Sentencing Law and Policy

Kentucky considering one-drug protocol four years after Baze approved its three-drug approach

This local article, headlined "Kentucky proposes single-drug execution method," reports that the state which successfully defended its three-drug execution protocol before the Supreme Court in the Baze case is now changing its execution plans.  Here are the basics:

Kentucky Justice Cabinet officials filed the regulatory changes Friday, outlining a new protocol that would allow wardens to execute inmates with an intravenous solution of either sodium thiopental or pentobarbital, instead of the combination of sodium thiopental, pancuronium bromide and potassium chloride.

Death penalty opponents and inmates have argued that the three-drug mixture violates the constitutional prohibition on cruel and unusual punishment by producing more pain compared to the one-drug method.

The fight over Kentucky’s method has been going on for a year and a half, and the debate has been one of the factors that have held up executions in recent years in the state. Executions cannot resume until the state’s protocol passes muster.  In April, Franklin Circuit Judge Phillip Shepherd ordered the cabinet to change the protocol within 90 days or defend the mixture in his court....

The proposals are scheduled for a public hearing Sept. 25 and could appear before the state’s Administrative Regulation Review Subcommittee as soon as October.  But any controversy could push the proposed regulations’ effective date as far back as January....

David Barron, an assistant public advocate with the Kentucky Department of Public Advocacy, said death-row inmates would continue legal fights against lethal injection under the proposed regulations, which he said leave many issues unresolved and create new problems. “They appear to be attempting to carry out executions in a way that no state has even attempted, let alone done before,” Barron said.

The new rules provide wardens with a second option for executing inmates if the single-drug injections are not available seven days prior to a scheduled execution.  In those cases, a two-drug protocol involving a mixture of midazolam and hydromorphone would be permitted, but the warden would have to notify inmates seven days in advance of which option will be used. “That itself invites last-minute litigation because you don’t know if you are going to be executed with one drug or the two drugs” until a few days beforehand, Barron said.

At least seven other states have switched to the one-drug method for lethal injections. Deborah Denno, who has studied execution methods from around the country, told the Associated Press that states now use a half-dozen ways to carry out executions.  “States are so panic-stricken about not being able to execute, they’re creating this Frankenstein-type of procedure of killing at all cost, whatever it takes,” Denno said.

Kentucky’s regulations are similar to Ohio’s and cover a variety of details about how an execution is carried out, ranging from when an inmate is moved from death row to the holding cells where the execution chamber is housed to who pronounces the inmate dead and how.

As regular, long-time readers know, many supporters of the aggressive litigation against states using three-drug protocols for lethal injections would often assert that the litigation was not designed to halt or delay executions but to prod states to adopt better execution protocols such as those involving only one-drug.  Indeed, calls for a switch to a one-drug protocol were common in the Kentucky litigation that made it to the Supreme Court in Baze v. Rees in 2008, though Kentucky succeeded in getting the Justices to approve its then-in-place three-drug method.

Now, four years later, most as a result of still continuing aggressive litigation about three-drug protocols, Kentucky appears poised to adopt a new execution method that embraces the one-drug protocol previously championed by many on the defense side.  And, as far as I can tell, the state which have used this kind on one-drug protocol to date have yet to experience any obvious or serious problems with this method of completing death sentences.  Nevertheless, as Kentucky and perhaps others states finally begin to line up to adopt this apparently improved method of execution, there are still claims that states are "creating [a] Frankenstein-type of procedure of killing at all cost."  These assertions confirm my long-standing view and fear that the litigation over lethal injection protocols was more about obstructing any and all executions rather than about truly improving the means for how these executions would be completed.

Drug scarcity, not litigation, has Texas moving to one-drug execution protocol

The last decade has seen huge (and hugely expensive) constitutional litigation in state and federal courts throughout the nation concerning three-drug lethal injection execution protocols.  Capital defendants in these cases often claimed they hoped only to push states to adopt a one-drug protocol rather than give up executions altogether; rarely did they succeed in this mission, though often they did managed to achieve (their true goal of?) a delay in a scheduled execution.  This lethal injection litigation twice made it to the Supreme Court docket, though the SCOTUS rulings in Hill and Baze did relative little to clarify or conclude (still on-going) constitutional litigation over three-drug execution protocols.

Against the backdrop of this litigation history, I find more than a little irony in various aspects of this new AP story coming from the state with the most active death chamber.  The story is headlined "Texas switches to 1-drug execution due to shortage," and here are the basics:

Texas, the nation's most active death penalty state, announced Tuesday that it would become the latest to switch to single-drug executions amid a drug shortage that has left states scrambling for acceptable alternatives.

The Texas Department of Criminal Justice said it will begin using a single dose of the sedative pentobarbital to carry out death sentences. It had been using that drug in combination with two others, but its supply of one of the other drugs expired.

Texas began using pentobarbital last year after another drug, sodium thiopental, became unavailable when its European supplier bowed to pressure from death penalty opponents and stopped making it. But pentobarbital is now in short supply after its Danish manufacturer said it would try to prevent its use in executions.

An Oklahoma inmate asked a federal court on Tuesday to halt his upcoming execution because that state has only one dose of pentobarbital left. A lawyer for Michael Hooper said Oklahoma has no backup plan if the drug fails to render Hooper unconscious, and that creates a risk of cruel and unusual punishment.

Texas officials said in May that they have enough doses of pentobarbital to carry out 23 executions. No one has been executed in the state since....

Four other states - Arizona, Idaho, Ohio and Washington - have used a single drug to carry out executions, according to the Death Penalty Information Center. Ohio was the first to use just pentobarbital, during a March 2011 execution. Other states, such as Missouri, plan to use propofol, the anesthetic blamed for Michael Jackson's death, to do single-drug executions.

Death penalty opponents claim single-drug executions may be less humane. They point to an April execution in Arizona, where an inmate shook for several seconds after receiving a lethal dose of pentobarbital. The drug was used by itself in that case.

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, said three-drug cocktails kill quicker than a single anesthetic like pentobarbital. "The person still goes to sleep and gradually loses mental capacity and dies, but it may take a slightly longer time," Dieter said. "I think the idea originally was to cause death quickly, but you needed the anesthetic to make those next two drugs painless."

Texas has carried out more executions than any other state, 482 since the state reinstated capital punishment in 1982. Its next scheduled lethal injection is July 18, when Yokamon Hearn is set to die for killing a 23-year-old stockbroker from Plano, north of Dallas, in 1998.

Hearn's lawyer, Richard Burr, said he was studying the switch to a single drug and hadn't decided yet whether to file an objection to it. Texas has nine executions, including Hearn's, scheduled between now and mid-November. Clark said switching to a single-drug method now will ensure that all can be carried out as planned.

Dieter said Texas' switch might influence other states and provide more evidence for whether a one-drug procedure works better than previous methods. "Either way, it provides more evidence that this is or is not the way to go," Dieter said. "Everybody thinks of Texas as the leading execution state. It's a question of numbers."

Arizona scheduled to conduct a more transparent execution

As reported in this AP article, headlined "Arizona inmate to be executed in new open process," folks are today literally going to see the impact of a media lawsuit concerning state execution protocols.  Here is how the piece starts:

Witnesses expect to be able to see prison officials inject a lethal drug into a condemned inmate for the first time in Arizona history on Wednesday, when the state is scheduled to execute its fourth prisoner of the year.  Arizona opened up the process after a federal judge recently sided with The Associated Press and other news organizations in Idaho to allow witnesses full viewing access to lethal injections.

Until now, witnesses from the news media, the state and victims' family members walked into the death chamber at the state prison in Florence after the inmates had been injected and covered with a sheet up to their chest or neck.  Once the witnesses were in place, the drugs then coursed through the inmates' veins.  Now witnesses will see the actual injection, something that defense attorneys sought in an effort to ensure inmates don't experience any unnecessary pain.

Samuel Villegas Lopez is set to be Arizona's fourth inmate to die by a single-drug lethal injection.  Two more condemned prisoners whose appeals are nearing their end could be executed by the end of the year, which would put the state on pace to match its busiest year for executions and among the busiest death-penalty states in the nation.

Lopez was sentenced to die for the brutal rape and murder of a 59-year-old Phoenix woman in 1986. Of the 126 inmates on Arizona's death row, only five have been there longer than him.

Split Arkansas Supreme Court strikes down state's execution methods on separation-of-powers grounds

As reported in this Wall Street Journal piece, the "Arkansas Supreme Court struck down the state's death-penalty law as unconstitutional Friday, a ruling that will further delay executions in a state where there are 37 inmates on death row." Here is more about the ruling and its import:

In a split decision, the court said state law gives the Arkansas Department of Correction too much discretion in deciding how to carry out the death penalty, including choosing which drugs will be used in lethal injections. The law "fails to provide reasonable guidelines for the selection of chemicals to be used," the court concluded.

The Arkansas legislature, which doesn't meet again until January, will now have to rewrite the state's death-penalty law....

Arkansas law is worded so broadly that the "prison could use rat poison or Drano if they wanted," said Jeff Rosenzweig, one of the lawyers for the 10 death-row inmates who brought the suit. "If prisons use the wrong chemicals or wrong doses, you can put a person in excruciating, torturous pain," he said.

Dina Tyler, a spokeswoman for the Arkansas Department of Correction, said "there has never been any undue pain and suffering by Arkansas inmates, beyond that they feel a needle prick." Lethal injection will remain "the manner of execution in the state," she added.

Arkansas Governor Mike Beebe will meet with the state's attorney general and legislators to devise a remedy. "The death penalty is still the law in Arkansas," Mr. Beebe's spokeswoman said.

The full opinion of the Arkansas Supreme Court in this matter is available at this link, and here are key paragraphs from the majority opinion:

Our prior cases interpreting statutes in conflict with the doctrine of separation of powers focus on whether a statute gives “absolute, unregulated, and undefined discretion” to a government agency and whether reasonable guidelines have been provided by which the administrative body is to exercise its discretionary power. The MEA plainly gives absolute and exclusive discretion to the ADC to determine what chemicals are to be used. Although subsection (a)(2) attempts to provide a list of chemicals for use in lethal injection, the ADC has unfettered discretion to use chemicals from that list or chemicals not included on that list. It can hardly be said that the word “may” used in conjunction with a list of chemicals that itself is unlimited provides reasonable guidance. Although the General Assembly can delegate to the ADC the power to determine certain facts or the happening of a certain contingency, the current MEA gives the ADC the power to decide all the facts and all the contingencies with no reasonable guidance given absent the generally permissive use of one or more chemicals. Moreover, subsection (a)(4) expressly gives complete discretion to the ADC to determine all policies and procedures to administer the sentence of death, including injection preparations and implementation. The statute provides no guidance and no general policy with regard to the procedures for the ADC to implement lethal injections.

The ADC argues that reasonable guidance can be found in the prohibition on cruel 14 Cite as 2012 Ark. 293 and unusual punishment in the Eighth Amendment and our state counterpart, Ark. Const. art. 2, § 9. In other words, the ADC maintains that because it is bound by the bar on cruel and unusual punishment, this prohibition acts as a supplement to the statutory language found in the MEA. This argument is misplaced. The ADC is correct that we presume that officials act with good faith and follow the law in carrying out their duties, such as implementing the mandate of the General Assembly for capital punishment by lethal injection. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). Nonetheless, the argument presented in this case is that the General Assembly has delegated its legislative authority by giving unfettered discretion, without sufficient guidelines for the use of that discretion, to another branch of government. The central question is thus whether the General Assembly has provided sufficient guidance. Where it has failed to do so, the doctrine of separation of powers has been violated and other constitutional provisions cannot provide a cure.

News groups bring suit to ensure access to full Idaho execution process

As reported in this AP article, the "Idaho Press-Tribune, along with the Associated Press and 16 other organizations, sued the state of Idaho Tuesday to force officials to let witnesses watch executions from start to finish, arguing that the media has a First Amendment right to view all steps of a lethal injection execution." Here is more about the suit:

The group asked a U.S. District Court judge to require the state to increase witness access to its executions, starting with the upcoming execution of Richard A. Leavitt, a convicted killer scheduled to be put to death on June 12....

Idaho, like most states with lethal injection, bars witnesses from watching as a condemned inmate is brought into the execution chamber, strapped to the table and has IVs inserted into his or her arms.  The news organizations say reporters must be able to view executions from start to finish so they can accurately report the events — and any complications that may emerge — to the public....

“This lawsuit is really all about obtaining access to the entire execution process for viewing purposes. It’s very important in a society such as ours to have full transparency in regards to the exercise of government authority,” said Chuck Brown, the attorney representing the news organizations.

The states that grant access to part of the death penalty process say they do so to protect the anonymity of the execution team.  Idaho Department of Correction spokesman Jeff Ray said the department had not yet had a chance to review the lawsuit, and that the state’s attorneys would respond to the claims in court.

The lawsuit relies heavily on a 2002 San Francisco-based federal appeals court ruling that found that witnesses should be allowed to view executions from the moment the condemned enters the death chamber until their final heartbeat.  Since the ruling, only one state under the court’s nine-state jurisdiction is following it: California, where the case arose. Idaho, Arizona, Washington, Montana and Nevada have all barred witnesses from the first half of lethal injection executions.

Most states nationwide do the same.  Of the 27 states that have lethal injection outside of the circuit’s jurisdiction, only Ohio and Georgia allow witnesses to see the entire process....

The Idaho organizations decided to sue after state officials limited access to the execution of Paul Ezra Rhoades. Put to death in November, Rhoades was the first person to be executed in the state in 17 years, and only the second in the last half-century.  Media interest in the event was intense, and the department selected four journalists to view the proceedings.

Missouri AG pushing state to get serious about carrying out executions again

This interesting new AP article, headlined "Missouri attorney general urges state Supreme Court to schedule executions or explain why not," reports on efforts by Missouri Attorney General Chris Koster to get his state's machinery of death operational again.  Here are the details:

Koster filed a motion on Thursday seeking execution dates for nine men. The motion also questions why the court has not set execution dates for 10 others whose execution dates were previously requested.  "Silence is not an option in this matter any longer," Koster said in an interview on Friday.  "The court needs to give us the word that we can move forward with these, or they need to articulate why not."

Beth Riggert, spokeswoman for the Missouri Supreme Court, declined to speculate on why execution dates have not been set for the 10 earlier inmates.  As for the nine new ones, she said each has five business days to respond to Koster's call for execution dates. "The court will rule when it deems it appropriate," she said.

Meanwhile, Missouri's next execution will apparently use a new process.  Previously, the state used a three-drug protocol.  But a shortage of one of those drugs, sodium thiopental, has prompted the state to go to a single-drug method.

Between 1989, when executions resumed in Missouri, and 2005, the state put to death 66 convicted killers.  But in the seven years since then, only two men have been executed — Dennis Skillicorn in 2009 and Martin Link last year....

In Missouri, the attorney general typically requests an execution date after traditional court appeals are exhausted.  In years past, the state Supreme Court would then establish a date, setting in motion last-minute court appeals as well as a clemency request before the governor.  But it has been six years since Koster's predecessor, now Gov. Jay Nixon, requested an execution date for Jeffrey Ferguson. Execution dates for five inmates have been pending since 2007.

Koster acknowledged that two issues may have made the Supreme Court reluctant to move forward.  Death penalty opponents have filed several claims that lethal injection violates a constitutional guarantee against cruel and unusual punishment, saying it potentially causes extreme pain that the drug-induced inmate cannot articulate.  A 2010 ruling by the U.S. Supreme Court cleared the use of the drugs. Then a shortage of one of the three drugs emerged.  Some states halted executions because of the inability to obtain sodium thiopental, which renders the inmate unconscious....

Missouri has revised its protocol and will now use just one drug, propofol (marketed as Diprovan), which will be administered intravenously, Dave Dormire, director of the Missouri Department of Correction's Division of Adult Institutions, said in a statement on Friday.  Corrections officials did not say when the new protocol was adopted.

Koster also noted that there has been a change in "political sentiment" toward the death penalty, with an increasing number of states reluctant to carry it out and prosecutors becoming more reluctant to seek it.  Still, he said that as long as it is law in Missouri, there is an obligation to move forward with executions.  "The political world doesn't affect the carrying out of these sentences until legislatures act," Koster said.  "I have an obligation to strictly follow the letter of the law. The Supreme Court does as well."

Ninth Circuit panel grudgingly allows Arizona execution to go forward

As reported in this AP article, the Ninth Circuit "is refusing to block an Arizona execution scheduled for Wednesday." Here is a quick summary of all the action:

Separate three-judge panels of the U.S. 9th Circuit Court of Appeals in San Francisco on Tuesday each denied an appeal filed on behalf of Samuel Villegas Lopez. One of the appeals challenged the state's execution procedures while the other argued that Lopez was denied effective legal representation.

Meanwhile, Lopez's lawyers have asked the Arizona Supreme Court to block his execution so a lower court can consider whether Lopez's rights to a fair clemency hearing have been violated.

Lopez is scheduled to be executed for the 1986 murder of Estefana Holmes of Phoenix.

I never cease to be amazed at all the eve-of-execution litigation that can take place more than a quarter-century after a murderer's offense.  And, as detailed in opinions linked here, a panel of the Ninth Circuit seems amazed by how Arizona is going about administering its execution protocols (even as it ultimately concludes Arizona should be allowed to move forward with its execution plans).

Los Angeles DA also suing to get California to resume executions with one-drug protocol

As reported in this post from a few weeks ago, the brother of a California murder victim recently brought suit asking a state judge to order the state to move forward with the long-stalled execution of his sister's killer by adopting the one-drug lethal injection method currently used in some other state.  Now, as reported in this recent Reuters piece, which is headlined "Prosecutors seek to resume California executions after 6-year ban," this strategy is being tried by a prominent California district attorney. Here are the basics:

Los Angeles prosecutors asked a judge on Wednesday to order the execution of two condemned killers using a single drug for lethal injections, a move intended to end a 6-year hold on the death penalty in California over the method used by the state.

The move comes days after Democratic Governor Jerry Brown told prison officials to consider using the single-drug execution protocol, and ahead of a November ballot measure that seeks to repeal capital punishment in the state.

A federal judge halted all California executions in 2006 after finding that the three-drug method that has been used for lethal injections in the state carried the risk of causing the inmate too much pain and suffering before death. California revised its protocol, but an appeals court has blocked a resumption of executions over the same objections.

Motions filed by Los Angeles District Attorney Steve Cooley's office in Los Angeles Superior Court on Wednesday asked that the warden of San Quentin State Prison put convicted murderers Mitchell Carleton Sims and Tiequon Aundray Cox to death by the single-drug protocol or show cause why the executions cannot proceed. Sims, 52, and Cox, 46, have both been on California's death row at San Quentin, near San Francisco, for more than a quarter century....

Sandi Gibbons, a spokeswoman for Cooley, said the district attorney had been working with prosecutors across the state for months on the strategy, and that it would soon be used against other convicted murderers in California.... Gibbons said both men had exhausted their appeals and that only the ruling against California's three-drug protocol was stopping the state from putting them to death....

Richard Dieter, executive director of the nonprofit Death Penalty Information Center in Washington, was skeptical that prosecutors could persuade a judge to approve executions by a protocol that had not been fully vetted by the courts. "The D.A. can file and request this but the larger question is whether California has a working protocol for carrying out executions, and I don't think it has," Dieter said. "It's not as simple as just changing to one drug." Dieter said the move could force courts to more quickly take up the issue of using the single-drug protocol in California.

Some recent related posts:

• "Murder victim’s family sues to enforce California death penalty"
• State judge oreders Kentucky to consider one-drug protocol for lethal injections
• Defense lawyer in Arizona troubled by shaking of condemned during one-drug execution
• Ohio completes "the most documented execution in the United States"

State judge oreders Kentucky to consider one-drug protocol for lethal injections

For no obvious reason, today seems like it is full of lethal injection news in the states.  This lengthy AP story explains the notable news from Kentucky, under the headline "Judge: Ky. must consider single drug executions."  Here are excerpts:

Kentucky must either switch to a single drug to perform executions within 90 days or prepare to go to trial on the claims of death row inmates challenging the state's three-drug method of carrying out capital punishment, a judge ruled Wednesday.

In a long-awaited order, Franklin Circuit Judge Phillip Shepherd wrote that the state's three-drug method may no longer be necessary now that other states have successfully used a single drug to execute condemned inmates and shown that "well-established alternatives" exist for Kentucky.

The ruling comes about 20 months after Shepherd halted all executions in Kentucky. He imposed the ban after inmates challenged the three-drug method. Their lawsuit asked whether the state's rules for carrying out a lethal injection prohibited the use of a single drug and if there were adequate safeguards against executing a mentally ill inmate.

If Kentucky sticks with a three-drug method, Shepherd wrote, the challenge by the inmates will be allowed to go to trial. If Kentucky adopts a new regulation allowing for a one-drug execution, similar to what is done in Arizona, Ohio and other states, any claims of cruel and unusual punishment by the inmates "will be rendered moot."...

Shelley Catherine Johnson, a spokeswoman for the Kentucky Attorney General's Office, said the order is being reviewed and the Department of Corrections will be consulted in "the near future."

Kenton County Commonwealth's Attorney Rob Sanders, a death penalty proponent, said the state should heed Shepherd's ruling and go further. "I think it would be faster, less expensive, and prudent for Kentucky to adopt new administrative regulations that provide flexibility in selection of the drug or drugs used to carry out executions," Sanders told The Associated Press. "In fact, the process of adopting new regulations should have been started 20 months ago."

Dan Goyette, a Louisville public defender who represents death row inmate Gregory Lee Wilson, said Shepherd "thoroughly considered and addressed the issues" and reached a "well-reasoned, fair and responsible" conclusion. "I hope the Department of Corrections proceeds in a like manner in determining its course of action, and takes into account the recent report of the ABA Assessment Team on the administration of the death penalty in Kentucky," Goyette told The Associated Press.

Public defender David Barron, who represents several death row inmates, said the recent use of a single drug by other states shows that a single-drug execution is workable and doesn't violate the constitution's prohibition against cruel and unusual punishment....

The ruling does not require Kentucky to switch to a single drug for executions. Instead, Shepherd cited the language in the state's lethal injection statute allowing the Department of Corrections to use "a substance or combination of substances" in executing an inmate. Shepherd contrasted the wording the law with administrative regulations that allow only for a three-drug mixture to be used in executions. "The disjunctive language of this statute makes clear that the use of a single drug was not only contemplated by the legislature, but also expressly permitted," Shepherd wrote.

At the time the U.S. Supreme Court upheld Kentucky's three-drug method in 2007, Shepherd wrote, a one-drug method was still untested. That's no longer the case. "The Supreme Court clearly held that the constitutionality of the three-drug protocol under the Eighth Amendment is an issue that can only be decided in the context of available alternatives," Shepherd wrote. "It did not hold that the three-drug protocol was constitutional in all circumstances regardless of the available alternatives."

Defense lawyer in Arizona troubled by shaking of condemned during one-drug execution

Advocates for reforming lethal injection protocols have pushed for states to switch from three-drug approaches to one-drug protocols to reduce the prospect of a condemned inmate feeling pain during the execution process.  But this new AP story following an execution in Arizona last night, which is headlined "Lawyer concerned by inmate's shaking at execution," suggests a switch to a one-drug protocol does not eliminate all concerns. Here are the basics:

The attorney for an Arizona death-row inmate executed Wednesday said he was "very disturbed" after seeing his client shake for several seconds upon receiving his lethal injection, and he wants to find out if the man felt any unnecessary pain.

Thomas Arnold Kemp, 63, was executed at the state prison in Florence for killing a Tucson college student after robbing him of $200 in July 1992.... As the one-drug execution began, Kemp's eyes closed and his body visibly shook for several seconds before he went quiet and appeared to fall asleep with a few deep breaths.  His time of death was 10:08 a.m.

[Kemp's lawyer Tim] Gabrielsen later told The Associated Press he was concerned about his client's shaking and was considering what action could be taken to determine if Kemp experienced pain, including an autopsy by an independent pathologist. "It was unmistakable," said Gabrielsen, who has witnessed one other execution. "He was shaking very violently. We're very disturbed by that."

In the past nine Arizona executions attended by the AP since 2007, no other inmates shook as they were given a lethal injection.  State Department of Corrections spokesman Bill Lamoreaux said Kemp was offered a mild sedative before the execution but turned it down. "Also, the air conditioner was on and he expressed he was a little chilly," Lamoreaux said in an email to the AP.  "The air conditioner was turned off, and (Corrections Director Charles Ryan) personally directed the inmate be covered with a couple of blankets."...

Kemp was executed using one drug, pentobarbital.  Most states use a three-drug process and "the second drug would mask any movement or pain," said Richard Deiter, executive director of the Death Penalty Information Center in Washington, D.C. Deiter said it's hard to know if Kemp "had a strong adverse reaction" to the pentobarbital. "Sometimes it depends on the individual," he said. "Maybe he had an unknown (medical) problem."

Jonathan Groner, an Ohio State University surgeon who has studied lethal injection extensively, said high doses of pentobarbital are associated with seizures, and that may have caused Kemp's shaking. "The problem is the people that give it are not physicians. They try to push it as fast as possible," Groner said. "It's nothing anyone would do in a hospital or medical center. It's not a very good way to kill people."...

Arizona executed Robert Henry Moormann on Feb. 29 and Robert Charles Towery on March 8. Another inmate, Samuel Villegas Lopez, is scheduled to be executed May 16 for the brutal rape and murder of a Phoenix woman. Three other inmates who are near the end of their appeals also could be put to death this year, putting the state on pace to execute seven men in 2012. Arizona established its death penalty in 1910. Since then, the most inmates Arizona has executed in a given year was seven in 1999.

Ohio completes "the most documented execution in the United States"

As reported in this local story, after a sixth-month blockade of executions due to Ohio's persistent failure to follow its own execution protocols, the Buckeye State this morning got its machinery of death up and running again.  As, as these excerpts from the story highlight, the execution prompted some notable quotes from both the condemned and those tasked with ending his life:

More than 26 years after he brutally murdered a Rootstown, Ohio, teenager, Mark Wayne Wiles paid the ultimate price today. Wiles 49, was executed at 10:42 a.m. at the Southern Ohio Correctional Facility near Lucasville. It was Ohio’s first execution in five months because of a legal battle about the state’s lethal-injection procedures.

Wiles, who looked nervous and haggard after entering the death chamber, reportedly had spent a sleepless night. As he lay on the gurney, a prison staff member removed his glasses at his request, so that he could read his last statement from a piece of paper held in front of his face.

"The love and support of my family has sustained and supported me throughout the years," he said. "I love you all. Since this needs to happen today, I hope my dying brings some solace and closure to the Klima family and their loved ones.  The state of Ohio should not be in the business of killing its citizens. May God bless us all that fall short."

Gary C. Mohr, director of the state Department of Rehabilitation and Correction, said this morning that because the Wiles case is being so closely watched by the courts, it is "the most documented execution in the United States."

Wiles was convicted and sentenced to be death for the fatal stabbing of Mark Klima, 15, on Aug. 7, 1985. Records show that Wiles, who was out of prison on an aggravated-robbery conviction, killed the 5-foot-tall, 100-pound Klima at the family’s Shakespeare Acres horse farm in Portage County where Wiles had once worked.  The kitchen knife that Wiles used to stab Klima 24 times had been used the previous day to cut the cake at a family birthday party....

The execution was the 47th in Ohio since capital punishment resumed in 1999.

I suspect time and future litigation may tell whether this "most documented" execution lived up to Ohio's own written protocols and to the expectations of the federal courts.  If Ohio is successfully back on track with its machinery of death, it likely will conduct another half dozen executions this year.

Death penalty news and notes from many states

I saw a number of interesting death penalty stories from a number of states on the news wire this evening, and here are links to a few:

• From Arizona here, "Arizona inmate won’t seek death-row mercy"

• From Florida here,"Surviving serial killer's victim asks officials to stop his Thursday execution

• From Idaho here, "4 death row inmates sue over Idaho's newest lethal injection procedures"

• From Ohio here, "Faith leaders want mercy for Ohio death row inmate"

• From Oklahoma here, "Tulsa residents want death penalty in shootings"

Ohio apparently now allowed to restart (carefully) its machinery of death

As reported in this local article, which is headlined "Federal judge says execution of Portage County killer can move forward," a federal district judge who has blocked some recent Ohio execution plans has now changed the constitutional red light to yellow for the state's execution plans. Here are the details from the article:

A federal judge has cleared the way for this month’s execution of Portage County killer Mark Wiles.  In a sternly worded decision April 4 that starts with the question “Can Ohio Be Trusted?” and ends with “some trepidation,” Judge Gregory Frost denied a temporary restraining order to block the April 18 lethal injection, essentially accepting a revised execution process outlined by the Ohio Department of Rehabilitation and Correction.

But in the 49-page ruling, Frost wrote that he was skeptical state prison officials would actually follow through on their execution protocols, and he gave a warning against future failures.  “They must recognize the consequences that will ensue if they fail to succeed in conducting a constitutionally sound execution of Wiles,” Frost wrote.  “They must recognize what performing a constitutionally sound Wiles execution and then returning to the flawed practices of the past would mean.”

The decision met with mixed reaction, with prosecutors saying Wiles’ execution is long overdue. “We’re encouraged that justice could finally be done in this case and that the family will finally have some closure,” said Portage County Prosecutor Vic Vigluicci.  He added later, “Certainly, 26 years is more than adequate to ensure all of his rights of appeal and his constitutional rights have been protected.  That’s too long, actually.”

But Attorney General Mike DeWine said he is considering appealing the ruling.  Though the outcome is in the state’s favor, DeWine said he takes issue with Frost’s underlying argument. “We think the rationale is not legally correct,” DeWine said. “And even though we ‘won’ this case, we think it presents some huge problems from a practical point of view in the future. And so we’re looking at it. We have not decided we’re going to appeal, but we very well may appeal this decision.”

Wiles has been on Death Row for the knifing murder of Rootstown teen Mark Klima more than 25 years ago after the 15-year-old caught the Portage County man burglarizing his family’s home. Legal counsel for Wiles are seeking clemency in the case, saying that he has admitted his guilt, is remorseful over the killing and has displayed good behavior while in prison. But Wiles was uncooperative during the clemency process, and the state parole board unanimously recommended against a sentence commutation to life in prison without the possibility of parole. Gov. John Kasich has final say on the matter.

Pending other possible legal challenges, Wiles would be the first inmate to make the trip to the Death House at the Southern Ohio Correctional Facility since late last year. Earlier this year, Frost blocked the state from carrying out two executions, including one for Charles Lorraine, convicted in the heinous knifing murders of an elderly couple in Warren.

Some related posts concerning Ohio's recent lethal injection litigation: 

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Ohio decides not to appeal federal district court ruling in Smith halting execution
• Ohio ready to try to get its machinery of death back in operation
• Federal judge again halts Ohio execution because state not following its own protocol
• Sixth Circuit panel upholds stay of Ohio's next planned execution
• Ohio asks SCOTUS to vacate stay of state execution
• Another Ohio execution postponed due to execution protocol issues
• US Supreme Court refuses to vacate execution stay in Ohio
• Which elected official(s) should Ohio voters hold accountable for the legal mess with its execution process?

Is undue "secrecy" in the execution process a constitutional problem?

The question in the title of this post is prompted by this lengthy new local article, headlined "Cruel and unusual?: Death row inmate challenges state execution procedure," discussing the on-going litigation over Alabama's execution process and protocol.  Here is how the piece starts:

A death row inmate who had his execution blocked by a federal court that cited Alabama’s “secrecy” concerning its execution procedure says that procedure could leave him conscious while drugs that stop his breathing and his heart flow through his body.

Attorneys for Thomas Arthur, who was convicted in a 1982 murder-for-hire scheme, argue that the use of pentobarbital to anesthetize a prisoner during an execution violates Arthur’s Eighth Amendment protections.

Suhana Han, Arthur’s attorney, claims the drug does not work fast enough to prevent the inmate from feeling the potentially painful effects of the two drugs that follow, and that the state’s secrecy surrounding its execution protocols makes it impossible to determine whether its use constitutes cruel and unusual punishment, or even if the state follows its own procedures during executions.... “What we’re asking the court to do is allow us the opportunity to prove our claim,” Han said. “Alabama has never had its lethal injection process challenged at trial on the merits.”

Arthur was scheduled to be executed March 29, but the 11th Circuit Court of Appeals on March 21 overturned a lower court’s dismissal of Arthur’s appeal on the use of pentobarbital, finding there was no evidence that Alabama was conducting executions in a constitutional manner. The situation, the court wrote, was “exacerbated by Alabama’s policy maintaining secrecy surrounding every aspect of its three-drug execution method. It is certainly not speculative and indeed plausible that Alabama will disparately treat Arthur because the protocol is not certain and could be unexpectedly changed for his execution,” the court wrote.

Brian Corbett, a spokesman for the Alabama Department of Corrections, declined comment last week, saying he was not at liberty to discuss the state’s execution procedures. The Alabama Attorney General’s office also declined comment on the case.

"U.S. judge bars import of drug used in death penalty"

The title of this post is the headline of this new Reuters report on a seemingly significant ruling coming from the DC federal district court today. Here are the details:

A U.S. judge on Tuesday barred U.S. authorities from importing an anesthesia drug used in carrying out death sentences because the Food and Drug Administration never approved the drug for use in the United States, and he ordered supplies be confiscated.

A group of death row inmates had sued the FDA last year over improperly allowing shipments into the country of sodium thiopental, a sedative used as the first of three drugs administered in carrying out executions.

A year ago, state officials in Tennessee and Kentucky turned over their supplies of the drug to the FDA amid an investigation into how it was imported. U.S. authorities seized a supply of thiopental from state of Georgia. The FDA had sought to have the challenge dismissed, arguing that it was using its discretion by allowing the shipments into the country and also that it deferred to law enforcement with respect to the drugs used for executions.

U.S. District Judge Richard Leon sided with the inmates, criticizing the FDA for departing from its longstanding practice of not allowing unapproved drugs into the United States. "The FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle. How utterly disappointing!" Leon wrote in his 23-page opinion.

He also ordered that the FDA notify all state correctional departments with thiopental made overseas that they are not allowed to use it and that they must return their supplies to the agency immediately.  With the supply of thiopental dwindling, Leon noted, some states have switched to pentobarbital to sedate death row inmates before they are injected with the cocktail of other drugs used to carry out death sentences....

Fordham University law professor Deborah Denno called the decision "very important" and said if the thiopental was obtained from overseas, "we don't know the conditions under which those drugs were housed and transported, which could affect their quality."

A spokesman for the Justice Department, which represented the FDA in the case, declined to comment. The agency could appeal. Bradford Berenson, a lawyer for the death row inmates, said: "It's unfortunate that FDA behaved as if there were some kind of death penalty exception to the clear requirements of federal law but gratifying that a federal judge recognized that no such exception exists."

The case is Beaty et al v. Food and Drug Administration et al in U.S. District Court for the District of Columbia, No. 11-cv-289.

Via this post about the ruling appearing at The BLT, I can here link to the full Beaty opinion.  As the opinion notes, a few of the states with the most upcoming serious execution dates (Ohio, Oklahoma and Texas) have recently stopped using thiopental, so the impact of this ruling may not be profound nationwide.  But it will be interesting to see if the FDA will appeal and/or if state who still rely on thiopental in their execution protocols will now be subject to inquiry and litigation concerning the source of this drug.

Split Eleventh Circuit panel keeps Alabama lethal injection challenge alive (for now)

As reported in this AP article, the Eleventh Circuit "has revived an Alabama death row inmate's challenge of his state's new three-drug lethal injection protocol."  The per curiam opinion from the Eleventh Circuit panel (available here) ends this way:

To survive a motion to dismiss, Arthur has to plead “only enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic v. Twombly, 550 U.S. 554, 570 (2007). Here, Arthur has alleged enough facts to constitute a plausible Equal Protection claim because he alleges that Alabama has substantially deviated from its execution protocol in a manner that significantly reduces inmate safeguards.  He alleges that Alabama’s lethal injection protocol requires pinching the inmate as the last consciousness check after the initial injection of pentobarbital and prior to injecting the final two lethal drugs.  The consciousness check is performed to reduce or eliminate the risk of excruciating pain that would follow the injection of the second and third drugs in the lethal injection protocol. Arthur alleges that based on eyewitness testimony, the State of Alabama failed to perform the pinch test during the 2011 execution of Eddie Powell, even though Powell’s eyes remained open, his head turned from side to side, and he clenched his jaws.

Arthur alleges that Alabama’s reduction in safeguards burdens his right to be free from cruel and unusual punishment. “[S]ubjecting individuals to a risk of future harm — not simply actually inflicting pain — can qualify as cruel and unusual punishment.” Baze v. Rees, 553 U.S. 35, 49 (2008). Significant deviations from a protocol that protects inmates from cruel and unusual punishment can violate the Eighth Amendment. Indeed, the Sixth Circuit recently affirmed an order to stay an execution because four core deviations from Ohio’s lethal injection protocol, including foregoing mandated vein assessments, burdened the Equal Protection rights of inmates in Ohio. See In re Ohio Execution Protocol Litigation, No. 12–3035 (6th Cir. Jan. 13, 2012), affirming, Cooey v. Kasich, 801 F. Supp. 2d 623, 643-644 (S.D. Ohio 2011) (“We agree with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted.”).

Here, Arthur alleges that Alabama failed to perform a required consciousness check in a recent execution, a significant deviation from its execution protocol. In light of Arthur’s other allegations regarding the veil of secrecy that surrounds Alabama’s execution protocol, it is certainly not speculative and indeed plausible that Alabama will disparately treat Arthur because the protocol is not certain and could be unexpectedly changed for his execution.

Accordingly, accepting Arthur’s allegations as we must at the motion to dismiss stage, we conclude that the district court erred in dismissing Arthur’s Equal Protection claim at this stage of the proceedings and remand for further factual development.

A very lengthy dissent by Judge Hull and Alabama's likely eagerness to go forward with an execution scheduled for next week leads me to believe that this matter may be considered in some way by the full Eleventh Circuit or perhaps even the Supreme Court before long.  In other words, this is a story to keep watching.

Two executions in two states close out February

The US death penalty took full advantage of the extra day of February as reported in this Reuters article, headlined "Arizona and Texas carry out executions":

A Texas man who confessed to being the ringleader of a ruthless band of murderers was executed by lethal injection on Wednesday, hours after an Arizona man convicted of strangling and stabbing his adoptive mother was put to death.

George Rivas, 41, was executed at a prison unit in Huntsville, Texas, for his role in the murder of police officer Aubrey Hawkins outside an Oshman's Superstore on Christmas Eve 2000 in Irving, next to Dallas.   Earlier in the day in Arizona, Robert Henry Moormann, 63, died at 10:33 a.m. local time at the state prison complex in Florence, about 60 miles southeast of Phoenix, state officials said.

Rivas was the confessed ringleader of a group that came to be known as the "Texas Seven," a band of convicted robbers, rapists, and murderers that broke out of a maximum security prison in Karnes County about an hour southeast of San Antonio on December 13, 2000.  Before he escaped, Rivas had been serving 17 life sentences for several crimes, including aggravated kidnapping, according to the Texas Attorney General's office....

Rivas was the second person executed this year in Texas, which executed 13 people in 2011 and has put to death more than four times as many people as any other state since the United States reinstated the death penalty in 1976, according to the Death Penalty Information Center.

In Arizona, Moormann was serving a sentence of nine years to life at the Florence prison for kidnapping an 8-year-old girl when he was given a compassionate three-day furlough in January 1984 to visit with his mother.  Authorities said Moormann bound and gagged the 74-year-old woman at the motel where she was staying, before he strangled and stabbed her.  He later chopped her body up and disposed of the parts in dumpsters throughout Florence....

In a flurry of last-minute appeals, defense attorneys sought to block the execution by claiming that the convicted murderer was mentally retarded and cannot legally be put to death.  Attorneys also objected to the state changing the drugs it uses for the execution, challenging the decision to switch to one drug from a three-drug protocol.  The state Department of Corrections on Monday informed the Arizona Supreme Court of the change.

Ninth Circuit tells Arizona to get its execution protocol fixed up ASAP or else

As detailed in this new AP article, a Ninth Circuit "panel on Tuesday issued a strong warning to Arizona officials who have continuously violated and changed their own written protocol for executing state death-row inmates." Here is more:

In its ruling on Tuesday, the three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco turned down a request to delay two upcoming executions -- that of Robert Henry Moormann on Wednesday and of Robert Charles Towery eight days later on March 8.

While the judges declined to delay the executions, they wrote that Arizona has forced the court "to engage in serious constitutional questions and complicated factual issues in the waning hours before executions." "This approach cannot continue," the panel wrote. "We are mindful of the admonition requiring us to refrain from micro-managing each individual execution, but the admonition has a breaking point."

And unless Arizona officials make permanent changes, the judges wrote that the court might have to start monitoring each individual execution in the state to make sure the law is followed.

The ruling comes after the state Department of Corrections unexpectedly changed its execution protocol last month, one of multiple unannounced changes in recent years.

The full 26-page per curiam opinion in this matter is available at this link.

"Is Ohio's death penalty under its own death watch? Questions, criticism mount about Ohio executions"

The title of this post is the headline of this extended article from the Cleveland Plain Dealer, which gets started this way:

Ohio's capital punishment system could be under its own death watch as scrutiny over how the state executes prisoners has led to calls for significant changes -- if not an outright repeal -- of the death penalty.

Despite the issues plaguing the state's execution process, Ohio officials say they are certain they are getting this call on life-or-death right.  "I feel that we have a solid protocol, and I know that we have the professionally trained staff to execute that protocol," Ohio Department of Rehabilitation and Correction director Gary Mohr told The Plain Dealer.  "I have no reservations with saying that at all."

But Mohr knows there are plenty of people from judges to former prison officials to anti-death penalty activists who have heavy concerns about the death penalty.  They question why some criminals land on death row and others do not, whether the state's execution procedures are legal and whether the system can be revamped to restore waning public trust.

In just the past few years, Ohio has:

• Botched one execution, which had to be postponed, and had two others with lengthy delays, including one in which the inmate, while strapped to the gurney in the execution chamber, cried out, "This isn't working."
• Under legal duress, switched from a three-drug concoction to a one-drug dose for lethal injection, a change that is the subject of a lawsuit.
• Defended itself in numerous inmate lawsuits questioning whether rights against cruel and unusual punishment are violated during executions.
• Instituted a moratorium of sorts after a federal judge stayed an execution until Ohio revises its procedures, a ruling upheld this month by the U.S. Supreme Court.
• Been the target of critics who now include a sitting Ohio Supreme Court justice and two former state prisons directors.
• Seen two bills introduced in the Republican-controlled General Assembly that would repeal the death penalty.

Another Utah condemned selects firing squad for execution method

As reported in this local article, headlined "State will accept firing squad request in Archuleta execution," Utah is on a path to conducting another execution by firing squad in the months ahead. Here are the basics:

Utah death row inmate Michael Archuleta has chosen the firing squad to carry out his April 5 death sentence for a 1988 murder. Utah Attorney General Mark Shurtleff says the state won’t oppose it.

Archuleta was sentenced to death for the Nov. 22, 1988, murder of Southern Utah University student Gordon Ray Church, 28. At his original conviction he chose lethal injection, but changed his mind and opted for the firing squad in 1994. Even though the state did away with the firing squad in 2004, Shurtleff says Archuleta made his choice before the law changed, so it will stand.

“The courts have held that the method of execution is the choice, if there is a choice … of the condemned person,” Shurtleff said. Archuleta can change his mind and say he no longer wants the firing squad, but if he insists on the firing squad, Shurtleff says the state won’t oppose it and that’s how he’d be executed.

There are four other death row inmates who opted for the firing squad before the law changed. The firing squad is comprised of five volunteer, POST-certified officers. Each carries a .30-caliber rifle. Four of the rifles are loaded with live rounds, the other with a blank. It gives shooters a way to rationalize and cope with the assignment. Their identities are kept anonymous — partly for their privacy, and also for their protection....

Convicted killer Ronnie Lee Gardner was the last person executed in Utah by firing squad. Gardner had been on Utah's death row since October 1985 and was executed on June 18, 2010. He was the third person executed by firing squad in Utah — or anywhere else in the U.S. — since the death penalty was reinstated in 1976.