Saturday, March 21, 2015

Effective discussion of nitrogen gas as execution method alternative

Images (1)This new Atlantic article, headlined "Can Executions Be More Humane?: A law professor suggests an untested procedure as an alternative to lethal injection," provides an interesting account of the person and story behind a novel execution method proposal.  Here are excerpts:

Michael Copeland has a unique resume: former Assistant Attorney General of the tiny Pacific island nation of Palau, professor of criminal justice at East Central University in Ada, Oklahoma — and now, the proponent of a new execution method he claims would be more humane than lethal injection.

Copeland is one of the brains behind House Bill 1879 proposed by Oklahoma State Representative Mike Christian.  The bill, passed by the Oklahoma House last week, would make “nitrogen hypoxia” a secondary method to lethal injection.  Oklahoma State Senator Anthony Sykes will be introducing it to the senate shortly.

Copeland explained the execution method last September to the Oklahoma House Judiciary Committee at Christian’s invitation.  Copeland says that Christian had been suggesting the firing squad, but Copeland thought there might be a better way.  Along with two other professors from East Central University, Christine C. Pappas and Thomas M. Parr, he is drafting a white paper about the benefits of nitrogen-induced hypoxia over lethal injection....

Hypoxia occurs when a person lacks an adequate supply of oxygen.  “Normally, the air we breathe is 79 percent nitrogen and 21 percent oxygen,” Copeland explains. Nitrogen hypoxia during an execution “would be induced by having the offender breathing a gas mixture of pure nitrogen.” Copeland points out that “nitrogen is an inert gas, and therefore doesn’t actually cause the death.  It is the lack of oxygen that causes death.”

According to Copeland, death from nitrogen hypoxia is painless. “In industrial accidents, it often happens because the victim does not know they are in a hypoxic environment,” he said.  “That suffocating feeling of anxiety and discomfort is not associated with hypoxic deaths.”  He says nitrogen-induced hypoxia is well-researched, although the ideal delivery system for an execution has not yet been established.  Two ideas include a medical-grade oxygen tent around the head or a facemask similar to those used by firefighters.

The condemned person might not even know when the “the switch to pure nitrogen occurs, instead he would simply lose consciousness about fifteen seconds after the switch was made,” he added.  “Approximately thirty seconds later, he would stop producing brain waves, and the heart would stop beating about two to three minutes after that.”...

Copeland says that conditions for lethal-injection executions will only get worse.  States are scrambling to find the drugs and the health professionals to use them, and both are required for lethal injection to take place.  “You have anti-death penalty zealots around the globe that protest, that bring attention to the manufacturers of these drugs,” Oklahoma Attorney General Scott Pruitt told a local chamber of commerce last summer. Pruitt said that as long as activists pressure manufacturers, there will be supply issues....

From its first use in the execution of Gee Jon in Nevada in 1924 to its link to Nazi gas chambers, lethal gas as method of execution has a problematic history.  American lethal-gas executions typically used hydrogen cyanide as the mechanism of death.  Inmates were strapped to chairs in gas chambers and the ensuing chemical reaction would cause visible signs of pain and discomfort: skin discoloration, drooling, and writhing.

But nitrogen hypoxia would likely not produce the gruesome deaths that resulted from cyanide gas executions. Copeland says that “you don’t have to worry about someone reacting differently.” The condemned person would feel slightly intoxicated before losing consciousness and ultimately dying.

Other death-penalty experts are more skeptical.  “It’s only been partially vetted, superficially researched, and has never been tried,” said Richard Dieter, executive director of the Death Penalty Information Center.  “Using it would be an experiment on human subjects.” State death rows would be strapping someone down without any idea what would happen next, he feared.  “We’d need testimony from the best experts on this,” Dieter says. “Right now, this is sailing through a legislature and not a peer-review process. I’m no doctor, but let’s hear from them.  I don’t completely dismiss the idea that this could become approved or that it’s as good as they say because lethal injection is in a bind.”

If the bill becomes law and Oklahoma successfully executes someone using this method, it could spread from to state very quickly, Dieter says.  Older methods like firing squads are a little too brutal for the American public, but something new could be accepted. If so, he says, “it could lead to an awkward spurt of executions.”  Copeland says he is not a death penalty absolutist. “I think the state has a unique obligation for justice — it’s the state’s obligation,” he explains.  “But I don’t think the death penalty is a deterrent compared to life without parole.”  If we must have the death penalty, he argues, it should be humane.

Copeland thinks that it is death penalty abolitionists who have made executions inhumane by restricting access to drugs.  It will only get worse.  Some corrections officials at the Louisiana Department of Public Safety and Corrections agree.  On February 18, they submitted a report to the state House of Representatives proposing the use of nitrogen-induced hypoxia and cited Copeland’s forthcoming paper.

Copeland says that it’s a logical and humane next step. “Nitrogen is ubiquitous. The process is humane, it doesn’t require expertise, and it’s cheap,” he explained. “I think of it as a harm-reduction thing — like you’d rather people not use heroin, but if they do, you want them to use clean needles.”

A few recent and older related posts:

March 21, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, March 18, 2015

Might Utah's gov veto the effort to provide for a firing squad execution back-up plan?

The question in the title of this post is prompted by this AP piece headlined "Death Penalty Opponents Urge Veto of Utah Firing Squad Bill." Here are the basics:

Death penalty opponents are urging Utah Gov. Gary Herbert to veto a bill allowing execution by firing squad if the state cannot obtain lethal injection drugs. Ralph Dellapiana of Utahns for Alternatives to the Death Penalty delivered a petition and a letter to Herbert's office Tuesday. Dellapiana calls firing squads archaic and barbaric.

Herbert, a Republican, has declined to say if he will sign the proposal but says it could offer Utah a backup if it cannot get execution drugs. Utah lawmakers passed the bill last week as states struggle to obtain lethal injection drugs amid a nationwide shortage.

Republican Rep. Paul Ray of Clearfield sponsored the proposal and says a team of trained marksmen is faster and more humane than the drawn-out deaths that occur when lethal injections are botched.

March 18, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, March 16, 2015

"The free-market case for opposing the death penalty"

The title of this post is the headline of this new piece from The Week magazine.  Here are excerpts:

There are lots of ways to execute a prisoner. But in the U.S., at least, the 32 states that still execute prisoners have decided on lethal injection. On its face, lethal injection seems like a clinical, modern, hopefully low-pain, and usually low-key way to kill somebody. Except when it isn't, as we saw in last year's crop of botched executions.

The prolonged, evidently painful deaths of Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Dennis McGuire in Ohio were tied to experimental drug cocktails necessitated by a shortage of traditional death drugs. This shortage is due largely to a ban by European countries on exporting certain drugs to U.S. states that practice capital punishment. The free market is making a case against capital punishment. So far, the states that actively execute prisoners have been willfully plugging their ears....

With just a single dose of pentobarbital left and 317 inmates on death row, Texas is stocking up on midazolam. It's not clear if Texas can't get pentobarbital because the compounding pharmacies are refusing to sell it to them, or because they can't get the raw ingredients — the Professional Compounding Centers of America told The Texas Tribune that it stopped providing pentobarbital ingredients to its customers in January 2014.

Most compounding pharmacies aren't regulated by the Food and Drug Administration, and their products are uneven. Which compounding pharmacies are Texas, Oklahoma, Ohio, Georgia, Missouri, and other states buying drugs from? They're not saying. Why not? "Disclosing the identity of the pharmacy would result in the harassment of the business and would raise serious safety concerns for the business and its employees," Texas Department of Criminal Justice spokesman Jason Clark explained to The Texas Tribune last month....

Providing lethal injection drugs to state prisons is so toxic that no European country will do it and no American company is willing to do it openly. Gunmakers and abortion clinics advertise their services, but pharmacies and drugmakers won't publicly associate with a form of punishment approved of by 63 percent of Americans. That's the market talking, and it's saying it wants no part of this.

March 16, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (13) | TrackBack

Saturday, March 14, 2015

"Death of the death penalty by lethal injection shortage?"

The question in the title of this post is the headline of this notable recent Chicago Tribune column.  Here is how it starts:

A reliable supply line is crucial to any business. That's no less true when the business is death. States can't carry out death sentences if their prisons can't stock the lethal sedatives needed for court-sanctioned lethal injections. And that has become a serious problem of late.

Pharmaceutical companies such as Lake Forest-based Hospira in recent years have moved — pushed by activists and overseas regulators — to keep their drugs from being co-opted in the executioners' cocktails. The well is running dry.

Just in the last week:

•  Texas' pantry is quite nearly bare. The state reportedly is left with a single dose of pentobarbital because European manufacturers of the anesthetic are prohibited from allowing it to be used by prisons.

•  Georgia postponed its first execution of a woman in 70 years because the blend to be injected appeared unusually cloudy.

•  And Utah's legislature sent the governor a bill that would authorize the return of firing squads when the state can't get its hands on the requisite toxins.

March 14, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Wednesday, March 11, 2015

Utah legislature brings back firing squad as alternative execution method

Firing-squadAs detailed in this Reuters piece, "lawmakers in Utah voted on Tuesday to bring back executions by firing squad if lethal injections are unavailable, which would make it the only state in the country to permit the practice." Here is more:

Utah used firing squads for decades before adopting lethal injections in 2004. The Republican-sponsored bill, which passed the state Senate by 18-10, was introduced amid national concerns about the efficacy of lethal injections.

The measure, approved last month by the Utah House of Representatives, says a firing squad should be used if "the state is unable to lawfully obtain the substance or substances necessary to conduct an execution by lethal intravenous injection 30 or more days" before the date set for the procedure.

Several U.S. states have had to search for new drugs for their lethal injection cocktails after many pharmaceutical companies, mostly in Europe, imposed sales bans about four years ago because they objected to having medications made for other purposes being used in executions.

Supporters of the legislation said three states - Oklahoma, Ohio and Arizona - recently carried out lethal injections that led to inmates' physical distress and drawn-out deaths, and that death by firing squad was more humane.

Republican state Representative Paul Ray of Clearfield, the bill's sponsor, said someone executed by gunfire typically dies in three to five seconds. "It's a quick bleed-out," he said.

Utah previously used firing squads, including in the execution of Gary Gilmore, a convicted murderer who in January 1977 became the first person to be put to death in the United States in 10 years, after insisting the sentence be carried out....

The last person to be executed in Utah by firing squad was Ronnie Lee Gardner in 2010. Gardner was convicted of murdering a lawyer inside a Salt Lake City courthouse in 1985.

The bill now goes to Utah Governor Gary Herbert. In a statement, a spokesman for the Republican governor said he had not yet decided whether to sign the measure.whether to sign the measure. 

March 11, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Tuesday, March 10, 2015

Might drug shortages in Texas grind its machinery of death to a halt?

The question in the title of this post is prompted by this new article headlined "Dearth Row: Texas Prisons Scrambling to Find More Execution Drug." Here are excerpts:

Texas' prison agency is scrambling to find a supplier to replenish its inventory of execution drugs, which will be used up if the state goes forward with two lethal injections scheduled for this week and next. Prison officials only have enough pentobarbital for the scheduled executions of Manuel Vasquez on Wednesday and Randall Mays on March 18, but they don't know how they will conduct lethal injections on four others scheduled for April.

The Texas Department of Criminal Justice declined to say why it has not been able to obtain more pentobarbital from the same compounding pharmacy that provided the current batch of the powerful sedative last March. The state switched to that source several months after its previous supplier cut ties, citing hate mail and potential litigation after its name became public through an open records request from The Associated Press.

Prison officials have since waged a legal battle to keep the name of its latest supplier secret, but it's unclear how much longer they can do so after a state judge last year ordered the agency to divulge the source. That ruling is on hold pending the outcome of the state's appeal....

Although Texas, traditionally the nation's busiest death penalty state, faces the most imminent deadline for replenishing its pentobarbital supply, other states are experiencing similar problems. Texas has executed a nation-leading 521 inmates since 1982, when it became the first state to use lethal injection. It's now been nearly three years since Texas began using pentobarbital as its only capital punishment drug, switching in July 2012 after one of the chemicals in the previous three-drug mixture no longer was available.

The last 17 Texas executions, stretching back to September 2013, have used compounded pentobarbital, and the last nine from compounding pharmacies the state has refused to identify. Texas officials have insisted the identity should remain secret, citing a "threat assessment" signed by Texas Department of Public Safety director Steven McCraw that says pharmacies selling execution drugs face "a substantial threat of physical harm." Law enforcement officials have declined to elaborate on the nature of those threats.

The U.S. Supreme Court, meanwhile, has refused to block punishments based on challenges to secrecy laws. However, the high court is reviewing Oklahoma's lethal injection method, resulting in a hold on executions there, after a punishment using the sedative midazolam followed by two other drugs went awry. Oklahoma lawmakers now are considering a switch to nitrogen gas as the first alternative to injection while officials in other states are considering a return to firing squads or the electric chair.

Despite all the controversies over lethal injection protocols and problems with drug supplies nationwide in recent years, Texas has been able to keep its machinery of death humming.  And because so many executions take place in Texas (basic DPIC data here), a halting of executions in that one state would functionally diminish the overall number of US executions quite significantly.

Given that Texas has a long modern history of finding ways to move forward with executions, this drug story is especially interesting and dynamic because it might lead the Lone Star State to get serious about other possible execution methods.  I assume some officials in Texas are already quietly exploring the possibility of executions using nitrogen gas or firing squads, and perhaps a Texas discussion of such matters will become public at some point soon if the state struggles to secure needed execution drugs.

March 10, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Wednesday, March 04, 2015

Cloudy with (less of) a chance of executions in Georgia

ImagesAs reported in this Time piece, headlined "Georgia Postpones 2 Executions Over ‘Cloudy’ Drugs," the forecast in the Peach State just got peachier for those on the state's death row as the state deals with uncertainty concerning its execution drugs.  Here are the details:

Georgia's supply of lethal injection drug pentobarbital may have gone bad.  Georgia indefinitely postponed two executions Tuesday to allow officials to analyze its current batch of lethal injection drugs, which “appeared cloudy” prior to an execution that had been scheduled Monday night.

The execution of Kelly Gissendaner, who would’ve been the first woman put to death in the state in 70 years, was called off by the Georgia Department of Corrections Monday night after the state discovered its supply of pentobarbital, a short-acting barbiturate, looked murky.  Georgia officials made the decision after consulting with a pharmacist, according to The New York Times, even though state officials said that its pentobarbital supply had been tested and was cleared for use.

The state then announced Tuesday that the executions of both Gissendaner and Brian Keith Terrell, who was set to die by lethal injection on March 10 for the 1992 murder of John Henry Watson, were indefinitely postponed.  Gissendaner was convicted of arranging the 1997 murder of her husband, Douglas Gissendaner.

A number of states have had trouble carrying out executions due to problems obtaining drugs.... Like many states, Georgia has turned to compounding pharmacies, which are not under federal oversight, for their drug supplies while also passing a secrecy law that keeps participating pharmacies anonymous.  Georgia has not released the name of its drug supplier, and it’s unclear when its current batch of pentobarbital was due to expire.

March 4, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Tuesday, March 03, 2015

Concerns about lethal drug creates reprieve for condemned Georgia woman

As reported in this CNN piece, for "the second time, a Georgia woman's execution has been postponed -- this time because of concerns about the drugs to be used." Here is why:

Kelly Renee Gissendaner was scheduled to die at 7 p.m. ET Monday.  "Prior to the execution, the drugs were sent to an independent lab for testing of potency.  The drugs fell within the acceptable testing limits," the Georgia Department of Corrections said in a statement.

"Within the hours leading up to the scheduled execution, the Execution Team performed the necessary checks.  At that time, the drugs appeared cloudy.  The Department of Corrections immediately consulted with a pharmacist, and in an abundance of caution, Inmate Gissendaner's execution has been postponed."

The 47-year-old was originally scheduled to die on Wednesday, but that execution was called off because of winter weather.

If I were a deeply religious person, I might be inclined to contend that some higher power is doing all it can to keep Georgia from being able to execute Gissendaner.

March 3, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, March 01, 2015

"The Politics of Botched Executions"

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

For decades now, America’s death penalty has been beset by serious problems in its administration, but what has finally gotten the public’s attention is a spate of botched executions in the first half of 2014.  Botched executions are, like the death penalty’s other woes, nothing new. But having to manage the public relations nightmare that has followed these high-profile events is new, and tells a story of its own.  What are the politics of botched executions?  Officials have lowered the blinds so witnesses could not see what was happening inside the execution chamber, called for an “independent review” by other arms of the state, minimized concerns by comparing the execution to the condemned’s crimes, even denied that a botched execution was botched in the first place.

In this symposium contribution, I recount the four botched executions of 2014 and state responses that accompanied them.  I then make three observations — one about states’ fealty to the death penalty, one about backlash politics, and one about the changing cultural construct of lethal injection in the United States.  Finally, I surmise how state responses to botched executions (or the lack thereof) might impact the constitutionality of lethal injection and prove true the old adage about politics making strange bedfellows: the inept executioner may prove to be the abolitionist’s best friend.

March 1, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 17, 2015

Florida Supreme Court stays lethal injection pending SCOTUS case, and AG Holder urges national execution halt

As reported in this Reuters piece, "Florida’s highest court put executions on hold Tuesday while the U.S. Supreme Court decides whether use of a controversial general anesthetic constitutes “cruel and unusual” punishment of condemned killers." Here is more:

The state Supreme Court stopped the execution of Jerry William Correll next week because the Supreme Court recently agreed to hear a challenge some Oklahoma inmates brought against use of midazolam hydrochloride as the first of three drugs used in lethal injections. Florida uses essentially the same formula, the court said in a 5-2 ruling.

The state switched to midazolam as an anesthetic in 2013 when some foreign drug manufacturers quit supplying other drugs previously used in executions. The Department of Corrections said 11 lethal injections have been carried out with midazolam in Florida since then. Florida courts have approved midazolam, but the nation’s highest court agreed Jan. 23 to hear an appeal by 21 Oklahoma inmates in a case citing prolonged executions and signs of pain reported in that state, Arizona and Ohio.

Chief Justice Jorge Labarga wrote that if the nation’s highest court rules in favor of the prisoners, “then Florida’s precedent approving the use of midazolam and the current Florida three-drug protocol will be subject to serious doubt as to its continued viability.”

Justices Charles Canady and Ricky Polston dissented, saying Florida should proceed with Correll’s execution unless the U.S. Supreme Court stays it. Canady wrote that a stay in another state does not automatically require one in Florida, and that agreeing to review Oklahoma’s use of the drug means the justices will forbid it.

Meanwhile, as reported in this piece in The Hill, US Attorney General Eric Holder suggested today that all states ought to follow Florida's lead while the Supreme Court lethal injection case is pending:

Attorney General Eric Holder called Tuesday for a national moratorium on the death penalty until the Supreme Court weighs in on the issue later this year...

Late last month, the Supreme Court agreed to hear an appeal the from death row inmates in Oklahoma who are challenging the state’s procedures for lethal injections. "I think a moratorium until the Supreme Court makes that decision would be appropriate," Holder said.

February 17, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, February 16, 2015

"The United States Execution Drug Shortage: A Consequence of Our Values"

The title of this post is the title of this commentary authored by Ty Alper available via SSRN. Here is the abstract:

The recent inability of states to obtain drugs for use in executions has led to de facto moratoria in a number of states, as well as gruesomely botched executions in states that have resorted to dangerous and unreliable means to obtain these drugs. The refusal of some pharmaceutical companies to provide drugs to U.S. prisons has significantly impeded the imposition of the death penalty in a number of states. Despite this, it is the anti-death penalty activists who tend to draw the attention of the media, state officials, and politicians charged with carrying out executions. The media focuses particular attention on advocates in Europe who have campaigned to pressure European drug companies to stop distribution of their products to U.S. prisons for use in executions.

This paper challenges that narrative and posits instead that it is the drug companies that have long sought to avoid the use of their products in executions, for moral and financial reasons, as well as to comply with European law. When we look back on the fourth decade of the modern era of capital punishment in the United States, we may consider it the decade that marked the beginning of the end. If so, it will not be the result of a handful of activists successfully thwarting the administration of capital punishment. Rather, it will be the consequence of U.S. states imposing the death penalty in the context of a modern world that generally abhors the practice, using a method of execution that is very much dependent on major players in that world.

February 16, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

Tennessee Supreme Court to consider electric chair as back-up execution method

I am pleased and intrigued to see, via this local article, that the "Tennessee Supreme Court will decide whether a death row inmate can challenge the state's back-up method of execution: the electric chair." Here is more about this notable litigation:

The court agreed to take the case — which stems from a Davidson County Chancery Court battle — on Friday. Arguments are set for May 6 in Knoxville. The state says that inmates who are challenging the electric chair as unconstitutional cannot do so because none of the inmates is facing that method of execution.

A group of 34 inmates previously challenged the state's primary protocol, lethal injection, and then added a challenge to the electric chair when it was deemed a back-up method.

The appeal to the Supreme Court, as well as another seeking the release of names of people involved in the execution process, come from the pending chancery court case. Once the Supreme Court decides the issues, the chancery court case will be able to move forward.

I fear that this case might resolve only whether and when a Tennessee defendant can challenge a back-up method of execution. Nevertheless, I find it notable and potential important that a state supreme court is now going to consider in any way an execution method other than lethal injection.

February 16, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, February 11, 2015

Update on a decade-long (lack of) effort (not) to fix lethal injection in California

California has long been a state leader in spending lots of time, energy and money on the death penalty without achieving much.  This commentary by Debra Saunders, headlined "Yes, California, there is a death penalty," provides a critical review of the lethal injection part of this story that has played out over the last decade. Here are excerpts:

What happened to California’s death penalty? There has not been an execution since 2006, when a federal judge ruled against the state’s three-drug lethal injection protocol. In 2008, the U.S. Supreme Court upheld three-drug executions. It didn’t matter. Gov. Jerry Brown and Attorney General Kamala Harris both personally oppose capital punishment, but as candidates promised to uphold the law. In real life, they’ve let things slide. Fed up, two men related to murder victims have filed suit to push the state to carry out the law.

Kermit Alexander wants to see the law work on Tiequon Cox, convicted of killing the former football player’s mother, sister and two nephews in 1984 — Cox went to the wrong address for a $3,500 contract killing. Bradley Winchell is sick of waiting for the execution of Michael Morales, who raped, hammered, strangled and stabbed to death his 17-year-old sister, Terri, in 1981. Sacramento Superior Court Judge Shellyanne Chang ruled in their favor Friday after Harris challenged them on the dubious grounds that crime victims and the general public “lack standing” to sue the state.

Brown had directed the state Department of Corrections and Rehabilitation in April 2012 to develop rules that should pass court muster. What’s taking so long? Spokesman Jeffrey Callison answered that his department has been working on “a single drug protocol” but “nationwide, there is a problem with access to execution drugs and that is complicating efforts.”

California has used lethal injection since 1996 to spare condemned inmates unnecessary pain. Even still, U.S. District Judge Jeremy Fogel stayed Morales’ execution as the judge perceived a 0.001 percent chance the convicted killer might feel pain.

In other states not headed by Hamlets, leaders have found ways to anticipate court sensibilities and keep faith with voters.  Many adopted one-drug protocols.  Death penalty foes responded by using their considerable muscle to bar importation and choke the supply of lethal-injection drugs.  Flat-footed Sacramento stuck with the unused three-drug protocol for too long. While Brown’s Corrections Department was working on a one-drug rule, Texas executed 38 killers with pentobarbital. The next time you hear the cerebral governor argue that high-speed rail is doable, remember that he couldn’t pull off a legal procedure that didn’t daunt former Texas Gov. Rick Perry....

In 2012, California voters rejected a ballot measure to get rid of capital punishment. Alexander and Winchell shouldn’t have to sue their government to enforce the law.

As the title of this post is meant to suggest, I do not think officials in California have any real interest in fixing its execution protocol.

February 11, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 10, 2015

As SCOTUS considers Oklahoma lethal injections, Oklahoma considers a gas chamber

As this AP article reports, now that "executions in Oklahoma [are] on hold amid a constitutional review of its lethal injection formula, Republican legislators are pushing to make Oklahoma the first state in the nation to allow the use of nitrogen gas to execute death row inmates." Here is more:

Two separate bills scheduled for hearings this week in legislative committees would make death by "nitrogen hypoxia" a backup method of execution if the state's current lethal injection process is found to be unconstitutional.

"You wouldn't need a medical doctor to do it. It's a lot more practical. It's efficient," said Rep. Mike Christian, an Oklahoma City Republican and former Oklahoma Highway patrolman who conducted a hearing last summer on hypoxia, or the depletion of oxygen in the bloodstream.

The U.S. Supreme Court currently is reviewing Oklahoma's three-drug method in a challenge sparked by a botched lethal injection last spring in which an inmate groaned and writhed on the gurney before a problem was discovered with an intravenous line. The case centers on whether the sedative midazolam properly renders an inmate unconscious before the second and third drugs are administered. Three scheduled lethal injections in Oklahoma have been delayed pending the high court's review.

Oklahoma officials concede midazolam is not the preferred drug for executions, but death penalty states have been forced to explore alternatives as manufacturers of more effective drugs refuse to sell them for use in lethal injections. Tennessee passed a law last year to reinstate the electric chair if it can't get lethal drugs, and Utah is considering bringing back the firing squad. Oklahoma Attorney General Scott Pruitt has urged legislators to consider the creation of a state compounding pharmacy to produce the drugs itself.

A fiscal analysis of the Oklahoma bill projects it would cost about $300,000 to build a gas chamber at the Oklahoma State Penitentiary in McAlester. A similar bill is pending in the Oklahoma Senate. Christian said unlike traditional gas chambers that used drugs like cyanide that caused a buildup of carbon dioxide in the blood, breathing nitrogen would be painless because it leads to hypoxia, a gradual lack of oxygen in the blood, similar to what can happen to pilots at high altitudes.

Four states currently allow the use of lethal gas — Arizona, California, Missouri, and Wyoming — but all have lethal injection as the primary method, according to the Death Penalty Information Center. No state has ever used nitrogen gas or inert gas hypoxia to execute an inmate. The last U.S. inmate executed in a gas chamber was Walter LaGrand in Arizona in 1999.

A few recent and older related posts:

February 10, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, February 09, 2015

"In praise of the firing squad"

The title of this post is the headline of this recent Washington Post commentary by Radley Balko. Here are excerpts:

[F]rankly, if we insist on executing people, the firing squad may be the best option. Before I explain why, I’ll first disclose that I’m opposed to the death penalty, and I have no doubt that my opposition to state-sanctioned killing influences my opinions on which method of execution we ought to use.  So read the rest of this post with that in mind.

If you support the death penalty, the most obvious benefit of the firing squad is that unlike lethal injection drugs, correctional institutions are never going to run out of bullets. And if they do, more bullets won’t be very difficult to find. Ammunition companies aren’t susceptible to pressure from anti-death penalty activists, at least not to the degree a pharmaceutical company might be.  This would actually remove a barrier to more efficient executions. As someone who would like to see executions eliminated entirely, I don’t personally see this as a benefit.  But death penalty supporters might. And there are other benefits to the firing squad, benefits that I think people on both sides of the issue can appreciate.

Traditional lethal injection is more humane if you consider the humanity of the procedure from the perspective of everyone except the person being executed. There is now a storm of controversy about the procedure because those botched executions last year produced some really gruesome images, which were then relayed to the public by witnesses. Had the condemned men in Oklahoma, Ohio and Arizona suffered the same pain and agony, but under the cloak of a more thorough paralytic, we probably wouldn’t be having this discussion. We consider a method of execution humane if it doesn’t make us uncomfortable to hear or read about it. What the condemned actually experience during the procedure is largely irrelevant. The lethal injection likely became the most common form of execution in the United States because it makes a state killing resemble a medical procedure. Not only doesn’t it weird us out, it’s almost comforting.

By contrast, the firing squad is violent and archaic, and judging by the reaction to the bills in Utah and Wyoming, it most certainly does weird a lot of people out. And yet in only the way that should matter, the firing squad is likely more humane than the lethal injection....

This sets up a final argument in favor of the firing squad: There is no mistaking what it is. There are no IVs, needles, cotton swabs or other accoutrements more commonly associated with healing. When we hear about an execution on the news, we won’t hear about an inmate slowly drifting off to sleep. We’ll hear about guns and bullets. Killing is an act of violence. That’s what witnesses will see, and that’s what the reports will tell us has happened. If we’re going to permit the government to kill on our behalf, we should own what we’re doing.

This is where a critic might argue that as a death penalty opponent, I’m merely arguing for the method of execution that I think is most likely to turn people off to the death penalty.  I’ll be honest: I hope that’s what will happen. I hope that when confronted with a method of execution that’s less opaque about what’s actually transpiring, more of us will come to realize that we no longer need capital punishment.  But I’m not particularly optimistic that will happen. I suspect that there’s a strong segment of the public (and probably a majority) that will support the death penalty no matter how we carry out executions.

Regardless of its impact on the death penalty debate, if we must continue to execute people, the firing squad has a lot to offer.  It isn’t just the most humane form of execution now realistically under consideration, it is the most humane from the correct perspective — the experience of the condemned.  It brings no concerns about the supply of execution materials.  It raises no issues about medical ethics — it doesn’t blur the lines between healing and hurting.  It’s honest.  It’s transparent.  And it is appropriately violent.

February 9, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Saturday, January 31, 2015

After adopting new execution drug laws, Ohio delays all executions for additional year

As explained in this AP article, a full year after Ohio had difficulties executing Dennis McGuire and a month after the state enacted new execution laws, Ohio officials decided to kick the execution can another year down the road by rescheduling all 2015 scheduled executions.  Here are the details:

The state on Friday rescheduled executions for seven death row inmates as it tries to find new lethal drugs, meaning no inmate will be put to death in Ohio in 2015.  The announcement affects six executions this year, including one set for Feb. 11 for condemned child killer Ronald Phillips, and one previously scheduled for 2016 that was pushed farther back.

The move, which was expected, follows a federal judge's previous order delaying executions while the state puts a new execution policy in place, the state said.  The delays also allow the state time to find supplies of new drugs, according to the Department of Rehabilitation and Correction.  The new execution policy calls for Ohio to use drugs it doesn't have and has had difficulty obtaining in the past.

The delays mean that for the first time Ohio won't execute anyone in a calendar year since the state resumed putting inmates to death in 1999.  The state put one inmate to death last year and three in 2013.  A total of 11 executions are scheduled for 2016.  Under the revised schedule, the next execution is Jan. 21, 2016, when Phillips is scheduled to die for the 1993 rape and killing of his girlfriend's 3-year-old daughter in Akron.

 Tim Young, the state public defender, applauded the move, saying there was no need for executions "until we have answers to the numerous legal and medical questions posed by lethal injection."

Earlier this month, the state ditched its two-drug method after problematic executions in Ohio a year ago and Arizona in July.  Ohio's supplies of those drugs, midazolam, a sedative, and hydromorphone, a painkiller, were already set to expire this year. Underscoring concerns about midazolam, the U.S. Supreme Court earlier this week ordered Oklahoma to postpone lethal injections executions using the drug until the court rules in a challenge involving midazolam.

Ohio's execution policy now calls for it to use versions of thiopental sodium or compounded pentobarbital, neither of which it has.  Death penalty experts question where Ohio would find supplies of thiopental sodium, saying it's no longer available in the U.S. and overseas imports would run afoul of importing bans.

Notably, before Ohio started having major problems with lethal injection protocols, the state had become one of the most active and effective states carrying out death sentences. The state completed nearly 50 executions from 2002 through 2012, and a few years in that period it was second only Texas in the number of executions completed. But lethal injection difficulties and litigation entailed that the state could carry out only three executions in 2013, only one in 2014 and now there will be none in 2015.

I expect that Ohio officials will be try pretty hard to get its machinery of death up and running again in 2016, and it is possible a Supreme Court decision about lethal injection protocols in Oklahoma might actually end up helping the state get its execution chamber back on line. But the 140 men and one woman now on Ohio's death row (and their lawyers) should be breathing a little easier today. And it now seems that much more likely that the majority of these murders will end up just dying in prison rather than be subject to an affirmative state killing.

January 31, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, January 27, 2015

"The Humane Death Penalty Charade"

The title of this post is the headline of this New York Times editorial.  Here are excerpts:

When the United States at last abandons the abhorrent practice of capital punishment, the early years of the 21st century will stand out as a peculiar period during which otherwise reasonable people hotly debated how to kill other people while inflicting the least amount of constitutionally acceptable pain.

The Supreme Court stepped back into this maelstrom on Friday, when it agreed to hear Warner v. Gross, a lawsuit brought by four Oklahoma deathrow inmates alleging that the state’s lethal­injection drug protocol puts them at risk of significant pain and suffering.

In accepting the case, the justices had to change its name.  The lead plaintiff, Charles Warner, was executed on Jan. 15 after the court, by a vote of 5-­to-­4, denied him a last­minute stay.  That may sound strange until you consider that while it takes only four justices to accept a case for argument, it takes five to stay an execution.  The case is now named for another inmate, Richard Glossip. (On Monday, the Oklahoma attorney general requested temporary stays of the impending executions of Mr. Glossip and the other two plaintiffs.)...

The justices have been here before.  They upheld the constitutionality of lethal injection in 2008.  But, since then, the battles over the practice have grown more warped.  Many drug makers now refuse to supply their products for killing, leaving states to experiment on their inmates with other drugs, often acquired under cover of official secrecy and administered by authorities with no medical training.  During a hearing last month on Oklahoma’s protocol, a state witness who testified that midazolam is effective appeared to rely on the website, not scientific studies.  It would all be a laughable farce if it didn’t involve killing people.

There is disingenuousness on both sides.  Many who oppose the death penalty, this page included, are obviously not interested in identifying more “humane” methods of execution; the idea itself is a contradiction in terms.  Nor are many capital punishment supporters concerned with how much suffering a condemned person might endure in his final moments.  In the middle sit the armchair executioners who engage in macabre debates about the relative efficiency of, say, nitrogen gas.

It is time to dispense with the pretense of a pain­free death.  The act of killing itself is irredeemably brutal and violent. If the men on death row had painlessly killed their victims, that would not make their crimes any more tolerable.  When the killing is carried out by a state against its own citizens, it is beneath a people that aspire to call themselves civilized.

I love the phrase "armchair executioners," even though I could not help reacting with a classic "Taxi Driver" response.

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January 27, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, January 26, 2015

The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"

The title of this post is drawn from the headline of this New York Times piece by Adam Liptak that highlights why the Supreme Court's decision on Friday to grant cert to review Oklahoma's execution protocol is so interesting and creates much death penalty drama for this coming week and the months ahead.  Here is how the piece starts:

There are nine justices on the Supreme Court.  It takes four votes to hear a case, but it takes five to stay an execution.

That can leave a lethal gap.  A death penalty case can be important enough to claim a spot on the court’s docket of perhaps 75 cases a year.  But the prisoner who brought it may not live to see the decision.

In agreeing on Friday to hear a challenge to the chemicals Oklahoma uses to execute condemned prisoners, the court brought fresh attention to the life-or-­death importance of a single vote.  The lead petitioner in Friday’s case, Charles F. Warner, was already dead. He was executed eight days earlier, after the Supreme Court refused to stay his execution. The vote was 5 to 4.

“What happened to Charles Warner was not an isolated glitch,” said Eric M. Freedman, a law professor at Hofstra University and the author of a new article on the court’s voting procedures in capital cases. “It was a typical, if high­-visibility, example of a systemic flaw in the machinery of justice that has gone unrepaired for far too long.”

The case the court agreed to hear used to be called Warner v. Gross, No. 14­7955.  On Friday, taking account of Mr. Warner’s death, the court changed it to Glossip v. Gross, No. 14­7955. It may change again.  The new lead petitioner, Richard Glossip, is scheduled to be executed on Thursday.  The other two petitioners in the case also have execution dates in coming weeks, all of them well before the court is expected to hear arguments in the case, in April.  

The Supreme Court did not say on Friday whether it would stay the other three executions. In a statement, Scott Pruitt, Oklahoma’s attorney general, made a pointed reference to the fact that it took only four votes to grant review.  He seemed to indicate that the state was prepared to proceed with the executions.

The petitioners’ lawyers will doubtless seek stays.  In Mr. Glossip’s case, they will have to act quickly.  How the court responds will illuminate the current vitality of its fitful commitment to a procedure it sometimes uses to bridge the voting gap: the “courtesy fifth” vote to stay executions.  Such votes are said to be available once the court makes a formal decision to grant review of a condemned prisoner’s case.

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January 26, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, January 23, 2015

Seven years after Baze, Supreme Court takes up another lethal injection challenge

As reported in this new USA Today piece, taking up a "case that could have broad implications for hundreds of death row inmates, the Supreme Court will consider whether a drug protocol used in recent lethal injections violates the Constitution's prohibition on cruel and unusual punishment."  Here is more:

The justices agreed Friday to consider a case originally brought by four death-row inmates in Oklahoma -- one of whom was put to death last week, after the court refused to block his execution with a combination of three drugs that has caused some prisoners to writhe in pain.

Because the court's four liberal justices dissented from the decision to let that execution go forward, it presumably was their votes in private conference Friday that will give the issue a full hearing in open court. Only four votes are needed from the nine-member court to accept a case. It will likely be heard in April, though it could be held over until the next term begins in October.

Lawyers for Charles Warner and three other convicts set for execution in Oklahoma over the next six weeks sought the Supreme Court's intervention after two lower federal courts refused their pleas. While the court's conservatives refused to stop Warner's execution, the request for a full court hearing had been held for further consideration.

The lawyers claim that the sedative midazolam, the first drug used in the three-drug protocol, is not approved by the Food and Drug Administration as a general anesthetic and is being used in state executions virtually on an experimental basis. They say inmates may not be rendered unconscious and could suffer painfully as the other drugs in the protocol are administered.... "States now experiment with various drug formulations that have resulted in multiple malfunctioning executions — indeed, spectacles — over the past year," the challengers' brief says....

The court's four liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- voiced deep concern about the three-drug protocol in their eight-page dissent last week. They also dissented last September when the court rejected a stay application from a Missouri inmate executed with the same drug.

I presume this cert grant will halt all scheduled executions in Oklahoma until the Supreme Court rules.  Left unclear, however, is whether other states will be able to move forward with executions while this case is pending.  This DPIC page with scheduled executions suggest that at least a half-dozen states have more than a dozen serious execution dates scheduled before the Supreme Court is likely to resolve this new case from Oklahoma.

I am sure that these states will try to move forward with executions, especially if their protocols are dissimilar to what Oklahoma does in executions. But I am also sure that death row defendants and their lawyers will urge states to postpone all execution until the Supreme Court rules in this new case (as happened when the Supreme Court first took up this issue eight years ago in Baze v. Kentucky). In short, here we go again!

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January 23, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Thursday, January 15, 2015

Over dissent of four Justices, SCOTUS lets Oklahoma execution go forward (... and Florida executes around the same time)

As reported in this USA Today article, a "sharply divided Supreme Court refused Thursday to block the execution of an Oklahoma inmate over concerns about a drug protocol that has caused problems in the past."  Here is more:

The court's five conservative justices denied the request for a stay of execution without comment.  But the four liberal justices issued an eight-page dissent in which they questioned whether the drug protocol.

"The questions before us are especially important now, given states' increasing reliance on new and scientifically untested methods of execution," Justice Sonia Sotomayor wrote. "Petitioners have committed horrific crimes and should be punished.  But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.  I hope that our failure to act today does not portend our unwillingness to consider these questions."

Warner's execution was to come within hours of another in Florida, where Johnny Shane Kormondy, 42, was awaiting death for killing a man during a 1993 home invasion. Both executions were to use the same combination of three drugs.

Lawyers for Warner and three other convicts set for execution in Oklahoma over the next seven weeks had sought the Supreme Court's intervention after two lower federal courts refused their pleas.

Justice Sotomayor's eight-page dissent, which was joined by Justices Ginsburg, Breyer and Kagan, is available at this link and it ends with these two paragraphs:

I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol.  It is true that we give deference to the district courts.  But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed.  We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain.  Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.

I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution.  Petitioners have committed horrific crimes, and should be punished.  But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.  I hope that our failure to act today does not portend our unwillingness to consider these questions.

Not long after this decision was handed down, Oklahoma finally was able to carry out the death sentence imposed on Charles Warner for him murder of his girlfriend's 11-month-old daughter way back in 1997.  This AP report suggests that this Oklahoma execution, as well as another one taking place at roughly the same time in Florida with the same combination of drugs, were completed "without incident."  Consequently, I hope Justice Sotomayor feels at least some relief that these two murderers, roughly two decades after they killed, apparently were seemingly not "subjected to an execution that causes searing, unnecessary pain before death."

UPDATE:  This CBS News story suggests that I may have been too quick to assume that the Oklahoma execution was without incident.  Here is what the CBS News story reports about what unfolding in Oklahoma:

The execution lasted 18 minutes.

"Before I give my final statement, I'll tell you they poked me five times. It hurt. It feels like acid," Warner said before the execution began. He added, "I'm not a monster. I didn't do everything they said I did."

After the first drug was administered, Warner said, "My body is on fire." But he showed no obvious signs of distress. Witnesses said they saw slight twitching in Warner's neck about three minutes after the lethal injection began. The twitching lasted about seven minutes until he stopped breathing.

January 15, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

Oklahoma geared up to restart its machinery of death nine months after ugly execution

As reported in this Politico article, headlined "Oklahoma prepares to use controversial execution drug," a notable state is about to get back into the execution business. Here is how the article starts:

The state of Oklahoma plans to perform its first execution this week since a botched procedure last April, using a variation of the same three-drug cocktail that left an inmate writhing in pain for nearly 30 minutes before he died.

Thursday’s scheduled execution of Charles Warner, who is on death row for the rape and murder of an 11-month-old, is the first of four that was stayed following last year’s incident but that are now set to take place over the next two months.

Lawyers for all four inmates filed a last-ditch appeal with the Supreme Court on Wednesday but, if it is denied, Warner and the three others will be given different quantities of the same three-drug regimen, including the sedative that failed to induce unconsciousness and contributed to the visible agony of the man executed last April, Clayton Lockett.

That sedative, midazolam, is at the center of the appeal effort, as attorneys for Warner and the other three inmates argue that the drug does not sufficiently knock out the person receiving it.

January 15, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Thursday, January 08, 2015

Ohio to delay scheduled executions early in 2015 after adopting another new execution protocol

This Columbus Dispatch article, headlined "State revises death penalty protocol, will delay executions," provides the latest news in the ever-dynamic Ohio execution story. Here are the details:

Ohio will switch its lethal injection protocol, adding thiopental sodium, a drug used previously, and dropping the two-drug regimen of midazolam and hydromorphone that caused problems in the last execution a year ago.

The Ohio Department of Rehabilitation and Correction said today until it secures supplies of pentobarbital, a drug already permitted, or thiopental sodium, the Feb. 11 execution of Ronald Phillips, and possibly others, will be postponed. The state used thiopental sodium from 1999 until 2011.

Gov. John Kasich will likely have to postpone the executions of Phillips, 41, of Summit County, and Raymond Tibbetts, 57, of Hamilton County, scheduled for March 12. The execution of Gregory Lott, 53, of Cuyahoga County, is scheduled May 14.

The first two executions would take place before House Bill 663, a new lethal injection law passed by the legislature and signed by the governor, takes effect in late March. The law allows the state to buy drugs from small compounding pharmacies, which mix batches of drugs to customer specifications. It also permits the state to keep secret the identities of drug suppliers because of security concerns....

The state had to file legal paperwork detailing the new drug protocol with U.S. District Judge Gregory Frost 30 days in advance of the next scheduled execution on Feb. 11. Frost has presided over most of the recent contested lethal injection cases filed on behalf of Ohio Death Row prisoners.

The change means that Dennis McGuire 53, will be the one and only person in Ohio to be put to death using the combination of midazolam and hyrdomorphone. During his Jan. 16, 2014, execution, McGuire choked, coughed, gasped and clenched his fists for about 20 minutes prior to succumbing to the drug mixture. His son and daughter, who watched their father’s troubled execution, subsequently sued the state, alleging his death was cruel and unusual punishment, a violation of the U.S. Constitution....

The controversy over McGuire’s executions resulted in the postponement of all remaining executions in Ohio last year. It will be the fifth time in 2 1/2 years that Phillips has had a new execution date. Dates in September and July last year, and November 2013 were delayed either by Kasich’s clemency actions or reprieves from Frost. Phillips was given a reprieve by Kasich to explore his desire to have transplant surgery to provide a kidney to his ailing mother, but the surgery never took place....

In addition, a lawsuit was filed late last year on behalf of Phillips, Tibbetts and two other inmates challenging the secrecy shrouding the revised execution process. Frost will also hear that lawsuit which claims that state officials, through the new law, are trying to stifle public debate about capital punishment by “seeking to punish, disarm, suppress and silence” opposition.

January 8, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, December 28, 2014

Have messy executions in 2014 moved the death penalty debate in any way?

The question in the title of this post is prompted by this new AP article headlined "Death penalty backers stand firm despite botched executions." Here are excerpts:

Oklahoma’s last execution went so badly that the state tried to cancel it before the end came. With the inmate writhing while the lethal drugs seeped into his body, his executioners drew the viewing gallery curtains, concealing what the warden later described as "a bloody mess."

The botched execution of Clayton Lockett in April and other troubling ones this year in Ohio and Arizona gave capital punishment opponents a flicker of hope that areas of the country most enthusiastically supportive of the death penalty might have a change of heart. They did not.

Although Governor Mary Fallin suspended executions so that Lockett’s death and Oklahoma’s methods could be reviewed, the state held a ceremony for its overhauled death chamber only months later and is scheduled to resume executions in mid-January.

And rather than causing states to question whether capital punishment is just or worth the risk of subjecting someone to a potentially agonizing death, the prolonged executions and problems states have had securing lethal injection drugs have led them to explore new, old, and more efficient ways of killing, including gas.

"I think we had a little flash of hope that it would help our cause, but all it did was generate a lot of conversation about it," said Lydia Polley, a member of the Oklahoma Coalition to Abolish the Death Penalty. "It just led to people thinking of better ways to kill them."...

Lockett’s execution did little to dampen support for the death penalty in Oklahoma, which has executed more inmates than any other state except Texas since the 1976 reinstatement of the death penalty. In October, officials gave media tours of the renovated execution unit at the Oklahoma State Penitentiary, which got a $104,000 overhaul after Lockett’s death and now stands in sharp contrast to the rest of the shabby, 106-year-old facility.

Not content with just the upgrades to the prison and lethal injection equipment, Oklahoma’s Republican-led House conducted a study on the use of nitrogen gas for executions and is expected to consider legislation early next year that would make Oklahoma the first state to adopt hypoxia by gas — the forced deprivation of oxygen — as a legal execution method.

Other conservative states are exploring alternatives to lethal injection because of the problems securing the drugs.... Tennessee passed a law to reinstate the electric chair if it cannot get lethal injection drugs and Utah is considering bringing back the firing squad....

Ralph Shortey, a Republican state senator from Oklahoma City who is pushing for Oklahoma to adopt alternative execution methods to lethal injection, estimates that 90 percent of his constituents strongly support the death penalty, despite what happened to Lockett. "The average Oklahoman is saying he got exactly what he deserves," Shortey said. "A lot of people think they should suffer even more than they do. They think the lethal injection is too easy for them."

December 28, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (11) | TrackBack

Thursday, December 25, 2014

Ohio officials (and taxpayers) get a lethal injection lawsuit for the holidays

On the last day of Hanukkah which happened also to be Christmas Eve, a group of lawyers for a quartet of Ohio condemned prisoners gave the state a very predictable present: a lawsuit challenging Ohio's new lethal injection law.  This local story, headlined "Death-row inmates challenge new execution-secrecy rules," provides the details (and this link to the suit):

Four death-row inmates are challenging the constitutionality of Ohio's new execution secrecy rules, their attorney announced Wednesday morning.  In a lawsuit filed in U.S. District Court in Columbus, the inmates claim the new law, which shields the identities of most participants in Ohio's execution process, violates their rights to free speech and due process.

Proponents of the rules, signed into law by Gov. John Kasich last week, say they are needed to protect individuals involved with Ohio executions from harassment and potential harm.

The lawsuit was filed Tuesday afternoon on behalf of death-row inmates Ronald Phillips, Raymond Tibbetts, Robert Van Hook and Grady Brinkley.  The first three are scheduled to be executed next year; Brinkley's execution date has not yet been set.

Under the new law, House Bill 663, Ohio must keep secret the names of people involved with executions, other than top officials.  The law also protects the identity of small-scale drug manufacturers called compounding pharmacies if they make lethal-injection drugs for the state.  The inmates' lawsuit claims these measures violate the First Amendment because they were passed to silence death-penalty critics and "foreclose all effective advocacy" against executions in Ohio.

The lawsuit also challenges other parts of the law that require courts to seal such information from the public and prevents the state's medical board from disciplining physicians who testify about Ohio's execution method.  "These laws violate some of the most basic principles upon which our democracy was founded," said Timothy Sweeney, the inmates' attorney, in a statement.  "Everyone should be deeply troubled by this bold piece of legislation which has been passed to artificially reduce public criticism of government actions in one of the most important areas in which it acts: the taking of a human life."

The defendants in the lawsuit are Kasich, Attorney General Mike DeWine, state prisons director Gary Mohr and Donald Morgan, warden of Southern Ohio Correctional Facility, where Ohio's executions are carried out.  DeWine spokeswoman Lisa Hackley said Wednesday that the attorney general's office is reviewing the lawsuit.  Spokesmen for the governor's office and the state's prisons agency declined comment.

HB 663 is an attempt to overcome problems that Ohio — like many other states — has had obtaining lethal-injection drugs in recent years. Ohio ran out of its preferred lethal-injection drug, pentobarbital, last year because European pharmaceutical companies refused to continue selling it for use in executions....

Supporters of HB 663 say that the state could turn to compounding pharmacies to make pentobarbital, but the companies are reluctant to make lethal-injection drugs unless they can remain anonymous, for fear of public reprisal.  DeWine and other proponents of the legislation have said the changes are needed if Ohio is to resume executions next February, once a court-ordered moratorium ends.

As long-time readers know, Ohio's execution problems, plans and procedures have been subject to extensive litigation over the last half-decade. Time will tell if this latest litigation will extend another half-decade. As the title of this post indicates, Ohio (and federal) taxpayers get the bill for all this litigation, and I cannot help but wonder how much Ohio costs its taxpayers by trying took keep its death penalty system alive and killing.

December 25, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Tuesday, December 23, 2014

Are Arizona and Oklahoma likely to have their machineries of death operational early in 2015?

I blogged here a few days ago about steps taken by the Ohio legislations to get its lethal injection drugs and protocols shored up so the state can get back in the business of executing condemned murderers in 2015.  Now I see from this New York Times report that Arizona and Oklahoma, two others states that had messy execution in 2014, now also appear poised to get their death chambers revved up again in the coming new year.  Here are the basic details why:

A federal judge in Oklahoma City on Monday said that the state can resume executing prisoners this winter, rejecting the argument by some medical experts that using the same sedative involved in the bungled execution of Clayton D. Lockett in April amounted to an illegal experiment on human subjects.

Judge Stephen P. Friot of Federal District Court, ruling against condemned prisoners who sought to delay new executions, said that lethal injection was more humane than historical methods like hanging, and that since the sedative in question, midazolam, had been successfully used in a dozen executions elsewhere, it should not be considered new or experimental.

“Federal courts should not sit as a board of inquiry as to best practices,” Judge Friot said, adding, “The plaintiffs have failed to present a known and available alternative.” An occasional isolated episode does not constitute cruel and unusual punishment, he said.

Also Monday, in a separate ruling on another prolonged execution by lethal injection, a report commissioned by corrections officials in Arizona said the killing of Joseph Wood in July had been conducted properly. Mr. Wood appeared to gasp for nearly two hours before dying, but the report concluded that he was unconscious during that time and did not feel pain.

The unusually protracted and, in the view of many witnesses, agonizing executions in the two states led to new questions about the reliability of lethal injection and whether it can be performed humanely. These states and others have also been forced to try new drugs and combinations as manufacturers have refused to supply the barbiturates traditionally used in lethal injections.

Dale A. Baich, a lawyer for the Oklahoma prisoners, said they would appeal Judge Friot’s decision. “We are still concerned about Oklahoma’s ability to carry out executions humanely using midazolam,” Mr. Baich said....

The Arizona report, by consultants hired by the State Department of Corrections, cited the Pima County medical examiner’s statement that Mr. Wood’s “gasps, snorting and body reflexes are the normal bodily responses to dying, even in someone highly sedated.” Arizona used midazolam in a different combination from Oklahoma, pairing it with the opiate hydromorphone. Medical experts cited in the report said they could not determine why it took so long for Mr. Wood to die.

Still, Arizona’s director of corrections, Charles L. Ryan, said Monday that the state would abandon that two-drug protocol. The state will continue to search for supplies of the barbiturates of choice, pentobarbital or sodium thiopental, Mr. Ryan said. But if they remain unavailable, Arizona will use midazolam in the same three-drug regimen planned in Oklahoma, with the sedative followed by a paralyzing agent and a caustic heart-stopping drug.

Oklahoma has had a moratorium on executions since April 29, when the lethal injection of Mr. Lockett went awry. Now, saying that improved procedures are in place and that they will boost the dosage of midazolam, they plan to execute four men in three months, starting with Charles F. Warner on Jan. 15.

December 23, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Sunday, December 21, 2014

With new drug secrecy law, just when is Ohio really likely to get its machinery of death operational?

The question in the title of this post is prompted by this Columbus Dispatch account of the new Ohio law enacted last week to foster procurement of needed execution drugs by state authorities.  The article is headlined "New law will keep lethal-injection drug supplier secret," and here are the details prompting my question:

A new Ohio law signed yesterday by Gov. John Kasich will shield from public disclosure the supplier of drugs used in future lethal injections effective on March 20. However, two executions are scheduled before that date: Ronald Phillips of Summit County on Feb. 11, and Raymond Tibbetts of Hamilton County on March 12.

There was no immediate word from Kasich, Attorney General Mike DeWine or the Ohio Department of Rehabilitation and Correction about how the Phillips and Tibbetts executions will be handled, or if they will be postponed. There are four additional executions scheduled for later next year.

A spokeswoman for Ohio Public Defender Tim Young said new drugs can’t be purchased until House Bill 663 takes effect. “Our assumption is if they go forward with those executions, they will have to do it under existing law,” Amy Borror said.

Existing law does not permit buying drugs from undisclosed sources. The two drugs used in the last Ohio execution on Jan. 16, appeared to cause Dennis McGuire to gasp, choke and struggle against his restraints for about 20 minutes before he died.

The lethal-injection measure ... will allow prison officials to buy drugs from some of the 61 compounding pharmacies in the state. Typically smaller, independent businesses, compounders mix drugs for specific customer needs. They can ask the state not to identify them as the provider of lethal drugs for 20 years. The law also will keep confidential forever the identities of execution-team members and physicians involved in the process, even in an advisory capacity.

Another provision of the law requires an overall review to be done of the state’s lethal-injection process.

As reported in this prior post, a federal district judge back in August extended his injunction precluding executions in Ohio through January 15, 2015. I expect that state officials will seek to formulate a new execution plan in light of this new law, and that defense attorneys will seek to preclude executions from starting again until such a new plan is fully formulated and fully examined through litigation.

In light of all these realities, I am inclined now to tentatively predict that we likely will not have another execution in Ohio until well into 2015. At the same time, if and when Ohio gets its machinery of death operational in 2015, it seems quite possible that the state will try to move forward with a new execution every six weeks.

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

Sunday, November 30, 2014

Noting some reasons the number of US executions in 2014 are so low

This new Christian Science Monitor article details some reasons why the US is on pace to have fewer than three dozen executions this year for the first time in decades. The piece carries this lengthy headline and subheading: "Death penalty in 2014: why US has seen fewest executions in 20 years: The downward trend in executions has several explanations, but experts say it’s probably not because of death penalty debates about innocence and guilt.  Rather, they say, it’s the details of how the state goes about ending a condemned life." Here are excerpts:

In late November, a federal judge emptied Wyoming’s death row of its last remaining occupant, Dale Wayne Eaton.  His lawyers don’t dispute that Mr. Eaton in 1988 raped and killed 18-year-old Lisa Marie Kimmell after kidnapping her and holding her hostage in his compound.  The problem, the court found, was that his defense team failed to present him as a three-dimensional human being at his sentencing, including pointing out the severe beatings he received as a child and how he was evaluated to have low intelligence.

The ruling seemed of the moment in a country that has seen sentiments about the death penalty continue to shift in 2014.  So far this year, America has seen the fewest executions  — 32 — in 20 years....

A series of botched and disturbing executions in Oklahoma, Ohio, and Arizona has also contributed to the shifting debate, argues Rick Garnett, a law professor at the University of Notre Dame in Indiana.  Death penalty states are being forced to come up with new lethal injection drug formulas as traditional suppliers of the drugs stop distributing them to states.

The downward trend in executions has several explanations, but experts say it’s probably not because of debates about innocence and guilt.  Rather, they say, it’s the details of how the state goes about ending a condemned life, including the issues surrounding the lethal injection drugs.

November 30, 2014 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms | Permalink | Comments (2) | TrackBack

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 and Glossip lethal injection cases, 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

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 or

Cross-posted at PrawfsBlawg.

November 20, 2014 in Baze and Glossip lethal injection cases, 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 and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (4) | 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, 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 and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, July 30, 2014

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

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

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

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

Monday, July 28, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, July 25, 2014

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

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

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

Judge Kozinski [in a recent noted dissent]... launched into a meditation on why we kill people the way we do. The late 1970s shift to lethal injection was undertaken, as the judge suggested, in the belief that it was a “more humane” and “less brutal” method of execution than earlier ones — the firing squad, the electric chair, the gas chamber. But that belief was mistaken, he said. “Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful — like something any one of us might experience in our final moments.”

The judge then shifted into a register generally associated with those firmly planted in the abolitionist camp. “But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”

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

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

“Sure, firing squads can be messy,” the judge wrote, “but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”

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