugs that actually kill the inmate.  But Lockett appeared to groan and violently struggle during his execution, suggesting the first drug wasn't adequate — and may violate constitutional protections against cruel and unusual punishment.

Several death penalty experts and court watchers told Vox what they think the most likely outcomes of a Supreme Court ruling are. They largely rejected the possibility that the Court would make a sweeping decision against lethal injections or the death penalty in general, since most justices consider the death penalty constitutional.  They instead outlined six possibilities — most of which would have a very narrow effect, and would likely allow lethal injections to continue in the US.  Of course, it's entirely possible that the Court, which tends to be full of surprises, takes another approach, but these are the outcomes that seem most likely.

1) Oklahoma messed up, but midazolam isn't necessarily a problem....

2) Midazolam is constitutional....

3) Midazolam is unconstitutional....

4) Midazolam is unconstitutional as part of a three-drug protocol....

5) Inmates have not proven midazolam leads to cruel and unusual punishment....

6) Send the case back to a lower court

June 12, 2015 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (4)

Monday, June 08, 2015

"Does failed execution attempt mean Ohio prisoner can avoid death penalty?"

The question in the title of this post is both the headline of this Columbus Dispatch article and the notable novel constitutional question facing the Ohio Supreme Court this week.  Here is the backstory:

Ohio’s unusual pending death-penalty case, involving an inmate the state already tried but failed to execute, will be argued on Tuesday before the Ohio Supreme Court. Attorneys for Romell Broom contend that the state would be guilty of unconstitutional double jeopardy if it tries to execute him a second time. They said in a court filing that the state’s contention that their client didn’t suffer physically during a botched execution on Sept. 15, 2009, “ignores the unnecessary psychological suffering Broom endured during two hours of lawless chaos."

Representatives for Attorney General Mike DeWine counter that what happened on Sept. 15, 2009, wasn’t a failed execution but a breakdown in the lethal-injection process, and a new execution should proceed. They argue that the U.S. Constitution doesn’t promise that executions will be pain-free and that what happened to Broom wasn’t unconstitutional “cruel and usual punishment.”

The attempted execution of Broom, 59, on Sept. 15, 2009, was called off by Gov. Ted Strickland after a prison medical team spent two tense hours unsuccessfully trying to attach IV lines for lethal injection. The execution was rescheduled but never took place because Broom’s public defender attorneys filed numerous appeals.

Broom was convicted and sentenced to death for abducting, raping and stabbing to death 14-year-old Tryna Middleton of Cleveland as she walked home from a football game on Sept. 21, 1984. All evidence in the case, including DNA test results, showed Broom was the girl’s killer.

Thus, the failed execution, and not Broom’s guilt or innocence, will be the focus of oral arguments at 9 a.m. on Tuesday before the Ohio Supreme Court. Broom’s case is unique in Ohio’s modern capital-punishment history, being one of only two known cases nationally in which an execution was halted after it began. The other one was Willie Francis, a 17-year-old killer who died on the second try in Louisiana’s electric chair on May 9, 1947, having survived a botched execution a year earlier.

June 8, 2015 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Friday, June 05, 2015

Is Missouri becoming the "new Texas" when it comes to death penalty administration?

Enhanced-27540-1433442100-4The question in the title of this post is prompted by two notable new stories showing some notable new details about how the Show Me state (1) has recently become a new national leader in actually carrying out death sentences, and (2) now seems well positioned to complete more executions in the near future than any other state.  This lengthy Mashall Project piece focused on capital defense in Mizzou provides this background: 

[Jennifer Herdon's] condemned clients were convicted of monstrous crimes, but at least a few presented powerful issues for appeal. Among them were a man diagnosed as schizophrenic who hallucinated clouds of flies and insisted on never speaking aloud the number “between 31 and 33”; a man so intellectually impaired that, as a child, he couldn’t understand hide-and-seek and who, at age 16, functioned like someone age 4-to-7; and a man whose claim of innocence was sufficiently compelling to convince a journalism class to dive into the case.

In the past two years, while much of the country has retreated from the death penalty, Missouri has gone the opposite direction. It has accelerated executions – last year, tying Texas for most in the country, with 10 – to such an extent that the “capital defense bar is in crisis,” according to a letter written to the Missouri Supreme Court by four members of an American Bar Association death-penalty assessment team.

Those four members – two law professors, a retired state appellate judge, and the chairman of the Missouri State Public Defender Commission – wrote in March that a mere “handful” of attorneys have represented most of the state’s executed inmates, despite the “notoriously lengthy and complex” nature of capital appellate work, coupled with “the emotional toll of losing client after client.” The team recommended that for attorneys handling capital appeals to be able to do their jobs adequately, the execution dates for clients should be staggered by at least six months.

Herndon, starting in November 2013, had five clients executed in just 15 months. In all, she’s had seven clients executed since 2003. And she has another execution scheduled next week. Herndon may be the most extreme example of how Missouri’s quickened pace of executions is swamping the defense bar, but she is not alone. Last year, six attorneys in addition to Herndon had multiple clients executed.

That list would have been longer if not for a stay granted by the U.S. Supreme Court before Mark Christeson’s scheduled execution in October. Christeson’s two attorneys, who had represented another inmate executed earlier in the year, missed a crucial filing deadline, not even meeting with their client until six weeks after it had passed. “Cases, including this one, are falling through the cracks of the system,” more than a dozen former state and federal judges wrote in a brief.

Paul Litton, a University of Missouri law professor and one of the four signatories on the letter from the ABA’s death-penalty assessment team, says: “With the executions happening month after month after month, and with so few attorneys handling these cases, the workload is just overwhelming.”

On Tuesday, Herndon and her co-counsel filed a request for a stay of execution for Richard Strong, scheduled to be executed June 9. The motion’s basis was their workloads, in particular Herndon’s. The motion says that when Herndon’s last client was executed in February, she put in more than 225 hours, “knowing that much more should have been done …” For the pending execution, she has 20 banker’s boxes of materials to review. Herndon “is struggling to fulfill her duties,” the motion says.

“Mr. Strong is at least entitled to a ‘fair fight.’  Such is impossible when defense counsel come in bloody and bruised, while the government has a seemingly endless supply of fresh reinforcements …,” the motion says.

Meanwhile, as now highlighted by this notable new Buzzfeed article (from which I got the graphic here), it would appear that Missouri has figured out some way to get all the execution drugs they could possibly need even as other states struggle mightily in this arena. The Buzzfied piece carries this full headline: "Missouri Is Mysteriously Building A Massive Stockpile Of Execution Drugs: Missouri now has enough drugs for 16 lethal injections. But how? The drugs often used in executions generally have a short expiration date." Here is an excerpt:

State officials changed drug suppliers in February 2014, after their previous supplier, the Apothecary Shoppe, was sued for, among other things, selling execution drugs when it wasn’t licensed to do so in Missouri. Until February 2014, Missouri’s drug stockpile hovered around zero, presumably because the compounded drugs expired so quickly. Since changing drug suppliers, however, the state’s drug supply has exploded, according to records obtained by BuzzFeed News.

With FDA-approved suppliers either discontinuing the manufacture of pentobarbital or enacting stringent guidelines to prevent states from getting ahold of their drugs, it led some capital attorneys to believe the state is resorting to veterinary pentobarbital — something that would be much easier to find, but illegal to use on humans.

When two attorneys, Cheryl Pilate and Lindsay Runnels, approached the Department of Corrections, officials refused to say whether the drug is veterinary. “The response has been very evasive,” Pilate said. “We made several requests about the use of veterinary drugs, and instead of getting the response of “Of course we would never use a veterinary drugs,” they [were] refusing to say.”

When BuzzFeed News asked the state’s corrections department whether the state is using veterinary drugs in executions, spokesperson David Owen said, “No.” Owen would not answer any questions about how the state could be holding onto drugs for so long, given the short shelf life of compounded drugs. Gov. Jay Nixon’s Office would not answer questions, either, and a spokesperson with Attorney General Chris Koster’s office declined to comment.

“It’s the ease with which they’re getting it,” Pilate said. “Other states are having serious problems getting ahold of their drugs. Why not Missouri?”

June 5, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

Tuesday, June 02, 2015

California agrees to model new lethal injection protocol on whatever SCOTUS says is good enough

As reported in this local piece, headlined "California death penalty: state agrees to propose execution method,"  a state with a remarkable inability (and disinclination?) to get its machinery of death operational has now agreed that the Supreme Court's latest review of lethal injection will provide a script for its next efforts.  Here are the details:

California's death penalty system, dormant for nine years, might soon move slowly toward resuming executions. As part of a court settlement reached on Tuesday, the state's corrections department agreed to unveil a new execution method by the fall that will be tied to the outcome of a U.S. Supreme Court ruling expected sometime this month in a challenge to Oklahoma's lethal injection protocol.

While California is still far from executing one of the 750 condemned killers on death row, the development marks movement on the issue for the first time in years. There are at least 17 inmates on death row who have exhausted their legal appeals and would be eligible for execution dates.

State prison officials resolved a lawsuit filed last year by the families of victims of condemned killers who argued the state has a legal obligation to implement an execution method. A Sacramento judge earlier this year found the state should be required to move forward in a case brought by two families, including former UCLA and NFL star Kermit Alexander, whose mother, sister and nephews were murdered 31 years ago by a man now on death row. Death penalty supporters have accused state leaders such as Gov. Jerry Brown and Attorney General Kamala Harris of dragging their feet in getting executions back on track. The state has not had an execution since 2006 as a result of legal challenges to its lethal injection method.

Several years ago, the courts invalidated one state effort to revise its three-drug execution method, prompting California to explore switching to a single lethal drug as other states have done. But the state had not made progress until Tuesday's settlement.

The Supreme Court is expected to clarify the legality of lethal injection methods in the case out of Oklahoma, which still has a three-drug procedure. Deborah Hoffman, spokeswoman for the California corrections department, confirmed that the prison system, which has been developing its regulations, will submit its new execution method within 120 days of the Supreme Court's ruling.

Lawyers for the families said it "made sense" for California to await that ruling. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he expects the state to adopt a single drug method using a sedative he maintains can be obtained. However, states around the country, including California, have encountered problems securing supplies of execution drugs because drug manufacturers have refused to sell the drugs to prisons.

June 2, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

Monday, June 01, 2015

Seriously exploring — finally! — execution alternatives to lethal injection

The Marshall Project has this lengthy new feature article on execution alternatives headlined "After Lethal Injection: Three states, three ways to kill a human being."  Here are excerpts:

The Supreme Court is expected to declare any day whether the injection of a drug called Midazolam violates the Eighth-Amendment protection against cruel and unusual punishment.  Given the difficulty of procuring other suitable drugs, states devoted to the death penalty are lining up alternative ways to efficiently end human life.  In Oklahoma (48 prisoners on death row), the answer seems to be nitrogen gas, a method favored by some proponents of assisted suicide but not something that has been employed in an execution chamber. Utah (nine on death row) proposes to revive the firing squad. Tennessee (67 on death row) is preparing to fire up its electric chair.  Decisions, decisions. The Marshall Project took a closer look at the thinking that goes into the logistics of execution....

The [Oklahoma] bill’s sponsor, Rep. Mike Christian, told a German online newspaper that nitrogen inhalation “is the most humane way to die.  You just sit there and a few minutes later, you’re dead.” Whatever the method, he added, “We will put these beasts to death.” Christian first conceived of using nitrogen for execution after watching a BBC documentary called “How to Kill a Human Being,” in which a retired member of the British parliament sampled various execution protocols (obviously stopping short of death) before deciding that nitrogen was “a perfect killing device.”...

It’s been a year and a week since Tennessee became the first state in the nation to require the use of the electric chair for executions should the primary means of capital punishment, lethal injection, become unavailable for one reason or another.  And it has been about eight months since that new law was challenged in court by ten death row inmates who argue that the mandated use of “Old Sparky” would constitute cruel and unusual punishment. Going from lethal drugs back to electrical currents as a means of killing, the condemned contend, is legally inconsistent with the “evolving standards of decency” that the U.S. Supreme Court employs in Eighth Amendment cases....

In March, Utah governor Gary Herbert signed a law to reinstate the firing squad as a legal method of execution in his state.  Utah had abandoned the method in 2004 only to be swayed back by a shortage of lethal injection drugs.  Herbert called the punishment “a little bit gruesome,” but the practical concerns were overwhelming; even if the state can find lethal injection drugs, defending them in court would be expensive, and Utah already has in place a formal protocol for death by firing squad.  It involves a blindfold, sandbags, four loaded rifles, and one with a non-lethal wax bullet so executioners will never know who fired the fatal shots.

Lawmakers have publicly considered the firing squad as a backup plan for lethal injections in Arkansas, Missouri, South Carolina, and Wyoming.  Idaho maintained the method as an option until 2009.  It is on the books in Oklahoma, as a fourth option after lethal injection, nitrogen gas, and the electric chair.  The firing squad has consistently been found to be more reliable than many of the alternatives.  Botches — in the form of bullets that miss the heart — have been rare.  In 1938, a Utah murderer named John Deering allowed doctors to hook him up to an electrocardiogram as he faced the guns.  His heart stopped 15.6 seconds after the bullets hit.  Lethal injection, at its fastest, takes minutes.

Long-time readers know that I have been talking for a long time about the need for states (and Congress) to get serious about alternatives to lethal injection for carrying out death sentences. But now, nearly a decade after lethal injection protocols were starting to be subject to serious legal scrutiny, it has taken a drug shortage and still more SCOTUS litigation to get serious consideration of execution alternatives. But I fear, based in part on the oral argument in Glossip, that the latest round of Supreme Court litigation is not likely to require many more states to get much more serious about finding other viable methods of state killing.

June 1, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

Thursday, May 21, 2015

After Boston bomber's condemnation in liberal Massachusetts, is the death penalty really "withering away"?

Download (1)The question in the title of this post is prompted by this lengthy new commentary by George Will carrying the headline "Capital punishment’s slow death." Here is the full commentary, which claims to be making a "conservative case against capital punishment":

Without a definitive judicial ruling or other galvanizing event, a perennial American argument is ending. Capital punishment is withering away.

It is difficult to imagine moral reasoning that would support the conclusion that an injustice will be done when, years hence, the death penalty finally is administered to Dzhokhar Tsarnaev, the Boston Marathon terrorist who placed a bomb in a crowd and then strolled to safety. Sentencing to death those who commit heinous crimes satisfies a sense of moral proportionality. This is, however, purchased with disproportionate social costs, as Nebraska seems to be concluding.

Nebraska is not a nest of liberals. Yet on Wednesday its 49-member unicameral legislature passed a bill abolishing the death penalty 32 to 15. Gov. Pete Ricketts, a Republican, vows to veto it.

This comes at a time when, nationwide, exonerations of condemned prisoners and botched executions are dismayingly frequent. Nebraska’s death penalty opponents, including a majority of Nebraskans, say it is expensive without demonstrably enhancing public safety or being a solace to families of murder victims. Some Nebraska families have testified that the extended legal processes surrounding the death penalty prolong their suffering. That sentiment is shared by Bill and Denise Richard, whose 8-year-old son was killed by Tsarnaev.

Last month, the U.S. Supreme Court heard oral arguments about whether one component of a three-drug mixture used in lethal injection executions — and recently used in some grotesquely protracted ones — is unreliable in preventing suffering that violates the Eighth Amendment proscription of “cruel and unusual punishments.” States use the drug in question because more effective drugs are hard to acquire, partly because death penalty opponents are pressuring drug companies not to supply them.

For this, Justice Antonin Scalia blamed a death penalty “abolitionist movement.” Justice Samuel A. Alito Jr. asked, “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” Justice Anthony M. Kennedy wondered, “What bearing, if any, should be put on the fact that there is a method, but that it’s not available because of opposition to the death penalty? What relevance does that have?”

The answers are: Public agitation against capital punishment is not relevant to judicial reasoning. And it is not the judiciary’s business to worry that a ruling might seem to “countenance” this or that social advocacy.

The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence. For an unsparing immersion in the workings of the governmental machinery of death, read “Just Mercy” by Bryan Stevenson, executive director and founder of the Equal Justice Initiative.

Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay. Granted, capital punishment could deter: If overdue library books were punishable by death, none would be overdue. But many crimes for which death is reserved, including Tsarnaev’s crime of ideological premeditation, are especially difficult to deter.

Those who favor capital punishment because of its supposed deterrent effect do not favor strengthening that effect by restoring the practice of public executions. There has not been one in America since 1937 (a hanging in Galena, Mo.) because society has decided that state-inflicted deaths, far from being wholesomely didactic spectacles, are coarsening and revolting.

Revulsion is not an argument, but it is evidence of what former chief justice Earl Warren called society’s “evolving standards of decency.” In the essay “Reflections on the Guillotine,” Albert Camus wrote, “The man who enjoys his coffee while reading that justice has been done would spit it out at the least detail.” Capital punishment, say proponents, serves social catharsis. But administering it behind prison walls indicates a healthy squeamishness that should herald abolition.

May 21, 2015 in Baze lethal injection case, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Wednesday, May 20, 2015

Has death penalty administration now become a "testing ground for toxic drugs"?

The question in the title of this post is prompted by the subheadline of this lengthy new New Republic piece: "Lethal Entanglements: Lethal injection was supposed to be a cleaner, more humane version of capital punishement. Over the past five years, it has become a messy, largely unmonitored testing ground for toxic drugs."  Here are is a passage from the center of the lengthy article:

Lethal injection was first adopted in Oklahoma in 1977 as a less violent alternative to the gas chamber and the electric chair. Over the next 25 years, almost every death-penalty state copied Oklahoma’s three-drug formula: first the barbiturate sodium thiopental to knock the prisoner out, then the paralytic pancuronium bromide to immobilize him, and finally potassium chloride to stop his heart.  The second and third drugs would cause intense suffering on their own, but the Supreme Court ruled that the method was constitutional in Baze: As long as the thiopental rendered the prisoner unconscious, he would be insensate to the agonizing effects of the next two drugs.  Just one year after the Baze decision, though, in late 2009, the pharmaceutical company that sold thiopental to every death-penalty state, Hospira, reported a shortage.

As a consequence, the death penalty has undergone in the past five years its biggest transformation since states began switching to lethal injection decades ago.  As thiopental disappeared, states began executing prisoners with experimental one-, two-, or three-drug cocktails.  States have essentially been improvising what is supposed to be one of their gravest and most deliberate duties, venturing deep into the shadows to carry out executions.  They have turned to mail-order pharmaceutical suppliers and used untested drugs.  They have sidestepped federal drug laws, minimized public disclosure, and, on multiple occasions, announced changes to execution protocols just hours before prisoners were set to die.  The machinery of death in the United States has become a kluge.

In April, the Supreme Court acknowledged this when it heard oral arguments in Glossip v. Gross.  A group of prisoners from Oklahoma — including Richard Glossip, a convicted murderer — challenged the state’s use of a drug called midazolam because they feared it would not anesthetize them.  The court had hoped Baze would obviate future lethal injection lawsuits, but the thiopental shortage had stripped the decision of any practical relevance almost as soon as it was issued. Now, just seven years later, the justices were considering whether they should invalidate a specific method of execution for the first time in U.S. history.  The court’s decision won’t overturn the death penalty, but it will define the way we practice it for years to come.

Though the challenge comes from Oklahoma, it is Arizona that provides the best case study of the rapid, slipshod evolution of lethal injection since Baze. The desert state hasn’t executed the most prisoners since the thiopental shortage began — that distinction belongs, as always, to Texas — but it has used more methods than any other state, killing prisoners with four different drug combinations.  No other state has been quite so dogged in its determination to carry out executions. And no other state has left so detailed a paper trail.  Judges, lawyers, and journalists (most notably Michael Kiefer at The Arizona Republic) have brought much of the abuses to light over the years, but the story has been told in disparate pieces: a deposition here, an uncovered email there. The complete narrative is more troubling than any one of its components.

May 20, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, May 14, 2015

Extended coverage of messy Oklahoma execution and execution methods

960The just-released June issue of The Atlantic magazine has a lengthy cover story headlined "Cruel and Unusual: The botched execution of Clayton Lockett — and how capital punishment became so surreal."  This piece is a long and valuable read, and these excerpts provides a flavor of its coverage beyond the events of a single capital case:

Since the mid-1990s, when lethal injection replaced electrocution as America’s favored method of execution, states have found drug combinations that they trust to quickly and painlessly end a life.  They often use three drugs.  The first is an anesthetic, to render the prisoner unconscious.  The second is a paralytic.  The third, potassium chloride, stops the heart.

What many people don’t realize, however, is that choosing the specific drugs and doses involves as much guesswork as expertise.  In many cases, the person responsible for selecting the drugs has no medical training.  Sometimes that person is a lawyer — a state attorney general or an attorney for the prison.  These officials base their confidence that a certain drug will work largely on the fact that it has seemed to work in the past.  So naturally, they prefer not to experiment with new drugs.  In recent years, however, they have been forced to do so....

[In early 2014], Mike Oakley, the general counsel for the Oklahoma Department of Corrections, had returned from vacation to find the department in a near-frenzy. Before he’d left, the department had ordered pentobarbital from a compounding pharmacy for the executions of Clayton Lockett and Charles Warner, a 46-year-old man convicted in 2003 of raping and killing his roommate’s 11-month-old baby.  But compounding pharmacies had come under pressure to stop selling drugs for executions, and Oklahoma’s supplier had backed out.  With the executions scheduled for March 20 and March 27, one of Oakley’s deputies began driving around the state, walking into pharmacies and asking for pentobarbital, without success.

Oakley didn’t know why the task of finding drugs for executions fell largely to him: he had no medical training.  But he wanted to help his colleagues — especially the warden, whom he considered conscientious and hardworking — because he knew how much strain carrying out a death sentence put on them. He had gone into corrections, 25 years earlier, because Oklahoma was doing interesting work in mediation between victims and offenders. Now he was about to retire, and he found himself, as his swan song, developing a new execution cocktail.

The Atlantic also hasin its June issue this companion piece headlined "A Brief History of American Executions: From hanging to lethal injection." Here is how it starts:

Hanging is perhaps the quintessential American punishment.  In the pre-revolutionary era, criminals were also shot, pressed between heavy stones, broken on the wheel, or burned alive.  (An estimated 16,000 people have been put to death in this country since the first recorded execution, in 1608.)  But the simplicity of the noose triumphed, and its use spread as the republic grew.

In theory, a hanging is quick and relatively painless: the neck snaps immediately.  But hangings can be grisly.  If the rope is too short, the noose will slowly strangle the condemned.  If the rope is too long, the force of the fall can decapitate the person.

The Supreme Court has never struck down a method of execution as unconstitutional.  But states have at times tried to make the process more humane.  “Hanging has come down to us from the dark ages,” New York Governor David B. Hill told the state legislature in 1885. He asked “whether the science of the present day” could produce a way to execute the condemned “in a less barbarous manner.”

May 14, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Thursday, May 07, 2015

Electrifying Tennessee fight over electric chair as back up execution method

BuzzFeed has this interesting new article about an interesting legal fight unfolding in Tennessee.  This extensive headline provides the basics: "Tennessee Officials Fight Inmates’ Attempt To Challenge Electric Chair Plans: The electric chair is Tennessee’s plan B if the state can’t get ahold of lethal drugs. The inmates argue it’s unconstitutional, but the state argues that they can’t challenge it yet."  Here are some details from the start of the article:

Can death-row inmates challenge the constitutionality of electrocution?  The Tennessee Supreme Court will soon decide.  

Death penalty states once phased out the electric chair in favor of drugs — for humane reasons.  Now that drugs have become hard to obtain, states like Tennessee have turned to older execution methods like the chair as a backup.

On Wednesday, the state court will weigh whether death-row inmates can challenge the method’s constitutionality.  Thirty-four inmates allege electrocution is a violation of the Eighth Amendment’s ban on cruel and unusual punishment — that the electric chair disfigures the body and is an affront to evolving standards of decency.

But Tennessee has pushed to have the lawsuit dismissed, arguing that the inmates can’t challenge the method because none of them are actually scheduled to face electrocution.

Tennessee’s preferred method is lethal injection, using pentobarbital made from a secret compounding pharmacy.  Lawmakers passed a law last year that makes electrocution the contingency plan if either drug makers or the courts make lethal injection impossible.

“The[y] are asking the court in this case to… consider hypothetical situations involving uncertain or contingent future events that may or may not occur as anticipated or, indeed, may not occur at all,” Attorney General Herbert Slatery’s office wrote.

May 7, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, May 01, 2015

"How a Death Row Inmate's Request to Give His Organs Kept Him Alive"

Download (1)The title of this post is the headline of this notable lengthy Newsweek article discussing the array of remarkable developments that have surrounded the application of the death penalty in Ohio over the last few years.  Here are excerpts which provide a unique spin on the saying that it's always better to give than to receive: 

On November 13, 2013, prison officials transferred Ronald Ray Phillips from death row, where he had resided for 20 years, to the “death house” in southern Ohio. He had finally run out of appeals. In less than 24 hours, they would strap him to a gurney and inject a fatal drug combination into his veins. Just days before his scheduled death, however, Phillips made an unprecedented request—one that has kept him alive until today. He asked to give his heart to his sister, who had a heart condition, and his kidney to his mother, who was on dialysis....

In the fall of 2013, Ohio had just instituted a new lethal injection protocol as its primary method of execution, and its effects were uncertain. The fatal drug cocktail might destroy Phillips’s organs. On the other hand, if Phillips went to the operating room beforehand and doctors removed his heart while he was unconscious, they could save it. But since he couldn’t survive without his heart, they would simultaneously complete the execution in a novel method that had never been considered in Ohio’s capital punishment laws.

Phillips was scheduled to die at 10 the next morning. Just before 4 p.m., as prison employees headed home for the evening, the death house received a call from the governor. “I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues, then we should allow for that to happen,” Republican Governor John Kasich said in a statement to the press hours before the scheduled execution. Kasich granted Phillips a reprieve, removing him—temporarily, at least—from the death house....

But the agencies that govern transplantation refused his organs, calling the idea “morally reprehensible.” Parceling out the organs to strangers could be a human rights violation. Because Phillips was a prisoner, he couldn’t voluntarily consent to these procedures. The idea of saving “innocent” lives could also incentivize prosecutors and judges to favor the death penalty. Ohio denied Phillips’s request to donate non-vital organs to strangers.

Yet [a former attorney for the mother of Phillips' victim] counters, “Why doesn’t an inmate have a right to donate his or her kidney? Why is that seen as one of the rights that they’ve given up because they’re incarcerated?”...

Because of Phillips’s reprieve, convicted killer Dennis McGuire took his place. Reporter Alan Johnson witnessed McGuire’s execution. Approximately six minutes into it, McGuire “suddenly starts gasping—deep gasps. His chest would compress, his stomach started going out," Johnson says....

The McGuire fiasco prompted a federal judge to temporarily halt all Ohio executions. Nevertheless, Arizona used Ohio’s protocol that summer to execute Joseph Wood. The execution lasted over two hours, with Wood gasping 640 times. It provoked another moratorium on the death cocktail.

In January 2015, before Phillips’s fourth execution date, Ohio rescinded its controversial mixture, announcing a return to the pentobarbital drug class. Because Ohio has been unable to obtain this drug from Lundbeck, executions will resume in 2016 at the earliest. Phillips’s fifth execution date remains unscheduled.

Phillips’s unprecedented request set off a chain of events that have kept him alive till today. For over a year, he’s been next up on Ohio’s list of scheduled executions. But he’s ridden the wave of botched executions and may transition from a temporary reprieve to a permanent one. Phillips and his attorneys declined multiple requests to be interviewed for this story.

May 1, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, April 30, 2015

Timely (but incomplete) report on political debates as de facto moratorium on federal executions continues

The New York Times this morning has this new front-page article discussing a remarkable national death penalty story that seems never to get nearly as much attention it merits.  The article is headlined "Obama Adminintration Steps Back From Effort to End Federal Death Penalty," and here are excerpts:

For a moment last year, it looked as if the Obama administration was moving toward a history­-making end to the federal death penalty.  A botched execution in Oklahoma brought national attention to the issue, public opinion polls began to shift and President Obama, declaring that it was time to “ask ourselves some difficult and profound questions,” directed Attorney General Eric H. Holder Jr. to review capital punishment.

At the Justice Department, a proposal soon began to take shape among Mr. Holder and senior officials: The administration could declare a formal moratorium on the federal death penalty because medical experts could not guarantee that the lethal drugs used did not cause terrible suffering.  Such a declaration would have pressured states to do the same, the officials reasoned, and would bolster the legal argument that the death penalty is unconstitutionally cruel punishment.

But the idea never gained traction, and Mr. Obama has seldom mentioned the death penalty review since.  Now, as the Supreme Court considered arguments Wednesday over whether lethal injection, as currently administered, was unconstitutional, the obstacles the Obama administration faced provide vivid examples of just how politically difficult the debate remains.

“It was a step in the right direction, but not enough of a step,” said Charles J. Ogletree Jr., a Harvard professor and a death penalty opponent who met with administration officials as part of the review.  The Justice Department, he added, has been refusing to say what he thinks senior officials there believe: “We’ve had too many executions that didn’t work and killing somebody’s not the answer.”

In remarks last May after a prisoner in Oklahoma regained consciousness and writhed and moaned during a lethal injection, Mr. Obama, who has supported the death penalty, seemed to raise expectations for a policy change.  He lamented its racial disparities and the risk of executing innocent people.  He referred the matter to Mr. Holder, a liberal stalwart who opposed capital punishment. But privately the White House was cautious, sending word to the Justice Department to keep its focus narrow, administration officials said.    

Mr. Obama called for the review at a time when there had not been a federal execution since 2003, when Louis Jones Jr. was killed for raping and murdering a 19-­year-­old female soldier. Since 2010, the federal government has effectively had a moratorium on executions — all are carried out by lethal injection — because manufacturers in Europe and the United States refused to sell the government the barbiturates used to render prisoners unconscious. States, however, found alternatives, including the sedative midazolam, which was used in the gruesome execution of Clayton D. Lockett in Oklahoma last year.

As the Justice Department sought advice from experts on both sides of the issue, opposition to the idea came from unexpected corners.  Some of the most outspoken voices against the death penalty also urged the most caution, fearful that a federal announcement would actually do more harm than good. “From my view, we’re better off with things bubbling up in the states,” said Henderson Hill, the executive director of the Eighth Amendment Project and one of several people consulted by the administration last year....

Advocates in particular worried that having Mr. Obama and Mr. Holder as the faces of the anti-­death penalty movement would stoke conservative support for capital punishment at a time when some libertarian­-minded Republicans, Christian conservatives and liberal Democrats appeared to be finding common ground in opposition to it. “I’m not sure that what the administration would have to say would be inherently influential in Nebraska,” Mr. Hill said.

Opposition to the death penalty was growing in Nebraska last year and lawmakers voted overwhelmingly this month to replace it with life in prison, setting up a veto fight with Gov. Pete Ricketts, a Republican.

Advocates were further worried that if lethal injections were eliminated, states would bring back older methods of execution, a concern borne out in Utah, where officials said they would bring back firing squads if lethal drugs were not available.  Other states are reviving plans to use the electric chair or gas chambers.

Inside the Justice Department, some officials opposed a formal moratorium because it would eliminate the option for the death penalty in terrorism cases like the one against Dzhokhar Tsarnaev, who faces a possible death sentence for the 2013 bombings at the Boston Marathon.  Others worried that eliminating the death penalty would make it harder to persuade Congress to move terrorist suspects from the island prison at Guantánamo Bay to the United States for trial. There were also logistical hurdles.

Advocates and administration officials asked what would happen to the roughly five dozen people on federal death row. Would Mr. Obama, who has said the death penalty was appropriate in some cases, commute the sentences of men who raped and murdered people? There were no clear answers.

In the end, the question never made it to Mr. Obama’s desk. Last fall, Mr. Holder announced plans to resign, and officials said it would be inappropriate to recommend a major policy change on his way out of office, then leave it up to his successor to carry it out. In January, the Supreme Court agreed to hear the case of three convicted murderers who challenged the lethal injection drugs. Now with the issue before the justices, the review at the Justice Department has come to a halt because any administration action could be seen as trying to influence the court.

Attorney General Loretta E. Lynch, who was sworn in this week, told senators during her confirmation hearing that the death penalty “is an effective penalty.” But she did not elaborate. Emily Pierce, a Justice Department spokeswoman, said the review continued. “And we have, in effect, a moratorium in place on federal executions in the meantime.” 

The last line in this excerpt highlights for me the federal death penalty story that continue to fail to get nearly as much coverage, legally, politically and practically, as I think it should. The feds have, I believe, a significant number of capital murderers on federal death row who have completed all their appeals but who have been escaping their imposed punishment since 2007 because of all the state lethal injection litigation that resulted in the Supreme Court's Baze ruling and all the subsequent uncertainty that has followed.  

I have long been troubled that the Bush Administration starting in 2007, and the Obama Administration in the years that have followed, have made no apparent effort to try to carry out existing federal death sentences.  Whatever the reasons for a nearly-decade-long de facto executive moratorium on the federal death penalty, I believe federal prosecutors should feel some obligation to defendants, victims and the general public to provide some public explanation about what the heck is going on with the actual administration of the federal death penalty.

April 30, 2015 in Baze lethal injection case, Criminal justice in the Obama Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, April 29, 2015

Intriguing reports on Supreme Court oral argument about Oklahoma's lethal injection protocol

Lyle Denniston at SCOTUSblog has this report on the oral argument today in the Supreme Court case concerning Oklahoma's lethal injection protocols.  It starts this way:

For months, the Supreme Court has given no explanation as it refused to give inmates awaiting execution any chance to learn about the methods by which they would be put to death, and has said nothing as it allowed states to experiment with new lethal-drug combinations even after some of those executions were seriously botched. It allowed one inmate to be put to death even before it decided whether to hear his case. In other words, the regime of capital punishment went forward without any new constitutional assessment of it by the Justices; they have not done so on lethal-drug executions for seven years.

On Wednesday, the nation may have gotten the beginnings of an explanation. What appears to be a clear majority of the Court has grown frustrated with the repeated constitutional assaults on the death penalty, especially since that penalty is still constitutionally permitted. That frustration almost boiled over as the Court heard the case of Glossip v. Gross.

That case, at its core, is only about whether the first drug Oklahoma uses in its three-drug lethal combination is capable of making the inmate sufficiently unconscious that he feels little or no pain as the next two, highly toxic drugs paralyze and then kill him. The grim possibility of that particular protocol was described alarmingly by Justice Elena Kagan as “burning alive, from the inside.”

And Wednesday’s argument started out as if it would proceed through a detailed examination of the properties of that first drug — midazalom — and how two lower courts had analyzed its effect in the execution chamber. There was much discussion about judicial fact-finding and what was open to the Supreme Court to second-guess about that.

But the tone and the substance of the argument changed abruptly, when Justice Samuel A. Alito, Jr., moved aggressively into an exchange with the Oklahoma death-row inmates’ lawyer, Robin C. Konrad. “Let’s be honest about what’s going on here,” Alito began. He mentioned how controversial the death penalty is, and said its opponents would be free to continue to try to get it abolished. But, he said, until that happens, “is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”

This Reuters article about today's arguments, headlined "Lethal injection case exposes U.S. top court's death penalty divide," develops similar themes in its review of the arguments. It starts this way:

Tensions on the Supreme Court over America's use of the death penalty boiled over on Wednesday as the justices appeared badly split in a case challenging Oklahoma's lethal injection method as a breach of the Constitution's ban on cruel and unusual punishment.

The nine-member court's five conservatives seemed likely to side with Oklahoma in the case brought by three death row inmates, while its four liberals expressed doubt about the propriety of using the drug at the center of the dispute. Conservative Justice Anthony Kennedy, who often casts deciding votes in close cases, said nothing to suggest he would side with the liberals.

The full oral argument transcript is available at this link.

Recent related posts:

April 29, 2015 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

"The Supreme Court Is About to Decide the Future of Lethal Injections"

The more I think about the Glossip lethal injection case being considered by the Supreme Court today (basics previewed here), the more I think the Justices will be inclined to issue a very narrow ruling that only clearly impacts the lethal injection protocol in Oklahoma and perhaps a few other states.  However, this National Journal article which carries the headline I used in the title of this post, seems to think it will be a huge deal whatever SCOTUS does in the case.  Here is how the piece starts:

How much pain is constitutionally acceptable for a prisoner sentenced to death to feel during his or her execution? What, exactly, is cruel and unusual punishment?

Though not the precise question presented before the justices, the Supreme Court will be forced to wrestle with those nagging Eighth Amendment concerns Wednesday as it hears arguments in a case challenging the application of a combination of lethal drugs that have been linked to a string of grisly botched executions over the past year.

In Glossip v. Gross, the Court is being asked to determine whether the use of of a sedative known as midazolam by Oklahoma and a number of other states is reliable and effective enough to use as part of three-drug lethal cocktail to execute prisoners on death row.

Midazolam has been subject to rising scrutiny since it was first used by Florida in 2013 as a replacement for another drug that became difficult for states to acquire, amid boycotts from European drug manufacturers opposed to capital punishment.

Even a narrow ruling striking against the use of midazolam could reverberate much more widely and further disrupt states' ability to carry out death sentences—a penalty that has grown increasingly rare in recent years as only a handful of states continue the practice. States scrambling to find suitable lethal cocktails are finding the task increasingly difficult, as fewer and fewer options remain available.

Recent related post:

April 29, 2015 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, April 18, 2015

Oklahoma now able to use nitrogen gas as execution method if needed

As reported in this CNN piece, headlined "Oklahoma approves nitrogen gas as backup execution method," the Sooner State is now officially able to use a novel execution method sooner or later. Here are the details:

Oklahoma Gov. Mary Fallin signed a bill on Friday that would allow the state to perform executions with nitrogen gas if lethal injection is ruled unconstitutional or becomes unavailable. Nitrogen causes a quick loss of consciousness and then death from lack of oxygen, Fallin's office said in a press release.

CNN affiliate KFOR says it's never been used in an execution in the United States. "The person will become unconscious within eight to 10 seconds and death a few minutes later. In other words, a humane, quick and painless death," said Rep. Mike Christian, one of the bill's authors, according to KFOR....

Oklahoma's executions have been put on hold while the U.S. Supreme Court reviews its use of lethal injections. Last year, the state came under scrutiny when it took 43 minutes to kill convicted killer Clayton Lockett.

Fallin reaffirmed her support for the death penalty. "Oklahoma executes murderers whose crimes are especially heinous," Fallin said. "I support that policy, and I believe capital punishment must be performed effectively and without cruelty. The bill I signed today gives the state of Oklahoma another death penalty option that meets that standard." The governor's office said the first alternative for execution is lethal injection, followed by nitrogen gas, the electric chair and the firing squad.

A few recent and older related posts:

April 18, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, April 13, 2015

Tennessee Supreme Court postpones all scheduled executions while considering execution protocol

As reported in this AP piece, the "Tennessee Supreme Court postponed execution dates for four inmates, effectively halting all executions while the courts decide whether current protocols for putting people to death are constitutional." Here is more:

Tennessee last executed a prisoner in 2009. Since then, legal challenges and problems obtaining lethal injection drugs have stalled new executions. In 2013 and 2014, the state tried to jump-start the process with a new one-drug lethal injection method and the reinstatement of the electric chair as a backup.

Beginning in December 2013, the court set new execution dates for 11 inmates. One inmate died in prison, and the execution dates for the others have been postponed as they approach because of legal challenges to the new methods. On Friday, the court postponed the last of the scheduled execution dates. It will set new dates after the legal questions are settled....

Death row inmates challenging Tennessee's lethal injection method recently submitted an affidavit from University of Utah College of Pharmacy professor James H. Ruble that questions whether even a willing compounding pharmacist could provide the pentobarbital that Tennessee and several other states need for executions. Ruble says in the affidavit that the main ingredient for pentobarbital is unavailable from the six primary commercial sources that compounding pharmacists buy their ingredients from.

Tennessee last year reinstated electrocution as an alternative if lethal injection drugs are unavailable or a court rules the procedure unconstitutional. But that change has brought yet another legal challenge.

April 13, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Wednesday, April 08, 2015

Larry Flynt hustles his way into Missouri litigation over lethal injection

As reported in this local article, headlined "Larry Flynt can intervene in lawsuit to unseal execution protocol records, appeals court rules," a notable publisher is now able to be a player in on-going Missouri lethal injection litigation. Here are the details:

A three-judge U.S. appeals court panel ruled Tuesday that pornographic magazine publisher Larry Flynt has a right to join death row inmates in lawsuits seeking to reveal the state of Missouri’s execution protocols. Several media and consumer watchdog groups interested in lawsuits with potential consequences for government transparency had filed briefs to support him.

Flynt, the iconic publisher of the magazine Hustler, invoked a First Amendment right to view sealed documents that might identify an anesthesiologist on the state execution team. That information is confidential under Missouri law. In a separate case, he also asserted a right to view docket entries that were sealed without explanation in a suit challenging the legality of Missouri’s execution protocol. Both lawsuits failed, but if Flynt wins his bid to unseal the documents, the public can get a look at the factors considered by the federal courts.

Flynt argued he had an interest because he was one of the victims of white supremacist Joseph Paul Franklin. Missouri executed Franklin in November 2013 for the 1977 sniper killing of Gerald Gordon, 42, outside a Richmond Heights synagogue. Franklin, upset that Hustler published pornographic images of an interracial couple, also shot Flynt on the steps of a Georgia courthouse in 1978, paralyzing him. Flynt had advocated that Franklin be punished by spending the remainder of his life in prison, rather than be killed by the state and put out of his misery.

Nanette Laughrey, a judge in the Western District of Missouri, had denied Flynt’s petition with a one-sentence order: “A generalized interest in a subject of litigation does not justify intervention.” But the appeals court panel ruled the lower court had applied an incorrect legal standard in denying Flynt. It sent the case back to U.S. District Court to consider Flynt’s bid to unseal records....

Organizations signing briefs in support of Flynt’s intervention included the New York Times, the Washington Post, Politico and the Missouri Press Association, whose members include 250 newspapers, including the Post-Dispatch. Public Citizen, a consumer watchdog group founded by Ralph Nader, also added its support....

“The public needs to know what is being done in its name and these judicial records will answer a lot of questions that we and members of the media have been asking,” Tony Rothert, legal director of the ACLU of Missouri, said in a prepared statement.

April 8, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, March 31, 2015

Another pharmacy group expresses opposition to involvement in executions

As noted in this prior post, last week a trade group for compound pharmacists has discouraged its members from preparing or dispensing drugs for executions.  Now, as reported in this new NBC News article, the "American Pharmacists Association voted Monday to oppose participation in executions, declaring that helping put prisoners to death violates the goals and oath of the profession." Here is more about these developments:

Neither policy is binding, but they could dissuade specialty pharmacists — now the only source for lethal injections in many states — from selling their products to prisons for executions. "It adds to the difficulty," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports capital punishment. "It's unfortunate that groups such as this would allow themselves to be dragged into a political dispute."

But Corinna Lain, a professor at the Richmond School of Law, said it has more to do with the bottom line. With just 35 executions across the country last year, lethal injections are not a big profit center. "The cost of these drugs has skyrocketed from something like $83 a vial to $1,200 to $1,500 a vial. But that's still a drop in the bucket for a pharmacy's total sales. And look at the downside — the negative publicity is tremendous. Executions are bad for business for compounding pharmacies for the same reason they were bad for business for the pharmaceutical companies."...

Scheidgger said he hopes that at least a few compounding pharmacies will buck the trade groups and continue to sell their products to prisons until a new source is found. "I expect states will eventually find a supply and this problem will go away," he said.

March 31, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, March 30, 2015

California and Ohio facing capital congestion without a functioning execution chamber

Theses two local stories concerning death row realities in two states strike a similar note:

From California here, "California's death row, with no executions in sight, runs out of room." This story starts this way:

With no executions in nearly a decade and newly condemned men arriving each month, the nation's largest death row has run out of room.  Warning that there is little time to lose, Gov. Jerry Brown is asking the California Legislature for $3.2 million to open nearly 100 more cells for condemned men at San Quentin State Prison.  The proposed expansion would take advantage of cells made available as the state releases low-level drug offenders and thieves under a new law voters approved last year.

California's death penalty has been the subject of a decade of litigation. One case led to a halt to executions in 2006. Another resulted in a federal judge's ruling last July that the state's interminably slow capital appeals system is unconstitutionally cruel.  Through it all, the death row population has grown from 646 in 2006 to 751 today.

From Ohio here, "Backup of killers awaiting execution is building."  This story starts this way:

Midway through Ohio’s two-year death penalty moratorium, a backup of men awaiting execution is building.  There are 20 inmates either scheduled for execution or for whom prosecutors are seeking execution dates from the Ohio Supreme Court, according to the Capital Crimes Annual Report released today by Attorney General Mike DeWine. [The report also indicates 145 murderers are on Ohio's death row now.]

Especially because no state other than Texas ever shown a consistent ability to conduct more than 10 executions in any given year, these data necessarily mean many years (and likely many decades) will be needed to actually carry out a significant number of imposed capital punishments in these states when (if?) these states get their death machineries operating again.

March 30, 2015 in Baze lethal injection case, Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, March 25, 2015

Are compounding pharmacies likely to cut off drug dealing to states for executions?

The question in the title of this post is prompted by this notable Wall Street Journal article headlined "Compound Pharmacists Trade Group Discourages Supplying Execution Meds." Here are excerpts:

As more states turn to compounding pharmacies to supply medicines for executions, the leading trade group for compound pharmacists is now discouraging its members from preparing or dispensing drugs for this purpose.

The move reflects growing concern among some compound pharmacists that some states – in response to ongoing controversy over the supply of drugs for lethal injections – may decide to alter regulations in ways that would cause pharmacists to face legal problems, according to the International Academy of Compounding Pharmacists. “We have concerns about what may occur,” says David Miller, the IACP chief executive. The trade group represents approximately 3,700 pharmacists who compound medicines, a process that involves customizing ingredients for a specific use.

Separately, the American Pharmacists Association will also consider adopting a similar position at a meeting that begins later this week, according to an official of the trade group, which represents about 62,000 pharmacists nationwide. The vast majority of APA members work for traditional pharmacies that dispense medicines manufactured by drug makers.

Until now, the IACP had not taken any position on supplying drugs for executions, but adopted this new stance after a growing number of drug makers began restricting the use of their medicines for executions. At least nine drug makers have formally taken this step, according to Reprieve, an advocacy group in the U.K. that has been pressuring companies to withhold their medicines for executions.

As a result, more states have gradually turned to compound pharmacies to supply drugs for lethal injections. To date, nine states have either used or indicated they intend to use compounded medicines for lethal injections, according to the Death Penalty Information Center....

Currently, pharmacists are permitted by law to dispense medications for executions if a licensed doctor writes a legitimate prescription, says Carmen Catizone, the executive director of the National Association of Boards of Pharmacy, which represents the state boards, the government agencies that regulate pharmacy practice. At the moment, he says there is no indication that any state legislature is considering a change to its regulations that might pose legal problems for pharmacists.

However, he explains that new policy statements may attract attention from state boards, especially given ongoing controversy over executions and the availability of medicines. “For any change in regulations or rule, the state boards would have to take action.” says Catizone, “But a change in policy can be significant because it may prompt our members to take a closer look at an issue.”

For his part, Miller says the IACP is concerned that state boards may decide to consider such action and, as a result, its members could eventually face legal action. “We definitely think it’s a possibility,” he says. At the same time, the trade group also worries pharmacists who supply drugs may face harassment if their identities become known. The IACP points to a recent episode in Tennessee where the name of a compound pharmacist was inadvertently disclosed. The IACP notes that nearly a dozen states are considering legislation to provide confidentiality.

March 25, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, March 24, 2015

"The Executioners' Dilemmas"

The title of this post is the title of this timely new article by Eric Berger now available via SSRN. Here is the abstract:

Despite several prominent recent botched executions, states usually resist external pressure to improve their lethal injection procedures. This symposium contribution explores why states fail to address lethal injection’s systemic risks and, relatedly, why they so vigorously resist requests to disclose execution procedure details.

This analysis is necessarily speculative; it is impossible to know for certain what drives states’ behavior in this area, and motivations likely differ from state to state and from official to official. That said, a constellation of epistemic, structural, strategic, and political factors likely shape much official behavior in this area.

Examining those factors more closely can help us better understand why so many states have acted so irresponsibly in designing and implementing their lethal injection procedures. Of course, these explanations hardly excuse states’ frequent indifference to the risk of pain their execution procedures create. Collectively, however, they help shine important light more generally on why state officials sometimes seem insensitive to constitutional values.

March 24, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, March 21, 2015

Effective discussion of nitrogen gas as execution method alternative

Images (1)This new Atlantic article, headlined "Can Executions Be More Humane?: A law professor suggests an untested procedure as an alternative to lethal injection," provides an interesting account of the person and story behind a novel execution method proposal.  Here are excerpts:

Michael Copeland has a unique resume: former Assistant Attorney General of the tiny Pacific island nation of Palau, professor of criminal justice at East Central University in Ada, Oklahoma — and now, the proponent of a new execution method he claims would be more humane than lethal injection.

Copeland is one of the brains behind House Bill 1879 proposed by Oklahoma State Representative Mike Christian.  The bill, passed by the Oklahoma House last week, would make “nitrogen hypoxia” a secondary method to lethal injection.  Oklahoma State Senator Anthony Sykes will be introducing it to the senate shortly.

Copeland explained the execution method last September to the Oklahoma House Judiciary Committee at Christian’s invitation.  Copeland says that Christian had been suggesting the firing squad, but Copeland thought there might be a better way.  Along with two other professors from East Central University, Christine C. Pappas and Thomas M. Parr, he is drafting a white paper about the benefits of nitrogen-induced hypoxia over lethal injection....

Hypoxia occurs when a person lacks an adequate supply of oxygen.  “Normally, the air we breathe is 79 percent nitrogen and 21 percent oxygen,” Copeland explains. Nitrogen hypoxia during an execution “would be induced by having the offender breathing a gas mixture of pure nitrogen.” Copeland points out that “nitrogen is an inert gas, and therefore doesn’t actually cause the death.  It is the lack of oxygen that causes death.”

According to Copeland, death from nitrogen hypoxia is painless. “In industrial accidents, it often happens because the victim does not know they are in a hypoxic environment,” he said.  “That suffocating feeling of anxiety and discomfort is not associated with hypoxic deaths.”  He says nitrogen-induced hypoxia is well-researched, although the ideal delivery system for an execution has not yet been established.  Two ideas include a medical-grade oxygen tent around the head or a facemask similar to those used by firefighters.

The condemned person might not even know when the “the switch to pure nitrogen occurs, instead he would simply lose consciousness about fifteen seconds after the switch was made,” he added.  “Approximately thirty seconds later, he would stop producing brain waves, and the heart would stop beating about two to three minutes after that.”...

Copeland says that conditions for lethal-injection executions will only get worse.  States are scrambling to find the drugs and the health professionals to use them, and both are required for lethal injection to take place.  “You have anti-death penalty zealots around the globe that protest, that bring attention to the manufacturers of these drugs,” Oklahoma Attorney General Scott Pruitt told a local chamber of commerce last summer. Pruitt said that as long as activists pressure manufacturers, there will be supply issues....

From its first use in the execution of Gee Jon in Nevada in 1924 to its link to Nazi gas chambers, lethal gas as method of execution has a problematic history.  American lethal-gas executions typically used hydrogen cyanide as the mechanism of death.  Inmates were strapped to chairs in gas chambers and the ensuing chemical reaction would cause visible signs of pain and discomfort: skin discoloration, drooling, and writhing.

But nitrogen hypoxia would likely not produce the gruesome deaths that resulted from cyanide gas executions. Copeland says that “you don’t have to worry about someone reacting differently.” The condemned person would feel slightly intoxicated before losing consciousness and ultimately dying.

Other death-penalty experts are more skeptical.  “It’s only been partially vetted, superficially researched, and has never been tried,” said Richard Dieter, executive director of the Death Penalty Information Center.  “Using it would be an experiment on human subjects.” State death rows would be strapping someone down without any idea what would happen next, he feared.  “We’d need testimony from the best experts on this,” Dieter says. “Right now, this is sailing through a legislature and not a peer-review process. I’m no doctor, but let’s hear from them.  I don’t completely dismiss the idea that this could become approved or that it’s as good as they say because lethal injection is in a bind.”

If the bill becomes law and Oklahoma successfully executes someone using this method, it could spread from to state very quickly, Dieter says.  Older methods like firing squads are a little too brutal for the American public, but something new could be accepted. If so, he says, “it could lead to an awkward spurt of executions.”  Copeland says he is not a death penalty absolutist. “I think the state has a unique obligation for justice — it’s the state’s obligation,” he explains.  “But I don’t think the death penalty is a deterrent compared to life without parole.”  If we must have the death penalty, he argues, it should be humane.

Copeland thinks that it is death penalty abolitionists who have made executions inhumane by restricting access to drugs.  It will only get worse.  Some corrections officials at the Louisiana Department of Public Safety and Corrections agree.  On February 18, they submitted a report to the state House of Representatives proposing the use of nitrogen-induced hypoxia and cited Copeland’s forthcoming paper.

Copeland says that it’s a logical and humane next step. “Nitrogen is ubiquitous. The process is humane, it doesn’t require expertise, and it’s cheap,” he explained. “I think of it as a harm-reduction thing — like you’d rather people not use heroin, but if they do, you want them to use clean needles.”

A few recent and older related posts:

March 21, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, March 18, 2015

Might Utah's gov veto the effort to provide for a firing squad execution back-up plan?

The question in the title of this post is prompted by this AP piece headlined "Death Penalty Opponents Urge Veto of Utah Firing Squad Bill." Here are the basics:

Death penalty opponents are urging Utah Gov. Gary Herbert to veto a bill allowing execution by firing squad if the state cannot obtain lethal injection drugs. Ralph Dellapiana of Utahns for Alternatives to the Death Penalty delivered a petition and a letter to Herbert's office Tuesday. Dellapiana calls firing squads archaic and barbaric.

Herbert, a Republican, has declined to say if he will sign the proposal but says it could offer Utah a backup if it cannot get execution drugs. Utah lawmakers passed the bill last week as states struggle to obtain lethal injection drugs amid a nationwide shortage.

Republican Rep. Paul Ray of Clearfield sponsored the proposal and says a team of trained marksmen is faster and more humane than the drawn-out deaths that occur when lethal injections are botched.

March 18, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, March 16, 2015

"The free-market case for opposing the death penalty"

The title of this post is the headline of this new piece from The Week magazine.  Here are excerpts:

There are lots of ways to execute a prisoner. But in the U.S., at least, the 32 states that still execute prisoners have decided on lethal injection. On its face, lethal injection seems like a clinical, modern, hopefully low-pain, and usually low-key way to kill somebody. Except when it isn't, as we saw in last year's crop of botched executions.

The prolonged, evidently painful deaths of Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Dennis McGuire in Ohio were tied to experimental drug cocktails necessitated by a shortage of traditional death drugs. This shortage is due largely to a ban by European countries on exporting certain drugs to U.S. states that practice capital punishment. The free market is making a case against capital punishment. So far, the states that actively execute prisoners have been willfully plugging their ears....

With just a single dose of pentobarbital left and 317 inmates on death row, Texas is stocking up on midazolam. It's not clear if Texas can't get pentobarbital because the compounding pharmacies are refusing to sell it to them, or because they can't get the raw ingredients — the Professional Compounding Centers of America told The Texas Tribune that it stopped providing pentobarbital ingredients to its customers in January 2014.

Most compounding pharmacies aren't regulated by the Food and Drug Administration, and their products are uneven. Which compounding pharmacies are Texas, Oklahoma, Ohio, Georgia, Missouri, and other states buying drugs from? They're not saying. Why not? "Disclosing the identity of the pharmacy would result in the harassment of the business and would raise serious safety concerns for the business and its employees," Texas Department of Criminal Justice spokesman Jason Clark explained to The Texas Tribune last month....

Providing lethal injection drugs to state prisons is so toxic that no European country will do it and no American company is willing to do it openly. Gunmakers and abortion clinics advertise their services, but pharmacies and drugmakers won't publicly associate with a form of punishment approved of by 63 percent of Americans. That's the market talking, and it's saying it wants no part of this.

March 16, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (13) | TrackBack

Saturday, March 14, 2015

"Death of the death penalty by lethal injection shortage?"

The question in the title of this post is the headline of this notable recent Chicago Tribune column.  Here is how it starts:

A reliable supply line is crucial to any business. That's no less true when the business is death. States can't carry out death sentences if their prisons can't stock the lethal sedatives needed for court-sanctioned lethal injections. And that has become a serious problem of late.

Pharmaceutical companies such as Lake Forest-based Hospira in recent years have moved — pushed by activists and overseas regulators — to keep their drugs from being co-opted in the executioners' cocktails. The well is running dry.

Just in the last week:

•  Texas' pantry is quite nearly bare. The state reportedly is left with a single dose of pentobarbital because European manufacturers of the anesthetic are prohibited from allowing it to be used by prisons.

•  Georgia postponed its first execution of a woman in 70 years because the blend to be injected appeared unusually cloudy.

•  And Utah's legislature sent the governor a bill that would authorize the return of firing squads when the state can't get its hands on the requisite toxins.

March 14, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Wednesday, March 11, 2015

Utah legislature brings back firing squad as alternative execution method

Firing-squadAs detailed in this Reuters piece, "lawmakers in Utah voted on Tuesday to bring back executions by firing squad if lethal injections are unavailable, which would make it the only state in the country to permit the practice." Here is more:

Utah used firing squads for decades before adopting lethal injections in 2004. The Republican-sponsored bill, which passed the state Senate by 18-10, was introduced amid national concerns about the efficacy of lethal injections.

The measure, approved last month by the Utah House of Representatives, says a firing squad should be used if "the state is unable to lawfully obtain the substance or substances necessary to conduct an execution by lethal intravenous injection 30 or more days" before the date set for the procedure.

Several U.S. states have had to search for new drugs for their lethal injection cocktails after many pharmaceutical companies, mostly in Europe, imposed sales bans about four years ago because they objected to having medications made for other purposes being used in executions.

Supporters of the legislation said three states - Oklahoma, Ohio and Arizona - recently carried out lethal injections that led to inmates' physical distress and drawn-out deaths, and that death by firing squad was more humane.

Republican state Representative Paul Ray of Clearfield, the bill's sponsor, said someone executed by gunfire typically dies in three to five seconds. "It's a quick bleed-out," he said.

Utah previously used firing squads, including in the execution of Gary Gilmore, a convicted murderer who in January 1977 became the first person to be put to death in the United States in 10 years, after insisting the sentence be carried out....

The last person to be executed in Utah by firing squad was Ronnie Lee Gardner in 2010. Gardner was convicted of murdering a lawyer inside a Salt Lake City courthouse in 1985.

The bill now goes to Utah Governor Gary Herbert. In a statement, a spokesman for the Republican governor said he had not yet decided whether to sign the measure.whether to sign the measure. 

March 11, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Tuesday, March 10, 2015

Might drug shortages in Texas grind its machinery of death to a halt?

The question in the title of this post is prompted by this new article headlined "Dearth Row: Texas Prisons Scrambling to Find More Execution Drug." Here are excerpts:

Texas' prison agency is scrambling to find a supplier to replenish its inventory of execution drugs, which will be used up if the state goes forward with two lethal injections scheduled for this week and next. Prison officials only have enough pentobarbital for the scheduled executions of Manuel Vasquez on Wednesday and Randall Mays on March 18, but they don't know how they will conduct lethal injections on four others scheduled for April.

The Texas Department of Criminal Justice declined to say why it has not been able to obtain more pentobarbital from the same compounding pharmacy that provided the current batch of the powerful sedative last March. The state switched to that source several months after its previous supplier cut ties, citing hate mail and potential litigation after its name became public through an open records request from The Associated Press.

Prison officials have since waged a legal battle to keep the name of its latest supplier secret, but it's unclear how much longer they can do so after a state judge last year ordered the agency to divulge the source. That ruling is on hold pending the outcome of the state's appeal....

Although Texas, traditionally the nation's busiest death penalty state, faces the most imminent deadline for replenishing its pentobarbital supply, other states are experiencing similar problems. Texas has executed a nation-leading 521 inmates since 1982, when it became the first state to use lethal injection. It's now been nearly three years since Texas began using pentobarbital as its only capital punishment drug, switching in July 2012 after one of the chemicals in the previous three-drug mixture no longer was available.

The last 17 Texas executions, stretching back to September 2013, have used compounded pentobarbital, and the last nine from compounding pharmacies the state has refused to identify. Texas officials have insisted the identity should remain secret, citing a "threat assessment" signed by Texas Department of Public Safety director Steven McCraw that says pharmacies selling execution drugs face "a substantial threat of physical harm." Law enforcement officials have declined to elaborate on the nature of those threats.

The U.S. Supreme Court, meanwhile, has refused to block punishments based on challenges to secrecy laws. However, the high court is reviewing Oklahoma's lethal injection method, resulting in a hold on executions there, after a punishment using the sedative midazolam followed by two other drugs went awry. Oklahoma lawmakers now are considering a switch to nitrogen gas as the first alternative to injection while officials in other states are considering a return to firing squads or the electric chair.

Despite all the controversies over lethal injection protocols and problems with drug supplies nationwide in recent years, Texas has been able to keep its machinery of death humming.  And because so many executions take place in Texas (basic DPIC data here), a halting of executions in that one state would functionally diminish the overall number of US executions quite significantly.

Given that Texas has a long modern history of finding ways to move forward with executions, this drug story is especially interesting and dynamic because it might lead the Lone Star State to get serious about other possible execution methods.  I assume some officials in Texas are already quietly exploring the possibility of executions using nitrogen gas or firing squads, and perhaps a Texas discussion of such matters will become public at some point soon if the state struggles to secure needed execution drugs.

March 10, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Wednesday, March 04, 2015

Cloudy with (less of) a chance of executions in Georgia

ImagesAs reported in this Time piece, headlined "Georgia Postpones 2 Executions Over ‘Cloudy’ Drugs," the forecast in the Peach State just got peachier for those on the state's death row as the state deals with uncertainty concerning its execution drugs.  Here are the details:

Georgia's supply of lethal injection drug pentobarbital may have gone bad.  Georgia indefinitely postponed two executions Tuesday to allow officials to analyze its current batch of lethal injection drugs, which “appeared cloudy” prior to an execution that had been scheduled Monday night.

The execution of Kelly Gissendaner, who would’ve been the first woman put to death in the state in 70 years, was called off by the Georgia Department of Corrections Monday night after the state discovered its supply of pentobarbital, a short-acting barbiturate, looked murky.  Georgia officials made the decision after consulting with a pharmacist, according to The New York Times, even though state officials said that its pentobarbital supply had been tested and was cleared for use.

The state then announced Tuesday that the executions of both Gissendaner and Brian Keith Terrell, who was set to die by lethal injection on March 10 for the 1992 murder of John Henry Watson, were indefinitely postponed.  Gissendaner was convicted of arranging the 1997 murder of her husband, Douglas Gissendaner.

A number of states have had trouble carrying out executions due to problems obtaining drugs.... Like many states, Georgia has turned to compounding pharmacies, which are not under federal oversight, for their drug supplies while also passing a secrecy law that keeps participating pharmacies anonymous.  Georgia has not released the name of its drug supplier, and it’s unclear when its current batch of pentobarbital was due to expire.

March 4, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Tuesday, March 03, 2015

Concerns about lethal drug creates reprieve for condemned Georgia woman

As reported in this CNN piece, for "the second time, a Georgia woman's execution has been postponed -- this time because of concerns about the drugs to be used." Here is why:

Kelly Renee Gissendaner was scheduled to die at 7 p.m. ET Monday.  "Prior to the execution, the drugs were sent to an independent lab for testing of potency.  The drugs fell within the acceptable testing limits," the Georgia Department of Corrections said in a statement.

"Within the hours leading up to the scheduled execution, the Execution Team performed the necessary checks.  At that time, the drugs appeared cloudy.  The Department of Corrections immediately consulted with a pharmacist, and in an abundance of caution, Inmate Gissendaner's execution has been postponed."

The 47-year-old was originally scheduled to die on Wednesday, but that execution was called off because of winter weather.

If I were a deeply religious person, I might be inclined to contend that some higher power is doing all it can to keep Georgia from being able to execute Gissendaner.

March 3, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, March 01, 2015

"The Politics of Botched Executions"

The title of this post is the title of this timely new article by Corinna Lain now available via SSRN.  Here is the abstract:

For decades now, America’s death penalty has been beset by serious problems in its administration, but what has finally gotten the public’s attention is a spate of botched executions in the first half of 2014.  Botched executions are, like the death penalty’s other woes, nothing new. But having to manage the public relations nightmare that has followed these high-profile events is new, and tells a story of its own.  What are the politics of botched executions?  Officials have lowered the blinds so witnesses could not see what was happening inside the execution chamber, called for an “independent review” by other arms of the state, minimized concerns by comparing the execution to the condemned’s crimes, even denied that a botched execution was botched in the first place.

In this symposium contribution, I recount the four botched executions of 2014 and state responses that accompanied them.  I then make three observations — one about states’ fealty to the death penalty, one about backlash politics, and one about the changing cultural construct of lethal injection in the United States.  Finally, I surmise how state responses to botched executions (or the lack thereof) might impact the constitutionality of lethal injection and prove true the old adage about politics making strange bedfellows: the inept executioner may prove to be the abolitionist’s best friend.

March 1, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 17, 2015

Florida Supreme Court stays lethal injection pending SCOTUS case, and AG Holder urges national execution halt

As reported in this Reuters piece, "Florida’s highest court put executions on hold Tuesday while the U.S. Supreme Court decides whether use of a controversial general anesthetic constitutes “cruel and unusual” punishment of condemned killers." Here is more:

The state Supreme Court stopped the execution of Jerry William Correll next week because the Supreme Court recently agreed to hear a challenge some Oklahoma inmates brought against use of midazolam hydrochloride as the first of three drugs used in lethal injections. Florida uses essentially the same formula, the court said in a 5-2 ruling.

The state switched to midazolam as an anesthetic in 2013 when some foreign drug manufacturers quit supplying other drugs previously used in executions. The Department of Corrections said 11 lethal injections have been carried out with midazolam in Florida since then. Florida courts have approved midazolam, but the nation’s highest court agreed Jan. 23 to hear an appeal by 21 Oklahoma inmates in a case citing prolonged executions and signs of pain reported in that state, Arizona and Ohio.

Chief Justice Jorge Labarga wrote that if the nation’s highest court rules in favor of the prisoners, “then Florida’s precedent approving the use of midazolam and the current Florida three-drug protocol will be subject to serious doubt as to its continued viability.”

Justices Charles Canady and Ricky Polston dissented, saying Florida should proceed with Correll’s execution unless the U.S. Supreme Court stays it. Canady wrote that a stay in another state does not automatically require one in Florida, and that agreeing to review Oklahoma’s use of the drug means the justices will forbid it.

Meanwhile, as reported in this piece in The Hill, US Attorney General Eric Holder suggested today that all states ought to follow Florida's lead while the Supreme Court lethal injection case is pending:

Attorney General Eric Holder called Tuesday for a national moratorium on the death penalty until the Supreme Court weighs in on the issue later this year...

Late last month, the Supreme Court agreed to hear an appeal the from death row inmates in Oklahoma who are challenging the state’s procedures for lethal injections. "I think a moratorium until the Supreme Court makes that decision would be appropriate," Holder said.

February 17, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, February 16, 2015

"The United States Execution Drug Shortage: A Consequence of Our Values"

The title of this post is the title of this commentary authored by Ty Alper available via SSRN. Here is the abstract:

The recent inability of states to obtain drugs for use in executions has led to de facto moratoria in a number of states, as well as gruesomely botched executions in states that have resorted to dangerous and unreliable means to obtain these drugs. The refusal of some pharmaceutical companies to provide drugs to U.S. prisons has significantly impeded the imposition of the death penalty in a number of states. Despite this, it is the anti-death penalty activists who tend to draw the attention of the media, state officials, and politicians charged with carrying out executions. The media focuses particular attention on advocates in Europe who have campaigned to pressure European drug companies to stop distribution of their products to U.S. prisons for use in executions.

This paper challenges that narrative and posits instead that it is the drug companies that have long sought to avoid the use of their products in executions, for moral and financial reasons, as well as to comply with European law. When we look back on the fourth decade of the modern era of capital punishment in the United States, we may consider it the decade that marked the beginning of the end. If so, it will not be the result of a handful of activists successfully thwarting the administration of capital punishment. Rather, it will be the consequence of U.S. states imposing the death penalty in the context of a modern world that generally abhors the practice, using a method of execution that is very much dependent on major players in that world.

February 16, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

Tennessee Supreme Court to consider electric chair as back-up execution method

I am pleased and intrigued to see, via this local article, that the "Tennessee Supreme Court will decide whether a death row inmate can challenge the state's back-up method of execution: the electric chair." Here is more about this notable litigation:

The court agreed to take the case — which stems from a Davidson County Chancery Court battle — on Friday. Arguments are set for May 6 in Knoxville. The state says that inmates who are challenging the electric chair as unconstitutional cannot do so because none of the inmates is facing that method of execution.

A group of 34 inmates previously challenged the state's primary protocol, lethal injection, and then added a challenge to the electric chair when it was deemed a back-up method.

The appeal to the Supreme Court, as well as another seeking the release of names of people involved in the execution process, come from the pending chancery court case. Once the Supreme Court decides the issues, the chancery court case will be able to move forward.

I fear that this case might resolve only whether and when a Tennessee defendant can challenge a back-up method of execution. Nevertheless, I find it notable and potential important that a state supreme court is now going to consider in any way an execution method other than lethal injection.

February 16, 2015 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, February 11, 2015

Update on a decade-long (lack of) effort (not) to fix lethal injection in California

California has long been a state leader in spending lots of time, energy and money on the death penalty without achieving much.  This commentary by Debra Saunders, headlined "Yes, California, there is a death penalty," provides a critical review of the lethal injection part of this story that has played out over the last decade. Here are excerpts:

What happened to California’s death penalty? There has not been an execution since 2006, when a federal judge ruled against the state’s three-drug lethal injection protocol. In 2008, the U.S. Supreme Court upheld three-drug executions. It didn’t matter. Gov. Jerry Brown and Attorney General Kamala Harris both personally oppose capital punishment, but as candidates promised to uphold the law. In real life, they’ve let things slide. Fed up, two men related to murder victims have filed suit to push the state to carry out the law.

Kermit Alexander wants to see the law work on Tiequon Cox, convicted of killing the former football player’s mother, sister and two nephews in 1984 — Cox went to the wrong address for a $3,500 contract killing. Bradley Winchell is sick of waiting for the execution of Michael Morales, who raped, hammered, strangled and stabbed to death his 17-year-old sister, Terri, in 1981. Sacramento Superior Court Judge Shellyanne Chang ruled in their favor Friday after Harris challenged them on the dubious grounds that crime victims and the general public “lack standing” to sue the state.

Brown had directed the state Department of Corrections and Rehabilitation in April 2012 to develop rules that should pass court muster. What’s taking so long? Spokesman Jeffrey Callison answered that his department has been working on “a single drug protocol” but “nationwide, there is a problem with access to execution drugs and that is complicating efforts.”

California has used lethal injection since 1996 to spare condemned inmates unnecessary pain. Even still, U.S. District Judge Jeremy Fogel stayed Morales’ execution as the judge perceived a 0.001 percent chance the convicted killer might feel pain.

In other states not headed by Hamlets, leaders have found ways to anticipate court sensibilities and keep faith with voters.  Many adopted one-drug protocols.  Death penalty foes responded by using their considerable muscle to bar importation and choke the supply of lethal-injection drugs.  Flat-footed Sacramento stuck with the unused three-drug protocol for too long. While Brown’s Corrections Department was working on a one-drug rule, Texas executed 38 killers with pentobarbital. The next time you hear the cerebral governor argue that high-speed rail is doable, remember that he couldn’t pull off a legal procedure that didn’t daunt former Texas Gov. Rick Perry....

In 2012, California voters rejected a ballot measure to get rid of capital punishment. Alexander and Winchell shouldn’t have to sue their government to enforce the law.

As the title of this post is meant to suggest, I do not think officials in California have any real interest in fixing its execution protocol.

February 11, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 10, 2015

As SCOTUS considers Oklahoma lethal injections, Oklahoma considers a gas chamber

As this AP article reports, now that "executions in Oklahoma [are] on hold amid a constitutional review of its lethal injection formula, Republican legislators are pushing to make Oklahoma the first state in the nation to allow the use of nitrogen gas to execute death row inmates." Here is more:

Two separate bills scheduled for hearings this week in legislative committees would make death by "nitrogen hypoxia" a backup method of execution if the state's current lethal injection process is found to be unconstitutional.

"You wouldn't need a medical doctor to do it. It's a lot more practical. It's efficient," said Rep. Mike Christian, an Oklahoma City Republican and former Oklahoma Highway patrolman who conducted a hearing last summer on hypoxia, or the depletion of oxygen in the bloodstream.

The U.S. Supreme Court currently is reviewing Oklahoma's three-drug method in a challenge sparked by a botched lethal injection last spring in which an inmate groaned and writhed on the gurney before a problem was discovered with an intravenous line. The case centers on whether the sedative midazolam properly renders an inmate unconscious before the second and third drugs are administered. Three scheduled lethal injections in Oklahoma have been delayed pending the high court's review.

Oklahoma officials concede midazolam is not the preferred drug for executions, but death penalty states have been forced to explore alternatives as manufacturers of more effective drugs refuse to sell them for use in lethal injections. Tennessee passed a law last year to reinstate the electric chair if it can't get lethal drugs, and Utah is considering bringing back the firing squad. Oklahoma Attorney General Scott Pruitt has urged legislators to consider the creation of a state compounding pharmacy to produce the drugs itself.

A fiscal analysis of the Oklahoma bill projects it would cost about $300,000 to build a gas chamber at the Oklahoma State Penitentiary in McAlester. A similar bill is pending in the Oklahoma Senate. Christian said unlike traditional gas chambers that used drugs like cyanide that caused a buildup of carbon dioxide in the blood, breathing nitrogen would be painless because it leads to hypoxia, a gradual lack of oxygen in the blood, similar to what can happen to pilots at high altitudes.

Four states currently allow the use of lethal gas — Arizona, California, Missouri, and Wyoming — but all have lethal injection as the primary method, according to the Death Penalty Information Center. No state has ever used nitrogen gas or inert gas hypoxia to execute an inmate. The last U.S. inmate executed in a gas chamber was Walter LaGrand in Arizona in 1999.

A few recent and older related posts:

February 10, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, February 09, 2015

"In praise of the firing squad"

The title of this post is the headline of this recent Washington Post commentary by Radley Balko. Here are excerpts:

[F]rankly, if we insist on executing people, the firing squad may be the best option. Before I explain why, I’ll first disclose that I’m opposed to the death penalty, and I have no doubt that my opposition to state-sanctioned killing influences my opinions on which method of execution we ought to use.  So read the rest of this post with that in mind.

If you support the death penalty, the most obvious benefit of the firing squad is that unlike lethal injection drugs, correctional institutions are never going to run out of bullets. And if they do, more bullets won’t be very difficult to find. Ammunition companies aren’t susceptible to pressure from anti-death penalty activists, at least not to the degree a pharmaceutical company might be.  This would actually remove a barrier to more efficient executions. As someone who would like to see executions eliminated entirely, I don’t personally see this as a benefit.  But death penalty supporters might. And there are other benefits to the firing squad, benefits that I think people on both sides of the issue can appreciate.

Traditional lethal injection is more humane if you consider the humanity of the procedure from the perspective of everyone except the person being executed. There is now a storm of controversy about the procedure because those botched executions last year produced some really gruesome images, which were then relayed to the public by witnesses. Had the condemned men in Oklahoma, Ohio and Arizona suffered the same pain and agony, but under the cloak of a more thorough paralytic, we probably wouldn’t be having this discussion. We consider a method of execution humane if it doesn’t make us uncomfortable to hear or read about it. What the condemned actually experience during the procedure is largely irrelevant. The lethal injection likely became the most common form of execution in the United States because it makes a state killing resemble a medical procedure. Not only doesn’t it weird us out, it’s almost comforting.

By contrast, the firing squad is violent and archaic, and judging by the reaction to the bills in Utah and Wyoming, it most certainly does weird a lot of people out. And yet in only the way that should matter, the firing squad is likely more humane than the lethal injection....

This sets up a final argument in favor of the firing squad: There is no mistaking what it is. There are no IVs, needles, cotton swabs or other accoutrements more commonly associated with healing. When we hear about an execution on the news, we won’t hear about an inmate slowly drifting off to sleep. We’ll hear about guns and bullets. Killing is an act of violence. That’s what witnesses will see, and that’s what the reports will tell us has happened. If we’re going to permit the government to kill on our behalf, we should own what we’re doing.

This is where a critic might argue that as a death penalty opponent, I’m merely arguing for the method of execution that I think is most likely to turn people off to the death penalty.  I’ll be honest: I hope that’s what will happen. I hope that when confronted with a method of execution that’s less opaque about what’s actually transpiring, more of us will come to realize that we no longer need capital punishment.  But I’m not particularly optimistic that will happen. I suspect that there’s a strong segment of the public (and probably a majority) that will support the death penalty no matter how we carry out executions.

Regardless of its impact on the death penalty debate, if we must continue to execute people, the firing squad has a lot to offer.  It isn’t just the most humane form of execution now realistically under consideration, it is the most humane from the correct perspective — the experience of the condemned.  It brings no concerns about the supply of execution materials.  It raises no issues about medical ethics — it doesn’t blur the lines between healing and hurting.  It’s honest.  It’s transparent.  And it is appropriately violent.

February 9, 2015 in Baze lethal injection case, Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Saturday, January 31, 2015

After adopting new execution drug laws, Ohio delays all executions for additional year

As explained in this AP article, a full year after Ohio had difficulties executing Dennis McGuire and a month after the state enacted new execution laws, Ohio officials decided to kick the execution can another year down the road by rescheduling all 2015 scheduled executions.  Here are the details:

The state on Friday rescheduled executions for seven death row inmates as it tries to find new lethal drugs, meaning no inmate will be put to death in Ohio in 2015.  The announcement affects six executions this year, including one set for Feb. 11 for condemned child killer Ronald Phillips, and one previously scheduled for 2016 that was pushed farther back.

The move, which was expected, follows a federal judge's previous order delaying executions while the state puts a new execution policy in place, the state said.  The delays also allow the state time to find supplies of new drugs, according to the Department of Rehabilitation and Correction.  The new execution policy calls for Ohio to use drugs it doesn't have and has had difficulty obtaining in the past.

The delays mean that for the first time Ohio won't execute anyone in a calendar year since the state resumed putting inmates to death in 1999.  The state put one inmate to death last year and three in 2013.  A total of 11 executions are scheduled for 2016.  Under the revised schedule, the next execution is Jan. 21, 2016, when Phillips is scheduled to die for the 1993 rape and killing of his girlfriend's 3-year-old daughter in Akron.

 Tim Young, the state public defender, applauded the move, saying there was no need for executions "until we have answers to the numerous legal and medical questions posed by lethal injection."

Earlier this month, the state ditched its two-drug method after problematic executions in Ohio a year ago and Arizona in July.  Ohio's supplies of those drugs, midazolam, a sedative, and hydromorphone, a painkiller, were already set to expire this year. Underscoring concerns about midazolam, the U.S. Supreme Court earlier this week ordered Oklahoma to postpone lethal injections executions using the drug until the court rules in a challenge involving midazolam.

Ohio's execution policy now calls for it to use versions of thiopental sodium or compounded pentobarbital, neither of which it has.  Death penalty experts question where Ohio would find supplies of thiopental sodium, saying it's no longer available in the U.S. and overseas imports would run afoul of importing bans.

Notably, before Ohio started having major problems with lethal injection protocols, the state had become one of the most active and effective states carrying out death sentences. The state completed nearly 50 executions from 2002 through 2012, and a few years in that period it was second only Texas in the number of executions completed. But lethal injection difficulties and litigation entailed that the state could carry out only three executions in 2013, only one in 2014 and now there will be none in 2015.

I expect that Ohio officials will be try pretty hard to get its machinery of death up and running again in 2016, and it is possible a Supreme Court decision about lethal injection protocols in Oklahoma might actually end up helping the state get its execution chamber back on line. But the 140 men and one woman now on Ohio's death row (and their lawyers) should be breathing a little easier today. And it now seems that much more likely that the majority of these murders will end up just dying in prison rather than be subject to an affirmative state killing.

January 31, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, January 27, 2015

"The Humane Death Penalty Charade"

The title of this post is the headline of this New York Times editorial.  Here are excerpts:

When the United States at last abandons the abhorrent practice of capital punishment, the early years of the 21st century will stand out as a peculiar period during which otherwise reasonable people hotly debated how to kill other people while inflicting the least amount of constitutionally acceptable pain.

The Supreme Court stepped back into this maelstrom on Friday, when it agreed to hear Warner v. Gross, a lawsuit brought by four Oklahoma deathrow inmates alleging that the state’s lethal­injection drug protocol puts them at risk of significant pain and suffering.

In accepting the case, the justices had to change its name.  The lead plaintiff, Charles Warner, was executed on Jan. 15 after the court, by a vote of 5-­to-­4, denied him a last­minute stay.  That may sound strange until you consider that while it takes only four justices to accept a case for argument, it takes five to stay an execution.  The case is now named for another inmate, Richard Glossip. (On Monday, the Oklahoma attorney general requested temporary stays of the impending executions of Mr. Glossip and the other two plaintiffs.)...

The justices have been here before.  They upheld the constitutionality of lethal injection in 2008.  But, since then, the battles over the practice have grown more warped.  Many drug makers now refuse to supply their products for killing, leaving states to experiment on their inmates with other drugs, often acquired under cover of official secrecy and administered by authorities with no medical training.  During a hearing last month on Oklahoma’s protocol, a state witness who testified that midazolam is effective appeared to rely on the website drugs.com, not scientific studies.  It would all be a laughable farce if it didn’t involve killing people.

There is disingenuousness on both sides.  Many who oppose the death penalty, this page included, are obviously not interested in identifying more “humane” methods of execution; the idea itself is a contradiction in terms.  Nor are many capital punishment supporters concerned with how much suffering a condemned person might endure in his final moments.  In the middle sit the armchair executioners who engage in macabre debates about the relative efficiency of, say, nitrogen gas.

It is time to dispense with the pretense of a pain­free death.  The act of killing itself is irredeemably brutal and violent. If the men on death row had painlessly killed their victims, that would not make their crimes any more tolerable.  When the killing is carried out by a state against its own citizens, it is beneath a people that aspire to call themselves civilized.

I love the phrase "armchair executioners," even though I could not help reacting with a classic "Taxi Driver" response.

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January 27, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, January 26, 2015

The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"

The title of this post is drawn from the headline of this New York Times piece by Adam Liptak that highlights why the Supreme Court's decision on Friday to grant cert to review Oklahoma's execution protocol is so interesting and creates much death penalty drama for this coming week and the months ahead.  Here is how the piece starts:

There are nine justices on the Supreme Court.  It takes four votes to hear a case, but it takes five to stay an execution.

That can leave a lethal gap.  A death penalty case can be important enough to claim a spot on the court’s docket of perhaps 75 cases a year.  But the prisoner who brought it may not live to see the decision.

In agreeing on Friday to hear a challenge to the chemicals Oklahoma uses to execute condemned prisoners, the court brought fresh attention to the life-or-­death importance of a single vote.  The lead petitioner in Friday’s case, Charles F. Warner, was already dead. He was executed eight days earlier, after the Supreme Court refused to stay his execution. The vote was 5 to 4.

“What happened to Charles Warner was not an isolated glitch,” said Eric M. Freedman, a law professor at Hofstra University and the author of a new article on the court’s voting procedures in capital cases. “It was a typical, if high­-visibility, example of a systemic flaw in the machinery of justice that has gone unrepaired for far too long.”

The case the court agreed to hear used to be called Warner v. Gross, No. 14­7955.  On Friday, taking account of Mr. Warner’s death, the court changed it to Glossip v. Gross, No. 14­7955. It may change again.  The new lead petitioner, Richard Glossip, is scheduled to be executed on Thursday.  The other two petitioners in the case also have execution dates in coming weeks, all of them well before the court is expected to hear arguments in the case, in April.  

The Supreme Court did not say on Friday whether it would stay the other three executions. In a statement, Scott Pruitt, Oklahoma’s attorney general, made a pointed reference to the fact that it took only four votes to grant review.  He seemed to indicate that the state was prepared to proceed with the executions.

The petitioners’ lawyers will doubtless seek stays.  In Mr. Glossip’s case, they will have to act quickly.  How the court responds will illuminate the current vitality of its fitful commitment to a procedure it sometimes uses to bridge the voting gap: the “courtesy fifth” vote to stay executions.  Such votes are said to be available once the court makes a formal decision to grant review of a condemned prisoner’s case.

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January 26, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, January 23, 2015

Seven years after Baze, Supreme Court takes up another lethal injection challenge

As reported in this new USA Today piece, taking up a "case that could have broad implications for hundreds of death row inmates, the Supreme Court will consider whether a drug protocol used in recent lethal injections violates the Constitution's prohibition on cruel and unusual punishment."  Here is more:

The justices agreed Friday to consider a case originally brought by four death-row inmates in Oklahoma -- one of whom was put to death last week, after the court refused to block his execution with a combination of three drugs that has caused some prisoners to writhe in pain.

Because the court's four liberal justices dissented from the decision to let that execution go forward, it presumably was their votes in private conference Friday that will give the issue a full hearing in open court. Only four votes are needed from the nine-member court to accept a case. It will likely be heard in April, though it could be held over until the next term begins in October.

Lawyers for Charles Warner and three other convicts set for execution in Oklahoma over the next six weeks sought the Supreme Court's intervention after two lower federal courts refused their pleas. While the court's conservatives refused to stop Warner's execution, the request for a full court hearing had been held for further consideration.

The lawyers claim that the sedative midazolam, the first drug used in the three-drug protocol, is not approved by the Food and Drug Administration as a general anesthetic and is being used in state executions virtually on an experimental basis. They say inmates may not be rendered unconscious and could suffer painfully as the other drugs in the protocol are administered.... "States now experiment with various drug formulations that have resulted in multiple malfunctioning executions — indeed, spectacles — over the past year," the challengers' brief says....

The court's four liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- voiced deep concern about the three-drug protocol in their eight-page dissent last week. They also dissented last September when the court rejected a stay application from a Missouri inmate executed with the same drug.

I presume this cert grant will halt all scheduled executions in Oklahoma until the Supreme Court rules.  Left unclear, however, is whether other states will be able to move forward with executions while this case is pending.  This DPIC page with scheduled executions suggest that at least a half-dozen states have more than a dozen serious execution dates scheduled before the Supreme Court is likely to resolve this new case from Oklahoma.

I am sure that these states will try to move forward with executions, especially if their protocols are dissimilar to what Oklahoma does in executions. But I am also sure that death row defendants and their lawyers will urge states to postpone all execution until the Supreme Court rules in this new case (as happened when the Supreme Court first took up this issue eight years ago in Baze v. Kentucky). In short, here we go again!

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January 23, 2015 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Thursday, January 15, 2015

Over dissent of four Justices, SCOTUS lets Oklahoma execution go forward (... and Florida executes around the same time)

As reported in this USA Today article, a "sharply divided Supreme Court refused Thursday to block the execution of an Oklahoma inmate over concerns about a drug protocol that has caused problems in the past."  Here is more:

The court's five conservative justices denied the request for a stay of execution without comment.  But the four liberal justices issued an eight-page dissent in which they questioned whether the drug protocol.

"The questions before us are especially important now, given states' increasing reliance on new and scientifically untested methods of execution," Justice Sonia Sotomayor wrote. "Petitioners have committed horrific crimes and should be punished.  But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.  I hope that our failure to act today does not portend our unwillingness to consider these questions."

Warner's execution was to come within hours of another in Florida, where Johnny Shane Kormondy, 42, was awaiting death for killing a man during a 1993 home invasion. Both executions were to use the same combination of three drugs.

Lawyers for Warner and three other convicts set for execution in Oklahoma over the next seven weeks had sought the Supreme Court's intervention after two lower federal courts refused their pleas.

Justice Sotomayor's eight-page dissent, which was joined by Justices Ginsburg, Breyer and Kagan, is available at this link and it ends with these two paragraphs:

I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol.  It is true that we give deference to the district courts.  But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed.  We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain.  Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.

I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution.  Petitioners have committed horrific crimes, and should be punished.  But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.  I hope that our failure to act today does not portend our unwillingness to consider these questions.

Not long after this decision was handed down, Oklahoma finally was able to carry out the death sentence imposed on Charles Warner for him murder of his girlfriend's 11-month-old daughter way back in 1997.  This AP report suggests that this Oklahoma execution, as well as another one taking place at roughly the same time in Florida with the same combination of drugs, were completed "without incident."  Consequently, I hope Justice Sotomayor feels at least some relief that these two murderers, roughly two decades after they killed, apparently were seemingly not "subjected to an execution that causes searing, unnecessary pain before death."

UPDATE:  This CBS News story suggests that I may have been too quick to assume that the Oklahoma execution was without incident.  Here is what the CBS News story reports about what unfolding in Oklahoma:

The execution lasted 18 minutes.

"Before I give my final statement, I'll tell you they poked me five times. It hurt. It feels like acid," Warner said before the execution began. He added, "I'm not a monster. I didn't do everything they said I did."

After the first drug was administered, Warner said, "My body is on fire." But he showed no obvious signs of distress. Witnesses said they saw slight twitching in Warner's neck about three minutes after the lethal injection began. The twitching lasted about seven minutes until he stopped breathing.

January 15, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

Oklahoma geared up to restart its machinery of death nine months after ugly execution

As reported in this Politico article, headlined "Oklahoma prepares to use controversial execution drug," a notable state is about to get back into the execution business. Here is how the article starts:

The state of Oklahoma plans to perform its first execution this week since a botched procedure last April, using a variation of the same three-drug cocktail that left an inmate writhing in pain for nearly 30 minutes before he died.

Thursday’s scheduled execution of Charles Warner, who is on death row for the rape and murder of an 11-month-old, is the first of four that was stayed following last year’s incident but that are now set to take place over the next two months.

Lawyers for all four inmates filed a last-ditch appeal with the Supreme Court on Wednesday but, if it is denied, Warner and the three others will be given different quantities of the same three-drug regimen, including the sedative that failed to induce unconsciousness and contributed to the visible agony of the man executed last April, Clayton Lockett.

That sedative, midazolam, is at the center of the appeal effort, as attorneys for Warner and the other three inmates argue that the drug does not sufficiently knock out the person receiving it.

January 15, 2015 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Thursday, January 08, 2015

Ohio to delay scheduled executions early in 2015 after adopting another new execution protocol

This Columbus Dispatch article, headlined "State revises death penalty protocol, will delay executions," provides the latest news in the ever-dynamic Ohio execution story. Here are the details:

Ohio will switch its lethal injection protocol, adding thiopental sodium, a drug used previously, and dropping the two-drug regimen of midazolam and hydromorphone that caused problems in the last execution a year ago.

The Ohio Department of Rehabilitation and Correction said today until it secures supplies of pentobarbital, a drug already permitted, or thiopental sodium, the Feb. 11 execution of Ronald Phillips, and possibly others, will be postponed. The state used thiopental sodium from 1999 until 2011.

Gov. John Kasich will likely have to postpone the executions of Phillips, 41, of Summit County, and Raymond Tibbetts, 57, of Hamilton County, scheduled for March 12. The execution of Gregory Lott, 53, of Cuyahoga County, is scheduled May 14.

The first two executions would take place before House Bill 663, a new lethal injection law passed by the legislature and signed by the governor, takes effect in late March. The law allows the state to buy drugs from small compounding pharmacies, which mix batches of drugs to customer specifications. It also permits the state to keep secret the identities of drug suppliers because of security concerns....

The state had to file legal paperwork detailing the new drug protocol with U.S. District Judge Gregory Frost 30 days in advance of the next scheduled execution on Feb. 11. Frost has presided over most of the recent contested lethal injection cases filed on behalf of Ohio Death Row prisoners.

The change means that Dennis McGuire 53, will be the one and only person in Ohio to be put to death using the combination of midazolam and hyrdomorphone. During his Jan. 16, 2014, execution, McGuire choked, coughed, gasped and clenched his fists for about 20 minutes prior to succumbing to the drug mixture. His son and daughter, who watched their father’s troubled execution, subsequently sued the state, alleging his death was cruel and unusual punishment, a violation of the U.S. Constitution....

The controversy over McGuire’s executions resulted in the postponement of all remaining executions in Ohio last year. It will be the fifth time in 2 1/2 years that Phillips has had a new execution date. Dates in September and July last year, and November 2013 were delayed either by Kasich’s clemency actions or reprieves from Frost. Phillips was given a reprieve by Kasich to explore his desire to have transplant surgery to provide a kidney to his ailing mother, but the surgery never took place....

In addition, a lawsuit was filed late last year on behalf of Phillips, Tibbetts and two other inmates challenging the secrecy shrouding the revised execution process. Frost will also hear that lawsuit which claims that state officials, through the new law, are trying to stifle public debate about capital punishment by “seeking to punish, disarm, suppress and silence” opposition.

January 8, 2015 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, December 28, 2014

Have messy executions in 2014 moved the death penalty debate in any way?

The question in the title of this post is prompted by this new AP article headlined "Death penalty backers stand firm despite botched executions." Here are excerpts:

Oklahoma’s last execution went so badly that the state tried to cancel it before the end came. With the inmate writhing while the lethal drugs seeped into his body, his executioners drew the viewing gallery curtains, concealing what the warden later described as "a bloody mess."

The botched execution of Clayton Lockett in April and other troubling ones this year in Ohio and Arizona gave capital punishment opponents a flicker of hope that areas of the country most enthusiastically supportive of the death penalty might have a change of heart. They did not.

Although Governor Mary Fallin suspended executions so that Lockett’s death and Oklahoma’s methods could be reviewed, the state held a ceremony for its overhauled death chamber only months later and is scheduled to resume executions in mid-January.

And rather than causing states to question whether capital punishment is just or worth the risk of subjecting someone to a potentially agonizing death, the prolonged executions and problems states have had securing lethal injection drugs have led them to explore new, old, and more efficient ways of killing, including gas.

"I think we had a little flash of hope that it would help our cause, but all it did was generate a lot of conversation about it," said Lydia Polley, a member of the Oklahoma Coalition to Abolish the Death Penalty. "It just led to people thinking of better ways to kill them."...

Lockett’s execution did little to dampen support for the death penalty in Oklahoma, which has executed more inmates than any other state except Texas since the 1976 reinstatement of the death penalty. In October, officials gave media tours of the renovated execution unit at the Oklahoma State Penitentiary, which got a $104,000 overhaul after Lockett’s death and now stands in sharp contrast to the rest of the shabby, 106-year-old facility.

Not content with just the upgrades to the prison and lethal injection equipment, Oklahoma’s Republican-led House conducted a study on the use of nitrogen gas for executions and is expected to consider legislation early next year that would make Oklahoma the first state to adopt hypoxia by gas — the forced deprivation of oxygen — as a legal execution method.

Other conservative states are exploring alternatives to lethal injection because of the problems securing the drugs.... Tennessee passed a law to reinstate the electric chair if it cannot get lethal injection drugs and Utah is considering bringing back the firing squad....

Ralph Shortey, a Republican state senator from Oklahoma City who is pushing for Oklahoma to adopt alternative execution methods to lethal injection, estimates that 90 percent of his constituents strongly support the death penalty, despite what happened to Lockett. "The average Oklahoman is saying he got exactly what he deserves," Shortey said. "A lot of people think they should suffer even more than they do. They think the lethal injection is too easy for them."

December 28, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (11) | TrackBack

Thursday, December 25, 2014

Ohio officials (and taxpayers) get a lethal injection lawsuit for the holidays

On the last day of Hanukkah which happened also to be Christmas Eve, a group of lawyers for a quartet of Ohio condemned prisoners gave the state a very predictable present: a lawsuit challenging Ohio's new lethal injection law.  This local story, headlined "Death-row inmates challenge new execution-secrecy rules," provides the details (and this link to the suit):

Four death-row inmates are challenging the constitutionality of Ohio's new execution secrecy rules, their attorney announced Wednesday morning.  In a lawsuit filed in U.S. District Court in Columbus, the inmates claim the new law, which shields the identities of most participants in Ohio's execution process, violates their rights to free speech and due process.

Proponents of the rules, signed into law by Gov. John Kasich last week, say they are needed to protect individuals involved with Ohio executions from harassment and potential harm.

The lawsuit was filed Tuesday afternoon on behalf of death-row inmates Ronald Phillips, Raymond Tibbetts, Robert Van Hook and Grady Brinkley.  The first three are scheduled to be executed next year; Brinkley's execution date has not yet been set.

Under the new law, House Bill 663, Ohio must keep secret the names of people involved with executions, other than top officials.  The law also protects the identity of small-scale drug manufacturers called compounding pharmacies if they make lethal-injection drugs for the state.  The inmates' lawsuit claims these measures violate the First Amendment because they were passed to silence death-penalty critics and "foreclose all effective advocacy" against executions in Ohio.

The lawsuit also challenges other parts of the law that require courts to seal such information from the public and prevents the state's medical board from disciplining physicians who testify about Ohio's execution method.  "These laws violate some of the most basic principles upon which our democracy was founded," said Timothy Sweeney, the inmates' attorney, in a statement.  "Everyone should be deeply troubled by this bold piece of legislation which has been passed to artificially reduce public criticism of government actions in one of the most important areas in which it acts: the taking of a human life."

The defendants in the lawsuit are Kasich, Attorney General Mike DeWine, state prisons director Gary Mohr and Donald Morgan, warden of Southern Ohio Correctional Facility, where Ohio's executions are carried out.  DeWine spokeswoman Lisa Hackley said Wednesday that the attorney general's office is reviewing the lawsuit.  Spokesmen for the governor's office and the state's prisons agency declined comment.

HB 663 is an attempt to overcome problems that Ohio — like many other states — has had obtaining lethal-injection drugs in recent years. Ohio ran out of its preferred lethal-injection drug, pentobarbital, last year because European pharmaceutical companies refused to continue selling it for use in executions....

Supporters of HB 663 say that the state could turn to compounding pharmacies to make pentobarbital, but the companies are reluctant to make lethal-injection drugs unless they can remain anonymous, for fear of public reprisal.  DeWine and other proponents of the legislation have said the changes are needed if Ohio is to resume executions next February, once a court-ordered moratorium ends.

As long-time readers know, Ohio's execution problems, plans and procedures have been subject to extensive litigation over the last half-decade. Time will tell if this latest litigation will extend another half-decade. As the title of this post indicates, Ohio (and federal) taxpayers get the bill for all this litigation, and I cannot help but wonder how much Ohio costs its taxpayers by trying took keep its death penalty system alive and killing.

December 25, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Tuesday, December 23, 2014

Are Arizona and Oklahoma likely to have their machineries of death operational early in 2015?

I blogged here a few days ago about steps taken by the Ohio legislations to get its lethal injection drugs and protocols shored up so the state can get back in the business of executing condemned murderers in 2015.  Now I see from this New York Times report that Arizona and Oklahoma, two others states that had messy execution in 2014, now also appear poised to get their death chambers revved up again in the coming new year.  Here are the basic details why:

A federal judge in Oklahoma City on Monday said that the state can resume executing prisoners this winter, rejecting the argument by some medical experts that using the same sedative involved in the bungled execution of Clayton D. Lockett in April amounted to an illegal experiment on human subjects.

Judge Stephen P. Friot of Federal District Court, ruling against condemned prisoners who sought to delay new executions, said that lethal injection was more humane than historical methods like hanging, and that since the sedative in question, midazolam, had been successfully used in a dozen executions elsewhere, it should not be considered new or experimental.

“Federal courts should not sit as a board of inquiry as to best practices,” Judge Friot said, adding, “The plaintiffs have failed to present a known and available alternative.” An occasional isolated episode does not constitute cruel and unusual punishment, he said.

Also Monday, in a separate ruling on another prolonged execution by lethal injection, a report commissioned by corrections officials in Arizona said the killing of Joseph Wood in July had been conducted properly. Mr. Wood appeared to gasp for nearly two hours before dying, but the report concluded that he was unconscious during that time and did not feel pain.

The unusually protracted and, in the view of many witnesses, agonizing executions in the two states led to new questions about the reliability of lethal injection and whether it can be performed humanely. These states and others have also been forced to try new drugs and combinations as manufacturers have refused to supply the barbiturates traditionally used in lethal injections.

Dale A. Baich, a lawyer for the Oklahoma prisoners, said they would appeal Judge Friot’s decision. “We are still concerned about Oklahoma’s ability to carry out executions humanely using midazolam,” Mr. Baich said....

The Arizona report, by consultants hired by the State Department of Corrections, cited the Pima County medical examiner’s statement that Mr. Wood’s “gasps, snorting and body reflexes are the normal bodily responses to dying, even in someone highly sedated.” Arizona used midazolam in a different combination from Oklahoma, pairing it with the opiate hydromorphone. Medical experts cited in the report said they could not determine why it took so long for Mr. Wood to die.

Still, Arizona’s director of corrections, Charles L. Ryan, said Monday that the state would abandon that two-drug protocol. The state will continue to search for supplies of the barbiturates of choice, pentobarbital or sodium thiopental, Mr. Ryan said. But if they remain unavailable, Arizona will use midazolam in the same three-drug regimen planned in Oklahoma, with the sedative followed by a paralyzing agent and a caustic heart-stopping drug.

Oklahoma has had a moratorium on executions since April 29, when the lethal injection of Mr. Lockett went awry. Now, saying that improved procedures are in place and that they will boost the dosage of midazolam, they plan to execute four men in three months, starting with Charles F. Warner on Jan. 15.

December 23, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Sunday, December 21, 2014

With new drug secrecy law, just when is Ohio really likely to get its machinery of death operational?

The question in the title of this post is prompted by this Columbus Dispatch account of the new Ohio law enacted last week to foster procurement of needed execution drugs by state authorities.  The article is headlined "New law will keep lethal-injection drug supplier secret," and here are the details prompting my question:

A new Ohio law signed yesterday by Gov. John Kasich will shield from public disclosure the supplier of drugs used in future lethal injections effective on March 20. However, two executions are scheduled before that date: Ronald Phillips of Summit County on Feb. 11, and Raymond Tibbetts of Hamilton County on March 12.

There was no immediate word from Kasich, Attorney General Mike DeWine or the Ohio Department of Rehabilitation and Correction about how the Phillips and Tibbetts executions will be handled, or if they will be postponed. There are four additional executions scheduled for later next year.

A spokeswoman for Ohio Public Defender Tim Young said new drugs can’t be purchased until House Bill 663 takes effect. “Our assumption is if they go forward with those executions, they will have to do it under existing law,” Amy Borror said.

Existing law does not permit buying drugs from undisclosed sources. The two drugs used in the last Ohio execution on Jan. 16, appeared to cause Dennis McGuire to gasp, choke and struggle against his restraints for about 20 minutes before he died.

The lethal-injection measure ... will allow prison officials to buy drugs from some of the 61 compounding pharmacies in the state. Typically smaller, independent businesses, compounders mix drugs for specific customer needs. They can ask the state not to identify them as the provider of lethal drugs for 20 years. The law also will keep confidential forever the identities of execution-team members and physicians involved in the process, even in an advisory capacity.

Another provision of the law requires an overall review to be done of the state’s lethal-injection process.

As reported in this prior post, a federal district judge back in August extended his injunction precluding executions in Ohio through January 15, 2015. I expect that state officials will seek to formulate a new execution plan in light of this new law, and that defense attorneys will seek to preclude executions from starting again until such a new plan is fully formulated and fully examined through litigation.

In light of all these realities, I am inclined now to tentatively predict that we likely will not have another execution in Ohio until well into 2015. At the same time, if and when Ohio gets its machinery of death operational in 2015, it seems quite possible that the state will try to move forward with a new execution every six weeks.

December 21, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, November 30, 2014

Noting some reasons the number of US executions in 2014 are so low

This new Christian Science Monitor article details some reasons why the US is on pace to have fewer than three dozen executions this year for the first time in decades. The piece carries this lengthy headline and subheading: "Death penalty in 2014: why US has seen fewest executions in 20 years: The downward trend in executions has several explanations, but experts say it’s probably not because of death penalty debates about innocence and guilt.  Rather, they say, it’s the details of how the state goes about ending a condemned life." Here are excerpts:

In late November, a federal judge emptied Wyoming’s death row of its last remaining occupant, Dale Wayne Eaton.  His lawyers don’t dispute that Mr. Eaton in 1988 raped and killed 18-year-old Lisa Marie Kimmell after kidnapping her and holding her hostage in his compound.  The problem, the court found, was that his defense team failed to present him as a three-dimensional human being at his sentencing, including pointing out the severe beatings he received as a child and how he was evaluated to have low intelligence.

The ruling seemed of the moment in a country that has seen sentiments about the death penalty continue to shift in 2014.  So far this year, America has seen the fewest executions  — 32 — in 20 years....

A series of botched and disturbing executions in Oklahoma, Ohio, and Arizona has also contributed to the shifting debate, argues Rick Garnett, a law professor at the University of Notre Dame in Indiana.  Death penalty states are being forced to come up with new lethal injection drug formulas as traditional suppliers of the drugs stop distributing them to states.

The downward trend in executions has several explanations, but experts say it’s probably not because of debates about innocence and guilt.  Rather, they say, it’s the details of how the state goes about ending a condemned life, including the issues surrounding the lethal injection drugs.

November 30, 2014 in Baze lethal injection case, Data on sentencing, Death Penalty Reforms | Permalink | Comments (2) | TrackBack