Friday, July 25, 2014

"After troubled execution in Arizona, Ohio to use same drugs, dosage"

The title of this post is the headline of this new article in my own Columbus Dispatch, which highlights that the Buckeye State's execution plans for later this year could be further complicated by the ugly execution that took place in Arizona earlier this week.  Here are the details:

Despite problems that plagued an Arizona execution, Ohio officials plan to use the same drugs in the same quantity during Ronald Phillips’ execution scheduled for Sept. 18.

Capital punishment in Ohio has been on hold for two months because of an order by U.S. District Judge Gregory L. Frost in a lethal-injection case.  Frost’s order expires on Aug. 15. Barring further legal action, the execution will proceed for Phillips, a Summit County child-killer who already has had two reprieves.

However, the troubled execution of Joseph Wood in Arizona on Wednesday turned up the heat on a death-penalty debate that began on Jan. 16 when Ohio executed Dennis McGuire using a then-untested chemical combination.

Wood, 55, died after gasping and snorting for about 90 minutes during an execution process that lasted nearly two hours.  The process took so long that Wood’s attorneys had time to file an emergency appeal in federal court during the execution — and the Arizona Supreme Court held an impromptu conference to discuss it. A witness said Wood looked like “a fish on shore gulping for air,” according to The Arizona Republic.

Jill Del Greco, spokeswoman for Ohio Attorney General Mike DeWine, said she could not predict what might happen after Frost’s order expires.  But she added, “As of now, an execution is still scheduled for Sept. 18.” Meanwhile, the Ohio Department of Rehabilitation and Correction is “always evaluating our policies to ensure executions in Ohio are carried out in a humane and lawful manner,” spokeswoman JoEllen Smith said. “Because there is pending litigation regarding this matter, I cannot comment further.”

While prison officials concluded that McGuire, 53, did not feel “pain or distress” during his execution, witnesses observed that he repeatedly gasped, choked, clenched his fists and appeared to struggle against his restraints for more than 10 minutes after the administration of midazolam, a sedative, and hydromorphone, a painkiller.  McGuire was executed for the murder of 22-year-old Joy Stewart in 1989.  It was the first time that those drugs were used in an execution in the United States.

Ohio officials said the dosage for the next execution will be 50 milligrams of midazolam, up from 10 milligrams, and 50 milligrams of hydromorphone, up from 40 milligrams. That is the same quantity used in Wood’s execution.  Ohio will have a third syringe ready containing 60 milligrams of hydromorphone; other syringes will be prepared and available “if needed.”

Phillips, 40, was scheduled to be put to death last Nov. 14, but Gov. John Kasich postponed his execution by seven months to give the inmate the opportunity to make good on his desire to donate a kidney to his ailing mother.  Time ran out before arrangements could be finalized, and Phillips was scheduled to die on July 2. That date was postponed by Frost’s order.

The state switched to the two drugs for intravenous injection for McGuire's execution because pentobarbital, the single drug used before, no longer is available because manufacturers will not sell it for use in executions.

Recent related posts:

July 25, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, July 23, 2014

After stays vacated, Arizona needs two hours to complete another ugly execution

As reported in this AP piece, "Arizona executed Joseph R. Wood on Wednesday afternoon, but the execution lasted for nearly two hours as Wood struggled to breathe, according to his attorneys."  Here are more of still-developing details of the latest in a series of ugly executions in 2014:

During his execution, Wood’s attorneys filed a request to halt the lethal injection because he was still awake more than an hour after the process began. Wood was “gasping and snorting for more than an hour,” they wrote in their filing.

The execution continued and Wood was pronounced dead at 3:49 p.m. (local time), the office of Arizona Attorney General Tom Horne said. This was nearly two hours after the execution began at 1:52 p.m.

Wood was the third inmate executed in Arizona since last October and the first put to death using a combination of the drugs midazolam and hydromorphone. “The experiment using midazolam combined with hydromorphone to carry out an execution failed today in Arizona,” Dale Baich, an attorney for Wood, said in a statement. “It took Joseph Wood two hours to die, and he gasped and struggled to breath for about an hour and forty minutes.”

Baich said he and others would continue seeking information about the drugs used. “Arizona appears to have joined several other states who have been responsible for an entirely preventable horror — a bungled execution,” Baich said. “The public should hold its officials responsible and demand to make this process more transparent.”

Recent related posts:

July 23, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (18) | TrackBack

After SCOTUS vacates First Amendment stay, Arizona Supreme Court delays execution

As reported in this new AP story, after the US Supreme Court late yesterday vacated the novel stay imposed by the Ninth Circuit based on lethal injection drug secrecy concern, "Arizona's highest court on Wednesday temporarily halted the execution of a condemned inmate so it could consider a last-minute appeal."  Here is more:

Joseph Rudolph Wood, 55, was scheduled to be put to death Wednesday morning at the state prison in Florence, but that was delayed when the Arizona Supreme Court said it would consider whether he received inadequate legal representation at his sentencing. The appeal also challenges the secrecy of the lethal injection process and the drugs that are used.

The state Supreme Court could still allow the execution to move forward later Wednesday once it considers the arguments.

The U.S. Supreme Court on Tuesday cleared the way for Arizona to carry out its third execution in the last year following a closely watched First Amendment fight over the secrecy issue. Wood's lawyers used a new legal tactic in which defense attorneys claim their clients' First Amendment rights are being violated by the government's refusal to reveal details about lethal injection drugs. Wood's lawyers were seeking information about the two-drug combination that will be used to kill him, including the makers of the drugs.

A federal appeals court ruled in Wood's favor before the U.S. Supreme Court put the execution back on track. The 9th U.S. Circuit Court of Appeals decision marked the first time an appeals court has acted to delay an execution based on the issue of drug secrecy....

Wood was sentenced to death for killing Debra Dietz and her father, Eugene Dietz, in 1989 at the family's automotive shop in Tucson.... On the day of the shooting, Wood went to the auto shop and waited for Dietz's father, who disapproved of his daughter's relationship with Wood, to get off the phone. Once the father hung up, Wood pulled out a revolver, shot him in the chest and then smiled. Wood then turned his attention toward Debra Dietz, who was trying to telephone for help. Wood grabbed her by the neck and put his gun to her chest. She pleaded with him to spare her life. An employee heard Wood say, "I told you I was going to do it, I have to kill you." He then called her an expletive and fired two shots in her chest....

Arizona has executed 36 inmates since 1992. The two most recent executions occurred in October.... The fight over the Arizona execution has also attracted attention because of a dissenting judge's comments that made a case for a firing squad as a more humane method of execution.

Recent related posts:

July 23, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, July 22, 2014

After Kozinski's candor, what will SCOTUS due about First Amendment stay in Arizona capital case?

The question in the title of this post follows up the news, reported here by the AP, that the full Ninth Circuit yesterday denied Arizona officials en banc review of the remarkable panel ruling putting in place an execution stay on First Amendment grounds (basics here).   The AP reports that Arizona is, unsurprisingly, planning to ask SCOTUS to vacate the stay, and I suspect First Amendment challenges to executions protocols will become commonplace nationwide if SCOTUS leaves the stay in place.

Chief Judge Alex Kozinski make extra sure his dissent — which is available here along with another dissent authored by Judge Callahan for 11 other members of the Ninth Circuit — garnered extra attention by providing these candid comments at the close of his operion about the fundamental problems with lethal injection as an execution method:

Whatever happens to Wood, the attacks [on lethal injection execution procedures] will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. See Callins v. Collins, 510 U.S. 1141, 1143 (1994) (Scalia, J., concurring in denial of certiorari) (“How enviable a quiet death by lethal injection . . . .”). But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive — and foolproof — methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

While I believe the state should and will prevail in this case, I don’t understand why the game is worth the candle. A tremendous number of taxpayer dollars have gone into defending a procedure that is inherently flawed and ultimately doomed to failure. If the state wishes to continue carrying out executions, it would be better to own up that using drugs is a mistake and come up with something that will work, instead.

July 22, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, July 21, 2014

Split Ninth Circuit panel stays Arizona execution based on First Amendment (really?!?!) drug secrecy concerns

BartAs reported in this new New York Times piece, a "federal appeals court has delayed the imminent execution of an Arizona man, saying he has a legal right to details about the lethal injection drugs to be used and about the qualifications of the execution team." Here is more about a ruling sure to garner more attention (and litigation) in the week ahead:

The ruling on Saturday, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, contrasted sharply with recent decisions by other state and federal courts defending states’ rights to keep information about drug sources secret. “This is the first time a circuit court has ruled that the plaintiff has a right to know the source of execution drugs,” said Jennifer Moreno, an expert on lethal injection law at the Death Penalty Clinic of the University of California, Berkeley, School of Law.

The appeals court ruling came four days before the scheduled execution of Joseph Wood, who was convicted of the killings of two people and sentenced to death....

Arizona officials ... Sunday ... appealed to the Ninth Circuit for reconsideration by a wider panel of judges and it appeared possible that the state would appeal all the way to the United States Supreme Court if necessary.

Federal or state courts in places including Georgia, Louisiana, Missouri, Oklahoma and Texas have permitted executions to take place despite similar challenges to secrecy about drug manufacturers. So far, the Supreme Court has refused to intervene. The Arizona case reflects the growing turmoil in the administration of capital punishment as the supply of traditionally used drugs has dried up, mainly because companies are unwilling to sell them for executions. States are trying out new drug combinations and scrambling for secret sources, while lawyers for the condemned have argued that they have a right to know precise details about drug origins and quality....

Mr. Wood was sentenced to death for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father. He was scheduled to be executed on Wednesday. Lacking its two preferred execution drugs, Arizona officials said they would use a combination of the drugs midazolam and hydromorphone, which has been used by Ohio.

The state said it obtained drugs approved by the Food and Drug Administration with expiration dates in the fall of 2015, but refused to reveal the manufacturers and batch numbers. It also refused to provide details about the qualifications of those who would administer the drugs, saying this could lead to disclosure of their identities.

Lawyers for Mr. Wood, led by Dale Baich, a federal public defender in Phoenix, challenged the secrecy, arguing that it violated their client’s First Amendment rights of access to public proceedings. A Federal District Court sided with the state, but on Saturday, the appeals panel ruled that Mr. Wood “has presented serious questions going to the merits of his claim,” according to the majority opinion, written by Judge Sidney R. Thomas. Arizona’s secrecy, he wrote, “ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered.”

In a dissent, Judge Jay S. Bybee said the court had drastically expanded the “right of access” and had misused the First Amendment “as the latest tool in this court’s ongoing effort to bar the state from lawfully imposing the death penalty.”

The majority Ninth Circuit panel opinion runs 28 pages, is available at this link, and concludes this way:

Because we conclude that Wood has raised serious questions as to the merits of his First Amendment claim; that the balance of equities tips sharply in his favor; that he will face irreparable harm if the injunction is not granted; and that the injunction is in the public interest; we conclude that the district court abused its discretion in denying Wood’s preliminary injunction request.  We do not decide with certainty that a First Amendment right exists to the information Wood seeks, nor do we resolve the merits of the Plaintiffs’ underlying § 1983 claim. We do, however, reverse the district court’s denial of Wood’s preliminary injunction motion. We grant a conditional preliminary injunction, staying Wood’s execution until the State of Arizona has provided him with (a) the name and provenance of the drugs to be used in the execution and (b) the qualifications of the medical personnel, subject to the restriction that the information provided will not give the means by which the specific individuals can be identified. Once he has received that information, the injunction shall be discharged without more and the execution may proceed.

The dissenting opinion by Judge Bybee runs 35 pages, is available at this link, and makes these concluding points:

The decision to inflict the death penalty is a grave and solemn one that deserves the most careful consideration of the public, the elected branches of government, and the courts. We must be cognizant that a life is at stake. But we cannot conflate the invocation of a constitutional right belonging to the public at-large — such as the First Amendment right of public access to certain proceedings and documents — with a policy judgment about if and when the death penalty ought to be imposed. In so doing, we usurp the authority of the Arizona legislature and disregard the instructions of the Supreme Court.

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

Thursday, June 19, 2014

Florida completes third uneventful US execution in less than one day

As reported in this CNN piece, a "double murderer was executed in Florida Wednesday night, becoming the third man put to death in an American prison during a 24-hour period." Here are the basics:

John Ruthell Henry, 63, was declared dead at 7:43 p.m. ET at the Florida State Prison in Starke, according to CNN affiliate WFLA, which had a media witness inside the prison. Henry fatally stabbed his wife and her 5-year-old son from a previous marriage in December 1985.

In Georgia, Marcus A. Wellons, 59, was declared dead at 11:56 p.m. ET Tuesday. Wellons was convicted in 1993 of raping and killing India Roberts, 15, in Cobb County, just outside Atlanta. In Missouri, John Winfield was declared dead at 12:01 a.m. CT Wednesday, the state Department of Public Safety said....

Those three executions were the first in the United States since the botched execution of an Oklahoma man in April. The Oklahoma execution raised questions about how prisons use drugs in lethal injections.

June 19, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Wednesday, June 18, 2014

Georgia and Missouri complete uneventful executions, Florida up next

As reported in this AP article, "Within an hour, Georgia, then Missouri carried out the nation’s first executions since a botched lethal injection in Oklahoma in April raised new concerns about capital punishment." Here is more:

Neither execution had any noticeable complications. Another execution, the third in a 24-hour span, is scheduled Wednesday evening in Florida.

Georgia inmate Marcus Wellons, 59, who was convicted of the 1989 rape and murder of a 15-year-old girl, received a single-drug injection late Tuesday night after the U.S. Supreme Court denied his late appeals. His sentence was carried out about an hour before John Winfield, who was convicted of the 1996 killing two women, was executed early Wednesday in Bonne Terre, Missouri.

Looks like at least two states have their machineries of death up and running smoothly again.

June 18, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Monday, June 16, 2014

"Lethal Injection Secrecy and Eighth Amendment Due Process"

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

The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure with which the state plans to kill them.

This Article argues that the Eighth Amendment includes an implicit due process right to know such information about the state’s planned method of execution. Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution, because the state can conceal crucial details of its execution procedure, thereby effectively insulating it from judicial review.

As in other constitutional contexts, then, due process norms require that the inmate be permitted access to information necessary to protect his other constitutional rights. These same norms likewise require courts, rather than administrative agencies, to judge the execution procedure’s constitutionality. Indeed, judicial recognition of this due process right would not only protect Eighth Amendment values but would also encourage states to make their execution procedures more transparent and less dangerous. Just as importantly, judicial recognition would also discourage secretive governmental practices more generally, thereby promoting openness and fair process as important democratic values.

June 16, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

After two-month hiatus, will Georgia and Florida get US machineries of death back on line this week?

A few days after the ugly execution in Oklahoma at the end of April, I wondered in this post whether all the attention and controversy that one execution generated would impact death penalty administration outside the Sooner State.  Now, with nearly two months having gone by without any subsequent executions completed anywhere in the United States (and it seems only a handful of executions now scheduled for the coming summer months), I am prepared to assert that Oklahoma's woes have had a national impact.  

While litigation over lethal injection protocols and various drug shortages had slowed the pace of executions down considerably, before the ugly Oklahoma execution the pace was starting again to pick back up.  Indeed, over the first 4 months of 2014, the US completed on average five executions each month and was on pace for the highest yearly total of executions in more than a decade.  But with everything seemingly slowing down after the Oklahoma mess, it now seems possible the US will have the fewest executions in 2014 than in any year in over two decades.

For those who pay very close attention to the death penalty and wonder about its future in the US, this coming week is one to watch real closely.  As detailed in local press reports here and here, both Gerogia and Florida have executions schedule for the next few days.  If these executions go forward and lethal injections proceed without a hitch, there is a greater likelihood that the US will be starting its return to execution business as usual.  But if one or both of these executions get stayed or end up being botched in some manner, I suspect US death penalty and execution realities will remain quite dyanmic and unpredictable for the months and perhaps years ahead.

Some recent related posts:

June 16, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, June 11, 2014

In wake of ugly lethal injection, Oklahoma legislator talking up "firing squad, hanging and electric chair"

As reported in this AP article, headlined "Republican Oklahoma lawmaker seeks study on adding firing squad, other death penalty options," at least one state legislator is talking about moving sooner rather than later to new execution methods in the Sooner State. Here are the details:

A Republican lawmaker reacting to an Oklahoma inmate's botched lethal injection said Tuesday he wants to explore giving condemned prisoners the option of death by firing squad, hanging or the electric chair.

State Rep. Mike Christian said he's formally requesting a legislative hearing on the state's death penalty procedures following the April 29 death of Clayton Lockett, whose vein collapsed prompting prison officials to halt his punishment and note the execution drugs weren't administered properly. Lockett died of an apparent heart attack about 43 minutes after the execution began.

Christian, a former state highway patrolman from Oklahoma City, said he believes a firing squad would be the most logical second option after lethal injection. "Firing squad, hanging and electric chair. I think those are the three that are definitely constitutional," said Christian, who earlier this year called for the impeachment of state Supreme Court justices who supported a temporary stay of execution for Lockett. "I think just about anybody in Oklahoma would support some of these ideas we're talking about." Christian has said previously he wouldn't care if condemned inmates in Oklahoma were beheaded or fed to lions....

Under Oklahoma law, if lethal injection is declared unconstitutional, the state would switch to electrocution. If both of those methods are determined unconstitutional, a firing squad is a third option. Christian said he intends to explore whether to change the law to make a firing squad the second option, and if inmates should be allowed to select the method. He said any law change likely wouldn't apply to the 50 Oklahoma inmates already sentenced to die by lethal injection.

State Rep. Aaron Stiles, a Norman Republican and chairman of the House Judiciary Committee, said he's interested in Christian's study. He has said in the past that he supports looking at alternative options for executions, including a firing squad.

Christian plans to solicit testimony from experts in Utah, the last state to use a firing squad when it executed inmate Ronnie Lee Gardner in 2010. Five executioners armed with .30-caliber rifles stood about 25 feet from Gardner and fired at a white target pinned to his chest. One rifle was loaded with a blank so no one knows who fired the fatal shot.

June 11, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Tuesday, June 03, 2014

After botching the first attempt, should Ohio be allowed a second chance to execute Romell Broom?

The old saying goes, "If at first you don't succeed, try, try again."  But, as reported in this new AP article, the Ohio Supreme Court is going to considerwhether, after the state was unable to suceed in executing Romell Brown back in 2009, it will be permitted to try again.  The AP article is headlined "Ohio Court to Weigh Repeat Execution Attempt," and here are excerpts:

Ohio's top court has agreed to hear arguments that the country's only survivor of a botched lethal injection would face cruel and unusual punishment and double jeopardy if the state again attempts to put him to death.

Romell Broom, 57, was sentenced to die for the 1984 rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland as she walked home from a Friday night football game with two friends.

His 2009 execution was stopped by then-Gov. Ted Strickland after an execution team tried for two hours to find a suitable vein.  Broom has said he was stuck with needles at least 18 times, with pain so intense that he cried and screamed.  An hour into the execution, the Department of Rehabilitation and Correction recruited a part-time prison doctor with no experience or training with executions to try — again, unsuccessfully — to find a vein.

Broom's appeals in federal court are on hold while the state court hears the constitutional arguments.  Broom has been back on death row since.  No new execution date has been set.

In 1947, Louisiana electrocuted 18-year-old Willie Francis by electric chair a year after an improperly prepared electric chair failed to work.  The U.S. Supreme Court ruled 5-4 to allow the second execution to proceed, rejecting double jeopardy arguments.  A state's administration of its criminal law isn't affected by due process rights, when "an accident, with no suggestion of malevolence, prevents the consummation of a sentence," the court ruled at the time.

Broom suffered more than inmates during "a normal execution," meaning a second attempt would punish him twice for the same offense, defense attorneys Tim Sweeney and Adele Shank told the state Supreme Court in a May 2012 filing....  The state argues that Broom never underwent the execution process since the procedure was called off before the drugs could be introduced into his veins. 

For a number of reasons, the precedental force of the split SCOTUS ruling on this issue way back in 1947 is somewhat shaky.  In addition, the Ohio Supreme Court might rely on state constitutional law to block giving Ohio officials another shot at completing Broom's death sentence.   But I suspect the state will argue forcefully that it still can and should be allowed to carry out Broom's imposed sentence.  Stay tuned.

June 3, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, June 02, 2014

Is midazolam the key problem drug in recent lethal injection experiments?

The question in the title of this post is prompted by this informative new Wall Street Journal article headlined "Lethal-Injection Drug Is Scrutinized: Midazolam, Used in Botched Oklahoma Execution, Tied to Two Other Cases Seen as Troubling."  Here are excerpts:

Anesthesiologists say midazolam works like a dream. A few milligrams of the sedative calms patients' preoperative anxiety, while leaving them alert enough to talk with doctors and nurses before the more potent drugs kick in.

Reviews of its newer role as part of states' lethal-injection protocols aren't as unanimous. The drug, made by several companies in the U.S., has come into the spotlight with April's high-profile botched execution in Oklahoma, the first in that state to use midazolam. State officials injected Clayton Lockett, convicted of kidnapping and murdering a 19-year-old woman, with 100 milligrams of midazolam to render him unconscious. They then injected another drug to paralyze him and a third to stop his heart....

The drug has been used in nine executions since last fall, and lethal-injection experts have voiced concerns about three of those—the Oklahoma case, one in Florida and another in Ohio.

In the past, executioners would typically use thiopental and pentobarbital, which belong to a class of drugs known as barbiturates. Anesthesiologists say thiopental, which has largely been phased out of use, was aimed mostly at preventing a patient from feeling stimuli that would typically be painful. Pentobarbital is still used, they say, mostly to induce comas.

The makers of thiopental and pentobarbital, worried about the drugs being associated with capital punishment, cut back their availability for executions, leading some states to turn to midazolam. It belongs to a drug class known as benzodiazepines, which anesthesiologists say are most often used to sedate or calm patients, not anesthetize them. Anesthesiologists say they typically administer midazolam to a patient only a few milligrams at a time and therefore know little about the effects of much larger doses, like those given in lethal-injection protocols.

There is little agreement about how much to use in executions. Florida uses 500 milligrams, while Oklahoma used 100 milligrams on Mr. Lockett. Ohio used only 10 milligrams of midazolam in a January execution, but in April announced that it would change to 50 milligrams. None of the three states would comment on why they chose midazolam or how they settled on dosages.

"It's uncharted territory," said David Waisel, an anesthesiologist at Boston Children's Hospital who has testified on behalf of death-row inmates. "States literally have no idea what they're doing to these people." Dr. Waisel and others say that even when administered properly and at high doses, it is unclear whether midazolam sufficiently anesthetizes the sensations caused by the other drugs often used alongside it, such as vecuronium bromide, a muscle relaxant that causes paralysis, and potassium chloride, which stops the heart. Both of those drugs were used on Mr. Lockett.

June 2, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Friday, May 30, 2014

"Photos from a Botched Lethal Injection"

The title of this post is the headline of this notable lengthy new piece by Ben Crair in The New Republic which carried the subheadline "An exclusive look at what happens when an execution goes badly." Here is how the piece starts, including its "preamble":

Warning: This article contains graphic images from the autopsy of an executed prisoner.

On December 13, 2006, the state of Florida botched the lethal injection of Angel Diaz. The execution team pushed IV catheters straight through the veins in both his arms and into the underlying tissue.  As a result, Diaz, who was convicted of murder in 1986, required two full doses of the lethal drugs, and an execution scheduled to take only ten to 15 minutes lasted 34.  It was one of the worst botches since states began using lethal injection in the 1980s, and Jeb Bush, then the governor of Florida, responded with a moratorium on executions.

Other states hardly heeded Diaz’s death at all. Since he died, states have continued to botch lethal injections: A recent study by Austin Sarat at Amherst College estimated that at least 7 percent of all lethal injections have been visibly botched. The most controversial was in Oklahoma this past April, when the state executed a convicted murderer and rapist named Clayton Lockett using a three-drug protocol, like most other death-penalty states. The execution team struggled for 51 minutes to find a vein for IV access, eventually aiming for the femoral vein deep in Lockett’s groin. Something went wrong: Oklahoma first said the vein had “blown,” then “exploded,” and eventually just “collapsed,” all of which would be unusual for the thick femoral vein if an IV had been inserted correctly. Whatever it was, the drugs saturated the surrounding tissue rather than flowing into his bloodstream. The director of corrections called off the execution, at which point the lethal injection became a life-saving operation.  But it was too late for Lockett.  Ten minutes later, and a full hour-and-forty-seven minutes after Lockett entered the death chamber, a doctor pronounced him dead.

Witnesses to the execution say Lockett writhed, clenched his teeth, and mumbled throughout the procedure.  We won’t better understand what happened until Oklahoma releases an autopsy report some time this summer.  But we do know what happened to Angel Diaz, who died under similar conditions.  While the details of his execution have been known since 2006, The New Republic is publishing for the first time photographs of the injuries Diaz sustained from the lethal injection.  I discovered the photographs in the case file of Ian Lightbourne, a Florida death-row inmate whose lawyers submitted them as evidence that lethal injection poses an unconstitutional risk of cruel and unusual punishment.

May 30, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Wednesday, May 28, 2014

"Judge orders temporary moratorium on Ohio executions"

The title of this post is the headline of this notable capital news emerging in my local legal arena.  Here are the basics:

A federal judge has ordered a temporary moratorium on executions in Ohio while legal issues related to new lethal injection protocol are worked out. The order issued yesterday by U.S. District Judge Gregory L. Frost stops the scheduled July 2 execution of Ronald Phillips of Summit County and the Aug. 6 execution of William Montgomery of Lucas County. Two other executions scheduled later in the year are not affected for the time being, but Frost left his order open-ended.

Frost said an execution can be scheduled no earlier than Aug. 15. The delays are repercussions from the troubled execution of Dennis McGuire on Jan. 16. Witnesses observed that McGuire, 53, gasped, choked, clenched his fists and appeared to struggle against his restraints for 10 minutes after the administration of two drugs, midazolam and hydromorphone, before being pronounced dead at the Southern Ohio Correctional Facility near Lucasville.

As a result, the Ohio Department of Rehabilitation and Correction announced April 28 that it would use the same drugs, but in higher doses in future executions.... Frost ordered the attorneys representing condemned inmates and the state to “work together to coordinate efforts so that the court can set necessary deadlines following expiration of the stay.”

May 28, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, May 24, 2014

Is nitrogen gas the best modern execution alternative to lethal injection?

Liquid-nitrogen-250x250-250x250The question in the title of this post is prompted by this Slate commentary by Tom McNichol headlined "Death by Nitrogen; If lethal injection falls out of favor, death penalty states could turn to a new method: nitrogen gas." Here are excerpts:

The Supreme Court ruled in 2008 that Kentucky's three-drug protocol for carrying out lethal injections was constitutional, but there’s no question that the method looks grimly suspect in the wake of Clayton Lockett’s apparently painful, botched execution in Oklahoma last month. Not so long ago, though, this was the method that represented progress. Hanging. Firing squad. The guillotine. The electric chair. The gas chamber. Lethal injection. Every age seems to feature a new and improved method of capital punishment, billed as more efficient and humane. The spectacle of Lockett’s death, and the Supreme Court’s hesitation, shines a spotlight on the latest idea — death by nitrogen.

This new proposed method, known as nitrogen asphyxiation, seals the condemned in an airtight chamber pumped full of nitrogen gas, causing death by a lack of oxygen. Nitrogen gas has yet to be put to the test as a method of capital punishment — no country currently uses it for state-sanctioned executions. But people do die accidentally of nitrogen asphyxiation, and usually never know what hit them. (It’s even possible that death by nitrogen gas is mildly euphoric. Deep-sea divers exposed to an excess of nitrogen develop a narcosis, colorfully known as “raptures of the deep,” similar to drunkenness or nitrous oxide inhalation.)

In late April, Louisiana Department of Corrections Secretary James LeBlanc suggested to a state legislative committee that Louisiana should look into using nitrogen gas as a new method of execution, since lethal injection has become so contentious. “It’s become almost impossible to execute someone,” LeBlanc complained to the Louisiana House Administration of Criminal Justice Committee.

“Nitrogen is the big thing,” LeBlanc told the committee. “It’s a painless way to go. But more time needs to be spent [studying] that.” The committee instructed LeBlanc to do some research on the subject and report back. In the meantime, Louisiana has delayed a pending execution. “I’m not taking anything off the table,” says state Rep. Joseph P. Lopinto III, chairman of the state’s Administration of Criminal Justice Committee. “If someone says nitrogen gas is the way to go, then we can debate that and do it if need be.”

As long as 32 states have capital punishment on the books, there should be a less reliably cruel method of execution than lethal injection.  “If we’re going to take a life, then we should do it in the most humane, civilized manner as is possible,” says Lawrence Gist II, an attorney and professor of business and law at Mount St. Mary's College. “Right now, nitrogen is the best of the available options.”  Gist, a death penalty opponent, runs a website dedicated to promoting nitrogen asphyxiation for state-sanctioned executions....

Nitrogen gas, unlike the lethal drugs that states have relied on, is widely available.  The gas is used extensively in industrial settings, from aerospace to oil and gas production “Lethal injection is just fine if you can get the pentobarbital,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a group that favors capital punishment. “But if that’s not available, an alternative like nitrogen gas would work.”

In contrast to lethal injection, no medical expertise would be needed to introduce nitrogen gas into a sealed chamber.  The gas chamber itself is technology that has been around since the 1920s. In fact, three states — Arizona, Missouri, and Wyoming — still authorize lethal gas as a method of execution (depending on the choice of the inmate, the date of the execution or sentence or the possibility that lethal injection is held unconstitutional).

The last gas chamber execution in the U.S. was in 1999 — the method fell out of favor because hydrogen cyanide is a poison causing suffering that lasts 10 minutes or longer. Lethal injection, of course, was supposed to be painless and better.  What if it’s not? That’s the question the Supreme Court now finally seems to be returning to.  The history of capital punishment suggests that as long as there’s a will to kill criminals, someone will come up with an improved way.  The new tool in the executioner’s bag may turn out to be nitrogen, a better way to carry out a gruesome task.

If nitrogen gas is really an easy, effective and painless means for killing a condemned inmate, I hope Louisiana and other states might move to this method of execution in the near future. In recent years, the only folks truly well served by lethal injection are those who enjoy last-minute appellate litigation and the prospect of a painful execution. Moreover, as I have often said before, if Congress would have the good sense to care about helping both the feds and states find a better way to carry forth capital justice, perhaps they could consider having a hearing to explore what reasonable modern alternatives to lethal injection might be worth seriously considering.

A few recent related and older posts:

May 24, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (10) | TrackBack

Friday, May 23, 2014

Tennessee adopts electric chair as back-up execution method

Tenn executionAs reported in this AP article, "Tennessee has decided to bring back the electric chair." Here are the details:

Republican Gov. Bill Haslam on Thursday signed a bill into law allowing the state to electrocute death row inmates in the event the state is unable to obtain drugs used for lethal injections.  Tennessee lawmakers overwhelmingly passed the electric chair legislation in April, with the Senate voting 23-3 and the House 68-13 in favor of the bill.

Richard Dieter, the executive director of the Death Penalty Information Center, said Tennessee is the first state to enact a law to reintroduce the electric chair without giving prisoners an option.  "There are states that allow inmates to choose, but it is a very different matter for a state to impose a method like electrocution," he said. "No other state has gone so far."

Dieter said he expects legal challenges to arise if the state decides to go through with an electrocution, both in terms of whether the state could prove that lethal injection drugs were not obtainable and on the grounds of constitutional protections against cruel and unusual punishment....

Republican state Sen. Ken Yager, a main sponsor of the electric chair measure, said in a recent interview that he introduced the bill because of "a real concern that we could find ourselves in a position that if the chemicals were unavailable to us that we would not be able to carry out the sentence."

A Vanderbilt University poll released this week found that 56 percent of registered voters in Tennessee support the use of the electric chair, while 37 percent are against it. Previous Tennessee law gave inmates who committed crimes before 1999 the choice of whether they wanted to die by electric chair or lethal injection.  The last inmate to be electrocuted was Daryl Holton, a Gulf War veteran who killed his three sons and a stepdaughter with a high-powered rifle in Shelbyville garage in 1997.  He requested the electric chair in 2007.

A provision to apply the change to prisoners already sentenced to death has also raised a debate among legal experts.  Nashville criminal defense attorney David Raybin, who helped draft Tennessee's death penalty law nearly 40 years ago, has said lawmakers may change the method of execution but they cannot make that change retroactive.  To do so would be unconstitutional, he said.

Supporters of the bill requested a legal opinion from state Attorney General Bob Cooper, who said the law would pass constitutional muster, but there was no guarantee it would not be challenged in court....  The Supreme Court has never declared a method of execution unconstitutional on the grounds that it is cruel and unusual.  It upheld the firing squad in 1879, the electric chair in 1890 and lethal injection in 2008.

May 23, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, May 22, 2014

Has the ugly execution in Oklahoma succeeded in slowing US machineries of death?

The question in the title of this post is prompted by the notable new reality that, after Missouri's effort to carry out an execution on Wednesday was ultimately blocked by the Supreme Court (CNN story here), it now appears that there will not be an execution in the United States during the month of May. In addition, as detailed in this listing from the Death Penalty Information Center, it appears that only a handful of serious execution dates are scheduled for the coming summer months.

Of course, a host of factors both legal and extra-legal explain why in recent years the US has averaged only three to four executions a month, whereas 15 years ago the US averaged more than twice as many executions. Notably, though, in 2014 the pace of executions throughout the United States had ticked up with 20 executions completed in five different states over the first four months of the year. But in the wake of Oklahoma making very messy the execution of Clayton Lockett, it now seems that a set of various factors and actors are gumming up the works of machineries of death throughout the United States.

I suspect Texas and perhaps a few other states without a history of problematic executions will be able to carry out death sentences in the months ahead. So I do not think it is right to suggest that the ugly Oklahoma execution created a de facto moratorium. Still, it seems more than a coincidence that the US in 2014 was on pace for 60 executions for the first time in a decade until Oklahoma messed up and now we are on track to go perhaps a few months with very few executions.

A few recent related posts:

May 22, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (8) | TrackBack

Wednesday, May 21, 2014

Eighth Circuit and SCOTUS staying (and then later unstaying?) Missouri's execution plans

As detailed in this AP story, now headlined "Missouri Inmate's Hopes Rest With Supreme Court," the federal judiciary has been getting in the way of Missouri's plans to execute a murderer today. Here are the details:

A Missouri inmate with a rare condition that affects the blood vessels was handed a reprieve less than two hours before his scheduled execution, but the state may end up killing him later Wednesday if the U.S. Supreme Court says it can.

Russell Bucklew was scheduled to be executed at 12:01 a.m. Wednesday for the 1996 killing of a romantic rival. He would have been the first U.S. inmate put to death since last month's botched execution in Oklahoma, in which the prisoner's vein collapsed while the lethal drugs were being administered.

Bucklew, 46, has a condition that causes weakened and malformed veins, and his attorneys say this and the secrecy surrounding the state's lethal injection drug combine to make for an unacceptably high chance of something going wrong during his execution.

After an 8th U.S. Circuit Court of Appeals panel suspended the execution Tuesday, only to be overruled hours later by the full court, Supreme Court Justice Samuel Alito issued his own stay, setting the stage for the full high court to weigh the appeal. If the Supreme Court rejects the appeal, Missouri would have until midnight to carry out the execution.

Mike O'Connell, a spokesman for the Missouri Department of Corrections, cautioned against reading too much into Alito's intervention. Alito handles emergency matters for states covered by the 8th Circuit, and two of the six inmates Missouri has executed since switching to a single-drug system in November had appeals that stretched well into the state's 24-hour execution window before the Supreme Court allowed the state to proceed. One of them was executed nearly 23 hours after he originally was scheduled to die....

Bucklew won't be getting help from Missouri Gov. Jay Nixon, a Democrat and death-penalty proponent who rejected Bucklew's clemency request late Tuesday....

Missouri switched from a three-drug protocol to the single drug pentobarbital late last year. None of the six inmates executed since Missouri made the change has shown outward signs of pain or suffering.

May 21, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, May 20, 2014

Georgia Supreme Court rejects attack on execution drug secrecy

As reported in this local article, yesterday the Georgia Supreme Court "upheld the constitutionality of a state law that keeps secret the identities of the makers and suppliers of Georgia’s lethal-injection drugs." Here is more about the ruling:

The court, in a 5-2 decision, rejected a challenge to the statute filed by lawyers for condemned killer Warren Hill. The ruling should clear the way for a number of executions, which have been on hold while the case was pending.

The reasons for offering privacy are “obvious,” Justice Harris Hines wrote for the majority. These include avoiding the risk of harassment or retaliation from persons related to the prisoners or from others who might disapprove of the execution “as well as simply offering those willing to participate whatever comfort or peace of mind that anonymity might offer,” Hines wrote.

In addition, “we believe that the same logic applies to the persons and entities involved in making the preparations for the actual execution, including those involved in procuring the execution drugs,” Hines wrote. “(W)ithout the confidentiality offered to execution participants by the statute … there is a significant risk that persons and entities necessary to the execution would become unwilling to participate.”

Benham, who authored the dissent, noted the recently botched execution in Oklahoma of inmate Clayton D. Lockett, who died of a heart attack after he writhed, gasped and struggled to lift his head after being declared unconscious on the lethal-injection gurney. “I write because I fear this state is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in Oklahoma,” wrote Benham, who was joined by Justice Carol Hunstein. “There must be certainty in the administration of the death penalty.”...

In a statement, Hill’s attorneys said the ruling “effectively affords the state of Georgia to alter (its) lethal-injection protocol in any way it sees fit and to conceal from the public and even the courts the identity and provenance of the chemicals it intends to use to carry out executions.” Benham’s dissent, the statement said, “correctly found that this decision conflicts with basic requirements of due process.”

The full Georgia Supreme Court ruling in Owens v. Hill is available at this link.

May 20, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Friday, May 16, 2014

Lots of intriguing "show me" litigation as Missouri prepares for next execution

As reported in this Kansas City Star article, a number of news organizations, "including The Kansas City Star and The Associated Press, filed suit Thursday against the Missouri Department of Corrections over its refusal to reveal the source of drugs used to carry out executions." Here is more about the suit:

The suit, filed in Cole County Circuit Court in Jefferson City, alleges that the Corrections Department is violating the Missouri Sunshine Law by denying repeated requests for information about the “composition, concentration, source and quality of drugs used to execute inmates in Missouri.” By withholding access to information that historically has been publicly available, the department also is violating the First and Fourteenth amendments of the U.S. Constitution, according to the suit....

Thursday’s suit [claims] that public disclosure of the information “reduces the risk that improper, ineffective or defectively prepared drugs are used.”

“The constitution thus compels access to historically available information about the type and source of drugs used in lethal injection executions because disclosure promotes the functioning of the process itself and is essential for democracy to function,” according to the suit.

Joining The AP and The Star in the suit are Guardian US, the New York-based digital news service of England’s The Guardian; the St. Louis Post-Dispatch; and the Springfield News-Leader.

Meanwhile, over in federal court has detailed in this new Reuters report, a "Missouri death row inmate is asking a federal court to allow videotaping his execution, scheduled for next week, to record any evidence of cruel and unusual punishment in violation of the U.S. Constitution." Here is more on this other legal front:

A lawyer filed a motion on Friday in Kansas City on behalf of Russell Bucklew, 45, who is scheduled to die by lethal injection on May 21 for the 1996 murder of Michael Sanders in southeast Missouri. Last week, Bucklew filed a motion in the same court to halt his execution because of a rare health condition that his lawyer, Cheryl Pilate, said would cause him extreme pain and possible suffocation.

A videotape would preserve evidence if he survives and wants to oppose another execution or is injured and wants to file a claim, the motion states. It further states that if the inmate dies but suffers "prolonged and excruciating execution or chokes and suffocates to death," the video would be evidence for a claim by his estate. "If Missouri officials are confident enough to execute Russell Bucklew, they should be confident enough to videotape it," Pilate said in a news release. "It is time to raise the curtain on lethal injections."

May 16, 2014 in Baze lethal injection case, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack