Friday, November 21, 2014

Ohio and Utah moving forward with distinct fixes for lethal injection drug problems

As reported in this two article, legislatures in Ohio and Utah are taking quite different approaches to the problems poised by the unavailability of some drugs historically used for lethal injection executions.  The headlined of these stories highlight the basics:

From the Wall Street Journal here, "Ohio House Passes Bill Shielding Execution Drugmakers: Measure Would Add Layers of Secrecy to Death-Penalty Procedures." 

From the Salt Lake Tribune here, "Firing squad executions back on the table in Utah Legislature"

November 21, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, November 20, 2014

Hoping to help Kickstart a notable new death penalty documentary

I am eager to promote widely an important film project from some folks in London focused on modern US death penalty stories. (I am partial to the project in part because one of my former students, Allen Bohnert, OSU Moritz College of Law grad ('06), is one key subject being documented in his role as current lead counsel in the long-running Section 1983 litigation over Ohio's lethal injection protocols.)

This notable project is still in production, and the filmmakers are currently fundraising for financial support to help allow them to finish filming.  The Kickstarter campaign is available here; lots of interesting items are available (such as signed copies of Bryan Stevenson's book, Just Mercy, one-off pieces of art and the film itself) for any donation over $25.  I have been told that they will not be able to effectively finish this film without additional help for further funding.

The film itself is titled The Penalty, and it is to be a 90-minute feature documentary examining the current state of America's capital punishment system.  While some other documentaries have focused on death row stories through the lens of condemned prisoners, this film is focused more on people involved not on the row: lawyers, family members, politicians, campaigners, law enforcement, and others. A snippet from some filming so far is available at www.thepenaltyfilm.com.

I understand that the filmmakers have been particularly focused on following (1) my former student, Assistant Federal Public Defender for the Southern District of Ohio Allen Bohnert, through Ohio's problematic execution of Dennis McGuire and its fallout, and (2) Louisiana death row exoneree Damon Thibodeaux as he tries to put his life back together after his wrongful conviction and later exoneration. I believe the filmakers are also incorporating lots of other characters from the capital punishment universe, including many experts in the field such as Debby Denno, Jeanne Woodford, David Dow, Kathryn Kase, Peter Neufeld, Richard Dieter and Clive Stafford-Smith.

Finally, I have been told that anyone has any ideas on stories that the filmmakers should look at, or have ideas for people they should be sure to talk to (e.g., grant-giving foundations, media outlets, campaign groups), they filmakers are eager to spread their network far and wide, and you can pass on ideas by emailing laura@reelnice.co.uk or will@reelnice.co.uk.

Cross-posted at PrawfsBlawg.

November 20, 2014 in Baze lethal injection case, Death Penalty Reforms, Film, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, November 19, 2014

Missouri completes ninth execution of 2014

As reported in this AP piece, headlined "Missouri Executes Leon Taylor for 1994 Killing," the Show Me state showed another murderer that death sentences still get carried out in Mizzou. Here are the basic details:

A man who killed a suburban Kansas City gas station attendant in front of the worker's young stepdaughter in 1994 was put to death early Wednesday -- the ninth execution in Missouri this year.

Leon Vincent Taylor, 56, was pronounced dead at 12:22 a.m. at the state prison in Bonne Terre, minutes after receiving a lethal injection. With Taylor's death, 2014 ties 1999 for having the most executions in a year in Missouri.

Taylor shot worker Robert Newton to death in front of Newton's 8-year-old stepdaughter during a gas station robbery in Independence, Missouri. Taylor tried to kill the girl, too, but the gun jammed.

Taylor's fate was sealed Tuesday when Gov. Jay Nixon declined to grant clemency and the U.S. Supreme Court turned down his appeal. His body covered by a white sheet, Taylor could be seen in the execution chamber talking to family members through the glass in an adjacent room. Once the state started injecting 5 grams of pentobarbital, Taylor's chest heaved for several seconds then stopped. His jaw went slack and he displayed no other movement for the rest of the process.

Four of Taylor's family members sat in a room to his left and looked on without reaction as the drug killed Taylor in about eight minutes. At a time when lethal injections have gone awry in Oklahoma, Ohio and Arizona and taken an extended period to kill an inmate, Taylor's execution went off without any visible hitches or complications with the drug or equipment.

In a final statement, Taylor apologized to Newton's family because "our lives had to entwine so tragically" and thanked his family for their support and love. "I am also sorry to have brought all of you to this point in my life to witness this and/or participate," Taylor said. "Stay strong and keep your heads to the sky."

Speaking to reporters after the execution, Newton's brother, Dennis Smith, noted that it had been about 7,500 days since the killing and said the family has missed Newton every one of them. Smith described Newton as a hard worker, generous and with a memorable laugh. At times, Smith paused to compose himself as tears rolled down his cheeks. "It would just take a coward to want to hurt someone like him," Smith said.

November 19, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Monday, November 17, 2014

"Death Penalty Drugs and the International Moral Marketplace"

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

Across the country, executions have become increasingly problematic as states have found it more and more difficult to procure the drugs they need for lethal injection. At first blush, the drug shortage appears to be the result of pharmaceutical industry norms; companies that make drugs for healing have little interest in being merchants of death. But closer inspection reveals that European governments are the true instigators of the shortage. For decades, those governments have tried — and failed — to promote abolition of the death penalty through traditional instruments of international law. Turns out that the best way to export their abolitionist norms was to stop exporting their drugs.

At least three lessons follow. First, while the Supreme Court heatedly debates the use of international norms in Eighth Amendment jurisprudence, that debate has largely become an academic sideshow; in the death penalty context, the market has replaced the positive law as the primary means by which international norms constrain domestic death penalty practice. Second, international norms may have entered the United States through the moral marketplace, but from there they have seeped into the zeitgeist, impacting the domestic death penalty discourse in significant and lasting ways. Finally, international norms have had such a pervasive effect on the death penalty in practice that they are now poised to influence even seemingly domestic Eighth Amendment doctrine. In the death penalty context, international norms are having an impact — through the market, through culture, and ultimately through doctrine — whether we formally recognize their influence or not.

November 17, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, November 11, 2014

Legislation to get Ohio back on track with lethal injections being fast-tracked

As reported in this local article, headlined "Death-penalty reform bill would protect execution drug makers, physicians who testify," it appears that the state legislative process is moving forward to enact new regulations to help Ohio get back into the business of executions. Here are the details (with my emphasis added at the end):

Makers of Ohio's lethal-injection drugs would be kept anonymous, and physicians who testify about the state's execution method couldn't have their medical license revoked, under House legislation introduced Monday.  Attorney General Mike DeWine has said that lawmakers need to pass the reforms if Ohio is to resume executions next year, once a court-ordered moratorium ends.

Ohio, along with many other states, has been struggling to settle on an execution method, as many large pharmaceutical companies have refused to continue selling drugs used for lethal injection.  The state's current two-drug cocktail is being challenged in court and has been used in controversial executions in Ohio and Arizona.

House Bill 663 would keep secret the identities of compounding pharmacies, small-scale drug manufacturers that create individual doses of lethal-injection drugs on demand.  The proposed change is a sign that state officials could turn to compounding pharmacies for lethal-injection drugs that courts have upheld but that larger companies have stopped selling, such as pentobarbital.  Rep. Jim Buchy, a Greenville Republican co-sponsoring the bill, said the measure would protect compounding pharmacies from lawsuits.

Another proposed change in the bill would prevent the Ohio State Medical Association from revoking or suspending the license of any physician who provides expert testimony on the state's death penalty.  Such immunity is needed, supporters say, because the state is worried that doctors will refuse to testify in defense of Ohio's lethal-injection protocol for fear that they'll run afoul of medical ethics....

House Speaker Bill Batchelder, a Medina Republican, and Senate President Keith Faber, a Celina Republican, each said last week they plan to pass the legislation.   "That is something that we cannot leave in abeyance, otherwise we're going to have people who pass away prior to execution," Batchelder said.

I have a inkling that Speaker Batchelder's comments emphasized above may have been taken a little out of context, as the quote makes it seem he considers it is essential to fix quickly Ohio's machinery of death so that prisoners do not die on their own before being able to be killed by the state.

November 11, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, October 30, 2014

"Physicians, Medical Ethics, and Execution by Lethal Injection"

The title of this post is the title of this new article by I. Glenn Cohen, Robert Truog, and Mark Rockoff available via SSRN. Here is the abstract:

In the wake of the recent botched execution by lethal injection in Oklahoma, a group of eminent legal professionals known as the Death Penalty Committee of The Constitution Project issued a set of recommendations for sweeping legal and administrative reforms of this method of capital punishment.  This Article discusses the Committee’s recommendation that medical personnel perform the medically-related elements of lethal injection executions.  Noting that such involvement is prohibited by the codes of medical ethics of professional societies in every medical profession, this Article argues that significant ethical concerns dictate that medical professionals should refuse to participate in lethal injection executions.

Related post: 

October 30, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, October 26, 2014

Media coalition sues Arizona on First Amendment grounds seeking more info on executions

As detailed in this article from The Guardian, the "secrecy imposed by Arizona on the source and quality of the lethal injection drugs it uses to kill death row inmates has been challenged in a new lawsuit brought by the Guardian and other media organizations." Here is more about the lawsuit (including a link to the filing):

The secrecy imposed by Arizona on the source and quality of the lethal injection drugs it uses to kill death row inmates has been challenged in a new lawsuit brought by the Guardian and other media organizations.

In the lawsuit, filed with a federal court in Phoenix, the Guardian together with the Associated Press and four of Arizona’s largest news outlets argue that the state’s refusal to disclose any information about its lethal injection drugs is a breach of the public’s first amendment right to know about how the death penalty is being carried out in its name. It follows agroundbreaking first amendment case brought by the Guardian and others in Missouri in May....

Use of midazolam in executions in recent months has proved particularly problematic and contentious. It has been associated with gruesome and prolonged deaths in Florida, Ohio and Oklahoma. The Arizona complaint has been joined, in addition to the Guardian and the Associated Press, by two of the state’s most important newspapers, the Arizona Republic and the Arizona Daily Star. Two major television channels, KPNX-TV Channel 12 and KPHO Broadcasting Corporation, are also party to the suit.

The action is lodged in the US district court in Arizona and is directed against Charles Ryan, director of the department of corrections, and the state’s attorney general, Thomas Horne, both in their official roles. The Guardian and fellow plaintiffs are represented by the Media Freedom and Information Access Clinic at Yale law school, with the assistance of Ballard Spahr LLP in Phoenix.

Unlike most other lawsuits that have been brought relating to the creeping secrecy that surrounds lethal injection drugs – which have argued the prisoners’ constitutional rights have been violated – the Arizona lawsuit starts with the principle that the public has a right to know how capital punishment is being carried out.

The complaint argues that “the public cannot meaningfully debate the propriety of lethal injection executions if it is denied access to this essential information about how individuals are being put to death by the state.” It says that the established constitutional right of public access to aspects of government procedures means that the state should be obliged to reveal “the source, composition, and quality of drugs, as well as the protocols, that have been or will be used in lethal injection executions and to view the entirety of an execution”.

This is the fourth lawsuit that the Guardian has launched against various manifestations of secrecy in the US death penalty. As well as the actions in Arizona and Missouri, there are ongoing legal complaints currently before the courts in Pennsylvania and in Oklahoma, where the state is being challenged for having drawn the curtain halfway through the botched execution of Clayton Lockett in April.

October 26, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Tuesday, October 14, 2014

"Could firing squad make a comeback in Utah, elsewhere?"

1424181The question in the title of this post is the headline of this lengthy new article discussing, yet again, possible alternatives to lethal injection as a means to carry out death sentences.  Though covering some familiar ground, this article provides a useful reminder that it has been only a few years since the last firing squad execution in the United States and highlights reasons why states seriously committed to carrying out executions ought to be seriously considering this "classic" execution method again. Here are excerpts:

When Ronnie Lee Gardner was executed by firing squad in 2010 at the Utah State Prison in Draper, more than 59 journalists from news outlets from around the globe descended upon Utah to cover the event. Reporters from Japan and Great Britain called it “a Wild West way of dispatching people” and referenced John Wayne movies.

But as anti-death penalty pharmaceutical companies in Europe refuse to sell the drugs necessary for lethal injections to prisons in the United States and in the wake of botched lethal injection executions in recent months, the firing squad could be making its return to Utah and other places. “I’ve had several states actually call (to ask about the firing squad),” Rep. Paul Ray, R-Clearfield, said. “They asked me not to name them because they don’t want the media circus on it. But they’re in the same boat we are — they can’t get the drugs, either.”

Botched executions involving lethal injections in Arizona, Oklahoma and Ohio earlier this year have led Ray to believe that the method could face constitutional challenges as well. For that reason, he is proposing legislation that would bring back the firing squad as the secondary execution method in Utah, should the primary method, lethal injection, be found unconstitutional or unavailable. “It really won’t do anything,” Ray said. “It’s just the plan B if we need it.”

A law passed in 2004 eliminated death by firing squad in Utah, but those on death row who requested such a death prior to the new law still have the option. Ray said the legislation he is proposing would restore the firing squad as a possible execution method, but eliminate the inmate choice. “It will be lethal injection, and then, if the drugs are not there, or it is unconstitutional, then it will be firing squad,” Ray explained. “There is no option for the inmates.”

Utah's firing squad comprises five riflemen, all certified law enforcement officers, using 30-30 rifles. Four of the guns are loaded with live ammunition and one is loaded with a blank before the officers shoot in unison.

Ray acknowledged that part of the reason the method was eliminated was due to the extra attention that surrounded it. But he said there is always going to be interest around executions, especially among international media. The firing squad may heighten that interest, but Ray doesn't balk at it as an execution method.

“It is actually the most humane,” he said. “The individual is usually dead before they can even hear the gunshot. It’s four bullets to the heart, so it’s not ‘How long did it take for him to die? Could he breathe? Did he feel it?’”

Wyoming Sen. Bruce Burns, R-Sheridan, decided to propose the firing squad as Wyoming’s secondary execution method, because he said it is what he would choose if forced to select to among the alternatives to lethal injection. “It became a matter of personal prejudice and if I was the one that was being executed,” Burns said.

Wyoming’s current backup if lethal injection is unavailable is the gas chamber, which Burns felt was impractical for a number of reasons. For one, the state doesn’t have a gas chamber, and building one — and the possible litigation prompted by a decision to build one — would be expensive. “It would cost millions of dollars to build one,” Burns said. “And sometimes you have to put your own experience into it and I think the gas chamber would be a horrible way to kill somebody.”... “I do like the way Utah did it,” Burns said. “Utah has a very good protocol. If we pass this, I would hope the Wyoming Department of Corrections would look to the protocol that Utah uses.”...

Even before the botched executions, Burns noticed the difficulty getting lethal injection drugs from companies in the European Union. He proposed a bill to implement the firing squad in Wyoming’s legislative session this past January. It didn’t pass, but officials from the Wyoming Department of Corrections came forward and spoke about the difficulties states around the nation are facing when it comes to obtaining drugs for lethal injections, and the Wyoming Legislature’s Judiciary Committee decided to look at the issue. Lawmakers have since decided to sponsor the firing squad bill in the upcoming legislative session in January....

Burns said the the Wyoming Legislature’s Judiciary Committee recently had an extended debate about the death penalty and whether to eliminate it altogether. A proposed bill was even drafted. “It went down and not by a whole lot,” Burns said, before adding that he likes where Wyoming stands now with just one man on death row. “We have 22 people in prison for life without parole, and any one of those 22 could have been a capital case. We haven’t executed anyone since 1992, so we use it infrequently.”

Still, he believes the death penalty is an important tool in the criminal justice system to be used as needed. “I’m not a fan of using it more, but I would like to have it there in reserve for those crimes that are so horrible and so heinous that the person doesn’t even deserve life without parole,” Burns said.

A few recent related and older posts:

October 14, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Monday, October 13, 2014

Oklahoma AG requests additional delay before state gets back to executions

As reported in this Reuters article, "Oklahoma's attorney general has filed a request to delay three upcoming executions in Oklahoma due to a lack of drugs and to provide more time to implement new lethal injection protocols, according to court documents obtained on Monday."   Here is more:

Attorney General Scott Pruitt has asked the Oklahoma Court of Criminal Appeals to delay two executions set for November and one set for December because the state does not have the necessary drugs or the medical personnel to carry out the executions, a filing from last week showed. The drugs used during executions in the United States are under scrutiny after inmates in troubled executions in Ohio, Oklahoma and Arizona took longer than is typical to die and showed signs of distress.

Pruitt requested a Jan. 15 execution date for Charles Warner, convicted of raping and murdering 11-month old Adrianna Walker. Pruitt was scheduled to be executed Nov. 13. His original execution date was April 29, the same night of the botched execution of condemned murderer Clayton Lockett. Lockett's execution prompted the state to delay all executions pending a review and investigation into why it took Lockett over 40 minutes to die....

Richard Eugene Glossip and John Marion Grant were also scheduled for execution in 2014, but Pruitt asked that their executions be set for Jan. 29 and Feb. 19, respectively. Robert Patton, director of the Oklahoma Department of Corrections, issued a statement on Monday supporting the 60-day delay.

Dale Baich, attorney for Warner, issued a statement applauding Pruitt's request, saying more time is needed for the federal courts to review a lawsuit filed by 26 inmates, including Warner, Glossip and Grant. The lawsuit argues that the state is experimenting on death row inmates with untested lethal injection drugs, violating the law’s ban on cruel and unusual punishment.

October 13, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, September 30, 2014

Ohio AG puts onus on Ohio legislature to reboot state's machinery of death

As reported in this local article, headlined "DeWine: Executions on hold until legislators change law," Ohio's Attorney General has now suggested that the state will not even seek to move forward with executions in 2015 unless and until Ohio's General Assembly passes legislation he thinks is needed to enable a constitutionally sound and effective execution protocol.  Here are the details:

Ohio will not resume executions next year unless legislators enact two key changes in state law, Attorney General Mike DeWine said yesterday. “You’re not going to see a death penalty take place until the General Assembly takes action,” DeWine said during a joint meeting with David Pepper, his Democratic opponent in the Nov. 4 election.  The session with Gannett newspaper editors in Ohio was streamed live on the Internet.

The execution issues deal with providing anonymity for “compounding pharmacies” and immunity protection for physicians who help the state with legal support for executions, DeWine spokesman Dan Tierney said.  Tierney said DeWine thinks two pieces of legislation, not yet final, must be passed in order to meet stipulations set down by U.S. District Judge Gregory Frost.  Frost halted all lethal injections in Ohio until early next year because of concerns about the drugs and how they are used.

Convicted killer Ronald Phillips is set to die on Feb. 15, followed by five other executions next year.

Ohio and most other states have exhausted their options for purchasing chemicals used in lethal injections, largely because manufacturers, many of them European, will not sell drugs for executions.  States are now turning to compounding pharmacies, which combine materials into compounds on demand for customers.  The proposal would allow the pharmacies to do that without being cited as the source, Tierney said.

Pepper spokesman Peter Koltak said Pepper agrees that Ohio’s death penalty should be “free from constitutional concerns.”  He said, “Future legislation on Ohio’s death penalty should be given thorough and thoughtful consideration.”

September 30, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, September 22, 2014

Serious talk about a serious alternative (nitrogen) to lethal injection in Oklahoma

NgWhether one is a supporter or opponent of the death penalty, any and all fans of good government should be encouraged by this editorial from The Oklahoman headlined "Death penalty treated seriously in Oklahoma interim study."  Here are excerpts:

Oklahoma was a trailblazer in the use of one form of execution — lethal injection. Could it play that role again with the use of nitrogen?

A legislative study requested by Rep. Mike Christian, R-Oklahoma City, reviewed the potential merits of using nitrogen to execute death row inmates in Oklahoma.  To state lawmakers’ credit, this study was conducted with appropriate seriousness.  There was reason to worry it might instead turn into a forum for grandstanding, partly because of Christian’s own past comments and actions.

In April, Christian called for the impeachment of Oklahoma Supreme Court justices who supported a temporary stay of execution for Clayton Derrell Lockett.  “I realize this may sound harsh, but as a father and former lawman, I really don’t care if it’s by lethal injection, by the electric chair, firing squad, hanging, guillotine or being fed to the lions,” Christian, a former state trooper, said then.  “I look forward to justice being served.”

Yet the problems that occurred during Lockett’s execution, once it did move forward, prompted renewed national debate about the death penalty and led Christian to request a review.  When he filed that request in June, Christian said the study would explore the idea of giving condemned prisoners the option of death by firing squad, hanging or the electric chair, with firing squads made the primary, default option.....

Despite Christian’s past “fed to the lions” rhetoric, he appears to have put serious thought into this issue.  At the House study, he shifted focus from using firing squads to using nitrogen for executions.  Faculty members from East Central University discussed research on nitrogen hypoxia.

A 1961 study involving human volunteers who hyperventilated on nitrogen found that subjects lost consciousness after just 20 seconds and reported no physical discomfort. There is little sense of suffocation involved.  Many euthanasia organizations reportedly support the use of nitrogen gas. 

The use of nitrogen would eliminate the need to find execution drugs for lethal injection, which has become increasingly difficult.  And the process of administering an execution would be much simpler.

Those are good selling points.  Still, it’s reasonable to wonder: Why has no other state adopted this method of execution if it’s superior?  In 1977, Oklahoma became the first state to adopt lethal injection as a means of execution, although Texas was ultimately the first state to employ the procedure.  But that was a different era.  Being the first state to authorize a new execution method today would undoubtedly prompt numerous legal challenges, increasing taxpayer costs and slowing executions once again.

This is a debate with no easy answers, no cure-all for logistical challenges, and no permanent consensus achievable regarding the ultimate morality of the death penalty and its practical application.  But state lawmakers, Christian in particular, deserve credit for taking a serious, thoughtful approach to this ultimate application of government power.

A few recent related and older posts:

September 22, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Wednesday, September 10, 2014

Despite another round of drug-based appeals, Missouri and Texas both able to complete executions today

As reported in AP article here and here, both Missouri and Texas completed execution today.  Here are the leads from the two AP piece:

From Mizzou: "A Missouri inmate was put to death Wednesday for killing two people during a restaurant robbery in 1998, the eighth execution in the state this year and the 10th since November.  Earl Ringo Jr., 40, and an accomplice killed delivery driver Dennis Poyser and manager trainee JoAnna Baysinger at a Ruby Tuesday restaurant in Columbia in the early hours of July 4, 1998.  Poyser and Baysinger were shot to death at point-blank range.

"The Department of Corrections said Ringo was executed at 12:22 a.m. by lethal injection and pronounced dead at 12:31 a.m.  Courts and Gov. Jay Nixon had refused to halt the execution over concerns raised by Ringo's attorneys, who, among other things, questioned Missouri's use of a pre-execution sedative, midazolam.  Attorneys argued that the drug could dull Ringo's senses and leave him unable to express any pain or suffering during the process."

From Texas: "A man convicted of gunning down his former common-law wife and her brother more than two decades ago in Houston was put to death by lethal injection Wednesday evening.  Willie Trottie's execution was carried out about 90 minutes after the U.S. Supreme Court rejected his last-day appeals. He had contended he had poor legal help at his trial and questioned the potency of the execution drug."

September 10, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Tuesday, September 09, 2014

Pitching argument to pitch death penalty as failed government policy

Daniel LaChance has this notable new op-ed in today's New York Times headlined "What Will Doom the Death Penalty: Capital Punishment, Another Failed Government Program?". Here are excerpts:

To opponents of the death penalty, recent accounts of botched executions and DNA-based exonerations of death-row prisoners have revived hope that judges and voters will finally see capital punishment for what it is: an intolerable affront to human dignity.

But while such optimism is understandable, it is misplaced....

[F]ederal oversight of capital cases ..., more than wrongful convictions and botched executions, is what is distinctive about the contemporary American death penalty.  New layers of appeals and new issues to litigate at both the state and federal levels meant that inmates put to death in 2012 had waited an average of almost 16 years for their execution date.  The deeply unsatisfying, decades-long limbo that follows a death sentence today is without precedent.  The 3,054 men and women languishing on the nation’s death rows have become the unwitting cast of a never-ending production of “Waiting for Godot.”...

Efforts to remedy the problem by reforming the appellate process have been unsuccessful. In 1996, when the average stay on death row was approaching 11 years, Congress enacted legislation restricting death-row inmates’ access to federal courts, in order to speed up executions.  But it didn’t work; since then, the time between sentencing and execution has grown by over 50 percent.

The problem, it turns out, isn’t foot-dragging by defense lawyers or bleeding-heart judges. It’s money.  In California, for instance, the low wages paid by the state to qualified lawyers who take on indigent inmates’ appeals have meant that there aren’t enough lawyers willing to do the work.  Inmates wait an average of three to five years after sentencing for a government-appointed lawyer to handle their appeal.  And that’s just the beginning of a process — sometimes lasting 25 years or more — that a federal judge recently determined was so protracted that it made capital punishment in California unconstitutionally cruel and unusual....

As depressing as it may be to abolitionists driven by a commitment to human rights, Americans, most of whom are white and live above the poverty line, find it hard to sympathize with members of an indigent, mostly minority death-row population who have been convicted of horrible crimes.  Preaching to the congregation rather than the choir, then, ought to focus on the failure of capital punishment to live up to the promise of retributive justice it once held.

Casual supporters of the death penalty can be made to recognize that the death penalty has become inextricably mired in the very bureaucracy and legalism it was once supposed to transcend, and that the only solutions to the problem — an elimination of appellate lawyers for death-row inmates or a financial bailout — are unlikely to be legal or feasible.

Resources for fighting the death penalty are scarce, and for too long, abolitionists have spent them appealing to the humanistic ideals they wished most Americans shared, instead of one they actually do: distrust of government.  Arguing that the death penalty is an affront to human dignity just doesn’t work.  But portraying it as another failed government program just might.

September 9, 2014 in Baze lethal injection case, Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, September 04, 2014

Oklahoma releases extensive report concerning problems with Lockett execution

As reported in this lengthy Tulsa World article, headlined "IV errors, lack of training cited in Oklahoma botched execution report," the Oklahoma Department of Public Safety released today this lengthy official report concerning the seemingly ugly execution of Clayton Lockett by the state back in April. Here is a rough summary of the report's findings via the news report:

Despite some problems, the execution drugs did what they were supposed to do, the Department of Public Safety said Thursday morning at a news conference on a report into Clayton Lockett's execution....

Lockett died April 29 at the Oklahoma State Penitentiary 43 minutes after his execution began. Witnesses watched as he writhed, strained and mumbled on the gurney inside the execution chamber....

The stress of two planned executions in one day, a lack of proper equipment and no backup plan hampered Clayton Lockett's execution, according to the DPS report released earlier today.  The report also found that the Department of Corrections lacked a longer needle and other equipment that medical professionals requested to insert the IV.  It also states that officials took no steps to revive Lockett after his execution went awry and the blinds were closed....

Gov. Mary Fallin’s staff began preparing a stay of execution for Lockett, but he died before it could be issued, the report states. “There was conversation inside the chamber about administering life-saving measures to Lockett, including transporting him to the emergency room, but no order was given,” the report states.

A paramedic who assisted in the execution also said he felt “stressed” because two executions had been scheduled on the same day.  “It was apparent the stress level at OSP was raised because two executions had been scheduled on the same day,” the report states....

The report makes 10 recommendations for changes in the state’s execution process, including more training requirements and better communication between executioners and officials in the death chamber.  “The current processes, including the use of color pencils and hand signals, could be used as a contingency if other modern methods fail,” the report states.

Executions should also not be scheduled within seven days of each other due to manpower limitations, the report recommends.  DPS investigators interviewed more than 100 witnesses as part of the investigation, including a Tulsa World reporter who witnessed the execution....

The report states that problems with Lockett’s IV were the main reason the lethal drugs were not properly delivered into his bloodstream.  “This investigation concluded the viability of the IV access point was the single greatest factor that contributed to the difficulty in administering the execution drugs,” the report concludes.

An autopsy cites evidence on Lockett’s body that the execution team had difficulty starting his IV, taking about 45 minutes.  It notes at least 14 needle marks and incisions showing multiple attempts to start an IV in his elbows, groin, neck, jugular and foot.

Needles requested by the physician were not available at the prison, the report states. “The physician requested a longer needle/catheter for the femoral access … but none were readily available.  The physician also asked for an intraosseous infusion needle, but was told the prison did not have those either,” the report states....

The execution was the first in Oklahoma to use midazolam, a sedative that has been linked to several botched executions in other states.  Officials resorted to the drug after running out of pentobarbital, which had been used in previous executions.  “This investigation could not make a determination as to the effectiveness of the drugs at the specified concentration and volume,” the report states.  “They were independently tested and found to be the appropriate potency as prescribed.  The IV failure complicated the ability to determine the effectiveness of the drugs.”...

Despite DOC claims that Lockett had “purposefully dehydrated himself,” an autopsy by the Dallas County Medical Examiner’s Office did not find that Lockett was dehydrated, the report notes.

The paramedic assisting with the execution had participated in nearly every Oklahoma execution, the report states.  It does not explain why DOC documents repeatedly referred to the person as a phlebotomist, an occupation not required to be licensed in Oklahoma.

The physician overseeing the execution had only participated in one execution before Lockett’s, the report states. “This was his second execution with the first being four to five years earlier. The physician understood his duties were to assess Lockett to determine if he was unconscious and ultimately to pronounce his death,” the report states. “He was contacted two days prior to the execution date and asked to fill in for another physician that had a scheduling conflict.”...

Anita Trammell, warden at the Oklahoma State Penitentiary, and Patton told investigators that DOC employees received “inadequate” training before the execution. “Warden Trammell stated the only training she received was on-the-job training and that DOC had no formalized training procedures or processes concerning the duties of each specific position’s responsibility,” the report states.

“The warden and director both indicated DOC had no training protocols or contingency plans on how to proceed with an execution if complications occur during the process.” The report states that DOC lacks training requirements for medical professionals and executioners taking part in executions.  “It was noted there was no formal training process involving the paramedic, the physician or the executioners and their specific roles. They were not involved in any pre-execution training or exercises to ensure they understood the overall process,” it states.

Notably, as the Tulsa World article highlights, this report and its recomendations could surely have some impact on Oklahoma's significant upcoming execution plans:

The state plans to review its protocols before the three executions it has scheduled. The execution of a second inmate, Warner, scheduled to be executed two hours after Lockett was stayed until Nov. 13.

Two additional executions have been scheduled after Warner’s execution.  State officials have not said whether they will have enough time to implement any recommended changes in protocol in time for the next scheduled execution.

Legal challenges to the state’s process could also delay upcoming executions. Claiming the state is experimenting on “captive and unwilling human subjects,” 21 Oklahoma death-row prisoners filed a federal lawsuit in June challenging the state’s execution protocols.

September 4, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, September 03, 2014

New report that Missouri is using controversial execution drug despite claims to the contrary

A helpful readers altered me to this notable new NPR affilate story headlined "Missouri Swore It Wouldn’t Use A Controversial Execution Drug. It Did."  Here is how the lengthy piece gets started:

In Ohio, the execution took 26 minutes, as the inmate gasped and snorted. In Oklahoma, it took 43 minutes until a conscious inmate died of what the state said was a heart attack. In Arizona, it took nearly two hours, with the inmate "gulping like a fish on land."

The three worst botched executions this year had at least one thing in common: The states all used a drug called Midazolam to sedate the inmate, with varying levels of success.

Botched executions in other states led to questions in Missouri, a state as secretive as the others. Top Missouri officials were asked about the state's methods. They defended their own protocol each time, pointing out that Missouri doesn’t use the same drugs as those other states.

But an investigation by St. Louis Public Radio shows that wasn't entirely true. According to documents we obtained, Missouri has used Midazolam in every execution since November of last year. In all nine executions since then, Missouri's execution team has injected the condemned with significant amounts of the sedative.

This is occurring in spite of the fact that Missouri's top corrections officials testified Midazolam would never be used in a Missouri execution.

September 3, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

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