Tuesday, September 02, 2014

Noting the halting of executions in Mississippi ... and nationwide in nearly all states

This local AP article, headlined "Mississippi may be on death row execution hiatus," reports on modern capital punishment practical realities that exist in the majority of US jurisdictions these days. Here are the details from the Magnolia State:

Mississippi hasn't had an execution in two years, and state Attorney General Jim Hood says he can't predict when another might occur. No Mississippi death row appeals are presently pending before the U.S. Supreme Court, he said.

"We usually make predictions on timing based on cases pending before that court," Hood told The Associated Press this past week. "There is no way to really know an exact timeline on any of these type cases," he said. "They are all making their way through the system at various paces. We have some nearing the end of their normal track of appeals, but there is just no way to know when we might have a case that would warrant the filing of a motion to set an execution date."...

The most recent execution in Mississippi was June 20, 2012. Gary Carl Simmons Jr., a former grocery store butcher, was executed for dismembering a man during a 1996 attack in which he also raped the man's female friend.  Before that, Jan Michael Brawner was executed on June 12, 2012, for fatally shooting his 3-year-old daughter, his ex-wife and her parents in a crime in which authorities say he also stole his slain mother-in-law's wedding ring and used it to propose to his girlfriend. The Mississippi Supreme Court blocked executions in 2013 and 2014.

It appears Mississippi is headed for another execution hiatus, but one that may not last as long as in the 1990s. The U.S. Supreme Court ruled in 1990 in a Mississippi death penalty case that described a capital crime to juries as "especially heinous, atrocious or cruel" without further definition was unconstitutionally vague.  The ruling resulted in nearly two dozen Mississippi death sentences being overturned.  For the rest of the 1990s, no executions took place in the state.  The July 2002 execution of Tracy Allen Hansen was Mississippi's first since 1989. Hansen was executed for gunning down a policeman in 1987.

From 1955 to 1964, Mississippi executed 31 men.  Another four were put to death in the 1980s.  Since 2002, including Hansen, 17 executions have taken place.  Mississippi had 60 inmates on death row as of Friday....

[In the modern capital era,] 1,385 inmates have been executed in 34 states through August.  More than a third of those were in Texas alone, and in recent years, only a handful of other states have carried out executions on a somewhat regular basis, among them Arizona, Florida, Georgia, Missouri, Ohio and Oklahoma.  The number of death penalty prosecutions has been dropping, in large part because of the availability of lifetime prison sentences without parole.

Mississippi's longest serving inmates still have appeals moving through state and federal courts....  Richard Gerald Jordan, 68, has been on death row the longest -- 37 years calculated from his date of conviction, according to Department of Corrections' records. Jordan was convicted of capital murder committed in the course of a kidnapping.  James Billiot, 53, has been on death row 31 years.  He was convicted of using sledgehammer to kill his mother, stepfather and 14-year-old stepsister.  Roger Thorson, 56, has been on death row 25 years.  He was sentenced to die for killing a former girlfriend on the Mississippi Gulf Coast.

Intriguingly, at this page at the Death Penalty Information Center highlights, Mississippi had a pretty active execution chamber from 2010 to 2012. Indeed, sixteen different states had at least one execution during this period and eight states averaged two or more executions during these years. In notable contrast, over the last two years, only nine states have completed executions and only five have averaged two or more executions during this period. (And two of these "still active" execution states, Ohio and Oklahoma, have had their plans to conduct more executions halted due to ugly execution events earlier this year.)

Prior to the recent execution drug problems, I had come to think that the "death penalty is dying" narrative was losing steam, especially as the United States consistently averaged about four executions each month during the first term of the Obama era. But last year saw less than 40 executions nationwide, and there is a real possibility that this year will have fewest total executions in two decades.

September 2, 2014 in Baze lethal injection case, Data on sentencing, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Tuesday, August 19, 2014

Notable new follow-ups to recent ugly executions in Arizona and Ohio

Coincidentally, this week has brought two distinct follow-up article examining the backstories that may have contributed to two distinct ugly executions in Arizona and Ohio.  The Arizona follow-up story comes via this new New York Times article headlined "Arizona Loose With Its Rules in Executions, Records Show," and it starts this way:

In an execution in 2010 in Arizona, the presiding doctor was supposed to connect the intravenous line to the convict’s arm — a procedure written into the state’s lethal injection protocol and considered by many doctors as the easiest and best way to attach a line. Instead he chose to use a vein in an upper thigh, near the groin. “It’s my preference,” the doctor said later in a deposition, testifying anonymously because of his role as a five-time executioner. For his work, he received $5,000 to $6,000 per day — in cash — with two days for practice before each execution.

That improvisation is not unusual for Arizona, where corrections officials and medical staff members routinely deviate from the state’s written rules for conducting executions, state records and court filings show. Sometimes they improvise even while a convict is strapped to a table in the execution chamber and waiting for the drugs coursing through his veins to take effect.

In 2012, when Arizona was scheduled to execute two convicted murderers, its Corrections Department discovered at the last minute that the expiration dates for the drugs it was planning to use had passed, so it decided to switch drug methods. Last month, Arizona again deviated from its execution protocol, and things did not go as planned: The convicted murderer Joseph R. Wood III took nearly two hours to die, during which he received 13 more doses of lethal drugs than the two doses set out by the state’s rules.

The Ohio follow-up story comes via this new New Republic article headlined "Exclusive Emails Show Ohio's Doubts About Lethal Injection: The state worried new drugs could make prisoners "gasp" and "hyperventilate" — and used them anyway." Here is how it gets started:

In July 23, Arizona took 117 minutes to execute a convicted murderer named Joseph Rudolph Wood III. It was not the nation’s first execution to last that long. In September 2009, Romell Broom entered the Ohio death chamber and exited two hours later still breathing — the only inmate in U.S. history to survive a lethal injection. The executioners had scoured his arms, legs, hands, and ankles for veins in which to stick their needles. But they repeatedly missed the vessels with the IVs. After at least 18 failures, Ohio had no choice but to cancel the execution.

In Wood’s execution, the trouble began when the drugs began to flow.  Arizona’s executioners first injected Wood with a combination of midazolam and hydromorphone, two drugs they had never used before in an execution. When the first dose failed to stop his heart, the executioners administered a second.  And then a third. The execution team injected 15 doses in total before a doctor finally pronounced death. An Arizona Republic reporter witnessing the execution said Wood gasped more than 640 times and that he “gulped like a fish on land.”

IDespite their different problems, the attempted execution of Broom and the execution of Wood are connected by more than just their lengths.  Had executioners in Ohio been able to insert IVs into Broom’s veins, Wood’s execution might have gone much more smoothly. That’s because the Broom debacle led Ohio to write a “Plan B” for lethal injections, introducing into the death chamber for the first time the untested drugs Arizona would use years later to kill Wood.  And emails I obtained from Ohio reveal some of the state's internal debates and concerns about these drugs—including fears that an inmate could “gasp” and “hyperventilate” as he died.

IDoctors warned from the beginning that midazolam and hydromorphone could create “a distasteful and disgusting spectacle.”  And yet the drugs spread from Ohio across the country, revealing the lengths states will go to in order to carry out death sentences despite constant IV trouble, drug shortages, and problematic executions.

August 19, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, August 11, 2014

Federal district judge extends Ohio's death penalty moratorium based on execution challenges to January 2015

As reported in this Reuters article, a "federal judge has added five months to a moratorium on executions in Ohio amid scrutiny of a double-drug cocktail the state wants to use." Here is more:

U.S. District Court Judge Gregory Frost, in a one-page ruling issued on Friday, said more time is required “in light of the continuing need for discovery and necessary preparations related to the adoption and implementation of the new execution protocol.”

Ohio Governor John Kasich, who since 2011 has commuted death sentences for four men on death row, had no comment about the judge's decision, a spokesman for his office said.

Frost initially ordered a halt to executions in May, barring state officials from carrying out executions until Aug. 15. That decision came after a botched execution in Oklahoma brought renewed scrutiny to lethal injection, and after a lengthy Ohio execution in January that used an untested combination of drugs. Ohio now plans to use those same two drugs in increased dosages.

The decision on Friday also followed the July 23 execution in Arizona of inmate Joseph Wood, who witnesses said "gasped and snorted" for more than 90 minutes as he was put to death at a state prison complex....

The moratorium issued by Frost on Friday is set to remain in effect until January 15, 2015. Frost's actions come after the state said in April it would increase the dose of the sedative midazolam and painkiller hydromorphone used in its lethal injections.

The last execution in the state took place in January when inmate Dennis McGuire, 53, became the first in the country to be put to death using the midazolam and hydromorphone combination. His execution took 25 minutes and witnesses said McGuire was gasping for breath for at least 15 minutes. McGuire was convicted of the rape and murder of a pregnant woman. After reviewing the execution, state officials said they would increase the dosage of the drugs used in future executions.

Before issuing the extended moratorium, Ohio was set to resume executions on Sept. 18 with the lethal injection of Ronald Phillip, convicted of raping and killing his girlfriend’s 3-year-old daughter in 1993.

August 11, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, August 06, 2014

Mizzou complete uneventful execution with single dose of pentobarbital

As reported in this AP article, headlined "Missouri puts to death first inmate since botched execution," the first execution in the US since the messy Arizona execution last month took place every this morning without any problems. Here are the basics and the basic backstory:

A Missouri inmate was put to death Wednesday for raping and killing a college student in 1995, making him the first U.S. prisoner put to death since an Arizona lethal injection went awry last month. The Missouri Department of Corrections said Michael Worthington was executed by lethal injection at the state prison and was pronounced dead at 12:11 a.m. He is the seventh Missouri inmate executed this year.

Worthington had been sentenced to death for the attack on 24-year-old Melinda "Mindy" Griffin during a burglary of her Lake St. Louis condominium.... Worthington, 43, had predicted that the nation's high court and Gov. Jay Nixon would not spare him, insisting in a telephone interview with The Associated Press that he had accepted his fate....

Worthington's attorneys had pressed the Supreme Court to put off his execution, citing the Arizona execution and two others that were botched in Ohio and Oklahoma, as well as the secrecy involving the drugs used during the process in Missouri. Those three executions in recent months have renewed the debate over lethal injection. In Arizona, the inmate gasped more than 600 times and took nearly two hours to die. In April, an Oklahoma inmate died of an apparent heart attack 43 minutes after his execution began. And in January, an Ohio inmate snorted and gasped for 26 minutes before dying. Most lethal injections take effect in a fraction of that time, often within 10 or 15 minutes.

Arizona, Oklahoma and Ohio all use midazolam, a drug more commonly given to help patients relax before surgery. In executions, it is part of a two- or three-drug lethal injection.

Texas and Missouri instead administer a single large dose of pentobarbital — often used to treat convulsions and seizures and to euthanize animals. Missouri changed to pentobarbital late last year and since has carried out executions during which inmates showed no obvious signs of distress. Missouri and Texas have turned to compounding pharmacies to make versions of pentobarbital. But like most states, they refuse to name their drug suppliers, creating a shroud of secrecy that has prompted lawsuits.

In denying Worthington's clemency request, Nixon called Worthington's rape and killing of Griffin "horrific," noting that "there is no question about the brutality of this crime — or doubt of Michael Worthington's guilt." Worthington was sentenced to death in 1998 after pleading guilty to Griffin's death, confessing that in September 1995 he cut open a window screen to break in to the college finance major's condominium in Lake St. Louis, just west of St. Louis. Worthington admitted he choked Griffin into submission and raped her before strangling her when she regained consciousness. He stole her car keys and jewelry, along with credit cards he used to buy drugs. DNA tests later linked Worthington to the slaying.

Worthington, much as he did after his arrest, insisted to the AP on Tuesday from his holding cell near the death chamber that he couldn't remember details of the killing and that he was prone to blackouts due to alcohol and cocaine abuse. He said a life prison sentence would have been more appropriate for him....

On Tuesday, Griffin's 76-year-old parents anticipated witnessing Worthington die. "It's been 19 years, and I feel like there's going to be a finality," Griffin's mother, Carol Angelbeck, told the AP, after flying to Missouri from their Florida home. With the execution, "I won't have to ever deal with the name Michael Worthington again. I'm hoping for my family's sake, my sake, that we can go there (to the prison) and get this over with."

"In this case, there is no question in anyone's mind he did it, so why does it take 18 or 19 years to go through with this?" added Jack Angelbeck, Griffin's father. "This drags on and on. At this point, it's ridiculous, and hopefully it's going to end."

This DPIC page reports that there are more scheduled executions in the US until September, and then there are four executions scheduled in a eight-day period in the middle of the month. Three of those executions are planned in Missouri and Texas, which has had no real problem keeping their machineries of death humming along because of their use of pentobarbital as an execution drug. But Ohio has an execution scheduled for September 18 using a drug cocktail that has led to problems in the past. As a result, I suspect Ohio will once again be the state to watch most closely for interesting lethal injection developments and litigation in the weeks ahead.

August 6, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Monday, August 04, 2014

Will any Justices express any concerns about drug secrecy after third ugly execution?

ImagesThe question in the title of this post is prompted by this new AP article headlined "Justices silent over execution drug secrecy." Here are excerpts:

No one on the Supreme Court objected publicly when the justices voted to let Arizona proceed with the execution of Joseph Wood, who unsuccessfully sought information about the drugs that would be used to kill him.

Inmates in Florida and Missouri went to their deaths by lethal injection in the preceding weeks after the high court refused to block their executions. Again, no justice said the executions should be stopped.

Even as the number of executions annually has dropped by more than half over the past 15 years and the court has barred states from killing juveniles and the mentally disabled, no justice has emerged as a principled opponent of the death penalty.

This court differs from some of its predecessors. Justices William Brennan and Thurgood Marshall dissented every time their colleagues ruled against death row inmates, and Justices Harry Blackmun and John Paul Stevens, near the end of their long careers, came to view capital punishment as unconstitutional. "They're all voting to kill them, every so often. They do it in a very workmanlike, technocratic fashion," Stephen Bright, a veteran death penalty lawyer in Georgia, said of the current court.

Wood's execution on July 23 was the 26th in the United States this year and the third in which prisoners took much longer than usual to die. Wood, convicted of killing his estranged girlfriend and her father, was pronounced dead nearly two hours after his execution began, and an Associated Press reporter was among witnesses who said Wood appeared to gasp repeatedly, hundreds of times in all, before he died.

Justice Ruth Bader Ginsburg said she and her colleagues are aware of what happened in Arizona, though she declined to say how the court would rule on a plea to stop the next scheduled execution -- of Michael Worthington on Wednesday in Missouri. "Your crystal ball is as good as mine," she said last week in an interview with The Associated Press.

The court's rejection of Wood's claim that he was entitled to learn more about Arizona's procedures and the source of the execution drugs came at the end of protracted legal wrangling. A federal judge in Arizona initially denied Wood's claim. The federal appeals court in San Francisco then granted a reprieve. But the justices reversed that ruling in a brief order. The court said the judge who initially ruled against Wood "did not abuse his discretion."...

The substance of capital punishment issues usually finds its way in front of the justices when there is no time pressure. In January, the court heard arguments in a case over a Florida law that used a rigid threshold in intelligence test scores in cases of borderline mental disability. In late May, a five-justice majority led by Anthony Kennedy struck down the law because it "contravenes our nation's commitment to dignity."

The soaring language that Kennedy often favors in his opinions has led some death penalty experts to believe that he eventually will provide the fifth vote, along with those of the court's four liberal justices, to end or severely restrict the use of the death penalty. "It is impossible to reconcile that language with the secrecy surrounding lethal injections," said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund. "My assumption is quite a lot is happening behind the scenes."

Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. "When a stay is denied, it doesn't mean we are in fact unanimous," she said.

Still, Ifill said the court's unwillingness so far to deal with states' reluctance to reveal much about the provenance of lethal injection drugs is troubling. "I'm disappointed after all the revelations that at least some justices weren't prepared to say something pretty strong," she said.

The old saying, "Third time's a charm," has me inclined to predict that we may end up hearing from at least one Justice or two concerning execution drug secrecy the next time this issue is effectively raised before the Supreme Court. Whether that occurs this week on later this year, I suspect this issue will have some legs if states continue to have to experiment with new execution drug protocols and continue to preclude capital defendants from knowing all the experimental details.

A few recent related posts:

August 4, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, July 30, 2014

After another ugly execution, will Missouri and Texas have any difficulties keep up monthly execution plans?

Recent troubled executions in Ohio, then Oklahoma, and most recently Arizona have seemingly contributed at least somewhat to a slowed pace of executions nationwide throughout 2014.  Nevertheless, Missouri and Texas have, so far, successfully completed scheduled executions on a pace of nearly one per month throughout out 2014.  In addition, as this DPIC list of scheduled executions spotlights, the next five serious executions dates over the next few months are in Missouri and Texas (with 2 and 3 slated executions, respectively, scheduled in the next seven weeks).

While I am sure national advocacy organizations will continue to make calls for abolition of the death penalty due to the trio of recent ugly executions in other states, I am not sure if this advocacy makes one whit of impact on key capital decision-makers in Missouri and Texas.  Time will tell if the abolistionist advocacy is really aided by all the ugly executionsin 2014, and the places for everyone to be watching most closely in the short term are the Show Me and Lone Star states. 

July 30, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, July 28, 2014

"Are Opponents Of The Death Penalty Contributing To Its Problems?"

The question in the title of this post is the headline of this notable recent NPR story.  Here are excerpts:

Kevin Cooper was convicted of murdering a married couple and two children, and was sentenced to die. That was back in 1985. Cooper is still awaiting execution on California's death row.

San Bernardino County District Attorney Michael Ramos, who is handling the case, blames the long delay on Cooper's multiple appeals in state and federal courts. "This is all a big strategic plan to really manipulate the system to attack capital punishment, not just in California, but in the United States," Ramos says.

The death penalty is under considerable pressure, both from court decisions and a series of problematic executions, including one this week in Arizona. Six states have abolished the death penalty over the past seven years. Death penalty supporters such as Ramos say this is no accident. They believe opponents intentionally toss sand in the gears of the execution process, and then complain that the system doesn't work. "It's a delaying tactic that then allows them to scream it's unconstitutional because it's been delayed too long," Ramos says.

Defense attorneys dismiss this as nonsense. The problems with the death penalty, they say, were not created by its opponents. "It's not the defense attorneys who are holding executions up," says Deborah Denno, a law professor at Fordham University. "Not by a long shot."...

Last week, U.S. District Judge Cormac Carney found California's system of capital punishment unconstitutional because executions are delayed for too long and are "arbitrary" in terms of which condemned prisoners are ever actually executed. Death penalty supporters argue that it's the killers — and their attorneys — causing most of the delays.

"Having done everything they can to cause the problem, they decry the problem," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, which defends victims' rights.

But many of the delays aren't caused by defense attorneys, rather the very lack of them, Denno says. In California, it can take years for a condemned prisoner even to be appointed counsel, and years more to wait for what is known as a post-conviction hearing.

"Even before a case gets to federal court, there's often more than 10 years of delays built into the system that don't have anything to do with what's brought from the defense," says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City, Mo., which defends the condemned....

In addition to traditional questions regarding innocence and adequacy of counsel, defense attorneys now will typically challenge a state's method of execution. Lethal injections, which for years had a more anodyne reputation than gas chambers or the electric chair, have become problematic in and of themselves....

Scheidegger, the foundation attorney, says death penalty opponents, having successfully promoted lethal injections at the expense of older methods by portraying it as more humane, are now undermining states' use of drugs through their legal challenges.

Recent related posts on the California capital ruling by US District Judge Carney:

July 28, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, July 25, 2014

Is Judge Kozinski recent opinion proof that "the death penalty is doomed"?

Thw question in the title of this post is drawn from the headline of this New York Times opinion piece by Jesse Wegman entitled "Why the Death Penalty Is Doomed." Here are excerpts:

Alex Kozinski, a federal judge on the Court of Appeals for the Ninth Circuit, has gone on the record saying he is “generally not opposed to the death penalty.” But his opinion in a recent case may nevertheless find itself in the history books one day — in the section explaining why the death penalty in America finally ended....

Judge Kozinski [in a recent noted dissent]... launched into a meditation on why we kill people the way we do. The late 1970s shift to lethal injection was undertaken, as the judge suggested, in the belief that it was a “more humane” and “less brutal” method of execution than earlier ones — the firing squad, the electric chair, the gas chamber. But that belief was mistaken, he said. “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.”

The judge then shifted into a register generally associated with those firmly planted in the abolitionist camp. “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.”

So how should we do it? Judge Kozinski made the point that the guillotine is the most foolproof method of ending a life, although he rejected it because it “seems inconsistent with our national ethos.” (Which ethos is that? The one against state-sponsored decapitation? Or against relying on the French in matters of punishment?)

Clearly, the two-hour ordeal that occurred in Arizona last night is more evidence that lethal injection is far from humane. Instead, as Judge Kozinski said, the firing squad is the most quick and reliable of the existing methods. And then he added this coup de grâce:

“Sure, firing squads can be messy,” the judge wrote, “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.”

July 25, 2014 in Baze lethal injection case, Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

"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 (12) | 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 (20) | 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 (6) | 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