Tuesday, February 21, 2017
Justice Sotomayor (joined by Justice Breyer) authors lengthy dissent to denial of cert in Alabama lethal injection protocol challenge
This morning, the US Supreme Court got back to work through the issuance of this lengthy order list. The one cert grant was involves a federal criminal case, Class v. US, concerning whether a defendant who pleads guilty can still challenge the constitutionality his statute of conviction (SCOTUSblog case page here). But the part of the order list likely to get the most attention is this lengthy dissent from the denial of certiorari authored by Justice Sotomayor in a Alabama capital case concern lethal injection protocols. Here is the start, heart and end of the extended opinion (which Justice Breyer joined in full):
Nearly two years ago in Glossip v. Gross, 576 U. S. ___ (2015), the Court issued a macabre challenge. In order to successfully attack a State’s method of execution as cruel and unusual under the Eighth Amendment, a condemned prisoner must not only prove that the State’s chosen method risks severe pain, but must also propose a “known and available” alternative method for his own execution. Id., at ___, ___ (slip op., at 13, 15).
Petitioner Thomas Arthur, a prisoner on Alabama’s death row, has met this challenge. He has amassed significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony, and he has proposed an alternative — death by firing squad. The Court of Appeals, without considering any of the evidence regarding the risk posed by the current protocol, denied Arthur’s claim because Alabama law does not expressly permit execution by firing squad, and so it cannot be a “known and available” alternative under Glossip. Because this decision permits States to immunize their methods of execution — no matter how cruel or how unusual — from judicial review and thus permits state law to subvert the Federal Constitution, I would grant certiorari and reverse. I dissent from my colleagues’ decision not to do so....
The decision below permits a State, by statute, to bar a death-row inmate from vindicating a right guaranteed by the Eighth Amendment. Under this view, even if a prisoner can prove that the State plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a State has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method. This cannot be right....
The decision below is all the more troubling because it would put an end to an ongoing national conversation — between the legislatures and the courts — around the methods of execution the Constitution tolerates. The meaning of the Eighth Amendment’s prohibition on cruel and unusual punishments “is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791” but instead derives from “‘the evolving standards of decency that mark the progress of a maturing society.’” Kennedy v. Louisiana, 554 U. S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). Evolving standards have yielded a familiar cycle: States develop a method of execution, which is generally accepted for a time. Science then reveals that — unknown to the previous generation — the States’ chosen method of execution causes unconstitutional levels of suffering. A new method of execution is devised, and the dialogue continues. The Eighth Amendment requires this conversation. States should not be permitted to silence it by statute....
Twice in recent years, this Court has observed that it “has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze, 553 U. S., at 48 (plurality opinion); Glossip, 576 U. S., at ___ (slip op., at 3) (same). In Glossip, the majority opinion remarked that the Court “did not retreat” from this nonintervention strategy even after Louisiana strapped a 17-year-old boy to its electric chair and, having failed to kill him the first time, argued for a second try — which this Court permitted. Id., at ___– ___ (slip op., at 3–4). We should not be proud of this history. Nor should we rely on it to excuse our current inaction.
Saturday, February 18, 2017
BYOD in Az: spotlighting Arizona's (cheeky?) drug acquisition provision in its latest execution protocol
This AP article reports on a notable an unusual provision in Arizona's new execution protocol. The article is headlined "Arizona to death-row inmates: Bring your own execution drugs," and here are details:
The recent revelation that condemned prisoners in Arizona can now provide the lethal drugs to be used in their executions has received attention around the world and raised questions about the state's rules for the death penalty.
The novel policy has drawn sneers from defense attorneys who were puzzled as to why the state would think that they would assist in killing their clients. It has inspired wisecracks about Arizona's penchant for taking on envelope-pushing criminal justice policies and left some readers on social media asking whether the bring-your-own-drugs policy was actually the product of a news parody website.
Criminal defense lawyers and death penalty experts say they have never heard of a state suggesting that condemned inmates can line up drugs to be used in their executions. However unlikely it is that any of Arizona's 119 death-row inmates will take up the offer, the change is a reflection of the difficulties that Arizona, like other states, faces in finding execution drugs now that European pharmaceutical companies have blocked the use of their products for lethal injections.
Executions in Arizona have been on hold since the 2014 death of convicted killer Joseph Rudolph Wood, who was given 15 doses of the sedative midazolam and a painkiller and who took nearly two hours to die. The state will not be able to carry out executions until the resolution of a lawsuit that alleges Arizona has abused its discretion in the methods and amounts of drugs used in past executions.
The state hasn't publicly explained its aim in taking on the new policy, which surfaced last month in the lawsuit. The Arizona Department of Corrections, which carries out executions, didn't respond to requests for comment. The Arizona Attorney General's Office, which is defending the state in the lawsuit, declined to comment.
Under the policy, the state's top prison official would be required, in one execution drug protocol, to use the barbiturate pentobarbital that's obtained by lawyers for inmates or someone acting on their behalf. The corrections director also would have the choice of picking one of two drug protocols involving the sodium pentothal if the barbiturate is obtained on behalf of a prisoner....
Dale Baich, an assistant federal public defender who represents the inmates in the lawsuit,... explained that the policy is unfeasible because the Controlled Substances Act prohibits attorneys and inmates from getting the drugs. "As a lawyer, I just can't go to local Walgreens and pick up a couple of vials of pentobarbital," Baich said.
It's the responsibility of the state, not condemned prisoners, to carry out executions, Baich added. The policy would seem to appeal to inmates who have abandoned their appeals and want to speed up their executions. But Baich said the Controlled Substances Act would still prevent those prisoners from getting lethal-injection drugs.
Robert Dunham, executive director of the Death Penalty Information Center, which has been critical of the way executions are carried out in the United States, said the policy also raises ethical concerns. Death-penalty lawyers are supposed to zealously represent their clients and have a duty not to take actions that harm them, Dunham said. "No one has done it before, and the fact that it is impossible, impractical, illegal and unethical may have something to do with that," he said.
Timothy Agan, a longtime criminal defense lawyer in Phoenix who has handled several death penalty cases, said he can't imagine condemned prisoners lining up to seek their own execution drugs and couldn't foresee a situation in which the policy would be used.
Arizona's revised executions protocol is available at this link, and on page 28 one finds this language (with my emphasis added):
The Director shall have the sole discretion as to which drug protocol will be used for the scheduled execution. This decision will be provided to the inmate and their counsel of record in writing at the time the state files a request for Warrant of Execution in the Arizona Supreme Court. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical pentobarbital in sufficient quantity and quality to successfully implement the one-drug protocol with pentobarbital set forth in Chart A, then the Director shall use the one-drug protocol with pentobarbital set forth in Chart A as the drug protocol for execution. If the inmate’s counsel or other third parties acting on behalf of the inmate’s counsel are unable to obtain such pentobarbital, but are able to obtain from a certified or licensed pharmacist, pharmacy, compound pharmacy, manufacturer, or supplier and provide to the Department the chemical sodium pentothal in sufficient quantity and quality to successfully implement the one-drug protocol with sodium pentothal set forth in Chart B or the three-drug protocol with sodium pentothal set forth in Chart C, then the Director shall have the sole discretion as to which drug protocol (Chart B or Chart C) will be used for the scheduled execution.
Saturday, February 11, 2017
Ohio Gov forced to delay scheduled executions yet again due to lethal injection ltigation
As this local article reports, "Gov. John Kasich has delayed eight scheduled executions because of continuing litigation over lethal injection drugs." Here are the details:
The governor used his executive clemency authority to reschedule the executions, beginning with Ronald Phillips who was to be put to death on Wednesday for the 1993 rape and murder of three-year-old Sheila Marie Evans. Phillips will now be executed on May 10, under the revised schedule.
The delays follow the Jan. 26 decision by U.S. District Court Magistrate Judge Craig Merz barred the state's use of a three-drug protocol, declaring it unconstitutional, and blocked the pending execution of Phillips and two other inmates. The state has appealed the ruling to the 6th U.S. Circuit Court of Appeals.
"While Ohio is confident its appeal will ultimately be successful ... the appellate court's scheduling will not allow the matter to be resolved in time to allow the state to move forward with its current execution dates," Kasich's office said in a statement this morning. "Accordingly, these delays are necessary to allow the judicial process to come to a full resolution, and ensure that the state can move forward with the executions."
Merz's lengthy order cited problems with executions in other states with the use of midazolam, one of the three drugs in Ohio's protocol, along with rocuronium bromide and potassium chloride.
Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked, gasped and struggled against his restraints for much of the 26 minutes it took for him to die. Midazolam was one of the drugs used to execute McGuire.
The revised schedule after Phillips [includes] Gary Otte, moved to June 13 from March 15 [and] Raymond Tibbetts, moved to July 26 from April 12.
Ever since Ohio announced it had acquired execution drugs and had a new execution protocol in early Fall 2016, I have been expecting and sort-of predicting that Ohio would finally find a way to get its machinery of death back up and running again in 2017. Given some prior Sixth Circuit and Supreme Court rulings, I continue to think Ohio will be able to complete some executions this year. But, of course, lethal injection litigation can be like Forrest Gump's box of chocolates: you never quite know what you are gonna get.
Friday, February 10, 2017
Mississippi taking steps to have firing squad, electric chair and gas chamber as execution methods again
As reported in this new Fox News piece, "Mississippi lawmakers want to bring back the firing squad, electric chair and gas chamber as execution methods, a step three other states have taken recently, but for a different reason." Here is more:
Oklahoma reintroduced the gas chamber, Utah the firing squad and Tennessee the electric chair in response to a nationwide scarcity of lethal injection drugs for death row inmates.
Mississippi legislator Andy Gipson said he introduced House Bill 638 in response to lawsuits filed by “liberal, left-wing radicals” challenging the use of lethal injection drugs as cruel and unusual punishment. "I have a constituent whose daughter was raped and killed by a serial killer over 25 years ago, and that person's still waiting for the death penalty. The family is still waiting for justice," Gipson told the Associated Press.
Gipson’s bill passed the House Wednesday, 74-43, and moves to the Senate for more debate.
Mississippi hasn't been able to acquire the execution drugs it once used, and it last carried out an execution in 2012. The state has 47 people on death row, and some have been there for decades.
The 33 states with the death penalty all have lethal injection as the primary method of execution, according to the Death Penalty Information Center and its executive director, Robert Dunham. The center says only Oklahoma and Utah have firing squads as an option; eight states have electrocution, five have the gas chamber, and three have hanging.
The firing squad became an option in Utah in 2015. That same year, Oklahoma Gov. Mary Fallin signed legislation to use nitrogen gas as an option. Tennessee enacted a law bringing back the electric chair in 2014.
“It’s interesting that what we anticipated would happen is happening,” Dunham told FoxNews.com Friday. “As states are having difficulty obtaining drugs for lethal injections, they’re looking at different options.” He expects legal challenges in states that reintroduce old execution methods. “What you will see is when states change their method of execution, there are invariably legal challenges that arise,” Dunham said.
Jim Craig, an attorney who is suing Mississippi over lethal injection drugs, told The Associated Press on Wednesday that each of the proposed new methods of executions would be challenged in court. "Every single one, in essence, just injects a whole new series of issues in the existing case," said Craig, who is with the New Orleans-based Roderick & Solange MacArthur Justice Center. He said with the firing squad, for example, the state would have to set protocols and procedures to reduce the risk of torture, and he doubts the Department of Corrections has prepared to do that....
Oklahoma officials told Fox 25 in November they haven’t established protocols to use nitrogen gas as a backup execution method but have heard from a company offering pain-free and mistake-free gas chamber executions. The company sent a letter to Oklahoma Department of Corrections guaranteeing the “demise of any mammalian life within four minutes,” according to the station.
Thursday, January 26, 2017
Federal magistrate judge rules Ohio's new 3-drug lethal injection protocol is unconstitutional and blocks coming scheduled executions
As reported in this local piece, a "federal magistrate judge on Thursday barred the use of a three-drug cocktail the state of Ohio planned to use to execute death-row inmates, declaring the method the state prefers to be unconstitutional." Here is more about the opinion:
Magistrate Judge David Merz of Dayton also halted the executions of three inmates scheduled to be executed in the coming months, two of which came from Northeast Ohio. Merz, in his 119-page order, ruled that there were enough problems with all three of the drugs Ohio intends to use in its execution protocol to warrant this disallowance. Two states, Arizona and Florida, have discontinued the use of one of the drugs, named midazolam.
"The Court concludes that use of midazolam as the first drug in Ohio's present three-drug protocol will create a 'substantial risk of serious harm' or an 'objectively intolerable risk of harm' as required by (Supreme Court precedent)," Merz wrote.
The ruling is a success for the inmates challenging Ohio's execution protocols and anti-death-penalty advocates who have sought to chip away at the state's ability to execute people since executions resumed in 1999. It may be short lived, though, as the ruling is all but guaranteed to be appealed. A spokeswoman for Ohio Attorney General Mike DeWine's office said the office is reviewing the decision.
Ohio hasn't executed anyone since January 2014, when it took killer Dennis McGuire 25 minutes to die from a previously unused execution drug combination. McGuire was administered a cocktail that included midazolam. Witnesses said he appeared to gasp several times during his execution and made loud snorting or snoring sounds.
State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October. The challenge that led to Merz's ruling Thursday was also borne out of McGuire's execution. During a hearing earlier this month, Merz heard testimony on all three drugs. His ruling Thursday said that the state cannot use any cocktail that contained potassium chloride or rocuronium bromide, a paralytic agent, since the state told a court in a previous proceeding that it would not use such drugs during future executions....
Ohio has had trouble in recent years getting drugs to use for lethal injections in part because pharmaceutical companies don't want their products used for killing people. In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs. That law was challenged, though courts have declined to declare the law unconstitutional.
The full 199-page opinion In re Ohio Execution Protocol Litigation, No. 2:11-cv-1016 (S.D. Ohio Jan 26, 2017), is available at this link. I have an inkling that the state of Ohio may get around to appealing the decision even before I get around to reading it in full because the state likely is eager to preserve the scheduled Feb 15 execution date for child murderer Ronald Phillips.
Thursday, January 19, 2017
Using execution protocol with midazolam, Virginia completes second execution of 2017
As reported in this Reuters piece headlined "Virginia inmate executed despite arguments against drug 'cocktail'," Virginia carried out an execution last night that was notable in part because of the type of lethal injection drugs acquired and utilized. Here are the details:
Ricky Gray, 39, died by lethal injection at 9:42 p.m. at the Greensville Correctional Center, Virginia Department of Corrections spokeswoman Lisa Kinney said in an emailed statement.
Gray's lawyers filed an emergency petition with the Supreme Court on Tuesday, saying that the three-drug combination could cause Gray unnecessary suffering and thereby violate constitutional guarantees against cruel and unusual punishment. Kinney told reporters after the execution there did not appear to be any complications with the injection.
According to Gray's stay request, the execution marks the first time a U.S. state has used two of the drugs — midazolam and potassium chloride — provided by a compounding pharmacy. Gray's lawyers argue that compounding pharmacies typically follow an informal recipe attempting to approximate the patented process approved by the U.S. Food and Drug Administration.... Gray's attorneys say that midazolam has already failed to render prisoners unconscious during executions in Alabama, Arizona, Ohio and Oklahoma.
Pharmaceutical manufacturers have stopped making some drugs available for use in executions, and Virginia state law allows the vendor's identity to remain secret. Arizona last month reached a settlement with lawyers for death row inmates that would bar midazolam from use in executions.
Gray was sentenced to die for the 2006 slayings of sisters Ruby Harvey, 4, and Stella Harvey, 9, in Richmond. He also killed their parents, Bryan Harvey, 49, and Kathryn Harvey, 39. His accomplice, Ray Dandridge, was sentenced to life. The pair also killed Ashley Baskerville, 21, who had been a lookout when Gray killed the Harveys as well as her mother, Mary Tucker, 47, and stepfather Percyell Tucker, 55.
Gray has said he is willing to die by firing squad, which is not an option for executions in Virginia. Gray's execution marks the second in the United States this year.
I believe the execution protocol used in Virginia in this instance is similar to the protocol that Ohio wants to use to get back into the execution game next month, and thus I suspect Ohio correction officials are hoping this execution sets a precedent allowing Ohio to move forward. Ohio, notably, has had only one execution over the last three years because of problems acquiring lethal injection drugs. But if they get these problems worked out, there is every reason to suspect the state may get back into the habit of completing five or more executions every year because it has dozens of death row inmates with "serious" execution dates.
Friday, January 06, 2017
"Facing the Firing Squad"
The title of this post is the title of this notable new piece by Andrew Jensen Kerr available via the Georgetown Law Journal website. Here is the abstract:
The recent Supreme Court decision in Glossip v. Gross affirmed the legality of midazolam for use in lethal injection. The 5–4 majority opinion reads the Constitution to require an available form of execution. But it does little to counter Professor Denno’s claim in “Lethal Injection Chaos Post-Baze” that pragmatic supply-side concerns should dismantle the economy for lethal injection. Off-brand substitutes for lethal injection drugs have led to recent high-profile botches. Both Utah and Wyoming have proposed a return to the firing squad. Lethal injection is comparatively sanitary and bureaucratic. But I respond that the firing squad is more coherent with death penalty administration heuristic concerns of retribution and dignity. The visibility of the firing squad also serves an abolitionist, information-forcing function by requiring a candid look at death penalty process from the perspective of the executed.
Wednesday, January 04, 2017
"Texas sues feds over confiscated execution drugs"
The title of this post is the headline of this notable new Dallas Morning News article reporting on some notably different kind of execution drug litigation. Here are the details:
For nearly a year and a half, the U.S. Food and Drug Administration has detained a shipment of about 1,000 vials of execution drugs headed for Texas' death chamber. On Tuesday, Texas officials demanded an end to the delays, filing a lawsuit that seeks to force the feds to turn over the drugs. "My office will not allow the FDA to sit on its hands and thereby impair Texas' responsibility to carry out its law enforcement duties," Texas Attorney General Ken Paxton said in a statement.
Texas and other states that still execute inmates have been hard-pressed to find lethal injection drugs in recent years. American companies have stopped making the drugs, and European makers have stopped selling them to the U.S. Amid the drug shortage in 2012, Texas switched from the three-drug cocktail it used since 1982 to a single overdosing injection of pentobarbital, a barbiturate, but that drug, too, is in short supply.
In July 2015, the FDA intercepted about 1,000 vials of sodium thiopental, also a barbiturate, that Texas was attempting to import from a foreign seller at the George Bush Intercontinental Airport in Houston. FDA officials said that the drugs lacked the required warnings and directions for use and that they needed federal approval. The state responded to the FDA, explaining that the drugs were legal for importation for law enforcement use. In April 2016, the FDA issued a tentative decision denying admission of the drugs. But since then, the agency hasn't issued a final decision and has kept the drugs.
In the lawsuit filed Tuesday, Paxton argued the delays are unwarranted and should come to an end. "Because FDA's delay is unreasonable, TDCJ requests the Court to declare that the delay is unlawful and compel FDA to render a final admissibility decision," the lawsuit states.
As execution drugs have become harder to obtain, the state has turned to compounding pharmacies to make them, has sought drugs from foreign providers and has sought to restrict public access to information about where and how it gets drugs used in lethal injections....
"The Texas Department of Criminal Justice lawfully ordered and obtained the necessary license to import drugs used in the lethal injection process, yet the Food and Drug Administration stopped the shipment and continues to hold it without justification. This has left the agency with no other recourse than to challenge the unjustified seizure in court," Texas Department of Criminal Justice spokesman Jason Clark said in a statement.
Clark said the TDCJ has enough drugs on hand to complete the nine executions scheduled for the first six months of this year. "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process," Clark said.
Saturday, December 31, 2016
Split Sixth Circuit ruling upholding protective order concerning lethal injection drugs might(!?!) enable Ohio to get back into execution game
As this local article reports, in the afternoon of the last business day of 2016, a Sixth Circuit panel "upheld a protective order shielding the state of Ohio from having to disclose the names of those who make or use the state's lethal-injection drugs." Here is more about the ruling and its context:
In a 2-1 decision, the appeals court panel ruled that a district court judge was justified in issuing the secrecy order, which was made on the grounds that it was needed to protect lethal-injection drugmakers from public intimidation and harassment. The lawsuit, brought by more than 65 death-row inmates, contended that the state shouldn't be allowed to use drugs procured from anonymous suppliers and evaluators.
Ohio had postponed its next three executions by several weeks at the behest of a federal magistrate, who feared the appeals court wouldn't make this ruling before a Jan. 3 court hearing for the first three inmates scheduled to die. As a result, Gov. John Kasich delayed the resumption of executions from Jan. 12 to Feb. 15, starting with convicted child killer Ronald Phillips of Akron. It's unclear whether that revised schedule will stay in place now that the appeals court has ruled....
Ohio hasn't executed anyone since January 2014, when killer Dennis McGuire took 25 minutes to die from a previously unused execution drug combination. State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October....
In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs.
The full ruling is available at this link, and the fact that the panel opinion included a dissent could entail further en banc or SCOTUS appeals on just this semi-procedural issue involving a protective order. Even without further appeals, though, there is an evidentiary review on tap for the first week of January concerning Ohio's new execution drug protocol, and that litigation has already led in part to a short delay of scheduled executions. In other words, this Sixth Circuit panel ruling may clear one obstacle for Ohio resuming executions, but there are additional litigation road-blocks still ahead.
Thursday, December 29, 2016
Will Ohio get back in the business of state killing in 2017?
The question in the title of this post is prompted in part by my awareness of lots of messy on-going litigation in the Buckeye State over execution protocols and in part by this new local AP article headlined "Court weighs challenge of order blocking Ohio execution info." Here are excerpts from the AP piece:
A federal appeals court is weighing a challenge by attorneys for death row inmates of a judge's order blocking them from information about Ohio's new lethal injection process. The pending decision by the 6th Circuit Court of Appeals will help determine whether Ohio will proceed with its first executions in three years beginning in February.
Ohio plans to execute Ronald Phillips on Feb. 15 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another execution is scheduled for April.
At issue are new efforts the state is making to shield information about lethal injection in hopes of jumpstarting executions in Ohio, which have been on hold since January 2014. That's when it took condemned inmate Dennis McGuire 26 minutes to die from a never-before-used two-drug method while he repeatedly gasped and snorted.
For example, a 2015 law blocks anyone from getting information about individuals or entities participating in executions, including companies that make or mix drugs. The 6th circuit last year upheld that law while rejecting free speech allegations raised by death row inmates.
What's before the appeals court now is a protective order issued by a federal judge last fall that bars the release of information about lethal injection requested by attorneys for Phillips and two other inmates scheduled for execution in 2017. That order, by retired Judge Gregory Frost, held that the state's need to obtain the drugs outweighs concerns by death row inmates that the information is needed to meaningfully challenge the source of the drugs, such as names of the manufacturers.
Federal Magistrate Judge Michael Merz in Dayton cited the current 6th Circuit case earlier this month when he put executions on hold. He said the hold could be lifted after the court rules. Attorneys for death row inmates argue they can't meaningfully challenge the use of the drugs without the information. They also said the secrecy protections are unnecessary given the history of lawsuits over lethal injection in Ohio....
The Department of Rehabilitation and Correction in October announced plans to use a new three-drug combination — midazolam, rocuronium bromide and potassium chloride — for at least three executions. Phillips and other inmates want to block the new procedure, arguing that it will result in a painful and barbaric death.
Tuesday, December 20, 2016
The grand capital problems in the Grand Canyon state
This local article, headlined "After 2½-year hiatus, death penalty still up in the air in Arizona," reviews at great length all the legal and practical challenges facing the Grand Canyon state in the arena of the death penalty. Here are excerpts from the start and end of the piece:
A federal judge has kept executions in Arizona on hold for 2½ years, and a flurry of year-end court actions in state and federal courts promise to prolong the chaotic status of the death penalty in the state.
While the state fights to resume executions of convicted murderers, litigation and court decisions challenge the way those executions are carried out, how capital cases are tried and how prosecutors decide when to seek death. Here is a digest of death-penalty issues at the close of 2016.
In July 2014, Joseph Wood snorted and gasped for nearly two hours on an execution gurney at the Arizona State Prison Complex in Florence because one of the drugs injected into him, midazolam, did not work as efficiently as the state of Arizona hoped it would.
U.S. District Judge Neil Wake was called while the execution was in progress. He held a telephonic hearing with attorneys for Wood and the state even as Wood was agonizing. Wake had been generally sympathetic to the Arizona Department of Corrections when it came to executions. But after the Wood execution, he set an injunction against executions in the state and demanded an analysis of the process. A year later, the U.S. Supreme Court approved the use of midazolam in an Oklahoma case despite another problematic execution with midazolam in that state.
More recently, midazolam was used Dec. 8 in a troublesome execution in Alabama, during which the condemned man coughed and flinched and took 34 minutes to die. Before pharmaceutical firms started refusing to sell them, more efficient drugs used to be available that led to death in 10 or so minutes. Those firms now refuse to sell midazolam to Arizona for future executions.
On Dec. 9, the Arizona Attorney General’s Office asked Wake to lift his injunction and declare the issues raised by Wood's case moot because it no longer has, and does not intend to obtain, midazolam. So far, Wake has refused to declare the case moot, reminding the Department of Corrections that it frequently veered from the protocol — the legal term for the specific method and drugs to be used — he had approved in court by changing execution drugs at the last minute. Defense attorneys who brought the case worry that the DOC will have the case mooted and then announce it has obtained a new drug. Corrections has yet to release a new protocol stating how it plans to carry out future executions. Drugs used before midazolam — thiopental and pentobarbital — also are no longer available.
The department has faced scrutiny for handling execution drugs in the past. In 2010, it purchased thiopental that was later ruled illegal from a supplier in England. In 2015, it tried to import the same drug from India. The shipment was stopped by federal officials at Sky Harbor International Airport.
A second federal lawsuit filed by a coalition of media outlets, including The Arizona Republic, seeks to force DOC to be more transparent in how it conducts executions, from revealing drug sources to allowing journalists to view all aspects of the execution, including how the prisoner is strapped to the execution gurney. At present, reporters and other witnesses can watch insertion of the catheters into the prisoner on closed-circuit TV and can watch the prisoner die through a glass window....
Corrections Director Charles Ryan has told reporters that he was looking into using firing squads in the event the state cannot not obtain any suitable drugs for execution by lethal injection. That change would require a voters’ initiative and an amendment to the Arizona Constitution.
Before the general election in November, The Republic polled voters about whether they would approve of firing squads as a means of execution. Sixty-eight percent said no. When respondents were broken down into subgroups, such as male and female, Republican and Democrat, the answer still was no.
UPDATE: This new BuzzFeed article reports on another new development in this arena. The headline and subhead tells the basic story: "After Botched Execution, Arizona Agrees To Never Use A Controversial Sedative Again: The state has agreed to stop using midazolam, a drug similar to valium that was linked to several botched executions in recent years. Without the drug, the state has few options on how to go forward with lethal injections."
Friday, December 09, 2016
After split tied SCOTUS stay vote, Alabama completes last scheduled execution of 2016
As reported in this AP piece, the final scheduled execution in the United States in 2016 had a number of noteworthy events and elements for those who support and those who oppose capital punishment. The AP article is headlined "Alabama inmate coughs, heaves 13 minutes into execution," though I think the SCOTUS action that proceeded the actual execution should be of particular interest for law geeks. Here are some of the details:
A man who killed an Alabama convenience store clerk more than two decades ago was put to death Thursday night, an execution that required two consciousness tests as the inmate heaved and coughed 13 minutes into the lethal injection. Ronald Bert Smith Jr., 45, was pronounced dead at 11:05 p.m., about 30 minutes after the procedure began at the state prison in southwest Alabama. Smith was convicted of capital murder in the Nov. 8, 1994, fatal shooting of Huntsville store clerk Casey Wilson. A jury voted 7-5 to recommend a sentence of
life imprisonment, but a judge overrode that recommendation and sentenced Smith to death. Smith heaved and coughed repeatedly, clenching his fists and raising his head at the beginning of the execution. A prison guard performed two consciousness checks before the final two lethal drugs were administered.
In a consciousness test, a prison officer says the inmate's name, brushes his eyelashes and then pinches his left arm. During the first one, Smith moved his arm. He slightly raised his right arm again after the second consciousness test. The meaning of those movements will likely be debated. One of Smith's attorneys whispered to another attorney, "He's reacting," and pointed out the inmate's repeated movements. The state prison commissioner said he did not see any reaction to the consciousness tests....
Alabama uses the sedative midazolam as the first drug in a three-drug lethal injection combination. Smith and other inmates argued in a court case that the drug was an unreliable sedative and could cause them to feel pain, citing its use in problematic executions. The U.S. Supreme Court has upheld the use of the drug....
Wilson was pistol-whipped and then shot in the head during the robbery, court documents show. Surveillance video showed Smith entering the store and recovering spent shell casings from the bathroom where Wilson was shot, according to the record. In overriding the jury's recommendation at the 1995 trial, a judge likened the slaying to an execution, saying Wilson had already been pistol-whipped into submission and Smith ignored his pleas for mercy. Wilson had a newborn infant at the time of his death. "The trial court described Smith's acts as 'an execution style slaying.' Tonight, justice was finally served," Alabama Attorney General Luther Strange said in a statement after the execution.
U.S. Supreme Court justices twice paused the execution as Smith's attorneys argued for a delay, saying a judge shouldn't have been able to impose the death penalty when a jury recommended he receive life imprisonment. Four liberal justices said they would have halted the execution, but five were needed to do so.
Smith's attorneys had urged the nation's highest court to block the planned execution to review the judge's override. Smith's lawyers argued a January decision that struck down Florida's death penalty structure because it gave too much power to judges raises legal questions about Alabama's process. In Alabama, a jury can recommend a sentence of life without parole, but a judge can override that recommendation to impose a death sentence. Alabama is the only state that allows judicial override, they argued. "Alabama is alone among the states in allowing a judge to sentence someone to death based on judicial fact finding contrary to a jury's verdict," attorneys for Smith wrote Wednesday.
Lawyers for the state argued in a court filing Tuesday that the sentence was legally sound, and that it is appropriate for judges to make the sentencing decision....
Alabama has been attempting to resume executions after a lull caused by a shortage of execution drugs and litigation over the drugs used. The state executed Christopher Eugene Brooks in January for the 1993 rape and beating death of a woman. It was the state's first execution since 2013. Judges stayed two other executions that had been scheduled this year.
Tuesday, November 08, 2016
Should and will SCOTUS take up Rommell Broom's constitutional claim that Ohio cannot try again to execute him after botched first attempt?
SCOTUSblog recently posted here its list of "Petitions to Watch" from the Supreme Court's scheduled conference of November 10, 2016, and all five cases on the list involve criminal justice issues. But the last of the listed petitions concerns a remarkable Ohio capital case that has been previously discussed on this blog, and is described this way:
Broom v. Ohio, No. 16-5580
Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.
I could discuss at great length not only why this case is so jurisprudentially interesting, but also why either a grant or a denial of cert at this stage of the litigation could prove quite interesting and controversial. Rather than go off on such matters, however, I will be content for now to link to some of my prior posts on this this case:
- Ohio struggling, legally and practically, with effort to execute offender (Sept 2009)
- Details on the botched Ohio execution attempt, issue spotting, and seeking predictions (Sept 2009)
- Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again? (Sept 2009)
- Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details) (Sept 2009)
- Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months (Sept 2009)
- "Ohio GOP lawmakers: Execution process can be fixed" (Nov 2009)
- Ohio finally gets its execution protocol in order (and praised) (Nov 2012)
- "Does failed execution attempt mean Ohio prisoner can avoid death penalty?" (June 2015)
- Split Ohio Supreme Court decides state allowed to try again to execute Rommell Broom after prior botched attempt (March 2016)
- "How many times should a state be able to try to execute someone without running afoul of the Constitution?" (March 2016)
Friday, November 04, 2016
Supreme Court (surprisingly?) grants last-minute stay of Alabama execution
As reported in this Washington Post article, the "Supreme Court stayed the execution Thursday night of an Alabama inmate who had been scheduled to die by lethal injection." Here is more about this interesting development and its context:
This marked the seventh time that Thomas D. Arthur — who was convicted of murder and is the second-oldest inmate on Alabama’s death row — had faced an execution date that was called off, according to the office of Alabama Attorney General Luther Strange. Arthur’s execution was scheduled for Thursday evening, but the uncertainty stretched into the night as officials in Alabama waited for the Supreme Court to consider his appeals.
Supreme Court Justice Clarence Thomas — the Supreme Court justice assigned to the 11th Circuit, which includes Alabama — said in an order shortly before 10:30 p.m. that he was halting the execution until he or the other justices issued another order. Thomas referred the case to the full court, and shortly before midnight, the justices issued an order granting Arthur’s stay request. The order included a statement from Chief Justice John G. Roberts Jr. explaining that while he did not believe this case merited a review from the Supreme Court, he had decided to vote for a stay anyway as a courtesy to his colleagues.
Roberts wrote that four of the other justices had voted in favor of staying the execution. “To afford them the opportunity to more fully consider the suitability of this case for review, including these circumstances, I vote to grant the stay as a courtesy,” he wrote. Roberts said Thomas and Justice Samuel Alito would have rejected the request; he did not explain why an eighth justice was not involved in the vote.
According to the court’s order, Arthur’s stay request would remain granted until the justices decide whether to consider the case. If they decide against it, the stay will be terminated. “We are greatly relieved by the Supreme Court’s decision granting a stay and now hope for the opportunity to present the merits of Mr. Arthur’s claims to the Court,” Suhana S. Han, an attorney for Arthur, said in a statement.
Arthur, 74, was sentenced to death for the 1982 killing of Troy Wicker, described in court records as the husband of a woman with whom Arthur had an affair. According to a summary of the case from the Alabama Supreme Court, Arthur was serving a life sentence for fatally shooting a relative of his common-law wife and, while on work release, had an affair with Wicker’s wife before killing Wicker. After three trials, Arthur was sentenced to death. One of his executions was called off after another inmate confessed to the killing, though a judge ultimately dismissed that inmate’s claim.
In appeals filed Thursday, Arthur’s attorneys argued that Alabama’s “deficient lethal injection protocol” would have had “torturous effects,” pointing to the state’s planned use of the sedative midazolam, which has been used in at least three executions that went awry. Last year, the Supreme Court upheld Oklahoma’s execution protocol in a case that hinged in part on that sedative.
Arthur’s court filings also argued that the state should execute him by firing squad, arguing that “execution by firing squad, if implemented properly, would result in a substantially lesser risk of harm” than the proposed lethal injection method. Strange’s office, in its response, noted that under Alabama state law, the Department of Corrections is only allowed to carry out executions by injection and electrocution.
Strange criticized the justices for their action late Thursday. “With all due respect to the Supreme Court, tonight’s order undermines the rule of law,” Strange said in a statement. “While I agree with Chief Justice Roberts that ‘This case does not merit the Court’s review,’ in my view, there is no ‘courtesy’ in voting to deny justice to the victims of a notorious and cold-blooded killer.”...
There have been 17 executions in the United States so far this year, according to the Death Penalty Information Center, and the country is on pace to have its fewest executions in a quarter-century. Arthur’s was one of four executions scheduled through the end of 2016, according to the center.
Thursday, November 03, 2016
Death row defendants come up just short in big circuit panel rulings about lethal injection protocols
Though I am saddened that the lovable baseball club from Cleveland came up just short against a lovable baseball club from Chicago very early this morning, there are some death row defendants and lawyers who I suspect are much more troubled by a much more serious legal matter in which their arguments to federal circuit panels came up just short yesterday. Specifically, two court panels, one in the Sixth Circuit and one in the Eleventh Circuit, yesterday handed down two split 2-1 rulings against death row defendants in Ohio and Alabama. Here are links to the rulingsand the start of the majority opinions:
Phillips v. DeWine, No. 15-3238 (6th Cir. Nov. 2, 2016) (available here):
In this appeal, a group of inmates sentenced to death in Ohio challenge the constitutionality of the State’s newly enacted statutory scheme concerning the confidentiality of information related to lethal injection. The district court dismissed some of their claims for a lack of standing and the remainder for failure to state a claim. For the reasons stated below, we AFFIRM.
Arthur v. Alabama DOC, No. 16-15549 (11th Cir. Nov. 2, 2016) (available here):
It has been 34 years since Thomas Arthur brutally murdered Troy Wicker. During 1982 to 1992, Thomas Arthur was thrice tried, convicted, and sentenced to death for Wicker’s murder. After his third death sentence in 1992, Arthur for the next 24 years has pursued, unsuccessfully, dozens of direct and post-conviction appeals in both state and federal courts.
In addition, starting nine years ago in 2007 and on three separate occasions, Arthur has filed civil lawsuits under 42 U.S.C. § 1983 challenging the drug protocol to be used in his execution. This is Arthur’s third such § 1983 case, and this current § 1983 case was filed in 2011. For the last five years Arthur has pursued this § 1983 case with the benefit of lengthy discovery. The district court held a two-day trial and entered two comprehensive orders denying Arthur § 1983 relief. Those orders are the focus of the instant appeal.
After thorough review, we conclude substantial evidence supported the district court’s fact findings and, thus, Arthur has shown no clear error in them. Further, Arthur has shown no error in the district court’s conclusions of law, inter alia, that: (1) Arthur failed to carry his burden to show compounded pentobarbital is a feasible, readily implemented, and available drug to the Alabama Department of Corrections (“ADOC”) for use in executions; (2) Alabama’s consciousness assessment protocol does not violate the Eighth Amendment or the Equal Protection Clause; and (3) Arthur’s belated firing-squad claim lacks merit.
Thursday, October 27, 2016
Defense attorneys assert Ohio's new execution protocol is akin to "burning at the stake"
As reported in this local AP article, capital defense attorneys in Ohio are not so impressed with the state's recently announced new execution protocol. The piece is headlined "Lawyers: Ohio Execution Plan Like Burning Inmates at Stake," and here are excerpts:
Ohio's new lethal injection system is akin to burning inmates at the stake or burying them alive, say federal defense lawyers rushing to stop the state's first execution in three years.
Ohio's three-drug method, announced Oct. 3, is worse than a similar procedure used years ago, and multiple problems remain with the way the state prepares and carries out executions, federal public defenders said in a Wednesday court filing.
The filing attacks the first drug in that process — midazolam, meant to sedate inmates — as unlikely to relieve an inmate's pain. The drug was used in problematic executions in Arizona and Ohio in 2014. But the U.S. Supreme Court last year upheld the use of midazolam in executions in a case out of Oklahoma.
According to the filing, because midazolam is not a barbiturate and cannot relieve pain, inmates are likely to experience "severe physical pain," mental suffering and anguish, As a result, "such an execution would be inhuman and barbarous, akin in its level of pain and suffering to being buried alive, burning at the stake, and other primitive methods long since abandoned by civilized society," the filing said.
Executions have been on hold in Ohio since January 2014, when death row inmate Dennis McGuire gasped and snorted during the 26 minutes it took him to die. It was the longest execution since Ohio resumed putting inmates to death in 1999. The state used a 2-drug method with McGuire, beginning with midazolam, but then discontinued it. Afterward, Ohio struggled for years to find new supplies of drugs, which have been placed off limits for executions by drug makers. Now the prisons agency says it will use midazolam; rocuronium bromide, which paralyzes the inmate; and potassium chloride, which stops the heart.
On Jan. 12, Ohio is scheduled to execute Ronald Phillips for the rape and murder of his girlfriend's 3-year-old daughter in Akron in 1993. The state also plans to carry out executions on Feb. 15 and March 15. But the federal defense lawyers say the new procedures are unconstitutional and executions in Ohio should be put on hold. The state will respond with its own filing, said Dan Tierney, a spokesman for Ohio Attorney General Mike DeWine.
Prior related post:
- Ohio planning to use new three-drug execution protocol to get its machinery of death operative in January 2017
Monday, October 24, 2016
Is the death penalty in the United States really "nearing Its end"?
The question in the title of this post is prompted by this notable new New York Times editorial headlined "The Death Penalty, Nearing Its End." Here is the full text of the editorial:
Although the death penalty is still considered constitutional by the Supreme Court, Americans’ appetite for this barbaric practice diminishes with each passing year. The signs of capital punishment’s impending demise are all around.
For the first time in nearly half a century, less than half of Americans said they support the death penalty, according to a Pew Research poll released last month. While that proportion has been going down for years, the loss of majority support is an important marker against state-sanctioned killing.
At the same time, executions and new death sentences are at historic lows, and each year they go lower. In 2015 only 49 new death sentences were handed down, the lowest one-year total since the Supreme Court reinstated capital punishment in 1976.
Since there were about 14,000 murders around the country last year, it’s easy to imagine that the small number of newly condemned people shows that the justice system is focusing on the “worst of the worst.” But that’s wrong. In fact the crimes of the people sentenced to death are no worse than those of many others who escape that fate. Rather, nearly all of last year’s death sentences came from a tiny fraction of counties with three common features: overzealous prosecutors; inadequate public defenders; and a pattern of racial bias and exclusion. This was the key finding of a two-part report recently issued by the Fair Punishment Project at Harvard Law School.
Even in the most death-friendly counties, public support appears to be fading. In two of the worst — Duval County in Florida and Caddo Parish in Louisiana — local prosecutors lost elections at least partly due to voters’ concerns about their stance on the death penalty. In other counties around the country, prosecutors are finding that aggressive advocacy for death sentences isn’t the selling point with the public that it once was.
In some of the biggest states, death-penalty systems are defunct or collapsing. Earlier this month, the Florida Supreme Court struck down a terrible state law that allowed nonunanimous juries to impose death sentences — increasing the likelihood that innocent people and those with intellectual or mental disabilities would be condemned. A large number of Florida’s 386 death-row inmates could now receive new sentencing trials, or have their sentences thrown out altogether.
In California, which hasn’t executed anyone since 2006 even though more than 740 inmates sit on death row, voters will decide in November whether to eliminate capital punishment for good. A similar ballot initiative in 2012 was narrowly defeated. In 2014, a federal judge ruled that the state’s decades-long delays in capital cases violated the Eighth Amendment’s ban on cruel and unusual punishment. (The decision was overturned by an appeals court on technical grounds the following year.)
While capital punishment is used rarely and only in some places, only a definitive ruling from the Supreme Court will ensure its total elimination. How close is the court to such a ruling? In recent dissenting opinions, three of the justices — Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor — have expressed deep misgivings about the death penalty’s repeated failure to meet the requirements of due process and equal protection. Justice Breyer has said it is “highly likely that the death penalty violates the Eighth Amendment,” and has called for the court to consider whether it is constitutional at all.
The death penalty has escaped abolition before, but there are no longer any excuses: The nation has evolved past it, and it is long past time for the court to send this morally abhorrent practice to its oblivion.
I wonder if anyone who is a strong supporter of capital punishment will write (and get published) a response to this editorial which might be headlined something like "The Death Penalty, Poised for a Big Comeback." That response might highlight that, according to polls in deep blue California, voters there are seemingly going to provide "majority support" for making more efficient in California "state-sanctioned killing." That response might highlight that, in swing state Ohio, executive officials have been working extra hard to get the state's machinery of death operative again and have execution dates scheduled for nearly two dozen condemned murderers in 2017 and 2018. That response might highlight that, in swing state Florida, the state legislature has been quick and eager to retain and revise its death penalty statutes every time a court has found constitutional problems with its application. That response might highlight that, in deep blue Massachusetts, a federal jury in 2015 wasted little time in deciding that “worst of the worst” capital defendant Dzhokhar Tsarnaev should be condemned to die for his crime. And that response might highlight that, in the most liberal national criminal justice administration of my lifetime, federal prosecutors of the Obama Administration were seemingly eager to pursue capital charges against the Charleston Church shooter Dylann Roof.
I could go on and on (mentioning, inter alia, developments in Alabama, Oklahoma, Nebraska and elsewhere), but my main point here is highlight the critical reality that the description of "death-penalty systems [as] defunct or collapsing" is largely a product of effective litigation by abolitionists and the work of courts, not really a reflection of a sea-change in public opinion or radical changes in the work of most legislatures and prosecutors in key regions of the United States. The NYTimes editorial board my be right that we may soon see litigation by abolitionists achieve the ultimate success in the courts by having the Justices of the Supreme Court declare the death penalty per se unconstitutional. But, absent some surprising political and social developments over the next few years, would-be abolitionists ought to be careful about counting chickens too soon.
October 24, 2016 in Baze and Glossip lethal injection cases, Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Thursday, October 20, 2016
Georgia completes its seventh execution of 2016, bringing national execution total for year to 17
While many traditionally active death penalty states, such as Ohio and Oklahoma, have had their machineries of death inoperative in 2016 because of problems with lethal injection drugs or protocols, Georgia has had a record-setting peach of a year when it comes to carrying out executions. This CBS/AP story reports on the latest Peach State execution and provides a little numerical and historical context for it:
A man convicted of killing an Atlanta police officer and wounding a second officer with an AR-15 rifle was executed late Wednesday, becoming the seventh inmate put to death in Georgia this year. Gregory Paul Lawler, 63, was pronounced dead at 11:49 p.m. at the state prison in Jackson after he was injected with the barbiturate pentobarbital. He was convicted of murder in the October 1997 slaying of Officer John Sowa and of critically wounding Officer Patricia Cocciolone.
The Georgia Supreme Court said in a statement Wednesday it had unanimously denied defense requests to halt the execution, originally set for 7 p.m. Defense attorneys later appealed to the U.S. Supreme Court, which also declined to stop the execution late Wednesday night.
Lawler didn’t make a final statement and refused an offer of a prayer. Then he lay on the gurney with his eyes closed as the lethal drug flowed, taking several deep breaths and yawning before becoming still. Cocciolone arrived in a wheelchair and sat in the front row of the witness area, as did Fulton County District Attorney Paul Howard, whose office prosecuted Lawler.
The seven executions in Georgia this year are the most in a calendar year in the state since the death penalty was reinstated nationwide in 1976. Georgia executed five inmates last year and five in 1987.
Georgia is one of five states that have carried out executions this year for a total of 17 nationwide. Texas has executed seven inmates, while Alabama, Florida and Missouri have executed one apiece.
Monday, October 10, 2016
Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade
I had the great fortune of having the Assistant Chief Counsel for Ohio Governor John Kasich come speak to my OSU Moritz College of Law Sentencing Class about the decade-long litigation in Ohio over the state's various lethal injection protocols (which, as this post explains, is now poised to kick into yet another new phase). With that class freshly in mind, I was intrigued to see this notable new local AP story headlined "Death penalty stalls in Mississippi." Here are excerpts:
With sprawling litigation over Mississippi’s use of execution drugs now scheduled to stretch into 2017, the state could go five years without executing a death row inmate. That would be the longest gap between executions in Mississippi in 15 years.
Mississippi has executed 21 people, all men, since the death penalty resumed. That includes a 13-year gap between the 1989 execution of Leo Edwards and the 2002 execution of Tracy Edwards. During that time, executions stalled out over concerns about adequate legal representation for the condemned. That’s also when Mississippi switched it execution method from the gas chamber to lethal injection. Multiyear gaps remained even after 2002, but the state picked up the pace, executing 11 people in a 25-month span ending in 2002. Then, just as it became routine, the death penalty sputtered out.
That halt is in some ways a tribute to lawyer Jim Craig. He’s tying state government in knots fighting Mississippi’s plan to use a new drug to render prisoners unconscious before injecting additional drugs to paralyze them and stop their hearts. Craig, of the MacArthur Justice Center, says the litigation isn’t aimed at overturning the death penalty in Mississippi, only at seeking a better way of executing people. But he’s doing a good job of keeping his clients alive.
On behalf of Richard Jordan, Ricky Chase and Charles Ray Crawford, Craig argues Mississippi can’t use midazolam as a sedative because it doesn’t meet state law’s specification for an “ultra-short-acting barbiturate” Until 2012, the state used pentobarbital. But drug makers have choked off supplies of the drug for executions.
Midazolam doesn’t render someone unconscious as quickly as a barbiturate. Craig argues midazolam leaves an inmate at risk of severe pain during execution, violating the U.S. Constitution’s prohibition on cruel and unusual punishment. The U.S. Supreme Court in 2015 upheld as constitutional Oklahoma’s use of midazolam, but Craig’s lawsuit is based in part on his claims about Mississippi state law. He’s also trying to reopen other issues surrounding midazolam.
One part of Craig’s legal offensive is a federal challenge to the drug’s use. U.S. District Judge Henry T. Wingate had issued a preliminary injunction freezing executions, but executions didn’t resume when appeals judges lifted the freeze in July. Last month, Craig and lawyers for Attorney General Jim Hood extended that lawsuit into next year, setting a trial for May. Craig rates it unlikely that the state Supreme Court will green-light executions with that case unresolved. “They aren’t stayed automatically,” Craig said. “But I think the Mississippi Supreme Court will respect the federal process and thus will not set execution dates while the federal case is active.”
To aid that case, Craig is also fighting Missouri, Georgia and Texas in court, arguing they must say who’s still supplying them with pentobarbital, so he can argue Mississippi has alternatives to midazolam and could return to its old drug. Mississippi said it destroyed all its pentobarbital and can’t get more.
There are also three cases before the Mississippi Supreme Court. Crawford is challenging the state’s ability to execute him with a drug compounded from raw ingredients, how other states are likely getting pentobarbital. Meanwhile, Jordan and Gerald Loden are fighting use of midazolam based on the barbiturate requirement.
Hood says he’s working to resume executions, but acknowledges Craig’s efforts are gumming the works. “The Mississippi Supreme Court’s resolution of those pending petitions will determine when any executions will be re-set,” Hood said in a statement. “Any delay in the federal lawsuit has been the result of the Jordan plaintiffs’ strategic decisions.”
Monday, October 03, 2016
Ohio planning to use new three-drug execution protocol to get its machinery of death operative in January 2017
Long-time readers and/or hard-core death penalty fans perhaps recall that my own great state of Ohio way back in Fall 2009, in the wake of some problems administering the then-universal three-drug lethal injection approach, pioneered a new one-drug execution protocol. This one-drug approach to executions seemed to work reasonably well for the Buckeye state for a period, as the state completed 19 executions in the period from 2010 to 2013. But when Ohio struggled to get the needed supply of the drug being used in its one-drug protocol, the state in January 2014 tried a two-drug approach that did not seem to work our so well (as reported in this prior post).
Since January 2014, Ohio has been a de facto death penalty moratorium state because Ohio Gov John Kasich repeatedly delayed a long list of scheduled executions while the state sought to figure out how best to acquire drugs for conducting lethal injections. (During this period, the Ohio legislature enacted a law to shield the identity of some who helped the state move forward with executions (background here), and some advocates started calling for the state to consider nitrogen gas as an alternative way to carry out death sentences (details here). But today, as this new AP article reports, Ohio has now revealed that it is planning to get its machinery of death up-and-running again come January 2017 by returning to a (new kind of) three-drug execution protocol. Here are the details and context:
Ohio plans to resume executions in January with a new three-drug combination after an unofficial three-year moratorium blamed on shortages of lethal drugs, an attorney representing the state told a federal judge Monday.
Thomas Madden with the Ohio attorney general's office said the state will use the drugs midazolam, which puts the inmate to sleep; rocuronium bromide, which paralyzes the inmate; and potassium chloride, which stops the heart. He said the drugs are not compounded and are FDA approved. Madden told Columbus federal Judge Edmund Sargus that a new execution policy will be announced at the end of the week....
The development opens the way for the execution of Ronald Phillips for the rape and murder of his girlfriend's 3-year-old daughter in Akron in 1993. Ohio hasn't put anyone to death since January 2014, when Dennis McGuire repeatedly gasped and snorted during a 26-minute procedure using a never-before-tried two-drug combo.
The state also used midazolam in McGuire's execution, making it disappointing that Ohio would again turn to that drug, said Allen Bohnert, a federal public defender representing several death row inmates.
The state has more than two dozen inmates with firm execution dates sitting on death row, with executions scheduled out as far as October 2019.
After McGuire's execution, the longest ever in Ohio using lethal drugs, the prisons agency changed its policies to allow for single doses of two alternative drugs. Complicating matters, neither of those drugs — sodium thiopental and pentobarbital — is available in the United States after their manufacturers put them off-limits for executions. The state has unsuccessfully tried to find compounded or specially mixed versions.
Last year, Republican Gov. John Kasich ruled out looking for alternative methods, such as the firing squad or hanging. In 2014, Kasich signed a bill into law shielding the names of companies that provide the state with lethal injection drugs.
Supporters said such confidentiality is necessary to obtain supplies of the drugs, and the measure is needed to restart Ohio executions. Opponents said it was naive to think the bill could truly protect companies' names from being revealed.
In 2014, former federal Judge Gregory Frost sided with the state, saying the prisons agency's need to obtain the drugs outweighed concerns by death row inmates that the information was needed to meaningfully challenge the source of the drugs.
Sunday, September 18, 2016
"What Executioners Can — And Cannot — Teach Us About the Death Penalty"
The title of this post is the title of this notable new paper authored by Susan Bandes now available via SSRN. Here is the abstract:
Executioners and others who come into close proximity with the condemned often come to reject the death penalty. They reject it not only in individual cases, and not only on the ground that the death penalty is poorly implemented. They conclude that capital punishment is wrong. I argue that the perspective of the executioner helps illuminate the debate about whether to abolish capital punishment, and raises the troubling possibility that support for the death penalty can survive only at a great remove.
The essay responds to a recent article by Jeffrie Murphy focusing on the question of whether executioners can take pride in their work. I contend that Murphy asks the wrong question, and that the better question is whether anyone ought to be asked to do such work. On this latter question, the perspective of the executioner sheds important light. Like Murphy, I draw on works by and about Albert Pierrepoint, the “last hangman” of Britain. I also draw on the perspectives of numerous executioners, wardens, chaplains and other death row personnel. I argue that their perspectives offer a powerful argument against the main rationale for the death penalty: retribution. If retribution is keyed to the offender’s character as well as his wrongful act, then post-conviction character ought to matter. The executioners’ accounts share a common theme: that death row inmates change over time and hold the potential for redemption.
Sunday, September 11, 2016
Is Ohio again about to pioneer a new execution method?
The question in the title of this post is prompted by this Columbus Dispatch article from last week headlined "Ohio looks at nitrogen as a new execution method." Long-time readers may recall, from this post back in 2009, that Ohio was the first state to switch to a one-drug lethal injection protocol after it botch an execution. And, as this new article explains, new problems with lethal injection plans may prompt Ohio to become an execution pioneer again. Here are the details:
Ohio might consider adding nitrogen gas as a new execution method because of problems securing lethal injection drugs.
There have been no executions in the state for 2½ years, largely because of lawsuits and difficulty obtaining drugs for lethal injection. Beginning in January, there are 28 convicted killers with execution dates scheduled over four years.
John Murphy, executive director of the Ohio Prosecuting Attorneys Association, said today lethal injection is "stalled" and it's time for a change. Prosecutors have long been strong supporters of Ohio's death penalty law. "I think the legislature ought to recommend another method of execution," Murphy said in an interview. He recommends switching to nitrogen gas, a method he called "humane and reasonably inexpensive."
Nitrogen gas, pumped into an air-tight chamber, produces asphyxiation by a lack of oxygen in the blood. It has not been used for executions, although Oklahoma adopted it as a backup method. The sponsor of the Oklahoma law called it "foolproof." People occasionally die accidentally from nitrogen asphyxiation. Deep-sea divers sometimes suffer from a form of it, producing an effect often described as euphoric. The gas is widely available and inexpensive.
JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction, said the agency "continues to seek all legal means to obtain the drugs necessary to carry out court-ordered executions." State Rep. Jim Butler, R-Oakwood, chairman of the House Judiciary Committee, said, "It's good to look at alternative methods that are humane. That's something we should definitely do." But Butler added, "One problem is if it's something that's not been tried before, you need to vet it to make sure it's appropriate. It's certainly going to be tested in the court system."
Other states have moved ahead with alternatives. Tennessee permits use of the electric chair, Utah allows the firing squad, and Oklahoma allows nitrogen gas.
Dr. Jonathan Groner, a professor of clinical surgery at Ohio State University College of Medicine, said using nitrogen gas could be "dangerous and impractical."
"You and I are breathing 78 percent nitrogen right now," he said. "It's not a poison. It's an inert gas." When nitrogen is introduced, oxygen is pushed out of the bloodstream, causing potentially painful suffocation, Groner said. "I would challenge that it's foolproof. We've heard that before," he said.
Friday, August 19, 2016
"The Firing Squad as a 'Known and Available Alternative Method of Execution' Post-Glossip"
The title of this post is the title of this timely article now available via SSRN authored by execution-method expert Deborah Denno. Here is the abstract:
In Glossip v. Gross, the United States Supreme Court’s most recent effort to review a state’s lethal injection protocol, the Court affirmed Oklahoma’s use of a drug called midazolam and also stressed that petitioners had failed to “identify a known and available alternative method of execution that entails a lesser risk of pain.” This Article proposes that the Glossip Court’s “known and available alternative method of execution” requirement, however objectionable, adds another dimension to execution method challenges that attorneys must address.
As Justice Sonia Sotomayor’s dissent in Glossip notes, the requirement also strengthens the viability and suitability of the firing squad as an appropriate means of execution. For example, the firing squad has a long history and world-wide application, making it a “known” method; it is also an easily “available” method, given the pervasive use of firearms in our society for purposes such as law enforcement and self-protection. There is also ample evidence suggesting that the firing squad is currently the most humane and reliable method of execution and that it meets the “lesser risk of pain” standard.
Indeed, the primary hurdle faced by advocates of the firing squad is the method’s “primitive” or “violent” image. Yet this Article contends that there is no evidence that such an image is deserved, quite the contrary. Witnesses to modern firing squad executions describe a process that may be far more sterile in perception and procedure than lethal injection — a viewpoint that may come to be shared by the public and prisoners alike. In Glossip, Justice Sotomayor’s dissent briefly yet convincingly touches on reasons why death row inmates may prefer the firing squad over lethal injection, marking the first time that a Justice proactively and favorably compared the firing squad — or any other execution method — to lethal injection. Such practicality may with time trump perceived barbarity in favor of the firing squad as states are increasingly unable to obtain acceptable lethal injection drugs.
Monday, July 11, 2016
Spotlighting that the death penalty, practically speaking, is now really dying
BuzzFeed News reporter Chris Geidner has this lengthy and timely article highlighting some notable capital realities circa 2016. The piece carries this full headline: "Practically Speaking, The Death Penalty Is Disappearing In The United States: Although nearly 3,000 people are on death row in America, there has not been an execution in the country for two months — and few executions are expected in the coming months." Here is the start of a piece that merits a full read:
It has been two months since any state in the United States has carried out an execution. This marks the longest time between executions in the U.S. since the Supreme Court effectively halted them in the fall of 2007 through spring 2008 while considering a case about the constitutionality of lethal injection.
This time, the situation is very different. Although there are pending court cases about the death penalty’s application, the source of the two-month stoppage in executions isn’t the Supreme Court. It’s a variety of state-specific issues, ranging from the aftermath of Supreme Court rulings that come down earlier this year to drug availability to fallout from botched executions.
The pause on executions — since it is state-specific — won’t last forever. The stoppage could end as soon as Thursday if an execution scheduled for Georgia goes ahead as planned. It isn’t, however, only that there have been no executions in the past two months. This year, there have been fewer executions overall — just 14 in the first half of the year — than in years past. It’s extremely unlikely, moreover, that the number will be higher in the second half of the year.
There are, in fact, only three states — Georgia, Missouri, and Texas — that have executed anyone since January of this year. What’s more, these states appear to be the only ones that could hold an execution today — despite the nearly 3,000 people on death row across the country. The only other state where executions still seem to be a possibility this year is Arkansas, and that is only so if the state obtains a new supply of execution drugs — which is by no means a sure thing.
Before the 2007-08 gap in executions, the next most recent time when there was such a gap was nearly 25 years ago, when there were no executions held between Nov. 12, 1991, and Jan. 22, 1992. Even then, the stoppage is not entirely comparable to the current one because there often have been shorter periods with no executions surrounding the holiday season. Gaps prior to then were more common, but they were due to the fact the states were still passing and implementing their execution process in the wake of the Supreme Court’s 1976 decision approving execution statutes after a nationwide ruling against the death penalty laws four years earlier.
In short, this is an unprecedented moment in the modern era of the death penalty. Why, in the absence of any overarching federal prohibition on executions, is this so?
Monday, June 27, 2016
Updates on considerable success of "guerilla war" over executions and access to lethal injection drugs
In the Glossip litigation, Justice Alito famously complained that capital lawyers contesting execution protocols were part of a broader "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." Against that backdrop, two recent articles about execution drugs provide an interesting snapshot of the remarkable success that opponents of the death penalty have achieved in this so-called "guerilla war":
From BuzzFeed News here, "There's A Standoff Between States And The Feds Over Illegal Execution Drugs; It's been nearly a year since the federal government seized thousands of vials of lethal injection drugs on their way to death penalty states; The states want their drugs, and neither side is showing signs of backing down"
From the Christian Science Monitor here, "Arizona runs out of lethal injection drugs: Is this how the death penalty dies?: Arizona drugs shortfall is part of an increasingly poignant national debate that has put the ethics of the death penalty at odds with its practicality."
Friday, June 24, 2016
Split Arkansas Supreme Court upholds state's new secrecy law to allow execution plans to move forward
As reported in this AP piece, "Arkansas can execute eight death row inmates, a split state Supreme Court ruled Thursday in upholding a state law that keeps information about its lethal injection drugs confidential." Here is more about the ruling and its context:
Arkansas Attorney General Leslie Rutledge said she would request new execution dates once the stays are lifted on the eight inmate executions. Generally, a ruling goes into effect 18 days after it is issued. A paralytic drug, vecuronium bromide, expires on June 30, and the supplier has said it will not sell the state more. So, for the stays to be lifted before the drugs expire, Rutledge must ask the court to expedite the certification process, which she had not done as of Thursday.
"I will notify the governor once the stays of executions have been lifted so that he may set execution dates. I know that victims' families want to see justice carried out, and that is exactly what I will continue to work toward as Attorney General," she wrote in an emailed statement. Arkansas Department of Correction spokesman Solomon Graves would not say whether the agency would try to move forward with the executions. When asked whether the department had tried to negotiate purchasing additional drugs or contacted the suppliers to see whether Thursday's ruling would entice them to sell, Graves said he could not engage in hypotheticals....
The court noted in its ruling an affidavit from a prison official, who said he had contacted at least five other drug wholesalers and manufacturers that said they would not sell the drugs to the state or would not sell them without the makers' permission. It was unclear whether Thursday's actions would change those companies' decisions. The attorney general's office would not advise the Department of Correction to use the drugs after they expire, spokesman Judd Deere said.
A group of death row inmates had argued that Arkansas' execution secrecy law, which requires the state to conceal the maker, seller and other information about the drugs, could lead to cruel and unusual punishment and that the state reneged on a pledge to share information. But the high court said in its 4-3 majority opinion that a lower court "erred in ruling that public access to the identity of the supplier of the three drugs (the Arkansas Department of Correction) has obtained would positively enhance the functioning of executions in Arkansas. As has been well documented, disclosing the information is actually detrimental to the process."
Jeff Rosenzweig, an attorney representing the inmates, said he is "studying the decision and anticipate filing a petition for rehearing." Three justices wrote full or partial dissents, including Associate Justice Robin Wynne, who wrote that he believed the inmates proved their claim that the law violated the state constitution's prohibition on cruel or unusual punishment. Justice Josephine Linker Hart wrote that the dismissal of the complaint was premature and that she would have ordered disclosure of the drug information....
For more than 10 years, Arkansas' executions have been stalled because of multiple court challenges over different drug protocols and problems obtaining those drugs. Arkansas Gov. Asa Hutchinson set execution dates last September that were later stayed by the high court until the inmates' challenge could be heard. Hutchinson "believes Judge Griffen overstepped his authority and is pleased the Arkansas Supreme Court reversed his ruling upholding the law protecting the confidentiality of the supplier," spokesman J.R. Davis said, adding that Hutchinson is reviewing the decision and talking with Rutledge regarding "the appropriate next steps to take."
The inmates had argued that without disclosure of the source and other information they had no way to determine whether the midazolam, vecuronium bromide or potassium chloride would lead to cruel and unusual punishment. The inmates also argued that the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said that agreement is not a binding contract, and the court agreed Thursday.
Several other issues remain before the state can complete the eight pending executions in the seven days before the paralytic drug expires. A handful of the inmates have not been given a chance to have clemency hearings, and for those who already had them, it was unclear whether they would need another opportunity to apply for clemency because a new date of execution would have to be set.
The full ruling from the Arkansas Supreme Court can be accessed at this link, and this passage from the majority opinion helps explain the import of the Supreme Court's Glossip ruling on this state case:
In this case, the Prisoners urge us to disavow the requirement established in Baze, as amplified by the Court in Glossip, that a prisoner bears the burden of proving a known and available alternative to a state’s current execution protocol. They assert that we should construe our provision differently because the Eighth Amendment uses the words “cruel and unusual punishment,” whereas the Arkansas Constitution contains the disjunctive phrase “cruel or unusual punishment.” As the Court made clear in Glossip, the burden of showing a known and available alternative is a substantive component of an Eighth Amendment method-of-execution claim. We are not convinced that the slight variation in phraseology between the two constitutions denotes a substantive or conceptual difference in the two provisions that would compel us to disregard any part of the test governing a challenge to a method of execution. Accordingly, we decline the Prisoners’ invitation to depart from our practice of interpreting our constitutional provision along the same lines as federal precedent, and we hereby adopt the standards enunciated in both Baze and Glossip. Accordingly, in challenging a method of execution under the Arkansas Constitution, the burden falls squarely on a prisoner to show that (1) the current method of execution presents a risk that is sure or very likely to cause serious illness and needless suffering and that gives rise to sufficiently imminent dangers; and (2) there are known, feasible, readily implemented, and available alternatives that significantly reduce a substantial risk of severe pain.
Tuesday, May 24, 2016
Reviewing the state and future of lethal injection as execution method
Lincoln Caplan has this New Yorker piece headlined "The End Of The Open Market For Lethal-Injection Drugs," which provides a useful primer on where matters stand regarding lethal injection as a means carrying out death sentences on condemned murderers. Here are excerpts from the start, middle and end of the lengty piece:
Last week, the global drug company Pfizer announced sweeping new restrictions on the distribution of seven of its products, preventing them from being used to carry out the death penalty. Pfizer came into possession of those products, which include sedatives, paralytics, a pain medication, and a drug used to prevent or treat low levels of potassium in the blood, when it acquired the pharmaceutical company Hospira, in September. Its decision is an enormously significant one for the death penalty in the United States, and ends a long and chaotic chapter in which governments, drug companies, and activists worldwide have gradually closed the open market for the federally approved drugs that have been used for lethal injections.
Twenty of the thirty-one states with the death penalty on the books now have a formal or informal moratorium on executions, in almost all cases because they have been unable to obtain approved drugs to use in lethal injections. In 2015, there were twenty-eight executions in the U.S., the lowest number since 1994. This year, there have been fourteen executions so far — six in Texas, five in Georgia, and one each in Alabama, Florida, and Missouri. Prisons in those states can’t buy drugs for lethal injections from American manufacturers. They can’t import drugs from foreign manufacturers — which, in any case, will not supply them. In short, their options are severely restricted, which will almost certainly lead to more botched executions.
Texas, Georgia, and Missouri are among the small number of states that have carried out executions using drugs made by compounding pharmacies, which combine, mix, or alter drugs, typically to meet the need of an individual patient — say, by removing an ingredient to which a patient is allergic. These pharmacies are not required to register with the F.D.A., and the F.D.A. does not approve their products. They must be licensed by the pharmacy board in the state where they operate, but state oversight has often been scandalously lax. In February, Oklahoma Attorney General Scott Pruitt said he wants the state to open its own compounding pharmacy, in order to guarantee a supply of the drugs that the state needs for lethal injections. (This despite the fact that no department of corrections could meet a basic requirement for obtaining a drug made by a compounding pharmacy: a medical prescription for an individual patient.)
Oklahoma’s turn toward compounding pharmacies is part of the fallout from Glossip v. Gross, one of the most important death-penalty cases decided by the Supreme Court in the past generation....
The campaign to halt lethal injections as a mode of capital punishment by restricting access to the lethal drugs has not yet ended the death penalty. But it may very well have accelerated the end game that Breyer invoked in his Glossip dissent. In the five years between Hospira’s decision to stop making sodium thiopental and Pfizer’s decision to stop supplying drugs for executions, the unsuccessful effort, by one state after another, to carry out lethal injections in a manner that meets standards of fairness and reliability has made it increasingly clear that states cannot constitutionally perform these types of executions. If they can’t do that, how can the Supreme Court continue to permit capital punishment under the Constitution? The Court is unlikely to take on an issue this fundamental when it is at the mercy of a polarized Senate and self-important Republican leaders who refuse to confirm the President’s nominee for the Court’s ninth Justice. But the churn that the campaign has quickened will inevitably give rise to a legal controversy that will force the Justices to face just such a question.
Interestingly, I have since Glossip was decided that the case would prove to be "one of the most important death-penalty cases decided by the Supreme Court in the past generation" only if states viewed the ruling as presenting a unique and new opportunity to move away from lethal injection as an execution method in light of all the drug shortages. Significantly, the Supreme Court has never formally declared any particular execution method unconstitutional, and I thought the Glossip ruling might prompt a number of jurisdictions to see a chance to seriously move forward with a return to firing squads or experimentations with nitrogen gas. But absent any such developments (and absent Justice Breyer finding thre more Justices to join his effort to judicially abolish capital punishment in the US), I have a hard time seeing Glossip as nearly as big practical deal as other recent SCOTUS cases placing limits on capital sentences and procedures like Kennedy and Hurst.
Friday, May 13, 2016
Pfizer gives states yet another reason to seriously consider execution alternatives other than lethal injection
As long time readers know, I have been urging states to seriously explore alternatives to lethal injection for the better part of a decade: in this December 2006 post, for example, I flagged a discussion of various new and old execution procedures and suggested that "states interested in continuing to employ the death penalty should start exploring alternatives to lethal injection." Today, via this New York Times article, states have yet another reason to take this advice to heart: "The pharmaceutical giant Pfizer announced on Friday that it has imposed sweeping controls on the distribution of its products to ensure that none are used in lethal injections, a step that closes off the last remaining open-market source of drugs used in executions." Here is more:
More than 20 American and European drug companies have already adopted such restrictions, citing either moral or business reasons. Nonetheless, the decision from one of the world’s leading pharmaceutical manufacturers is seen as a milestone. “With Pfizer’s announcement, all F.D.A.-approved manufacturers of any potential execution drug have now blocked their sale for this purpose,” said Maya Foa, who tracks drug companies for Reprieve, a London-based human rights advocacy group. “Executing states must now go underground if they want to get hold of medicines for use in lethal injection.”
The obstacles to lethal injection have grown in the last five years as manufacturers, seeking to avoid association with executions, have barred the sale of their products to corrections agencies. Experiments with new drugs, a series of botched executions and covert efforts to obtain lethal chemicals have mired many states in court challenges.
The mounting difficulty in obtaining lethal drugs has already caused states to furtively scramble for supplies. Some states have used straw buyers or tried to import drugs from abroad that are not approved by the Food and Drug Administration, only to see them seized by federal agents. Some have covertly bought supplies from compounding pharmacies while others, including Arizona, Oklahoma and Ohio, have delayed executions for months or longer because of drug shortages or legal issues tied to injection procedures.
A few states have adopted the electric chair, firing squad or the gas chamber as an alternative if lethal drugs are not available. Since Utah chooses to have a death penalty, “we have to have a means of carrying it out,” said State Representative Paul Ray as he argued last year for reauthorization of the state’s death penalty.
Lawyers for condemned inmates have challenged the efforts of corrections officials to conceal how the drugs are obtained, saying this makes it impossible to know if they meet quality standards or might cause undue suffering. “States are shrouding in secrecy aspects of what should be the most transparent government activity,” said Ty Alper, associate director of the death penalty clinic at the University of California, Berkeley, School of Law.
Just a few prior related posts on firing squads and other alternatives over the last decade:
- Is it time to seriously consider alternatives to lethal injection? (from 2006)
- Could states eager to execute quickly adopt a new execution method? (from 2007)
- A bit of historical perspective on execution methods (from 2009)
- A worldly perspective on different execution methods (from 2009)
- Shouldn't we celebrate condemn's request that he "would like the firing squad, please"? (from 2010)
- "Experts argue firing squad is a humane execution" (from 2010)
- Should problems with lethal injection prompt return of other execution methods? (from 2011)
- Making a potent argument for executions by firing squad rather than lethal injection (from 2013)
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods (from 2014)
- Shouldn't Congress be holding hearings to explore federal and state execution methods? (from 2014)
- "In praise of the firing squad" (from 2015)
- Utah legislature brings back firing squad as alternative execution method (from 2015)
- "Heroin as an execution drug?" (from 2015)
Thursday, May 12, 2016
Can and should Missouri, after completing its last execution for a while, send any extra execution drugs to other needy states?
The question in the title of this post is prompted by this AP article about the first and likely last execution in Missouri this year. The piece is headlined "Missouri man put to death for killing deputy, 2 others; could be last execution for some time," and here are the basics:
A man who killed two people in a drug dispute and a sheriff’s deputy in a subsequent shootout was put to death Wednesday in what could be Missouri’s last execution for some time.
Earl Forrest, 66, went to the home of Harriett Smith in December 2002 and demanded that she fulfill her promise to buy a lawn mower and mobile home for him in exchange for introducing her to a source for methamphetamine. During an argument, Forrest shot Smith and Michael Wells, who was visiting Smith’s home. Forrest later fatally shot Dent County Sheriff’s Deputy Joann Barnes after she arrived at Forrest’s home.
Missouri has executed 19 men since November 2013. But the remaining 25 death row inmates either have appeals still pending or other reasons they will not face imminent execution. Forrest’s fate was sealed hours before his punishment when the U.S. Supreme Court refused to halt the execution and Missouri Gov. Jay Nixon, a Democrat, turned down a clemency request.
According to court documents, Forrest had been drinking when he went to Smith’s home in the southern Missouri town of Salem. Wells was visiting Smith at the time. An argument ensued, and Forrest shot Wells in the face. He shot Smith six times and took a lockbox full of meth valued at $25,000. When police converged on Forrest’s home, he fatally shot Barnes and injured Dent County Sheriff Bob Wofford, according to court documents. Forrest was also injured in the exchange of gunfire, along with his girlfriend, Angela Gamblin.
Missouri has been one of the most prolific states for executions in recent years, second only to Texas. The state has executed 19 prisoners since November 2013, including six last year. Forrest’s execution was the first in 2016.
Missouri’s death row population is dwindling. Robert Dunham, executive director of the Death Penalty Information Center in Washington, said juries today are less likely to opt for capital punishment, in part because of greater awareness of how mental illness sometimes factors in violent crime. Just 49 people were sentenced to death nationally last year, the fewest since the U.S. Supreme Court reinstated the death penalty as a possible punishment in 1976. No one was sentenced to death in Missouri in 2014 or 2015, Dunham said. “As these executions take place, fewer and fewer people are being sentenced to death, so the death penalty is withering on the other end,” Dunham said.
None of the 25 other men remaining on Missouri’s death row face imminent execution. Sixteen have yet to exhaust court appeals and aren’t likely to do so soon. Execution is on hold for nine others. Two were declared mentally unfit for execution. Two were granted stays because of medical conditions that could cause painful deaths from injections. Two had sentences set aside by the courts due to trial attorney errors. One inmate was granted a stay while his innocence claim is reviewed. One case was sent back to a lower court to consider an appeal.
And in one unusual case, inmate William Boliek was granted a stay by Democratic Gov. Mel Carnahan in 1997. The case wasn’t resolved before Carnahan died in a 2000 plane crash, and a court determined that only Carnahan could overturn the stay. Nixon’s office has said Boliek will not be executed.
As regular readers may recall and as Ohio capital lawyers know well, while Missouri has had the lethal injection drugs needed to carry out nearly 20 executions in the last few years, the Buckeye state has more than two dozen execution scheduled that have been persistently delayed because the state cannot seem to get its hands on any lethal injection drugs. I do not know where Mizzou gets its lethal injection drugs or whether it has some additional drugs on hand now without any executions scheduled for the foreseeable future. But I do know that a functioning legal system with large percentages of voters and elected officials supporting a functioning death penalty ought to be able to figure out some way for nearby states to help each other out in this arena.
I bring this up because I have long believed in the aphorism "where there's a will, there's a way." And thus, I have also come to believe that the main reason Ohio has not been able to figure out how to secure needed execution drugs (while many other states seem to have these drugs) is because there just is not the political will to fix the state's enduring capital punishment administrative problems.
Tuesday, April 26, 2016
Detailing the death penalty's desuetude in two notable states
I recent came across these two notable extended articles discussing the notable extended difficulties that two notable states have recently experienced in trying to get any of their condemned death row murderers to an execution chamber. Here are the headlines with links and subheadlines from the pieces:
From Arizona: "Is the death penalty in Arizona on life support?: A judge will rule any day now on whether Arizona can resume executions; meanwhile, the state's limited drug supply is about to expire. Where does that leave capital punishment?"
From North Carolina: "These days, NC’s death row inmates die of natural causes: Nine have died of natural causes since the state’s last execution in 2006; Death row, like the prison population overall, is aging; The oldest death row inmate, Blanche Moore, is now 83"
Sunday, April 24, 2016
Hey Prez Candidate Kasich: why can't you figure out the formula to make capital punishment work (as it does in Georgia and Texas)?
The question in the title of this post is prompted by this AP article headlined "Georgia to carry out its 5th execution of the year this week." The piece reveals that the Peach State seems to have no problem securing lethal injection drugs for schedueld executions; meanwhile Ohio now has 25(!) condemned murderers scheduled for execution, but has been unable for three years to secure drugs to carry out these executions.
I am, generally speaking, a fan of Ohio Gov John Kasich, but in this arena he has not lived up to his campaign claims that he has "the formula" to make government work again. Before I continue with bashing of my governor, here are the basic 2016 executions details via the AP story from Georgia:
Georgia plans to carry out its fifth execution of the year on Wednesday when a man convicted in the 1998 killings of a trucking company owner and his two children is set to die. Daniel Anthony Lucas is scheduled to be executed at 7 p.m. Wednesday at the state prison in Jackson. Georgia executes inmates by injecting the barbiturate pentobarbital.
Lucas, 37, was sentenced to die in 1999 for the killings of Steven Moss, 37, his 11-year-old son Bryan and 15-year-old daughter Kristin, who interrupted a burglary at their home near Macon in central Georgia....
If Lucas is executed Wednesday, he will be the fifth person put to death in Georgia. That will match the record — set in 1987 and tied last year — for the most executions carried out in a calendar year in the state since the death penalty was reinstated nationwide in 1976. With eight months left in the year, it seems likely the state will set a new record this year.
His execution would also mean that Georgia has executed more inmates in a 12-month period than at any other time since reinstatement of the death penalty. Georgia has executed seven people in the last 12 months, starting with Kelly Gissendaner on Sept. 30. The only other time the state executed that many people in a 12-month period was when seven inmates were put to death between October 2001 and August 2002.
Only four states have carried out executions this year for a total of 12. Aside from the four executed in Georgia so far, six inmates have been put to death in Texas and one each in Alabama and Florida.
This DPIC list of completed 2016 executions details that Georgia and Texas are completing executions with pentobarbital, which I believe is Ohio's execution drug of choice. I know there must be all sorts of legal and practical complications that prevents Ohio officials from simply getting execution drugs from these states, but that reality does not reduce the frustrations that everyone involved in capital justice in Ohio must have as this problems continues to fester and Gov Kasich continues to spend his time traveling to country talking about having the formula to make government work better.
I am busy finishing up a little article suggesting that, for practical and political reasons, most states would generally be wise to seek to end rather than mend its broken death penalty systems. And, in part for reasons hinted in this post, I am using Ohio's modern experience with death penalty administration as exhibit one in my discussion.
Sunday, April 17, 2016
An interesting perspective on Virginia's recent capital experiences
Virginia made capital headlines last week after Gov. Terry McAuliffe altered a bill passed by the state's legislature calling for use of the electric chair if the state could not obtain need lethal drugs. The headline of this Washington Post piece from last week explains his proposed alternative approach: "In a move that could jeopardize executions, McAuliffe wants to shield the identity of makers of lethal-injection drugs."
Meanwhile, this new commentary by Kerry Dougherty, a columnist for The Virginian-Pilot, provides some perspective on this execution method brouhaha and Virginia's recent experience with the death penalty. The piece is headlined "Lost in all the death-penalty drug talk is that there are only 7 men on death row in Virginia," and here are excerpts:
Last winter, state legislators came up with a solution: They said that if drugs are unavailable, the commonwealth should fire up Old Sparky. Predictably, this sparked a heated debate among politicians. Some argued that the electric chair is cruel.
Others shrugged, saying painless deaths are not the goal of the state. “I hear, ‘Oh my Lord, he might have to suffer,’ ” said the Senate’s Democratic leader, Richard Saslaw in March. “… If we don’t have the necessary drugs, then we need this bill. When you commit acts like that, you give up your right, as far as I’m concerned, to say, ‘Well, I want to die humanely.’ ”
The governor seems to disagree. “We take human beings, we strap them into a chair, and then we flood their bodies with 1,800 volts of electricity, subjecting them to unspeakable pain until they die,” McAuliffe said last week, according to news reports. “Virginia citizens do not want their commonwealth to revert back to a past when excessively inhumane punishments were committed in their name.”
McAuliffe’s language calls for the state to buy the drugs needed to put prisoners to sleep from special pharmacies. The names of those companies would be cloaked in secrecy, as they are in some other states. “All I’m doing today is providing a humane way to carry out capital punishment here in Virginia so we have options,” McAuliffe said. “If they do not take it up, I want to be clear, they will be ending capital punishment here in Virginia.”
Now the question becomes, should the people’s business be conducted covertly? I can answer that: No, it shouldn’t.
Lost in all this talk about how to kill the last men on Virginia’s death row is the happy fact that there are just seven men living there. Seven. According to an NBC news report, Virginia’s death row was at its most crowded in 1995 when it housed 57 condemned prisoners. Both executions and death sentences have dropped sharply since then.
The ultimate penalty is imposed on those who commit the most heinous crimes. Last year, for instance, Virginia executed one man: The loathsome Alfredo Prieto. He killed a young couple in Fairfax in 1988, raping one of the victims as she died. The Washington Post reported that he had killed as many as seven others. One of those murders was of a 15-year-old in California while he was on the run after the double homicide in Fairfax.
I couldn’t gin up any sympathy for this predator. Neither could the governor, who refused to block his execution in October. Yet Prieto was the first man executed in the Old Dominion in more than two years.
Why all the empty cells on death row? Many reasons. But one component is certainly 1995’s “truth-in-sentencing” law pushed by then-Gov. George Allen. The measure abolished parole and closed the revolving doors on Virginia’s prisons. Suddenly a 10-year sentence meant the convict would spend most of a decade in prison. And a life sentence? It actually meant life in prison.
Given this ironclad alternative to execution, it’s become rare for a Virginia jury — or judge — to send a convict to death row. Before we get back to arguing about the death penalty, can’t we all agree that’s a good thing?
Wednesday, April 13, 2016
Taking stock of how the continued lack of lethal drug stocks is altering execution dynamics
The folks at The Marshall Project have this effective new review of the state of death penalty states deep into the enduring challenges so many are having finding lethal injection drugs for executions. The piece is headlined "How the Drug Shortage Has Slowed the Death-Penalty Treadmill: Only 4 states are currently carrying out lethal injections, and 10 are considering other methods." Here is the piece's effective accounting (with links from the original):
We’ve determined the status of executions for the 31 states that allow the death penalty, as well as for the federal government. Here is the breakdown:
Only four states are currently carrying out lethal injections. Texas, Missouri, and Georgia use a single drug, pentobarbital (Georgia is set to use the drug for an execution on Tuesday). Alabama has scheduled an execution next month, and uses three drugs in its protocol, including midazolam and pentobarbital. The state’s Department of Corrections has refused to divulge the source of those drugs, which were used for an execution in January, the state’s first in two years.
Florida has also enveloped its lethal-injection process in secrecy — and may be able to carry it out — but executions are on hold there because of a Supreme Court decision, Hurst v. Florida, which invalidated the state’s rules surrounding how judges hand down death sentences.
Three active execution states have drugs that are about to expire (Virginia, Arizona, and Arkansas). Many states have turned to small compounding pharmacies, which make a version of pentobarbital that loses its potency more quickly than the type manufactured by larger companies.
Three states (Arizona, Arkansas, and Oklahoma) are tied up in court battles over their drug sources. In Arizona and Arkansas, state officials have said the drugs they have on hand could reach their expiration date before those battles conclude.
The difficulty of finding a source of drugs has led Louisiana to halt executions until at least July, and Ohio’s execution chamber will not be in use until 2017. Several of the 11 executions Ohio had planned for this year are rescheduled for as late as 2019. Nebraska is also looking for execution drugs, although the state legislature repealed the death penalty; a public referendum on the punishment is expected in November.
Since 2010, the year the drug shortage began to take hold, 17 states and thefederal government have carried out no executions. Five other states (Delaware, Idaho, Mississippi, South Carolina, and South Dakota) have carried out no executions since 2012.
At least 10 states have recently considered other methods of execution, including the firing squad (Utah, Mississippi, Wyoming, South Carolina, Missouri, and Arkansas), the electric chair (Louisiana, Tennessee, and Virginia), and the gas chamber (Oklahoma). Mississippi has considered all three.
Tuesday, April 12, 2016
Anyone eager to predict when (or if) Ohio is likely to carry out its next execution?
The question in the title of this post is prompted by this new local article headlined "2016 is the second year without executions in Ohio. But death penalty foes won't claim victory yet." Here are excerpts:
This year will be the second in a row in which Ohio will not conduct any executions. Ronald Phillips, convicted in a Summit County murder, is scheduled to die Jan. 12, 2017. But until the state can procure more of the drugs, or changes the drugs it uses for lethal injection or changes its form of execution, there won't be more executions in Ohio.
"We're at a place where for progress to be made, if they're not going to fix it then they're going to have to end it," said Abraham Bonowitz, a spokesman for Ohioans to Stop Executions. The group, along with 23 partners, plan to hold a series of events Tuesday at the Ohio Statehouse to lobby for their cause. There is a sense opinions are changing as the state wrestles with how to carry out executions and as more people become critical of the years – sometimes decades – required to carry out the sentence....
Ohio has had trouble getting drugs to use for lethal injections in great part because pharmaceutical companies don't want their medical products used for killing people. Two years ago European pharmaceutical companies blocked further sales on moral and legal grounds. Ohio has looked for other options, but all have obstacles.
First it turned to a previously untried lethal-injection cocktail using drugs commonly found in hospitals. But the only time it was used became controversial because Dennis McGuire took 25 minutes to die. Other states tried the same drugs with more grisly results.
After that, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs. But so far, none have been willing. The state then looked to buy drugs from overseas, only to be told by the federal government that it would be illegal....
A bi-partisan bill that would abolish the death penalty in Ohio is pending in the Ohio House. It was introduced last July by Democratic Rep. Nickie Antonio of Lakewood and Republican Rep. Niraj Antani of Miamisburg.
Other states, too, have considered ending executions. The Republican-dominated Nebraska legislature overrode a veto of that state's Republican governor last year on legislation that halted executions. Voters have since put in initiative on the November ballot to restore the death penalty....
Of the 26 people on Ohio's death row with execution dates in 2017 into 2019, 17 have been on death row for at least 20 years. Five have been on death row for more than 30 years. The long period involved in the appeals process just stalls a victim's family from finding closure, Bonowitz said.
"It's also become pretty clear that the method of execution has become so challenging it calls into question whether its worth keeping the death penalty," he said.
Wednesday, March 30, 2016
Mississippi Gov supporting state legislative effort to use firing squads as back-up execution method
A helpful reader alerted me to this local article from Mississippi headlined "Governor Bryant supports firing squad bill." Here are the details:
The Mississippi House wants to allow the state prisons to execute prisoners using a firing squad if officials decide lethal injection is too expensive or unavailable.
Governor Phil Bryant voiced his support of the bill. “If the senate passes a firing squad bill, I’ll certainly sign it. My belief is we need to carry out a capital punishment that when the courts say that it’s necessary; and if it takes a firing squad we’ll do exactly that,” said Governor Bryant.
The house amended the bill Friday before passing it. It will now go back to the senate for more work. Attorney General Jim Hood has asked lawmakers to approve alternate execution methods such as electrocution, the use of nitrogen gas as well as the firing squad.
As long time readers surely know, I have been urging states to seriously explore alternatives to lethal injection for the better part of a decade: in this December 2006 post, for example, I flagged an discussion of various new and old execution procedures that might be explored suggested that "states interested in continuing to employ the death penalty should start exploring alternatives to lethal injection." I suppose I am pleased to hear leaders in Mississippi have come around, but there sure seems to have been a whole lot of capital justice delayed in that state and many others because of a failure of states to seriously explore alternative execution methods.
Just a few prior related posts on firing squads and other alternatives over the last decade:
- Is it time to seriously consider alternatives to lethal injection? (from 2006)
- Could states eager to execute quickly adopt a new execution method? (from 2007)
- A bit of historical perspective on execution methods (from 2009)
- A worldly perspective on different execution methods (from 2009)
- Shouldn't we celebrate condemn's request that he "would like the firing squad, please"? (from 2010)
- "Experts argue firing squad is a humane execution" (from 2010)
- Should problems with lethal injection prompt return of other execution methods? (from 2011)
- Making a potent argument for executions by firing squad rather than lethal injection (from 2013)
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods (from 2014)
- Shouldn't Congress be holding hearings to explore federal and state execution methods? (from 2014)
- "In praise of the firing squad" (from 2015)
- Utah legislature brings back firing squad as alternative execution method (from 2015)
- "Heroin as an execution drug?" (from 2015)
Wednesday, March 23, 2016
State judge in Missouri decides state DOC purposely violated state law to avoid execution drug disclosure
As reported in this local article, headlined "Missouri Corrections Department Violated Sunshine Law In Execution Case, Judge Rules," a state judge reached some sharp conclusions about what the state DOC failed to show concerning execution drugs in the Show Me state. Here are the details:
The Missouri Department of Corrections purposely violated the state’s Sunshine Law when it refused to turn over records revealing the suppliers of lethal injection drugs for executions, a state court judge ruled late Monday. Cole County Circuit Judge Jon E. Beetem’s decision came in three parallel cases, including one brought by five news organizations: The Kansas City Star, The St. Louis Post-Dispatch, the Springfield News-Leader, The Guardian and the Associated Press.
Beetem last July ordered the DOC to disclose the names of the pharmacies from which it buys lethal injection drugs. But the issue remained moot while he reviewed the records in question to see if they needed to be redacted in order to protect the identities of members of the execution team.
On Monday, Beetem ruled that while an exemption in the Sunshine Law protects the identities of the doctor and nurse who are present during the execution as well as non-medical personnel who assist with the execution and are also present, it does not protect the identity of the pharmacists who supply the execution drugs. He ordered the DOC to produce those records without redactions. He also ordered the DOC to pay the plaintiffs’ costs and attorneys’ fees. In the news organizations' case, that amounted to $73,335.
The state has already indicated it plans to appeal. The Department of Corrections did not immediately return a call seeking comment on Beetem's decision. "At this point, it has cost the state of Missouri more than $100,000 to assert a frivolous position," said Kansas City attorney Bernard Rhodes, who represented the news organizations. "At what point will the state realize that they're wrong and at what cost to the taxpayers will it take before the state realizes they are wrong?"
The other lawsuits challenging officials' refusal to provide information about the state's execution protocols were filed by former Missouri legislator Joan Bray, a death penalty opponent, and by the Reporters Committee for Freedom of the Press, the American Civil Liberties Union and Christopher S. McDaniel, formerly of St. Louis Public Radio.
Missouri, like other states, has had difficulty finding lethal injection drugs after European and American drug makers began refusing to provide them. The state has resorted to using largely unregulated compounding pharmacies, often keeping the sources of the drugs secret. In their lawsuit, the five news organizations said that public disclosure of the source, quality and composition of the drugs “reduces the risk that improper, ineffective, or defectively prepared drugs are used; it allows public oversight of the types of drugs selected to cause death and qualifications of those manufacturing the chosen drugs; and it promotes the proper functioning of everyone involved in the execution process.”
Friday, March 18, 2016
"How many times should a state be able to try to execute someone without running afoul of the Constitution?"
The question in the title of this post is the first line of this notable new commentary authored by Austin Sarat concerning the work of the Ohio Supreme Court in Ohio v. Broom (previously discussed here). Here is more of the commentary:
[T]he Ohio Supreme Court ruled on Wednesday that neither the federal nor the state constitution forbids Ohio from trying to execute someone more than once. While this ruling may set up another opportunity for the U.S. Supreme Court to consider the constitutionality of capital punishment, it nonetheless allows the nightmarish possibility that the state can proceed in a negligent manner in carrying out an execution and, if it fails in the first attempt, to try, try again. This should shock and trouble those who support capital punishment as well as those who oppose it....
On Sept. 15, 2009, Broom, who had been convicted of kidnapping, rape, and murder, was brought to Ohio's death chamber where he was to be executed by lethal injection. His executioners repeatedly attempted to insert an intravenous line into Broom's arms and legs. As they did so, Broom winced and grimaced with pain. At one point, he covered his face with both hands and appeared to be sobbing, his stomach heaving.
After an hour had passed, Broom tried to help his executioners, turning onto his side, sliding the rubber tubing that served as a tourniquet up his left arm, and alternatively squeezing his fingers together and apart. Even when executioners found what they believed to be a suitable vein, it quickly collapsed as they tried to inject the saline fluid. Broom was once again brought to tears. After more than two hours of executioners sticking Broom's arms and legs with the needle, the prison director decided that the execution team should rest. The governor of Ohio issued a reprieve stopping the execution....
It is almost certain that the Bromell case now will make its way to the U.S. Supreme Court and that it will offer that court the chance to revisit the unfortunate precedent it set more than 60 years ago [allowing Louisiana to try again after a failed electrocution in the Francis case].
One can only hope that the Court will now insist that if the government is going to carry out executions that there be no room for error. Neither simple human decency nor the 8th Amendment can tolerate a government carrying out a death penalty sentence in a shoddy manner. If we are going to have a death penalty, we cannot allow death, as the dissenting justice in the Francis case put it, to be carried out on the installment plan.
Prior related post:
- Split Ohio Supreme Court decides state allowed to try again to execute Rommell Broom after prior botched attempt
Wednesday, March 16, 2016
Split Ohio Supreme Court decides state allowed to try again to execute Rommell Broom after prior botched attempt
This official summary from the Ohio Supreme Court office of public information provides a detailed summary of a notable capital punishment ruling today, and it starts this way:
An execution had not begun when an IV line could not be established to deliver lethal drugs into an inmate’s body even though a needle was inserted multiple times, and neither the U.S. nor Ohio constitution bars the state from carrying out the execution, the Ohio Supreme Court ruled today.
The Supreme Court ruled 4-3 that a second attempt to execute Romell Broom by lethal injection would not violate the cruel and unusual punishment or the double jeopardy clauses of the federal and state constitutions. Justice Judith Ann Lanzinger stated in the majority opinion that by law the death penalty begins with the application of lethal drugs, and since the execution team stopped after it could not keep an IV catheter functioning, Broom’s punishment had not started.
In separate opinions, dissenting justices countered that Broom is entitled to a hearing to prove a second attempt would also fail under the state’s procedures, and that the first attempt constituted cruel punishment.
The full opinion in Ohio v. Broom, 2016-Ohio-1028 (Ohio S. Ct. March 16, 2016), is available at this link. I may comment more about this novel Eighth Amendment case in coming days. But even without having a chance to review the opinions, I can predict with relative certainty that there will be an appeal to the US Supreme Court that may well interest some of the Justices. Given that likelihood, as well as the difficulties Ohio has had with obtaining execution drugs, I think we can and should still expect Romell Broom to remain alive for many, many more future election days in bellwether Ohio.
Friday, February 19, 2016
Excited to be at Duke Law School for "The American Death Penalty after Glossip"
I am excited and grateful to have the chance to spend today at Duke Law School for this symposium, "The American Death Penalty After Glossip." Here is the basic description: "The symposium, featuring several of the country's leading experts in the field, will assess the implications of the Supreme Court's 2015 decision in Glossip v. Gross, as well geographic disparities in the application of the death penalty and use of statistics in death penalty litigation." And one can, I am told, watch the event live-streaming via links here, here and here.
Monday, February 15, 2016
Might Virginia go back to the electric chair to try to complete an execution scheduled for next month?
The question in the title of this post is prompted by this recent Washington Post article headlined "Lacking lethal injection drugs, Va. might turn to the electric chair." Here is how the article begins:
Virginia lawmakers are mulling a bill that would allow state officials to use the electric chair to execute those on death row when lethal-injection drugs are not available — a measure that might be needed to put an inmate to death next month.
The legislation passed the Virginia House of Delegates last week, though it still must clear the Senate, which it has failed to do in the past. But this year might be different because an inmate is scheduled for execution in March, and prison officials say they do not have the sedatives they need to do it. “It’s our job to help carry out what they have decided in a court of law,” said Del. Jackson H. Miller (R-Manassas), who introduced the bill.
The proposal again thrusts Virginia to the center of a national debate on how the justice system should deal with those it has determined deserve to die. Historically, states turned away from the electric chair, believing lethal injection to be quicker, less painful and less likely to be declared cruel and unusual punishment, said Robert Dunham, executive director of the Death Penalty Information Center. Now — with the needed drugs in short supply — they are being forced to look at alternatives, sometimes turning to practices that have fallen out of favor, Dunham said.
“The irony is they’re looking for alternatives to lethal injection because lethal injection may be found to be cruel and unusual, or because lethal injection drugs are becoming harder for states to lay their hands on,” Dunham said. “It’s pretty clear that states that adopt electrocution as the method of execution are going to face very serious constitutional challenges.”
Virginia is one of eight states that already allow electrocution as a method of execution, letting inmates choose between it and lethal injection. The next inmate slated to die, Ricky Gray, has not yet picked a method. What will happen at his March 16 execution — or if it will go on as planned — remains unclear.
Gray, 38, was convicted in 2006 of brutally killing a Richmond musician, his wife, and their 9- and 4-year-old daughters. He picked the family because he spotted their door open and decided to rob them, court documents say. The documents say Gray also confessed to killing his wife, Treva Terrell Gray, and three members of another Richmond family. In urging his colleagues to pass the bill, Miller gave a lengthy and graphic description of Gray’s crimes and asked legislators to help the victims’ families “get the justice that they deserve and that our justice system has determined they deserve.”
“This isn’t expanding the death penalty, but the case I just told you about is exactly why we have this punishment on our books,” he said.
Marna Squires, the mother of Gray’s wife, said she does not care what method is used. “I’d love to be there and lay him down on the gurney and put the needle in him if they’d let me,” Squires said.
Executions by electrocution are far less common than those by lethal injection, though they are not unheard of. According to the Death Penalty Information Center, 158 people have been executed by electrocution since 1976, compared with 1,252 by lethal injection. Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia permit the practice in theory, according to data from the center, though each state has different rules. The last inmate to pick electrocution in Virginia was Robert Gleason Jr., who was given a life sentence for killing someone to cover up his involvement in a drug gang, then death for killing two fellow inmates behind bars. He was executed in 2013.
Courts in Georgia and Nebraska have ruled that electrocution violates their state constitutional protections against cruel and unusual punishment, according to the center.
Monday, January 04, 2016
Noting Alabama's notable struggles to secure various execution drugs
This lengthy local article, headlined "Court records show pharmacists refused death penalty drugs," reports on the various difficulties experienced by the Cotton State in an effort to get the chemical tools it needs to get its machinery of death running again. Here are some details:
At the height of Alabama’s search for lethal injection drugs, state officials were turned down by every pharmacy they contacted for help, according to court records filed Wednesday. State officials asked every licensed compounding pharmacist in Alabama to make batches of pentobarbital — once the primary drug used to kill inmates — and all refused. Attempts to buy the drug from four other states also failed, court documents state.
Those refusals could point to a rough road ahead for the death penalty, despite a U.S. Supreme Court ruling last year that cleared another drug, midazolam, for use in executions.... Alabama officials are trying to resume executions by lethal injection after a two-year hiatus caused by legal challenges and shortages of key execution drugs.
Tommy Arthur, condemned to death for the 1980s murder-for-hire of Muscle Shoals resident Troy Wicker, is one of several inmates who have challenged the state’s current approach to execution: injecting an inmate with midazolam to deaden pain, rocuronium to still the muscles and potassium chloride to stop the heart.
Midazolam has been used in botched executions in other states, including an Oklahoma execution in 2014 in which it took an inmate more than 30 minutes to die after the drugs were injected. Inmates say the use of midazolam is cruel and unusual, but the U.S. Supreme Court approved its use in an Oklahoma case last summer, seemingly clearing the way for executions in Alabama as well.
Lawyers for the state on Wednesday asked a federal court for a summary judgment that would end Arthur’s appeals and send him to the execution chamber. But Arthur’s lawyers are trying to flip the script in the case. Before the state adopted midazolam as a death penalty drug, Arthur filed a similar challenge against the use of pentobarbital, Alabama’s main execution drug before 2014. Now that he’s faced with execution by a new drug, Arthur wants to switch back to pentobarbital, a drug he claims is less cruel than midazolam.
Lawyers for the Alabama attorney general’s office say they can’t return to pentobarbital, because no one will sell the drug to the Department of Corrections. “These sources have either indicated they cannot obtain the ingredients for compounded pentobarbital, were not capable of compounding pentobarbital, or refused to be a supplier for the ADOC” lawyers for the attorney general’s office wrote in a court document.
The court documents, among hundreds of pages filed in Arthur’s case last week, shed light on Alabama’s often secretive attempts to obtain drugs for use in lethal injection. Several states have struggled to get their hands on drugs because a growing number of drug suppliers refuse to sell them, citing ethical objections or opposition to capital punishment.... [I]n the Arthur case ... new court documents show ... the state simply couldn’t find a supplier, despite contacting “nearly thirty” sources....
Arthur’s lawyers supplied the state with a list of 19 Alabama pharmacies they said were potential sources of pentobarbital. (All 19 names are blacked out in court documents.) But the state’s lawyers argue they’ve contacted all 19, plus others, and been turned down. “While Arthur alleged that as many as 10 states intend to use compounded pentobarbital for executions, the process of obtaining compounded pentobarbital is difficult to impossible for most,” the state’s lawyers wrote.
That might not matter now, given that Alabama has switched to midazolam, a drug that’s more readily available on the market. But pharmacists’ resistance to compounding execution drugs may soon turn out to be important in the search for midazolam as well...
Two major suppliers of midazolam — Illinois-based Akorn and New Jersey-based Becton-Dickinson — have declared in the past year that they’re opposed to selling the drug to Alabama for executions. While the state hasn’t identified its midazolam supplier, the state’s lawyers used “package inserts,” essentially instructions for use of a midazolam, from Akorn and Becton Dickinson in court filings this year. Both companies have denied selling the drug directly to Alabama prisons, and Akorn even asked the state to return any Akorn-made midazolam it had on hand for executions.
Individual pharmacists are also backing out of the lethal injection business. Last year, the International Academy of Compounding Pharmacists and the American Pharmacists Association both voted to discourage their members from supplying drugs for executions.
Wednesday, December 09, 2015
Georgia struggles a bit while completing final scheduled US execution of 2015
As reported in this local article, headlined "Georgia executes Brian Keith Terrell after struggling to find vein," the Peach State had a not-so-peachy time completing an execution yesterday. Here are the details:
Brian Keith Terrell was put to death at 12:52 a.m. Wednesday for the 1992 murder of 70-year-old John Watson of Covington.
The U.S. Supreme Court denied Terrell’s final appeal shortly after 11 p.m. Tuesday, clearing the way for the death to proceed. But it took an hour for the nurse assigned to the execution to get IVs inserted into both of the condemned man’s arms. She eventually had to put one into Terrell’s right hand.
Terrell winced several times, apparently in pain. After all the witnesses were seated and a prayer was offered, Terrell raised his head and mouthed, “Didn’t do it,” to Newton County Sheriff Ezell Brown, who was sitting at the center of the front row.
Terrell’s execution marks the fifth lethal injection the state has carried out this year, more than any other year since the state first used lethal injection in 2001....
In 1992, Terrell stole John Watson’s checkbook and withdrew a total of $8,700 from the victim’s bank account. Watson, a friend of Terrell’s mother, Barbara, told her he would not press charges against her son if a substantial amount of the stolen money was returned within two days. Instead, Terrell ambushed Watson as he left his Covington house for a dialysis appointment.
Terrell’s lawyers had pleaded for clemency because of their concerns about the pharmacist who made the lethal injection drug. According to court filings, that pharmacist has a 50 percent error rate.
The pharmacist — whose identity is secret under state law — compounded the drugs used in six previous executions, including the pentobarbital that turned cloudy in early March, forcing the state to postpone scheduled executions. The Department of Corrections said it has addressed the problem. Kelly Gissendaner, who was the lone woman on Georgia’s death row, and another man have since been put to death. Terrell’s lawyers argued in court filings that at the very least Georgia should use another pharmacist to make the drug.
Friday, December 04, 2015
Arkansas state judge strikes down portion of state execution law aimed at keep drug suppliers secret
As reported in this AP article, an "Arkansas judge struck down a portion of the state's execution law that keeps secret the source of drugs it uses, saying Thursday that drug suppliers do not have a constitutional right to be free from criticism." Here is more about the ruling and its context:
Pulaski County Circuit Judge Wendell Griffen sided with death row inmates who challenged a law passed by lawmakers this year that prevents disclosure about the drugs that are used in executions. The judge also ordered the state to disclose drug details, including the makers and suppliers, by noon Friday. "It is common knowledge that capital punishment is not universally popular," Griffen wrote. "That reality is not a legitimate reason to shield the entities that manufacture, supply, distribute, and sell lethal injection drugs from public knowledge."
Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said late Thursday that the office had filed notice of appeal with the state Supreme Court. Rutledge also asked for an immediate stay of Griffen's order. "Attorney General Rutledge has a duty to defend the State's lethal injection statute and disagrees with Judge Griffen's order," Deere wrote in an emailed statement.
In the filing for an immediate stay, attorneys for the office noted that states with secrecy laws regarding executions have generally won challenges to those laws. They believe Arkansas' law is less stringent than many of those.
In his ruling, Griffen noted that a federal judge in Ohio last month granted a protective order to allow that state to maintain secrecy about the drugs, but he said that court erred because it accepted "what it acknowledged as no proof of 'a single known threat'" as an indicator that disclosing a state's source for drugs would pose an undue burden on that state....
The Arkansas Supreme Court put on hold executions for eight inmates until the inmates' lawsuit challenging the state's execution protocol and secrecy law could be heard.
Under the execution secrecy law, the Department of Correction has withheld the manufacturer and distributor of midazolam, vecuronium bromide and potassium chloride obtained last year, as well as other information. Midazolam, a sedative, gained notoriety after being used during executions that took longer than expected last year in Arizona, Ohio and Oklahoma. The U.S. Supreme Court upheld the drug's use in executions in June. Earlier this year, The Associated Press identified three pharmaceutical companies that likely made Arkansas' execution drugs; each company said it objects to its drugs being used that way.
The inmates argued that the secrecy law is unconstitutional. They want information on the drugs' makers and suppliers to determine whether they could lead to cruel and unusual punishment. They also argued the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said the agreement is not a binding contract.
Griffen noted in his ruling that an attorney for the state said Arkansas' suppliers "covertly sold" the drugs to the state despite directives from the pharmaceutical companies that they should not be sold for use in executions. He said the admission, "whether inadvertent of not," was important because it shows the state could abide by the contract and still obtain drugs....
Griffen noted that Arkansas has a law outlining humane euthanization practices for animals. "The court rejects the notion that domestic pets and livestock in Arkansas have the right to die free of unjustifiable or prolonged pain, but that the constitutional guarantee against 'cruel or unusual punishment' found in the Arkansas Constitution allows people who commit murders to be put to death as if they have no entitlement to such right," he wrote.
Arkansas last executed an inmate in 2005.
Sunday, November 08, 2015
California (finally!) officially announces switch to one-drug lethal injection protocol
California, the state with the largest death row and the seemingly most-dysfunctional and expensive capital punishment system, late last week announced that it is finally going to try to modernize its long-dormant execution protocol. This extended Los Angeles Times piece provides the details and the back-story:
California unveiled a new method for executing prisoners Friday, proposing a “humane and dignified” single-drug injection protocol that could restart capital punishment after a nearly 10-year hiatus. The regimen would replace a three-chemical method the state used in the past. That mixture was struck down in 2006 by a judge who said it could cause inhumane suffering if one of the drugs failed to work.
The new proposal stems from a lawsuit filed against the state by crime victims' families who favored the death penalty and wished to see it enforced. A settlement of the suit, brought by the Criminal Justice Legal Foundation, required the state to devise a new lethal injection method by this month.
Executions are not likely to resume immediately, however. Public vetting of the proposal could take a year, and court challenges may follow. In addition, voters may see one or more ballot measures on the death penalty next year....
The new California protocol would allow a choice of four barbiturates for lethal injection: amobarbital, pentobarbital, secobarbital and thiopental. The selection would be made on a “case-by-case basis, taking into account changing factors such as the availability of a supply of chemical,” according to the proposal, published online Friday by the California Department of Corrections and Rehabilitation.
The single-drug protocol creates “a better flexibility, a better system of options,” said Michael Rushford, who heads the foundation that filed the suit. Rushford expressed chagrin over the state's decision to use the regulatory process, which allows two months for public comment and will delay the resumption of executions.
He said officials had dragged their feet in crafting a new policy. He attributed that to Gov. Jerry Brown and Atty. Gen. Kamala D. Harris, who oppose the death penalty although they have said they would enforce it. “If we had a different governor and a different attorney general, these wouldn't be problems,” Rushford said.
Harris' office did not immediately respond to requests for comment. Corrections spokeswoman Terry Thornton, speaking for the Brown administration, ascribed the delay to the developing national debate over execution methods, not resolved until a U.S. Supreme Court ruling in June.
At least 16 death row inmates in California have exhausted their appeals and could be executed if the protocol is adopted. The inmates range in age from 49 to 78. One was condemned for crimes that took place 36 years ago.
Some condemned prisoners were stoic when told about the impending arrival of a new execution protocol. “In the meantime, I have my life,” Clifton Perry, 46, said in a recent interview, noting that legal challenges could drag on for years. He was sentenced to death for the 1995 killing of a convenience store owner during a robbery.
California has 749 inmates on death row, the most in the country. Since 1978, the state has executed 13 prisoners, 68 condemned offenders have died from natural causes and 24 have committed suicide....
California voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded capital punishment laws since 2000. Death penalty opponents have proposed an initiative for the November 2016 ballot that would replace capital punishment with life without the possibility of parole. Legislative analysts this week said such a move would save California some $150 million a year, by reducing the costs of capital punishment trials and subsequent penalty appeals.
A competing measure, sponsored by law enforcement and victim groups, also has been submitted for state review. That measure would propose changes to speed up executions.
Saturday, November 07, 2015
A citizen's notable (and radical?) suggestions for improving the Ohio execution process
Yesterday I received an interesting e-mail from an Ohioan styled as a "letter to the editor" and which I received permission to reprint here:
Dear Mr. Berman,
In reference to the PD article "Ohio in quandary over how to resume executions " (Oct 24) about lethal-injection drugs, I would like to comment.
Since I live in Ohio, I would like to address our execution dilemma. Allow me to suggest an alternative to lethal injection.
I am disappointed to see the failure of execution cocktails that have taken an half an hour or more to end a prisoners life. Although the suffering of these dying criminals does not seem unfair.
But I would like to solve -- once and for all -- the problems with inefficient lethal drugs. Let's make execution less painful for us all. As an alternative to drugs, we simply use the Red Cross method of donating a pint of blood, but using a 20 ounce bag to hold all of a person's blood, resulting in a complete draining of all blood for a quick and painless eternal sleep.
I call this the 'Total Blood Withdrawl' execution. I wrote the protocol for this method. Maybe Red Cross can use the blood.
Let's use this transition method to a day when there will be no more executions.
I have no idea if this plan for "Total Blood Withdrawal" would actually produce a "quick and painless eternal sleep." But given that officials in Ohio and elsehwere seem unwilling and/or unable to come up with viable alternatives to problematic lethal injection protocols, I am pleased to highlight here that even average citizens are eager to offer alternative execution methods for consideration.
Tuesday, November 03, 2015
Supreme Court stays Missouri execution to allow consideration of medical claim concerning execution
As reported in this AP article, the "U.S. Supreme Court on Tuesday put on hold the execution of a Missouri man convicted beating three people to death with a claw hammer while a lower court considers an appeal." Here is more about the stay:
Ernest Lee Johnson claims the execution drug could cause painful seizures because he still has part of a benign tumor in his brain, and surgery to remove the rest of the tumor in 2008 forced removal of up to 20 percent of his brain tissue.
The Supreme Court granted a stay while the 8th U.S. Circuit Court of Appeals considers whether his complaint was properly dismissed. It wasn't immediately clear how quickly the appeals court might rule....
Johnson was convicted of three counts of first-degree murder for killing 46-year-old Mary Bratcher, 57-year-old Mable Scruggs and 58-year-old Fred Jones during a closing-time robbery of a Casey's General Store in Columbia on Feb. 12, 1994. Johnson wanted money to buy drugs, authorities said. All three workers were beaten to death with a claw hammer, but Bratcher was also stabbed at least 10 times with a screwdriver and Jones was shot in the face....
Johnson grew up in a troubled home and his attorney, Jeremy Weis, said his IQ was measured at 63 while still in elementary school. Testing after his conviction measured the IQ at 67, still a level considered mentally disabled.
He was already on death row in 2001 when the U.S. Supreme Court ruled that executing the mentally disabled was unconstitutionally cruel and a new sentencing hearing was ordered. Johnson was again sentenced to death in 2003. The Missouri Supreme Court tossed that sentence, too, forcing another sentencing hearing. In 2006, Johnson was sentenced to death for a third time.
The brain tumor was removed in an operation in 2008. While benign, doctors could not remove the entire tumor. Weis said the combination of the remaining tumor and the fact that Johnson lost about one-fifth of his brain has left him prone to seizures and with difficulty walking.
Missouri's execution drug is a form of pentobarbital believed to be manufactured by a compounding pharmacy — the state won't say where it gets it. Weis cites a medical review by Dr. Joel Zivot, who examined MRI images of Johnson's brain and found "significant brain damage and defects that resulted from the tumor and the surgical procedure," according to court filings. "Mr. Johnson faces a significant medical risk for a serious seizure as the direct result of the combination of the Missouri lethal injection protocol and Mr. Johnson's permanent and disabling neurologic disease," Zivot wrote.
Court filings by the Attorney General's office note that Missouri has carried out 18 "rapid and painless" executions since it went to the one-drug method in November 2013.
Saturday, October 31, 2015
Might California get two completing capital punishment propositions to consider in 2016?
The question in the title of this post is prompted by this notable new Los Angeles Times article headlined "Voters may weigh competing death penalty measures on 2016 ballot." Here are excerpts:
A pro-death penalty group unveiled a ballot measure Friday that would require death row inmates to work in prison and provide new deadlines intended to expedite appeals. The measure, which would appear on the November 2016 ballot, is aimed at speeding up executions in California. The state has executed 13 inmates since 1978, but nearly 750 remain on death row, the largest in the nation. Most condemned inmates die of suicide or illness.
A proposed anti-death penalty initiative also has been submitted for state review, creating the possibility that voters next year will weigh competing initiatives on capital punishment. Both measures would require current death row inmates to work and pay restitution to victims, but one would keep the death penalty, and the other scrap it for life without parole.
Backers of the death penalty estimate their new measure would reduce the time from conviction to execution from as long as 30 years to 10 to 15 years. San Bernardino County Dist. Atty. Mike Ramos, one of several supporters who spoke about the measure at a Los Angeles news conference, said it would honor the more than 1,000 victims — including 229 children and 43 peace officers — who have been murdered by inmates on California’s death row.
Neither side in the death penalty debate has yet raised the commanding sums needed to assure ballot placement. The pro-death penalty group said it has raised $1 million so far. The opposition has raised $350,000. An estimated $2 million is probably needed to gather the required signatures.
Friday's news conference came a few days before the state plans to release a revised method of execution. The new protocol will involve a single drug rather than the three-drug cocktail previously used. Court rulings have prevented the state from executing anyone since 2006. A federal judge ruled that the former method exposed inmates to inhumane suffering if one of the three drugs failed to work....
The measure announced Friday is similar to one that death penalty supporters launched more than a year ago. The earlier proposal did not get enough signatures to qualify for the ballot. A key difference is that the former was a proposed constitutional amendment, which requires more signatures than a mere change in state law.
Like the earlier measure, the newest one would allow the revised lethal injection method to take effect without exhaustive public comment. Death row inmates would be housed throughout the prison system.
The state’s voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded capital punishment laws since 2000.
Ana Zamora, the criminal justice policy director for the ACLU of Northern California, which sponsored the 2012 initiative to end the death penalty, said Friday’s proposal would just cause more delays. “The only solution is to keep murderers in prison until they die,” she said.
But Kermit Alexander, whose mother, sister and two young nephews were killed in 1984, said families deserve the execution of those who killed their loved ones. Choking back tears, the former football star said the killer, now on death row, had mistakenly gone to the wrong house when he killed Alexander’s family. “If you prey upon the elderly or massacre our children,” Alexander said, “you should be required to pay the ultimate price. It's the law. … Justice isn't easy. Justice isn't gentle. But justice denied isn't justice.”
As some readers may know, I am a huge fan of direct democracy and thus I am always generally support of any and all efforts to bring important issues directly to voters through the initiative process. In addition, because I generally view the death penalty to be an issue that can be effectively and soundly addressed through the initiative process, I am now rooting for both capital reform proposals to make it to California voters. (Indeed, I have of late been thinking/hoping someone might have the resources and inclination to bring some kind of initiative reform concerning the death penalty to Buckeye voters in my own state of Ohio.)
Friday, October 30, 2015
Florida finally completes execution three decades after triple murderer sentenced to death (nonunanimously)
As reported in this local article, headlined "Orlando man on death row executed for 1985 murders," Florida carried out a notable death sentence last night. Here are the basics, which highlight that the case involved issues that the Supreme Court has taken up in recent years:
Though it took 30 years for Jerry Correll to receive his death sentence, the process to kill him took 10 minutes. Correll, one of Orange County's most notorious killers, was pronounced dead at 7:36 p.m. Thursday at Florida State Prison after receiving a lethal injection that included the controversial sedative midazolam.
About two dozen witnesses watched as the 59-year-old Orlando man lay on a gurney covered with a white sheet from the neck down, his hands covered in bandages, his wrists strapped down and IVs in his arms. When the curtain surrounding him rose, Correll looked to his right and mouthed the words, "Thank you," to a man wearing a cross in the front row. Asked whether he wanted to say any last words, Correll responded to the leader of the execution team, "No, sir."
Correll had been on death row for three decades after stabbing to death his ex-wife, Susan; their 5-year-old daughter, Tuesday; and Susan's mother and sister in 1985. Police and prosecutors described the murders at the Conway-area home as among the most bloody and gory they had ever seen....
The victims' family members released a statement saying they were "at peace in knowing justice had finally been served." "Jerry Correll chose to take the lives of four beautiful, innocent people on June 30, 1985," the statement said. "People who are still loved and missed by their family and friends 30 years later. The consequences of those actions should be no less than death itself."...
The execution was the first in the nation since a U.S. Supreme Court ruling in June that allowed the use of midazolam, a sedative that is part of the three-drug protocol used in Florida executions.... Correll becomes the second inmate executed in Florida this year and the 91st since 1979, according to the Death Penalty Information Center.
A U.S. Supreme Court case regarding whether all death-penalty decisions should require a unanimous jury verdict in sentencing death ... is pending.... A jury of 10 women and two men, selected in Sarasota because of the publicity locally, convicted Correll of four counts of first-degree murder after a weeklong trial. Jurors voted 10-2 that he should die.
Sunday, October 25, 2015
Extraordinary tales of extraordinary government dsyfunctionality in execution business
In this recent post I spotlighted the remarkable reporting by BuzzFeed News about the peculiar fellow in India who has become a central figure in some states' efforts to get their machinery of death up and running again. Continuing their great investigavtive journalism in this space, BuzzFeed now has up two additional reports documenting how a trio of states apparently violated federal laws in order to try to import lethal injection drugs from this fellow. Here are links to the two pieces with their extended headlines:
"Arizona, Texas Purchased Execution Drugs Illegally Overseas, But FDA Halts The Import: Both Arizona and Texas attempted to illegally import sodium thiopental in July, but the shipments are still being held at the airports. Nebraska also attempted to import the same drug illegally this summer, as previously reported."
"Three States Bought Illegal Execution Drugs From Supplier In India: Chris Harris, the execution drug salesman who has been the focus of ongoing reporting by BuzzFeed News, sold drugs to Texas, Arizona, and Nebraska."
Here is how the second of these two articles concludes:
The FDA has consistently maintained that importing sodium thiopental would be illegal, but the states proceeded regardless. FDA records first reported on Thursday by BuzzFeed News show that two shipments of sodium thiopental made their way to the Phoenix and Houston airports in late July.
On Friday, TDCJ’s Clark told BuzzFeed News that, after obtaining an import license from the DEA prior to the shipment, TDCJ filed the required notice with the agency of the anticipated shipment.
After the shipments were held upon arrival, Arizona Department of Corrections Director Charles Ryan wrote to the FDA in August, asking them to release the drugs. “The Department will not use, or attempt to use, the cargo until it is either unconditionally released by FDA or the Department is otherwise permitted to do so by a Court Order, whichever comes first,” Ryan wrote. “I am writing to advise you that we need to take possession of the shipment.”
The FDA was not persuaded. Domenic Veneziano, who heads the FDA division that handles imports, replied, “FDA has determined that this shipment should not be allowed to move to destination at this time and thus will not be requesting that CBP lift its detention.”
For its part, Texas isn’t giving up yet, with TDCJ’s Clark telling BuzzFeed News on Friday that it “is going through internal proceedings set up for addressing the lawful status of imports with the Food and Drug Administration and is awaiting their decision.”
The FDA confirmed to BuzzFeed News on Friday that it was still holding the shipments. “Courts have concluded that sodium thiopental for the injection in humans is an unapproved drug and may not be imported into the country for this purpose. FDA has notified the state correctional facilities of the status of their respective shipments,” spokesperson Jeff Ventura wrote.
Asked whether, given the FDA’s repeated statements that such importation of sodium thiopental would not be allowed, TDCJ is challenging that position, TDCJ’s Clark responded, “We disagree with your characterization of the FDA’s statement as to the legality of importing sodium thiopental, we are appealing the detention of the drugs through the FDA’s internal proceedings.”
As if this story of government dysfunctionality was not ugly enough on its own terms, this post by Kent Scheidegger at Crime & Consequences contends that the federal government is the one really acting outside the rightful reach of the law. His post is titled "FDA Blocks Execution Drug Importation Based on Erroneous Court of Appeals Decision," and it makes the case (as was made in a slightly different way by Ohio officials) that the FDA is off-base and over-reaching in this arena.
In addition to wanting to note that my expertise on the death penalty comes up short when the issues is federal and state squabbles over federal drug and import laws, I am now especially eager to stress that I have been calling for Congress for nearly a decade to conduct hearings and investigate all the difficulties states have been facing with lethal injections protocols and securing executions drugs. But, as one commentors suggested in response to my post on this topic in May 2014, perhaps the only way we woud get hearing on this topic in short order would be if there was some link to Benghazi.
Some prior related posts:
- Investigating the international drug dealer working with some death penalty states
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
- How could (and should) Congress clean up the lethal injection mess? (from April 2006)
- A lethal hearing (in the wrong place?) (from Sept 2006)
- Shouldn't Congress be holding hearings to explore federal and state execution methods? (from April 2014)
Thursday, October 22, 2015
"Heroin as an execution drug?"
The title of this post is the headline of this notable Columbus Dispatch article discussing the legislative conversation starting to emerge in the wake of the recent decision by Ohio Gov Kasich to extend the state's de facto moratorium on executions due the the continuing difficulty securing lethal injection drugs (noted here). Here are excerpts:
As Ohio continues to struggle to find the drugs needed to carry out executions of death row inmates, the president of the Ohio Senate says it may be time to find other methods. “If we can’t get the drugs that our protocol calls for, either we need to change our protocols, or we need to think about other solutions,” said Senate President Keith Faber, R-Celina.
“There are a lot of people out there talking about other solutions. I’ve heard everything from using heroin, to using nitrogen, to going back to the electric chair. That’s a debate we probably need to have.”
The state's has not executed an inmate since Jan. 16, 2014, when Dennis McGuire struggled and gasped for several minutes before succumbing to a combination of drugs being used for the first time anywhere in the U.S. The state last week canceled all executions for 2016 and there are now 24 inmates with executions scheduled into 2018.
A law that Gov. John Kasich signed in December allowing prison officials to secretly buy lethal-injection drugs from compounding pharmacies has not worked in getting Ohio the necessary drug mixture. Pharmacies have generally been unwilling to participate in a process that leads to little in sales but a potential for harsh blowback from the public if they are discovered.
The federal government has thus far blocked Ohio’s efforts to import the drugs from overseas, though the state continues to seek ways to do that. Asked if the state would bring back the electric chair known as “Old Sparky,” Faber said, “there are options out there.”
A few prior related posts:
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
- In defense of Ohio officials trying to figure out how to get execution drugs legally
- Ohio Gov Kasich extends de facto execution moratorium into 2017