Friday, October 09, 2015
In defense of Ohio officials trying to figure out how to get execution drugs legally
This new AP story, headlined "Ohio Challenges FDA's Stand on Execution Drug," provides more details and context for the notable letter sent today by Ohio officials to the FDA (first reported here). Here are excerpts (with my bold emphasis):
With two dozen scheduled executions in limbo, Ohio sent a forceful letter to Washington on Friday asserting that the state believes it can obtain a lethal-injection drug from overseas without violating any laws.
The letter to the Food and Drug Administration stopped short of suggesting Ohio is moving forward to obtain the powerful anesthetic sodium thiopental. However, the state asked to begin discussing with federal officials about acquiring the substance legally.
The FDA had warned Ohio in June that importing the restricted drug could be illegal as a result of recent federal court decisions, setting up the latest roadblock to carrying out the death penalty.
Ohio hasn't executed anyone since January 2014, when condemned killer Dennis McGuire gasped and snorted repeatedly during a 26-minute procedure with a two-drug method that had yet to be tried. Ohio abandoned that method in favor of other drugs it now can't find.
Pharmaceutical companies have discontinued the medications traditionally used by states in executions or put them off limits for use in lethal injections. Stephen Gray, chief counsel for the Ohio Department of Rehabilitation & Correction, said the state has no intention of violating the law to obtain such drugs — but "the responsibility to carry out lawful and humane executions when called upon by the courts to do so is enormous, and it is a responsibility that ODRC does not take lightly."
Death penalty opponents have seized on trouble with lethal injections, as in McGuire's case, and difficulty in obtaining drugs as further justification for ending it. Supporters of capital punishment encourage states to continue to pursue legal avenues for getting the drugs — or find alternatives — so that condemned killers can be brought to justice.
Ohio's latest correspondence comes as the state is set to resume executions in a little over three months. The state is scheduled to execute Ronald Phillips on Jan. 21 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another 23 executions have been scheduled into 2019.
In part because I know and respect, both professional and personally, a number of Ohio executive officials, I have highlighted parts of the story above that I suspect may have led many of them to feel duty-bound to explain to FDA why Ohio thinks it legally could (and perhaps sensibly should) seek to import lethal injection drugs. Ohio has a long (and sometimes ugly) history with its lethal injection protocols, but Ohio officials have always seemed (at least to me) to be willing and eager to make reasonable efforts to adjust its execution protocols in order to try to carry out lawful death sentences in the most humane way possible. I perceive that an effort to find a legal way to import sodium thiopental is another example of Ohio officials making this effort.
Of course, opponents of the death penalty are often quick to say that no execution is humane and that Ohio's troubles with executions protocols and drug acquisition provide further reasons for the state to get entirely out of the capital business. Ironically, I suspect many Ohio executive officials personally share this perspective, especially because their jobs would surely get easier if they did not have to worry about the next scheduled execution (or the 23 others right behind it). But all executive officials, short of perhaps Ohio Gov John Kasich, are duty-bound to apply the existing law enacted by Ohio's elected representatives, not the law as would serve their own personal interests. (Indeed, in neighboring Kentucky, Kim Davis recently highlighted the ugliness that can ensure when executive officials seek to elevate personal law over the actual law.)
Consequently, unless and until the Ohio General Assembly repeals the death penalty or Gov Kasch uses his clemency authority to create an execution moratorium, it strikes me as defensible (and arguably obligatory) for Ohio executive officials to look to secure drugs needed for execution by any and all lawful means. And it will now be especially interesting to see if FDA official will be willing and able to work with Ohio officials to help the state lawfully secure execution drugs (assuming, as I think all should, that this is what Ohio would like to be able to do).
Prior related post:
- "FDA warns Ohio not to illegally import execution drugs"
- Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences
In this post a few months ago, I reported on a letter sent by the US Food and Drug Administration (FDA) to the head of the Ohio Department of Rehabilitation Correction (ODRC) expressing concern that Ohio might be trying to import illegally the drug it needed to carry out scheduled executions. Now I can report on an interesting official response sent today from ODRC back to FDA. In a four-page letter, ODRC provides an extended explanation for how, in Ohio's view, it could be legal for it to import certain drugs needed to carry out executions.
The full letter from ODRC to FDA, which is available for downloading below, merits a careful read by anyone closely following the challenges many states are having securing needed drugs for executions. As a kind of summary, here is how the ODRC letter starts and concludes:
Your June 26, 2015 letter to Director of the Ohio Department of Rehabilitation and Correction (ODRC), Gary Mohr, referenced some unspecified information you had received about Ohio's "inten[t] to obtain bulk and finished dosage forms of sodium thiopental." Based on this information, you referenced two federal court decisions, Beaty v. FDA, 853 F. Supp. 2d 30 (D.D.C. 2012) and Cook v. FDA, 733 F.3d 1(D.C. Cir. 2013), and sought to "remind [Ohio] of the applicable legal framework" for importation of sodium thiopental. Contrary to the implication in your letter that the importation of sodium thiopental is currently prohibited, there is a legal framework for a state, if it so chooses, to import sodium thiopental in accordance with both the federal Food, Drug, and Cosmetic Act (FDCA) and the June 2012 Court Order issued by Judge Leon in Beaty. Further, please be advised that if at some point in the future the State of Ohio should choose to pursue the importation of sodium thiopental or any other drug that may be used to carry out a sentence of lethal injection, Ohio has no intention of breaking any federal laws or violating any court orders in an attempt to procure the legal drugs necessary to carry out constitutionally approved and court-ordered death sentences....
Given the specific facts and parameters of those [above-referenced] decisions, it is clear that importation of sodium thiopental is not completely prohibited by Judge Leon's 2012 Orders. That is, importation of sodium thiopental is not prohibited provided that [five key conditions are met]....
Thus, we believe that if a state were to attempt to import sodium thiopental under these five conditions, then the specific terms of the Beaty injunction would not apply. In other words, the FDA would not be permanently enjoined from permitting that shipment into the United States, and that it would be lawful and permissible for a state to proceed with such lawful importation.
The responsibility to carry out lawful and humane executions when called upon by the courts to do so is enormous, and it is a responsibility that ODRC does not take lightly. To that end, ODRC has no intention of attempting to procure drugs for lethal injection in a manner that would violate a proper interpretation of the FDCA. And, as the federal agency tasked with enforcing the FDCA and subject to the Court Order in Beaty, we would be happy to begin a dialog with the FDA as to how best achieve this goal.
Prior related post:
Thursday, October 08, 2015
Oops: "Oklahoma used wrong drug in January execution, autopsy report shows"
The title of this post is the headline of this article (with a little extra commentary) from The Christian Science Monitor. Here are the details:
The wrong lethal injection drug was used in an Oklahoma execution in January, an autopsy report obtained by an Oklahoma newspaper shows. The Oklahoman reported Thursday that potassium acetate, instead of potassium chloride as required under the state's protocol, was the final drug administered to stop Charles Frederick Warner's heart during his Jan. 15 execution.
Mr. Warner, convicted of the rape and murder of an 11-month-old in 1997, is the last murderer to be executed at the Oklahoma State Penitentiary in McAlester. His punishment was carried out almost nine months after the execution of murderer Clayton Lockett, whose botched execution triggered an investigation into the combination of drugs used that went all the way up to the Supreme Court on the grounds of Eighth Amendment rights infringement -- that is, whether or not Oklahoma failed to protect Mr. Lockett from “cruel and unusual” punishment....
The same incorrect drug found in Warner’s autopsy report were delivered to corrections officials Sept. 30 for the scheduled execution of another convicted murderer, Richard Glossip. After learning of the mistake, Oklahoma Gov. Mary Fallin granted a last-minute stay and postponed off the executions of two additional death row inmates.
An investigation into the circumstances surrounding Warner's execution was announced by Attorney General Scott Pruitt shortly after. On Wednesday, Mr. Pruitt said the investigation will cover any previous drug mistake, The Oklahoman reports.
“I want to assure the public that our investigation will be full, fair, and complete and includes not only actions on Sept. 30, but any and all actions prior, relevant to the use of potassium acetate and potassium chloride,” Pruitt said.
Governor Fallin said Wednesday night she supports further inquiry into Warner's execution, and told the newspaper it “became apparent” on Sept. 30 when Glossip’s execution was delayed that a similar mix-up may have occurred in Warner’s case....
“It is imperative that the attorney general obtain the information he needs to make sure justice is served competently and fairly,” Fallin said in an email to The Oklahoman. “Until we have complete confidence in the system, we will delay any further executions.”
She said she and the attorney general delayed Glossip's execution as a precaution, despite the doctor and the pharmacist working with corrections officials agreeing that potassium chloride and potassium acetate are medically interchangeable. “The active ingredient is potassium, which, when injected in large quantities, stops the heart,” the governor said.
She said “it became apparent” during the discussions Sept. 30 about a delay that the Corrections Department may have used potassium acetate in Warner's execution. “I was not aware nor was anyone in my office aware of that possibility until the day of Richard Glossip's scheduled execution,” she said. On Tuesday, Fallin said she has hired an outside attorney “to look at the whole process” and provide oversight.
Highligthing that states, despite Glossip ruling, continue to struggle with lethal injections
This lengthy new New York Times article, headlined "Death Penalty States Face Hurdles in Carrying Out Executions," reports on the (surprising?) reality that the Supreme Court's recent Glossip ruling has not made it significantly easier for states to complete scheduled lethal injections. Here are excerpts:
Despite a Supreme Court ruling allowing a controversial drug to be used for lethal injections in Oklahoma, deathpenalty states are finding it harder to carry out executions as they struggle to obtain and properly use limited supplies of everchanging combinations of lethal injection drugs.
Prison officials in Texas and Virginia have improvised a short-term solution by trading drugs for lethal injections. Both Ohio and Nebraska have sought to buy a drug no longer available in the United States from overseas only to be told by the federal Food and Drug Administration that importing the drug is illegal.
Executions in Mississippi have been postponed for months over a federal lawsuit challenging the state’s three-drug protocol. The delay will stretch into next year, with a trial scheduled in July 2016. And in Montana on Tuesday, a judge blocked the state from carrying out executions, ruling that one of the two drugs it planned to use did not comply with the state law governing lethal injections. The only way Montana can resume executions with that drug, the judge said, is by having the State Legislature modify the law.
“Over time lethal injection has become only more problematic and chaotic,” said Deborah W. Denno, a professor at Fordham Law School and an expert on lethal injections.
Oklahoma last week halted the execution of Richard E. Glossip, who was part of the challenge the Supreme Court had turned down, after officials realized two hours before it was to take place that the state’s supplier had sent prison officials the wrong drug. The error led to a court-ordered stay of the three executions scheduled in October and November while officials conduct an investigation....
The scramble for drugs has caused some states to embrace or consider more unusual or more antiquated ways of putting inmates to death. In 2014, Tennessee authorized prison officials to use the electric chair if lethal-injection drugs were unavailable. Gov. Gary R. Herbert of Utah signed a bill into law in March approving firing squads when drugs cannot be obtained.
In April, Oklahoma made nitrogen gas its new backup method. In Louisiana, where executions have been postponed following a federal lawsuit over its lethal-injection system, prison officials recommended in a report in February that nitrogen gas be adopted as an alternative method, through the use of a mask or other device but not a gas chamber.
Tuesday, October 06, 2015
Texas completes lethal injection not long after Montana judge finds state's lethal drugs problematic
Two notable lethal injection developments in two states on late Tuesday. Here are the headlines and parts of the stories:
Texas on Tuesday executed its 11th inmate of this year — a man who killed a former missionary during an $8 robbery when he was a teenager. Juan Garcia, 35, received a lethal injection and was was pronounced dead at 6:26 p.m. (7:26 p.m. ET). He was executed for the 1998 murder of Hugh Solano, who had just moved to Houston from Mexico to give his children a better education.
The Texas Board of Pardons and Paroles rejected Garcia's clemency bid in a 5-2 vote last week. Garcia in the past fought execution with claims of mental impairment, but had no appeals pending Tuesday morning.
Garcia apologized to Solano's relatives in Spanish ahead of the execution, and Solano's wife and daughter sobbed and told the inmate they loved him. "The harm that I did to your dad and husband — I hope this brings you closure," Garcia said. "I never wanted to hurt any of you all."
As the dose of pentobarbital began, he winced, raised his head and then shook it. He gurgled once and snored once before his movement stopped. He was pronounced dead 12 minutes later.
A Helena district judge on Tuesday ruled that Montana’s method of lethal injection does not comply with state law, effectively staying all executions in the state indefinitely. District Court Judge Jeffrey Sherlock wrote that the state’s current protocol for executing inmates by lethal injection relies on a drug that is not an “ultra-fast-acting barbiturate,” as required by state law.
The challenge to Montana’s execution methods went to trial last month, when attorneys for prisoners Ronald Allen Smith and William Gollehon — Montana’s only two death row inmates — argued that the drug, pentobarbital, does not adhere to a state law requiring that an “ultra-fast acting” barbiturate must be used during execution.
Montana’s lethal injection law calls for use of an ultra-fast acting barbiturate as well as a paralytic agent. The state’s execution protocol lists sodium pentothal as the barbiturate, with pentobarbital as a substitute; however, sodium pentothal is no longer available for use in executions in the United States, and its importation is illegal because it is not approved by the Food and Drug Administration.
The state’s revised protocol indicates it will use pentobarbital as a substitute barbiturate, despite the fact that pentobarbital is an intermediate-acting barbiturate, which isn’t allowed under the state’s lethal injection protocol. In his order, Sherlock wrote that by using the term “ultra” in its statute, the Legislature limited the state to using only drugs in the fastest category of barbiturates. Sherlock ruled that “while pentobarbital may operate in a fast nature, it is not ultra-fast as is required to comply with Montana’s execution protocol.”
Friday, October 02, 2015
Top Oklahoma court puts all executions on hold upon state request after drug snafu
As reported in this AP piece, "Oklahoma's highest criminal court unanimously agreed Friday to halt all of the state's scheduled executions after the state's prison system received the wrong drug for a lethal injection this week." Here is more:
The Oklahoma Court of Criminal Appeals granted the state's request and issued indefinite stays of execution for Richard Glossip, Benjamin Cole and John Grant. Oklahoma Attorney General Scott Pruitt requested the stays to give his office time to investigate why the Oklahoma Department of Corrections received the wrong drug just hours before Glossip was scheduled to be executed Wednesday.
Just hours before Glossip was set to die, prison officials opened a box of lethal drugs and realized they received potassium acetate instead of potassium chloride, the third drug utilized in Oklahoma's lethal injection formula. The court ordered the state for status reports every 30 days, "including any proposed adjustments to the execution protocol."
Oklahoma's execution protocols were overhauled after last year's botched execution of Clayton Lockett, who writhed on a gurney and struggled against his restraints before being declared dead more than 40 minutes after the procedure began.
On Thursday, Oklahoma Department of Corrections Director Robert Patton insisted that those new protocols were properly followed. But the attorney general expressed concerns about the department's ability to properly carry out an execution. "Until my office knows more about these circumstances and gains confidence that DOC can carry out executions in accordance with the execution protocol, I am asking the Oklahoma Court of Criminal Appeals to issue an indefinite stay of all scheduled executions," Pruitt said in a statement after requesting the stays.
Wednesday, September 30, 2015
Oklahoma Gov grants 37-day "stay" of Richard Glossip's scheduled execution
As detailed in this official press release, "Governor Mary Fallin has issued a 37 day stay of Richard Glossip’s execution to address legal questions raised today about Oklahoma’s execution protocols." here is the rest of the text of the press release:
The stay will give the Department of Corrections and its attorneys the opportunity to determine whether potassium acetate is compliant with the state’s court-approved execution procedures.“Last minute questions were raised today about Oklahoma’s execution protocol and the chemicals used for lethal injection,” said Fallin. “After consulting with the attorney general and the Department of Corrections, I have issued a 37 day stay of execution while the state addresses those questions and ensures it is complying fully with the protocols approved by federal courts.”The new execution date will be Friday, November 6.“My sincerest sympathies go out to the Van Treese family, who has waited so long to see justice done,” said Fallin.
Amusingly, as noted here by Kent Scheidegger at Crime & Consequences, Gov Fallin technically granted Glossip a reprieve, not a stay, according to the terms of the Oklahoma Constitution. But I suppose we should not expect a Gov or her legal staff to be concerns about such semantics. Intriguingly, as reported here by Lyle Denniston at SCOTUSblog, this order came after the Supreme Court had formally rejected Glossip's various last-minute appeals and stay requests and only Justice Breyer dissented from that decision.
Saturday, September 26, 2015
Latest Glossip kerfuffle concerns whether Texas could make and export "better" execution drugs
The latest intriguing issue to arise in the ugly world of execution administration concerns whether Texas could supply "better" lethal injection drugs to other states. This BuzzFeed article about the latest filing in the (never ending?) Glossip case explains:
The state of Texas is making its own execution drugs and has sold them to at least one other death penalty state, an inmate facing execution in Oklahoma alleges in a court filing Thursday. His attorneys point to documents that show the Texas Department of Criminal Justice sold pentobarbital to Virginia in late August.
Pentobarbital is a sedative that many death penalty states, including Oklahoma, have claimed is impossible for them to get their hands on. As a result, some states have turned to midazolam, a drug that critics argue is significantly less effective. The U.S. Supreme Court upheld the use of midazolam in executions this June.
The records submitted as part of the new filing show that Virginia received 150 milligrams of the drug. Under the heading “Name of Supplier,” the Texas Department of Criminal Justice is listed. The labels do not identify the pharmacy that prepared the drug. However, the lawyers for the Oklahoma inmate state that the labels were created by the Texas Department of Criminal Justice, which they also allege “is compounding or producing pentobarbital within its department for use in executions.”
On Friday, Texas confirmed to BuzzFeed News that it sent the execution drugs to Virginia. A spokesman said it was to repay Virginia for having given Texas drugs in the past. “In 2013, the Virginia Department of Corrections gave the Texas Department of Criminal Justice pentobarbital to use as a back up drug in an execution,” spokesman Jason Clark said. “Virginia’s drugs were not used.”
“The agency earlier this year was approached by officials in Virginia and we gave them 3 vials of pentobarbital that [were] legally purchased from a pharmacy. The agency has not provided compounded drugs to any other state. Texas law prohibits the TDCJ from disclosing the identity of the supplier of lethal injection drugs.”...
The lawyers raise these issues to make the argument that Oklahoma could avoid the use of the controversial midazolam drug in its executions. It could do so, they argue, by purchasing pentobarbital from Texas, like Virginia, or by “compounding or producing pentobarbital in the same manner as does TDCJ.”
States have struggled to obtain execution drugs for years after makers enacted more stringent guidelines to keep them away from states that would use them for executions. The idea of a state-run lab making its own death penalty drugs is something Missouri Attorney General Chris Koster raised last year, although many wondered how it could be done. Missouri, like Texas, has had no trouble obtaining pentobarbital.
Friday, September 11, 2015
Is Arkansas about to jump back seriously into execution business?
The question in the title of this post is prompted by this recent local article from the Natural State, headlined "Dates to die set for 8 inmates: State resuming executions; first two scheduled for Oct. 21." Here are the details:
After nearly a decade since an Arkansas inmate was put to death, Gov. Asa Hutchinson on Wednesday announced the execution dates for eight. Barring intervention from a court, the state will first mete out capital punishment, by lethal injection, to convicted murderers Bruce Ward and Don Davis. They have the earliest of the execution dates, Oct. 21.
Hutchinson said he expects the execution dates to be challenged in court, but he thinks the eight offenders have gotten "finality" in their cases and have exhausted all of their standard appeals.
Hutchinson spokesman J.R. Davis said the governor is "fulfilling" a duty of his office by setting the dates. "It's not something he takes lightly at all," J.R. Davis said. "But these crimes were heinous, and they were sentenced to death because of these crimes. He will carry those out."
Jeff Rosenzweig, an attorney for the eight men, said he will seek a court injunction to delay the executions. He noted that a lawsuit filed in June seeking disclosure of the source of the drugs used in executions is still pending. Act 1096, which was passed during this year's legislative session, prohibits the Arkansas Department of Correction from disclosing the source of the execution drugs, but Rosenzweig said his clients have a right to know who made the drugs. "There are some very serious issues, starting with the fact that the state wants to hide what drugs they're using or where they got them from. They want to hide that," Rosenzweig said. Divulging that information "tells us if it's a legitimate supplier or some fly-by-night operation. If it's a fly-by-night operation, it's torture."...
A combination of legal challenges and a lack of availability of lethal-injection drugs has halted executions in Arkansas for nearly a decade. The state's last execution was that of Eric Nance in November 2005. Nance was convicted of the 1993 murder of 18-year-old Julie Heath of Malvern. He was put to death using a three-drug cocktail of phenobarbital, potassium chloride and a paralytic agent.
As of Wednesday, a Department of Correction spokesman said, there were 26 other inmates on death row.
The eight executions will occur in pairs, J.R. Davis said, because "it's more efficient to do two on one date." He and Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said all eight have exhausted their appeals....
The eight men whose execution dates are now set are challenging in Pulaski County Circuit Court the legitimacy of the state's death-penalty laws.
In 2013, then-Arkansas Attorney General Dustin McDaniel's office reached a settlement with the men, promising to disclose the source of the drugs that would be used in their executions. Act 1096 barred the release of that information, so Rosenzweig and other attorneys sued.
Rosenzweig conceded that several similar challenges have failed in federal courts across the country but said none of those challenges involved a pre-existing agreement between the prisoners and the state to share that information. Rosenzweig argues that his clients have a right to make sure the execution drugs come from a reputable source so that the risk of pain during the executions can be minimized. "We have a situation that the other states didn't have ... it's very different from us wandering into the court and saying 'Tell me this!' We're dealing with a commitment, a contract, an agreement made by the state," Rosenzweig said. "This has ramifications far beyond executions."
Until recently, state officials had difficulties obtaining lethal-injection drugs. In 2011, the state handed over its supply of the execution drug sodium thiopental to federal drug agents after the state's prison department got the drug from a wholesaler operating out of a driving school in London. In June, the state obtained potassium chloride, vecuronium bromide and midazolam at a cost of $24,226.40.
Midazolam's effectiveness as a sedative in executions has been questioned after some botched executions, including that of Clayton Lockett, who struggled and convulsed for 43 minutes during his April 2014 execution in Oklahoma. In June, the U.S. Supreme Court, rejected claims that Oklahoma's use of midazolam violated death-row inmates' Eighth Amendment rights, and ruled that midazolam could continue to be used in executions.
On Aug. 6, the Arkansas Department of Correction formalized its policies and procedures for carrying out executions. On Sept. 1, Rutledge asked that the governor schedule the executions.
Sunday, September 06, 2015
Ohio queue of condemned keeps growing as state struggles with its death machinery
This new AP article, headlined "Ohio Death Row Quandary: 2 Dozen Executions, No Lethal Drugs," highlights the distinctive problem Ohio now has with the administration of capital punishment. Here are the details:
The state now has two dozen condemned killers with firm execution dates, but with four months before the first one, it still doesn't have the lethal drugs it needs to carry them out. The state's inability to find drugs has death penalty opponents calling for the end of capital punishment in Ohio. Supporters say the state needs to keep looking or find alternatives to provide justice for killings that are in some cases decades old.
"Rather than frustrate that process it would seem to me their goal ought to be to carry out that process," said Franklin County Prosecutor Ron O'Brien, who's contacted the prisons department, the attorney general and the governor's office for updates on their progress finding drugs. One option he'd like Ohio to consider: nitrogen gas, approved by Oklahoma in April as an execution alternative.
On Jan. 21, the state is scheduled to execute Ronald Phillips for raping and killing his girlfriend's 3-year-old daughter in Akron in 1993. The Department of Rehabilitation and Correction "continues to seek all legal means to obtain the drugs necessary to carry out court-ordered executions," said spokeswoman JoEllen Smith, using the same statement the agency has offered for months. "This process has included multiple options."
On Wednesday, the Ohio Supreme Court set a March 2017 date for Gary Otte of Cleveland for the shooting deaths of two people in a 1992 robbery spree. The remaining executions are scheduled clear into 2019.
The state hasn't executed anyone since January 2014, when condemned killer Dennis McGuire gasped and snorted repeatedly during a 26-minute procedure with a then untried two-drug method. Ohio abandoned that method in favor of other drugs it now can't find. Like other states, Ohio has struggled to obtain drugs as pharmaceutical companies discontinued the medications traditionally used by states or put them off limits for executions.
The state's latest attempt, to obtain a federal import license to buy drugs from overseas, ran into a roadblock when the FDA informed Ohio such actions are illegal because the drugs in question aren't FDA-approved.
That's the kind of thing that happens when dates are set without drugs on hand, said Tim Young, the state public defender. "That continual setting of dates seems to bring to bear unfortunate pressure to drive the choices with untested drugs, untested processes," he said.
Gov. John Kasich said other states won't give Ohio their drugs and lawsuits may tie up attempts to import approved drugs. But he said there's still time before the January execution. "I want to continue forward with the death penalty, but if I don't have the drugs it becomes very difficult," Kasich said.
Ohio appears to have the most killers with execution dates because of the state's system for scheduling them. Texas, which still leads the nation in the number of executions annually, sets dates a maximum of 90 days out. Missouri, which has a similar system, has a maximum 60-day window which extends up to 120 days next year.
Thursday, August 27, 2015
Might Tennessee soon have its machinery of death up and running?
The question in the title of this post is prompted by this AP story headlined "Judge upholds Tennessee lethal injection method." Here are the basics:
A Tennessee judge on Wednesday upheld the state's lethal injection process for executing inmates.
Davidson County Chancery Judge Claudia Bonnyman said from the bench that the plaintiffs, 33 death row inmates, didn't prove that the one-drug method led to a painful and lingering death. She also said the plaintiffs didn't show during a lengthy trial that there have been problems in states where the method has been used. "Plaintiffs were not able to carry their burdens ... on any of their claims," Bonnyman said.
Plaintiffs' attorney Kelley Henry said they plan to appeal.
Attorney General Herbert Slatery said in a statement he hoped the families of victims would be comforted by the ruling. "The State of Tennessee has worked very hard to make sure the protocol used is reliable and humane, today the Court recognized that," the statement said. While much of the focus of this case has been on the inmates, we should not forget the victims and the heartache suffered by their families."
Tennessee's protocol calls for the use of pentobarbital mixed to order by a pharmacist, because the only commercial producer of the drug has placed restrictions on its distribution to prevent it from being used in executions. Tennessee has not executed an inmate for more than five years because of legal challenges and problems in obtaining lethal injection drugs.
Lawmakers moved from a three-drug lethal injection method to a one-drug method and to reinstate the electric chair as a backup. Both changes brought challenges, and all previously scheduled executions have been put on hold.
This ruling and the planned appeals by the death row defendants suggests that Tennessee might be a good state to watch to see if the Supreme Court's ruling in Glossip can really help states finally get their death penalty machinery back up and running. In the wake of Glossip and absent any evidence of illicit chicanery by Tennessee officials, any appeals in this case ought to be resolved fairly expeditiously (especially if Tennessee were now set execution dates for some condemned murderers). But, of course, the condemned still have every reason, and surely will seek every opportunity, to continue to extend the lethal injection litigation for as long as possible in both state and federal courts. I have thought that Glossip should speed things along in this state and others, but only time will tell.
Tuesday, August 25, 2015
Despite Glossip, federal judge orders halt to Mississippi's lethal injection plans
I had thought that the Supreme Court's big Glossip Eighth Amendment ruling a couple of month ago could make it at least somewhat easier for states to get their condemned murderers to execution chambers. But, intriguingly, only two executions have been carried out since Glossip was decided, and the United States thus remains on track in 2015 for the lowest yearly total of executions in a quarter-century.
Moreover, as reported via this (somewhat confusing) AP article, headlined "Federal judge halts executions in Mississippi," even claims that would seem to have been resolved by Glossip are still disrupting state execution efforts in a least one state. Here are the basic details:
A federal judge on Tuesday temporarily blocked the state of Mississippi from using two drugs in executions, shutting down the death penalty in the state for now.
U.S. District Judge Henry T. Wingate issued a temporary restraining order saying Mississippi officials cannot use pentobarbital or midazolam, two drugs used to render prisoners unconscious. Mississippi law requires a three-drug process, with the sedative followed by a paralyzing agent and a drug that stops an inmate's heart.
Jim Craig, a lawyer for two inmates, said Wingate gave the order verbally Tuesday in a phone conference with him and other lawyers. Wingate was supposed to issue a written order, but no written copy was yet available later in the day.
Grace Simmons Fisher, a spokeswoman for the Mississippi Department of Corrections, wrote in an email that the order bars the state from using any drug to execute a condemned inmate. The state quickly filed notice Tuesday saying it will ask the 5th U.S. Circuit Court of Appeal to overturn Wingate's order.
"We are extremely disappointed that the federal court has frustrated the State of Mississippi's lawful duty to enforce its criminal sentence of capital punishment," Attorney General Jim Hood said in a statement. "Just months ago the United States Supreme Court approved Oklahoma's method of lethal injection. Mississippi's method follows that of Oklahoma. We feel strongly that the district court misapplied the law."
Craig expects Wingate to issue a preliminary injunction that could freeze executions until the case is complete. Craig said Wingate told lawyers he would expedite the case.
Mississippi is one of a number of states facing legal challenges to lethal injections. Hood's office asked the state Supreme Court in July to set a Thursday execution for convicted murderer Richard Jordan, one of the plaintiffs in the suit, but the state court never acted.
Prisoners say they face risks of excruciating pain and torture during an execution, and that such pain violates the U.S. Constitution's Eighth Amendment prohibition against cruel and unusual punishment. The suit says there's no guarantee Mississippi can mix a safe and effective anesthetic to knock out prisoners, and even then, prisoners could remain conscious during execution.
As the case was proceeding, Hood's office told Wingate that Mississippi was abandoning its plans to use pentobarbital and instead would use midazolam to knock out prisoners. Mississippi officials have said they've struggled to buy pentobarbital as death penalty opponents pressured manufacturers to cut off the supply.
Thursday, July 09, 2015
Richard Glossip and SCOTUS co-petitioners get new Oklahoma execution dates
As reported in this local piece, headlined "Oklahoma to execute 3 men in September, October," the condemned murderer whose surname will surely conctinue to play a lively role is constitutional capital punishment debates for many years is himself now scheduled to play a lively role on death row for only a few more months. Here are the details why:
Three Oklahoma inmates who lost a legal challenge over a drug used in lethal injections now know when they are to be executed. The state Oklahoma Court of Criminal Appeals on Wednesday ordered a Sept. 16 lethal injection for Richard Eugene Glossip, 52. Benjamin Robert Cole, 50, is to be put to death Oct. 7. John Marion Grant is to be executed Oct. 28.
“The families of the victims in these three heinous crimes have waited a combined 48 years for justice,” Attorney General Scott Pruitt said. “With the setting of execution dates, these families now have certainty that justice will finally be served for their loved ones.”
The U.S. Supreme Court ruled, 5-4, last month that the state’s planned use of the sedative midazolam would not violate the Eighth Amendment prohibition on cruel and unusual punishment. Another drug paralyzes the condemned man, and a third stops his heart.
“Despite what a thin majority of the Supreme Court said, midazolam cannot maintain anesthesia throughout the execution procedures,” said Dale Baich, an attorney for the men. “That’s clear from both the scientific information about the drug and the botched executions that have resulted from the use of midazolam. Because Oklahoma plans to use a paralytic as part of the drug formula, we will never know if prisoners will suffer during the execution process.”
Terri Watkins, a spokeswoman for the Oklahoma Department of Corrections, said the state has access to the drugs needed to carry out all three executions and will move forward with the dates set by the court....
Glossip was convicted of first-degree murder in the 1997 beating death of Barry Alan Van Treese at a west Oklahoma City motel. A co-defendant confessed to beating Van Treese, but said he did so at Glossip’s direction. Glossip has maintained his innocence.
Grant was sentenced to die for the 1998 stabbing death of Gay Carter, a prison worker at the Dick Connor Correctional Center in Hominy. Prosecutors say Grant dragged Carter into a mop closet and stabbed her 16 times. Cole was convicted of first-degree murder in Rogers County for the December 2002 beating death of his 9-month-old daughter, Brianna Cole.
Tuesday, July 07, 2015
Still more interesting discussion of Glossip a week later
I have previously highlighted here and here and elsewhere a lot of the notable commentary that the Supreme Court's big Glossip death penalty ruling quickly generated. I have now seen a few more pieces that seemed worth flagging here:
Friday, July 03, 2015
If you want to go on gorging on Glossip gossip...
here is still more of the copious commentary one can find as the work week closes on the biggest death penalty ruling of the SCOTUS Term just concluded (listed here only by title/headline as with this prior review, sources and authors varied):
Tuesday, June 30, 2015
If you are eager to gorge on Glossip gossip...
here is just a smidgen of some of the copious commentary one can find before the ink is really dry on the biggest death penalty ruling of the SCOTUS Term just concluded (listed here only by title/headline, sources and authors varied):
- The Most Dangerous Precedent (or, A Silly Extravagance)
- The Wonderland rules for method-of-execution claims
Monday, June 29, 2015
SCOTUS rules 5-4 against capital defendant's challenge to execution protocol in Glossip v. Gross
The Supreme Court handed down this morning the last big opinion of likely interest to sentencing fans via Glossip v. Gross, No. 14-7599 (S. Ct. June 29, 2015) (available here). Here is how Justice Alito's opinion for the Court gets started:
Based on a too-quick read, the majority opinion seems like a big win for states seeking to move forward even with new and questionable execution methods. I doubt Glossip will halt all the lower-court litigation on state execution protocols, but it certainly should provide lower court judges a much clearer standard and basis for rejecting Eighth Amendment claims in this setting.
Prisoners sentenced to death in the State of Oklahoma filed an action in federal court under Rev. Stat. §1979, 42 U.S.C. §1983, contending that the method of execution now used by the State violates the Eighth Amendment because it creates an unacceptable risk of severe pain. They argue that midazolam, the first drug employed in the State’s current three-drug protocol, fails to render a person insensate to pain. After holding an evidentiary hearing, the District Court denied four prisoners’ application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective. The Court of Appeals for the Tenth Circuit affirmed and accepted the District Court’s finding of fact regarding midazolam’s efficacy.
For two independent reasons, we also affirm. First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-ofexecution claims. See Baze v. Rees, 553 U.S. 35, 61 (2008) (plurality opinion). Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.
Friday, June 12, 2015
Canvassing the "most likely outcomes" of the SCOTUS case on death penalty drugs
Though I think we are still a few weeks away from getting a ruling (and multiple?) opinions in the SCOTUS case (Glossip v. Gross) considering Oklahoma's lethal injection history and plans, it is certainly not too early to begin speculating about what that Court might end up doing in the case. Helpfully, this extended new Vox article, headlined "The most likely outcomes of the Supreme Court's death penalty ruling," provides a great overview of what we might expect from the ruling. Here are excerpts, along with six possibilities for Glossip's outcome:
The Supreme Court is considering a legal challenge to Oklahoma's use of lethal injection this month — but chances are the effects of a ruling will be quite limited.
The case follows several botched executions in the past couple of years, particularly that of Clayton Lockett in April 2014. Lockett's execution, in which experimental drugs were used because of a nationwide shortage of lethal injection drugs, took an excruciating 43 minutes. It led Oklahoma inmates to file a lawsuit challenging the state's lethal injection protocol, eventually putting all executions in the state on hold once the Supreme Court accepted the challenge.
Specifically, the inmates are contesting the state's use of midazolam, a sedative used as part of a three-drug protocol to execute death row inmates. Midazolam is supposed to put someone to sleep, allowing the painless application of other drugs that actually kill the inmate. But Lockett appeared to groan and violently struggle during his execution, suggesting the first drug wasn't adequate — and may violate constitutional protections against cruel and unusual punishment.
Several death penalty experts and court watchers told Vox what they think the most likely outcomes of a Supreme Court ruling are. They largely rejected the possibility that the Court would make a sweeping decision against lethal injections or the death penalty in general, since most justices consider the death penalty constitutional. They instead outlined six possibilities — most of which would have a very narrow effect, and would likely allow lethal injections to continue in the US. Of course, it's entirely possible that the Court, which tends to be full of surprises, takes another approach, but these are the outcomes that seem most likely.
1) Oklahoma messed up, but midazolam isn't necessarily a problem....
2) Midazolam is constitutional....
3) Midazolam is unconstitutional....
4) Midazolam is unconstitutional as part of a three-drug protocol....
5) Inmates have not proven midazolam leads to cruel and unusual punishment....
6) Send the case back to a lower court
Monday, June 08, 2015
"Does failed execution attempt mean Ohio prisoner can avoid death penalty?"
The question in the title of this post is both the headline of this Columbus Dispatch article and the notable novel constitutional question facing the Ohio Supreme Court this week. Here is the backstory:
Ohio’s unusual pending death-penalty case, involving an inmate the state already tried but failed to execute, will be argued on Tuesday before the Ohio Supreme Court. Attorneys for Romell Broom contend that the state would be guilty of unconstitutional double jeopardy if it tries to execute him a second time. They said in a court filing that the state’s contention that their client didn’t suffer physically during a botched execution on Sept. 15, 2009, “ignores the unnecessary psychological suffering Broom endured during two hours of lawless chaos."
Representatives for Attorney General Mike DeWine counter that what happened on Sept. 15, 2009, wasn’t a failed execution but a breakdown in the lethal-injection process, and a new execution should proceed. They argue that the U.S. Constitution doesn’t promise that executions will be pain-free and that what happened to Broom wasn’t unconstitutional “cruel and usual punishment.”
The attempted execution of Broom, 59, on Sept. 15, 2009, was called off by Gov. Ted Strickland after a prison medical team spent two tense hours unsuccessfully trying to attach IV lines for lethal injection. The execution was rescheduled but never took place because Broom’s public defender attorneys filed numerous appeals.
Broom was convicted and sentenced to death for abducting, raping and stabbing to death 14-year-old Tryna Middleton of Cleveland as she walked home from a football game on Sept. 21, 1984. All evidence in the case, including DNA test results, showed Broom was the girl’s killer.
Thus, the failed execution, and not Broom’s guilt or innocence, will be the focus of oral arguments at 9 a.m. on Tuesday before the Ohio Supreme Court. Broom’s case is unique in Ohio’s modern capital-punishment history, being one of only two known cases nationally in which an execution was halted after it began. The other one was Willie Francis, a 17-year-old killer who died on the second try in Louisiana’s electric chair on May 9, 1947, having survived a botched execution a year earlier.
Friday, June 05, 2015
Is Missouri becoming the "new Texas" when it comes to death penalty administration?
The question in the title of this post is prompted by two notable new stories showing some notable new details about how the Show Me state (1) has recently become a new national leader in actually carrying out death sentences, and (2) now seems well positioned to complete more executions in the near future than any other state. This lengthy Mashall Project piece focused on capital defense in Mizzou provides this background:
[Jennifer Herdon's] condemned clients were convicted of monstrous crimes, but at least a few presented powerful issues for appeal. Among them were a man diagnosed as schizophrenic who hallucinated clouds of flies and insisted on never speaking aloud the number “between 31 and 33”; a man so intellectually impaired that, as a child, he couldn’t understand hide-and-seek and who, at age 16, functioned like someone age 4-to-7; and a man whose claim of innocence was sufficiently compelling to convince a journalism class to dive into the case.
In the past two years, while much of the country has retreated from the death penalty, Missouri has gone the opposite direction. It has accelerated executions – last year, tying Texas for most in the country, with 10 – to such an extent that the “capital defense bar is in crisis,” according to a letter written to the Missouri Supreme Court by four members of an American Bar Association death-penalty assessment team.
Those four members – two law professors, a retired state appellate judge, and the chairman of the Missouri State Public Defender Commission – wrote in March that a mere “handful” of attorneys have represented most of the state’s executed inmates, despite the “notoriously lengthy and complex” nature of capital appellate work, coupled with “the emotional toll of losing client after client.” The team recommended that for attorneys handling capital appeals to be able to do their jobs adequately, the execution dates for clients should be staggered by at least six months.
Herndon, starting in November 2013, had five clients executed in just 15 months. In all, she’s had seven clients executed since 2003. And she has another execution scheduled next week. Herndon may be the most extreme example of how Missouri’s quickened pace of executions is swamping the defense bar, but she is not alone. Last year, six attorneys in addition to Herndon had multiple clients executed.
That list would have been longer if not for a stay granted by the U.S. Supreme Court before Mark Christeson’s scheduled execution in October. Christeson’s two attorneys, who had represented another inmate executed earlier in the year, missed a crucial filing deadline, not even meeting with their client until six weeks after it had passed. “Cases, including this one, are falling through the cracks of the system,” more than a dozen former state and federal judges wrote in a brief.
Paul Litton, a University of Missouri law professor and one of the four signatories on the letter from the ABA’s death-penalty assessment team, says: “With the executions happening month after month after month, and with so few attorneys handling these cases, the workload is just overwhelming.”
On Tuesday, Herndon and her co-counsel filed a request for a stay of execution for Richard Strong, scheduled to be executed June 9. The motion’s basis was their workloads, in particular Herndon’s. The motion says that when Herndon’s last client was executed in February, she put in more than 225 hours, “knowing that much more should have been done …” For the pending execution, she has 20 banker’s boxes of materials to review. Herndon “is struggling to fulfill her duties,” the motion says.
“Mr. Strong is at least entitled to a ‘fair fight.’ Such is impossible when defense counsel come in bloody and bruised, while the government has a seemingly endless supply of fresh reinforcements …,” the motion says.
Meanwhile, as now highlighted by this notable new Buzzfeed article (from which I got the graphic here), it would appear that Missouri has figured out some way to get all the execution drugs they could possibly need even as other states struggle mightily in this arena. The Buzzfied piece carries this full headline: "Missouri Is Mysteriously Building A Massive Stockpile Of Execution Drugs: Missouri now has enough drugs for 16 lethal injections. But how? The drugs often used in executions generally have a short expiration date." Here is an excerpt:
State officials changed drug suppliers in February 2014, after their previous supplier, the Apothecary Shoppe, was sued for, among other things, selling execution drugs when it wasn’t licensed to do so in Missouri. Until February 2014, Missouri’s drug stockpile hovered around zero, presumably because the compounded drugs expired so quickly. Since changing drug suppliers, however, the state’s drug supply has exploded, according to records obtained by BuzzFeed News.
With FDA-approved suppliers either discontinuing the manufacture of pentobarbital or enacting stringent guidelines to prevent states from getting ahold of their drugs, it led some capital attorneys to believe the state is resorting to veterinary pentobarbital — something that would be much easier to find, but illegal to use on humans.
When two attorneys, Cheryl Pilate and Lindsay Runnels, approached the Department of Corrections, officials refused to say whether the drug is veterinary. “The response has been very evasive,” Pilate said. “We made several requests about the use of veterinary drugs, and instead of getting the response of “Of course we would never use a veterinary drugs,” they [were] refusing to say.”
When BuzzFeed News asked the state’s corrections department whether the state is using veterinary drugs in executions, spokesperson David Owen said, “No.” Owen would not answer any questions about how the state could be holding onto drugs for so long, given the short shelf life of compounded drugs. Gov. Jay Nixon’s Office would not answer questions, either, and a spokesperson with Attorney General Chris Koster’s office declined to comment.
“It’s the ease with which they’re getting it,” Pilate said. “Other states are having serious problems getting ahold of their drugs. Why not Missouri?”
Tuesday, June 02, 2015
California agrees to model new lethal injection protocol on whatever SCOTUS says is good enough
As reported in this local piece, headlined "California death penalty: state agrees to propose execution method," a state with a remarkable inability (and disinclination?) to get its machinery of death operational has now agreed that the Supreme Court's latest review of lethal injection will provide a script for its next efforts. Here are the details:
California's death penalty system, dormant for nine years, might soon move slowly toward resuming executions. As part of a court settlement reached on Tuesday, the state's corrections department agreed to unveil a new execution method by the fall that will be tied to the outcome of a U.S. Supreme Court ruling expected sometime this month in a challenge to Oklahoma's lethal injection protocol.
While California is still far from executing one of the 750 condemned killers on death row, the development marks movement on the issue for the first time in years. There are at least 17 inmates on death row who have exhausted their legal appeals and would be eligible for execution dates.
State prison officials resolved a lawsuit filed last year by the families of victims of condemned killers who argued the state has a legal obligation to implement an execution method. A Sacramento judge earlier this year found the state should be required to move forward in a case brought by two families, including former UCLA and NFL star Kermit Alexander, whose mother, sister and nephews were murdered 31 years ago by a man now on death row. Death penalty supporters have accused state leaders such as Gov. Jerry Brown and Attorney General Kamala Harris of dragging their feet in getting executions back on track. The state has not had an execution since 2006 as a result of legal challenges to its lethal injection method.
Several years ago, the courts invalidated one state effort to revise its three-drug execution method, prompting California to explore switching to a single lethal drug as other states have done. But the state had not made progress until Tuesday's settlement.
The Supreme Court is expected to clarify the legality of lethal injection methods in the case out of Oklahoma, which still has a three-drug procedure. Deborah Hoffman, spokeswoman for the California corrections department, confirmed that the prison system, which has been developing its regulations, will submit its new execution method within 120 days of the Supreme Court's ruling.
Lawyers for the families said it "made sense" for California to await that ruling. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he expects the state to adopt a single drug method using a sedative he maintains can be obtained. However, states around the country, including California, have encountered problems securing supplies of execution drugs because drug manufacturers have refused to sell the drugs to prisons.
Monday, June 01, 2015
Seriously exploring — finally! — execution alternatives to lethal injection
The Supreme Court is expected to declare any day whether the injection of a drug called Midazolam violates the Eighth-Amendment protection against cruel and unusual punishment. Given the difficulty of procuring other suitable drugs, states devoted to the death penalty are lining up alternative ways to efficiently end human life. In Oklahoma (48 prisoners on death row), the answer seems to be nitrogen gas, a method favored by some proponents of assisted suicide but not something that has been employed in an execution chamber. Utah (nine on death row) proposes to revive the firing squad. Tennessee (67 on death row) is preparing to fire up its electric chair. Decisions, decisions. The Marshall Project took a closer look at the thinking that goes into the logistics of execution....
The [Oklahoma] bill’s sponsor, Rep. Mike Christian, told a German online newspaper that nitrogen inhalation “is the most humane way to die. You just sit there and a few minutes later, you’re dead.” Whatever the method, he added, “We will put these beasts to death.” Christian first conceived of using nitrogen for execution after watching a BBC documentary called “How to Kill a Human Being,” in which a retired member of the British parliament sampled various execution protocols (obviously stopping short of death) before deciding that nitrogen was “a perfect killing device.”...
It’s been a year and a week since Tennessee became the first state in the nation to require the use of the electric chair for executions should the primary means of capital punishment, lethal injection, become unavailable for one reason or another. And it has been about eight months since that new law was challenged in court by ten death row inmates who argue that the mandated use of “Old Sparky” would constitute cruel and unusual punishment. Going from lethal drugs back to electrical currents as a means of killing, the condemned contend, is legally inconsistent with the “evolving standards of decency” that the U.S. Supreme Court employs in Eighth Amendment cases....
In March, Utah governor Gary Herbert signed a law to reinstate the firing squad as a legal method of execution in his state. Utah had abandoned the method in 2004 only to be swayed back by a shortage of lethal injection drugs. Herbert called the punishment “a little bit gruesome,” but the practical concerns were overwhelming; even if the state can find lethal injection drugs, defending them in court would be expensive, and Utah already has in place a formal protocol for death by firing squad. It involves a blindfold, sandbags, four loaded rifles, and one with a non-lethal wax bullet so executioners will never know who fired the fatal shots.
Lawmakers have publicly considered the firing squad as a backup plan for lethal injections in Arkansas, Missouri, South Carolina, and Wyoming. Idaho maintained the method as an option until 2009. It is on the books in Oklahoma, as a fourth option after lethal injection, nitrogen gas, and the electric chair. The firing squad has consistently been found to be more reliable than many of the alternatives. Botches — in the form of bullets that miss the heart — have been rare. In 1938, a Utah murderer named John Deering allowed doctors to hook him up to an electrocardiogram as he faced the guns. His heart stopped 15.6 seconds after the bullets hit. Lethal injection, at its fastest, takes minutes.
Long-time readers know that I have been talking for a long time about the need for states (and Congress) to get serious about alternatives to lethal injection for carrying out death sentences. But now, nearly a decade after lethal injection protocols were starting to be subject to serious legal scrutiny, it has taken a drug shortage and still more SCOTUS litigation to get serious consideration of execution alternatives. But I fear, based in part on the oral argument in Glossip, that the latest round of Supreme Court litigation is not likely to require many more states to get much more serious about finding other viable methods of state killing.
Thursday, May 21, 2015
After Boston bomber's condemnation in liberal Massachusetts, is the death penalty really "withering away"?
The question in the title of this post is prompted by this lengthy new commentary by George Will carrying the headline "Capital punishment’s slow death." Here is the full commentary, which claims to be making a "conservative case against capital punishment":
Without a definitive judicial ruling or other galvanizing event, a perennial American argument is ending. Capital punishment is withering away.
It is difficult to imagine moral reasoning that would support the conclusion that an injustice will be done when, years hence, the death penalty finally is administered to Dzhokhar Tsarnaev, the Boston Marathon terrorist who placed a bomb in a crowd and then strolled to safety. Sentencing to death those who commit heinous crimes satisfies a sense of moral proportionality. This is, however, purchased with disproportionate social costs, as Nebraska seems to be concluding.
Nebraska is not a nest of liberals. Yet on Wednesday its 49-member unicameral legislature passed a bill abolishing the death penalty 32 to 15. Gov. Pete Ricketts, a Republican, vows to veto it.
This comes at a time when, nationwide, exonerations of condemned prisoners and botched executions are dismayingly frequent. Nebraska’s death penalty opponents, including a majority of Nebraskans, say it is expensive without demonstrably enhancing public safety or being a solace to families of murder victims. Some Nebraska families have testified that the extended legal processes surrounding the death penalty prolong their suffering. That sentiment is shared by Bill and Denise Richard, whose 8-year-old son was killed by Tsarnaev.
Last month, the U.S. Supreme Court heard oral arguments about whether one component of a three-drug mixture used in lethal injection executions — and recently used in some grotesquely protracted ones — is unreliable in preventing suffering that violates the Eighth Amendment proscription of “cruel and unusual punishments.” States use the drug in question because more effective drugs are hard to acquire, partly because death penalty opponents are pressuring drug companies not to supply them.
For this, Justice Antonin Scalia blamed a death penalty “abolitionist movement.” Justice Samuel A. Alito Jr. asked, “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” Justice Anthony M. Kennedy wondered, “What bearing, if any, should be put on the fact that there is a method, but that it’s not available because of opposition to the death penalty? What relevance does that have?”
The answers are: Public agitation against capital punishment is not relevant to judicial reasoning. And it is not the judiciary’s business to worry that a ruling might seem to “countenance” this or that social advocacy.
The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence. For an unsparing immersion in the workings of the governmental machinery of death, read “Just Mercy” by Bryan Stevenson, executive director and founder of the Equal Justice Initiative.
Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay. Granted, capital punishment could deter: If overdue library books were punishable by death, none would be overdue. But many crimes for which death is reserved, including Tsarnaev’s crime of ideological premeditation, are especially difficult to deter.
Those who favor capital punishment because of its supposed deterrent effect do not favor strengthening that effect by restoring the practice of public executions. There has not been one in America since 1937 (a hanging in Galena, Mo.) because society has decided that state-inflicted deaths, far from being wholesomely didactic spectacles, are coarsening and revolting.
Revulsion is not an argument, but it is evidence of what former chief justice Earl Warren called society’s “evolving standards of decency.” In the essay “Reflections on the Guillotine,” Albert Camus wrote, “The man who enjoys his coffee while reading that justice has been done would spit it out at the least detail.” Capital punishment, say proponents, serves social catharsis. But administering it behind prison walls indicates a healthy squeamishness that should herald abolition.
Wednesday, May 20, 2015
Has death penalty administration now become a "testing ground for toxic drugs"?
The question in the title of this post is prompted by the subheadline of this lengthy new New Republic piece: "Lethal Entanglements: Lethal injection was supposed to be a cleaner, more humane version of capital punishement. Over the past five years, it has become a messy, largely unmonitored testing ground for toxic drugs." Here are is a passage from the center of the lengthy article:
Lethal injection was first adopted in Oklahoma in 1977 as a less violent alternative to the gas chamber and the electric chair. Over the next 25 years, almost every death-penalty state copied Oklahoma’s three-drug formula: first the barbiturate sodium thiopental to knock the prisoner out, then the paralytic pancuronium bromide to immobilize him, and finally potassium chloride to stop his heart. The second and third drugs would cause intense suffering on their own, but the Supreme Court ruled that the method was constitutional in Baze: As long as the thiopental rendered the prisoner unconscious, he would be insensate to the agonizing effects of the next two drugs. Just one year after the Baze decision, though, in late 2009, the pharmaceutical company that sold thiopental to every death-penalty state, Hospira, reported a shortage.
As a consequence, the death penalty has undergone in the past five years its biggest transformation since states began switching to lethal injection decades ago. As thiopental disappeared, states began executing prisoners with experimental one-, two-, or three-drug cocktails. States have essentially been improvising what is supposed to be one of their gravest and most deliberate duties, venturing deep into the shadows to carry out executions. They have turned to mail-order pharmaceutical suppliers and used untested drugs. They have sidestepped federal drug laws, minimized public disclosure, and, on multiple occasions, announced changes to execution protocols just hours before prisoners were set to die. The machinery of death in the United States has become a kluge.
In April, the Supreme Court acknowledged this when it heard oral arguments in Glossip v. Gross. A group of prisoners from Oklahoma — including Richard Glossip, a convicted murderer — challenged the state’s use of a drug called midazolam because they feared it would not anesthetize them. The court had hoped Baze would obviate future lethal injection lawsuits, but the thiopental shortage had stripped the decision of any practical relevance almost as soon as it was issued. Now, just seven years later, the justices were considering whether they should invalidate a specific method of execution for the first time in U.S. history. The court’s decision won’t overturn the death penalty, but it will define the way we practice it for years to come.
Though the challenge comes from Oklahoma, it is Arizona that provides the best case study of the rapid, slipshod evolution of lethal injection since Baze. The desert state hasn’t executed the most prisoners since the thiopental shortage began — that distinction belongs, as always, to Texas — but it has used more methods than any other state, killing prisoners with four different drug combinations. No other state has been quite so dogged in its determination to carry out executions. And no other state has left so detailed a paper trail. Judges, lawyers, and journalists (most notably Michael Kiefer at The Arizona Republic) have brought much of the abuses to light over the years, but the story has been told in disparate pieces: a deposition here, an uncovered email there. The complete narrative is more troubling than any one of its components.
Thursday, May 14, 2015
Extended coverage of messy Oklahoma execution and execution methods
The just-released June issue of The Atlantic magazine has a lengthy cover story headlined "Cruel and Unusual: The botched execution of Clayton Lockett — and how capital punishment became so surreal." This piece is a long and valuable read, and these excerpts provides a flavor of its coverage beyond the events of a single capital case:
Since the mid-1990s, when lethal injection replaced electrocution as America’s favored method of execution, states have found drug combinations that they trust to quickly and painlessly end a life. They often use three drugs. The first is an anesthetic, to render the prisoner unconscious. The second is a paralytic. The third, potassium chloride, stops the heart.
What many people don’t realize, however, is that choosing the specific drugs and doses involves as much guesswork as expertise. In many cases, the person responsible for selecting the drugs has no medical training. Sometimes that person is a lawyer — a state attorney general or an attorney for the prison. These officials base their confidence that a certain drug will work largely on the fact that it has seemed to work in the past. So naturally, they prefer not to experiment with new drugs. In recent years, however, they have been forced to do so....
[In early 2014], Mike Oakley, the general counsel for the Oklahoma Department of Corrections, had returned from vacation to find the department in a near-frenzy. Before he’d left, the department had ordered pentobarbital from a compounding pharmacy for the executions of Clayton Lockett and Charles Warner, a 46-year-old man convicted in 2003 of raping and killing his roommate’s 11-month-old baby. But compounding pharmacies had come under pressure to stop selling drugs for executions, and Oklahoma’s supplier had backed out. With the executions scheduled for March 20 and March 27, one of Oakley’s deputies began driving around the state, walking into pharmacies and asking for pentobarbital, without success.
Oakley didn’t know why the task of finding drugs for executions fell largely to him: he had no medical training. But he wanted to help his colleagues — especially the warden, whom he considered conscientious and hardworking — because he knew how much strain carrying out a death sentence put on them. He had gone into corrections, 25 years earlier, because Oklahoma was doing interesting work in mediation between victims and offenders. Now he was about to retire, and he found himself, as his swan song, developing a new execution cocktail.
The Atlantic also hasin its June issue this companion piece headlined "A Brief History of American Executions: From hanging to lethal injection." Here is how it starts:
Hanging is perhaps the quintessential American punishment. In the pre-revolutionary era, criminals were also shot, pressed between heavy stones, broken on the wheel, or burned alive. (An estimated 16,000 people have been put to death in this country since the first recorded execution, in 1608.) But the simplicity of the noose triumphed, and its use spread as the republic grew.
In theory, a hanging is quick and relatively painless: the neck snaps immediately. But hangings can be grisly. If the rope is too short, the noose will slowly strangle the condemned. If the rope is too long, the force of the fall can decapitate the person.
The Supreme Court has never struck down a method of execution as unconstitutional. But states have at times tried to make the process more humane. “Hanging has come down to us from the dark ages,” New York Governor David B. Hill told the state legislature in 1885. He asked “whether the science of the present day” could produce a way to execute the condemned “in a less barbarous manner.”
Thursday, May 07, 2015
Electrifying Tennessee fight over electric chair as back up execution method
BuzzFeed has this interesting new article about an interesting legal fight unfolding in Tennessee. This extensive headline provides the basics: "Tennessee Officials Fight Inmates’ Attempt To Challenge Electric Chair Plans: The electric chair is Tennessee’s plan B if the state can’t get ahold of lethal drugs. The inmates argue it’s unconstitutional, but the state argues that they can’t challenge it yet." Here are some details from the start of the article:
Can death-row inmates challenge the constitutionality of electrocution? The Tennessee Supreme Court will soon decide.
Death penalty states once phased out the electric chair in favor of drugs — for humane reasons. Now that drugs have become hard to obtain, states like Tennessee have turned to older execution methods like the chair as a backup.
On Wednesday, the state court will weigh whether death-row inmates can challenge the method’s constitutionality. Thirty-four inmates allege electrocution is a violation of the Eighth Amendment’s ban on cruel and unusual punishment — that the electric chair disfigures the body and is an affront to evolving standards of decency.
But Tennessee has pushed to have the lawsuit dismissed, arguing that the inmates can’t challenge the method because none of them are actually scheduled to face electrocution.
Tennessee’s preferred method is lethal injection, using pentobarbital made from a secret compounding pharmacy. Lawmakers passed a law last year that makes electrocution the contingency plan if either drug makers or the courts make lethal injection impossible.
“The[y] are asking the court in this case to… consider hypothetical situations involving uncertain or contingent future events that may or may not occur as anticipated or, indeed, may not occur at all,” Attorney General Herbert Slatery’s office wrote.
Friday, May 01, 2015
"How a Death Row Inmate's Request to Give His Organs Kept Him Alive"
The title of this post is the headline of this notable lengthy Newsweek article discussing the array of remarkable developments that have surrounded the application of the death penalty in Ohio over the last few years. Here are excerpts which provide a unique spin on the saying that it's always better to give than to receive:
On November 13, 2013, prison officials transferred Ronald Ray Phillips from death row, where he had resided for 20 years, to the “death house” in southern Ohio. He had finally run out of appeals. In less than 24 hours, they would strap him to a gurney and inject a fatal drug combination into his veins. Just days before his scheduled death, however, Phillips made an unprecedented request—one that has kept him alive until today. He asked to give his heart to his sister, who had a heart condition, and his kidney to his mother, who was on dialysis....
In the fall of 2013, Ohio had just instituted a new lethal injection protocol as its primary method of execution, and its effects were uncertain. The fatal drug cocktail might destroy Phillips’s organs. On the other hand, if Phillips went to the operating room beforehand and doctors removed his heart while he was unconscious, they could save it. But since he couldn’t survive without his heart, they would simultaneously complete the execution in a novel method that had never been considered in Ohio’s capital punishment laws.
Phillips was scheduled to die at 10 the next morning. Just before 4 p.m., as prison employees headed home for the evening, the death house received a call from the governor. “I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues, then we should allow for that to happen,” Republican Governor John Kasich said in a statement to the press hours before the scheduled execution. Kasich granted Phillips a reprieve, removing him—temporarily, at least—from the death house....
But the agencies that govern transplantation refused his organs, calling the idea “morally reprehensible.” Parceling out the organs to strangers could be a human rights violation. Because Phillips was a prisoner, he couldn’t voluntarily consent to these procedures. The idea of saving “innocent” lives could also incentivize prosecutors and judges to favor the death penalty. Ohio denied Phillips’s request to donate non-vital organs to strangers.
Yet [a former attorney for the mother of Phillips' victim] counters, “Why doesn’t an inmate have a right to donate his or her kidney? Why is that seen as one of the rights that they’ve given up because they’re incarcerated?”...
Because of Phillips’s reprieve, convicted killer Dennis McGuire took his place. Reporter Alan Johnson witnessed McGuire’s execution. Approximately six minutes into it, McGuire “suddenly starts gasping—deep gasps. His chest would compress, his stomach started going out," Johnson says....
The McGuire fiasco prompted a federal judge to temporarily halt all Ohio executions. Nevertheless, Arizona used Ohio’s protocol that summer to execute Joseph Wood. The execution lasted over two hours, with Wood gasping 640 times. It provoked another moratorium on the death cocktail.
In January 2015, before Phillips’s fourth execution date, Ohio rescinded its controversial mixture, announcing a return to the pentobarbital drug class. Because Ohio has been unable to obtain this drug from Lundbeck, executions will resume in 2016 at the earliest. Phillips’s fifth execution date remains unscheduled.
Phillips’s unprecedented request set off a chain of events that have kept him alive till today. For over a year, he’s been next up on Ohio’s list of scheduled executions. But he’s ridden the wave of botched executions and may transition from a temporary reprieve to a permanent one. Phillips and his attorneys declined multiple requests to be interviewed for this story.
Thursday, April 30, 2015
Timely (but incomplete) report on political debates as de facto moratorium on federal executions continues
The New York Times this morning has this new front-page article discussing a remarkable national death penalty story that seems never to get nearly as much attention it merits. The article is headlined "Obama Adminintration Steps Back From Effort to End Federal Death Penalty," and here are excerpts:
For a moment last year, it looked as if the Obama administration was moving toward a history-making end to the federal death penalty. A botched execution in Oklahoma brought national attention to the issue, public opinion polls began to shift and President Obama, declaring that it was time to “ask ourselves some difficult and profound questions,” directed Attorney General Eric H. Holder Jr. to review capital punishment.
At the Justice Department, a proposal soon began to take shape among Mr. Holder and senior officials: The administration could declare a formal moratorium on the federal death penalty because medical experts could not guarantee that the lethal drugs used did not cause terrible suffering. Such a declaration would have pressured states to do the same, the officials reasoned, and would bolster the legal argument that the death penalty is unconstitutionally cruel punishment.
But the idea never gained traction, and Mr. Obama has seldom mentioned the death penalty review since. Now, as the Supreme Court considered arguments Wednesday over whether lethal injection, as currently administered, was unconstitutional, the obstacles the Obama administration faced provide vivid examples of just how politically difficult the debate remains.
“It was a step in the right direction, but not enough of a step,” said Charles J. Ogletree Jr., a Harvard professor and a death penalty opponent who met with administration officials as part of the review. The Justice Department, he added, has been refusing to say what he thinks senior officials there believe: “We’ve had too many executions that didn’t work and killing somebody’s not the answer.”
In remarks last May after a prisoner in Oklahoma regained consciousness and writhed and moaned during a lethal injection, Mr. Obama, who has supported the death penalty, seemed to raise expectations for a policy change. He lamented its racial disparities and the risk of executing innocent people. He referred the matter to Mr. Holder, a liberal stalwart who opposed capital punishment. But privately the White House was cautious, sending word to the Justice Department to keep its focus narrow, administration officials said.
Mr. Obama called for the review at a time when there had not been a federal execution since 2003, when Louis Jones Jr. was killed for raping and murdering a 19-year-old female soldier. Since 2010, the federal government has effectively had a moratorium on executions — all are carried out by lethal injection — because manufacturers in Europe and the United States refused to sell the government the barbiturates used to render prisoners unconscious. States, however, found alternatives, including the sedative midazolam, which was used in the gruesome execution of Clayton D. Lockett in Oklahoma last year.
As the Justice Department sought advice from experts on both sides of the issue, opposition to the idea came from unexpected corners. Some of the most outspoken voices against the death penalty also urged the most caution, fearful that a federal announcement would actually do more harm than good. “From my view, we’re better off with things bubbling up in the states,” said Henderson Hill, the executive director of the Eighth Amendment Project and one of several people consulted by the administration last year....
Advocates in particular worried that having Mr. Obama and Mr. Holder as the faces of the anti-death penalty movement would stoke conservative support for capital punishment at a time when some libertarian-minded Republicans, Christian conservatives and liberal Democrats appeared to be finding common ground in opposition to it. “I’m not sure that what the administration would have to say would be inherently influential in Nebraska,” Mr. Hill said.
Opposition to the death penalty was growing in Nebraska last year and lawmakers voted overwhelmingly this month to replace it with life in prison, setting up a veto fight with Gov. Pete Ricketts, a Republican.
Advocates were further worried that if lethal injections were eliminated, states would bring back older methods of execution, a concern borne out in Utah, where officials said they would bring back firing squads if lethal drugs were not available. Other states are reviving plans to use the electric chair or gas chambers.
Inside the Justice Department, some officials opposed a formal moratorium because it would eliminate the option for the death penalty in terrorism cases like the one against Dzhokhar Tsarnaev, who faces a possible death sentence for the 2013 bombings at the Boston Marathon. Others worried that eliminating the death penalty would make it harder to persuade Congress to move terrorist suspects from the island prison at Guantánamo Bay to the United States for trial. There were also logistical hurdles.
Advocates and administration officials asked what would happen to the roughly five dozen people on federal death row. Would Mr. Obama, who has said the death penalty was appropriate in some cases, commute the sentences of men who raped and murdered people? There were no clear answers.
In the end, the question never made it to Mr. Obama’s desk. Last fall, Mr. Holder announced plans to resign, and officials said it would be inappropriate to recommend a major policy change on his way out of office, then leave it up to his successor to carry it out. In January, the Supreme Court agreed to hear the case of three convicted murderers who challenged the lethal injection drugs. Now with the issue before the justices, the review at the Justice Department has come to a halt because any administration action could be seen as trying to influence the court.
Attorney General Loretta E. Lynch, who was sworn in this week, told senators during her confirmation hearing that the death penalty “is an effective penalty.” But she did not elaborate. Emily Pierce, a Justice Department spokeswoman, said the review continued. “And we have, in effect, a moratorium in place on federal executions in the meantime.”
The last line in this excerpt highlights for me the federal death penalty story that continue to fail to get nearly as much coverage, legally, politically and practically, as I think it should. The feds have, I believe, a significant number of capital murderers on federal death row who have completed all their appeals but who have been escaping their imposed punishment since 2007 because of all the state lethal injection litigation that resulted in the Supreme Court's Baze ruling and all the subsequent uncertainty that has followed.
I have long been troubled that the Bush Administration starting in 2007, and the Obama Administration in the years that have followed, have made no apparent effort to try to carry out existing federal death sentences. Whatever the reasons for a nearly-decade-long de facto executive moratorium on the federal death penalty, I believe federal prosecutors should feel some obligation to defendants, victims and the general public to provide some public explanation about what the heck is going on with the actual administration of the federal death penalty.
April 30, 2015 in Baze and Glossip lethal injection cases, Criminal justice in the Obama Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, April 29, 2015
Intriguing reports on Supreme Court oral argument about Oklahoma's lethal injection protocol
Lyle Denniston at SCOTUSblog has this report on the oral argument today in the Supreme Court case concerning Oklahoma's lethal injection protocols. It starts this way:
For months, the Supreme Court has given no explanation as it refused to give inmates awaiting execution any chance to learn about the methods by which they would be put to death, and has said nothing as it allowed states to experiment with new lethal-drug combinations even after some of those executions were seriously botched. It allowed one inmate to be put to death even before it decided whether to hear his case. In other words, the regime of capital punishment went forward without any new constitutional assessment of it by the Justices; they have not done so on lethal-drug executions for seven years.
On Wednesday, the nation may have gotten the beginnings of an explanation. What appears to be a clear majority of the Court has grown frustrated with the repeated constitutional assaults on the death penalty, especially since that penalty is still constitutionally permitted. That frustration almost boiled over as the Court heard the case of Glossip v. Gross.
That case, at its core, is only about whether the first drug Oklahoma uses in its three-drug lethal combination is capable of making the inmate sufficiently unconscious that he feels little or no pain as the next two, highly toxic drugs paralyze and then kill him. The grim possibility of that particular protocol was described alarmingly by Justice Elena Kagan as “burning alive, from the inside.”
And Wednesday’s argument started out as if it would proceed through a detailed examination of the properties of that first drug — midazalom — and how two lower courts had analyzed its effect in the execution chamber. There was much discussion about judicial fact-finding and what was open to the Supreme Court to second-guess about that.
But the tone and the substance of the argument changed abruptly, when Justice Samuel A. Alito, Jr., moved aggressively into an exchange with the Oklahoma death-row inmates’ lawyer, Robin C. Konrad. “Let’s be honest about what’s going on here,” Alito began. He mentioned how controversial the death penalty is, and said its opponents would be free to continue to try to get it abolished. But, he said, until that happens, “is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”
This Reuters article about today's arguments, headlined "Lethal injection case exposes U.S. top court's death penalty divide," develops similar themes in its review of the arguments. It starts this way:
Tensions on the Supreme Court over America's use of the death penalty boiled over on Wednesday as the justices appeared badly split in a case challenging Oklahoma's lethal injection method as a breach of the Constitution's ban on cruel and unusual punishment.
The nine-member court's five conservatives seemed likely to side with Oklahoma in the case brought by three death row inmates, while its four liberals expressed doubt about the propriety of using the drug at the center of the dispute. Conservative Justice Anthony Kennedy, who often casts deciding votes in close cases, said nothing to suggest he would side with the liberals.
The full oral argument transcript is available at this link.
Recent related posts:
- Just what will SCOTUS focus on when reviewing Oklahoma's lethal injection protocol?
- "The Supreme Court Is About to Decide the Future of Lethal Injections"
"The Supreme Court Is About to Decide the Future of Lethal Injections"
The more I think about the Glossip lethal injection case being considered by the Supreme Court today (basics previewed here), the more I think the Justices will be inclined to issue a very narrow ruling that only clearly impacts the lethal injection protocol in Oklahoma and perhaps a few other states. However, this National Journal article which carries the headline I used in the title of this post, seems to think it will be a huge deal whatever SCOTUS does in the case. Here is how the piece starts:
How much pain is constitutionally acceptable for a prisoner sentenced to death to feel during his or her execution? What, exactly, is cruel and unusual punishment?
Though not the precise question presented before the justices, the Supreme Court will be forced to wrestle with those nagging Eighth Amendment concerns Wednesday as it hears arguments in a case challenging the application of a combination of lethal drugs that have been linked to a string of grisly botched executions over the past year.
In Glossip v. Gross, the Court is being asked to determine whether the use of of a sedative known as midazolam by Oklahoma and a number of other states is reliable and effective enough to use as part of three-drug lethal cocktail to execute prisoners on death row.
Midazolam has been subject to rising scrutiny since it was first used by Florida in 2013 as a replacement for another drug that became difficult for states to acquire, amid boycotts from European drug manufacturers opposed to capital punishment.
Even a narrow ruling striking against the use of midazolam could reverberate much more widely and further disrupt states' ability to carry out death sentences—a penalty that has grown increasingly rare in recent years as only a handful of states continue the practice. States scrambling to find suitable lethal cocktails are finding the task increasingly difficult, as fewer and fewer options remain available.
Recent related post:
Saturday, April 18, 2015
Oklahoma now able to use nitrogen gas as execution method if needed
As reported in this CNN piece, headlined "Oklahoma approves nitrogen gas as backup execution method," the Sooner State is now officially able to use a novel execution method sooner or later. Here are the details:
Oklahoma Gov. Mary Fallin signed a bill on Friday that would allow the state to perform executions with nitrogen gas if lethal injection is ruled unconstitutional or becomes unavailable. Nitrogen causes a quick loss of consciousness and then death from lack of oxygen, Fallin's office said in a press release.
CNN affiliate KFOR says it's never been used in an execution in the United States. "The person will become unconscious within eight to 10 seconds and death a few minutes later. In other words, a humane, quick and painless death," said Rep. Mike Christian, one of the bill's authors, according to KFOR....
Oklahoma's executions have been put on hold while the U.S. Supreme Court reviews its use of lethal injections. Last year, the state came under scrutiny when it took 43 minutes to kill convicted killer Clayton Lockett.
Fallin reaffirmed her support for the death penalty. "Oklahoma executes murderers whose crimes are especially heinous," Fallin said. "I support that policy, and I believe capital punishment must be performed effectively and without cruelty. The bill I signed today gives the state of Oklahoma another death penalty option that meets that standard." The governor's office said the first alternative for execution is lethal injection, followed by nitrogen gas, the electric chair and the firing squad.
A few recent and older related posts:
- Is nitrogen gas the best modern execution alternative to lethal injection?
- Serious talk about a serious alternative (nitrogen) to lethal injection in Oklahoma
- As SCOTUS considers Oklahoma lethal injections, Oklahoma considers a gas chamber
- Shouldn't Congress be holding hearings to explore federal and state execution methods?
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods
- A worldly perspective on different execution methods
- Should problems with lethal injection prompt return of other execution methods?
- Effective discussion of nitrogen gas as execution method alternative
Monday, April 13, 2015
Tennessee Supreme Court postpones all scheduled executions while considering execution protocol
As reported in this AP piece, the "Tennessee Supreme Court postponed execution dates for four inmates, effectively halting all executions while the courts decide whether current protocols for putting people to death are constitutional." Here is more:
Tennessee last executed a prisoner in 2009. Since then, legal challenges and problems obtaining lethal injection drugs have stalled new executions. In 2013 and 2014, the state tried to jump-start the process with a new one-drug lethal injection method and the reinstatement of the electric chair as a backup.
Beginning in December 2013, the court set new execution dates for 11 inmates. One inmate died in prison, and the execution dates for the others have been postponed as they approach because of legal challenges to the new methods. On Friday, the court postponed the last of the scheduled execution dates. It will set new dates after the legal questions are settled....
Death row inmates challenging Tennessee's lethal injection method recently submitted an affidavit from University of Utah College of Pharmacy professor James H. Ruble that questions whether even a willing compounding pharmacist could provide the pentobarbital that Tennessee and several other states need for executions. Ruble says in the affidavit that the main ingredient for pentobarbital is unavailable from the six primary commercial sources that compounding pharmacists buy their ingredients from.
Tennessee last year reinstated electrocution as an alternative if lethal injection drugs are unavailable or a court rules the procedure unconstitutional. But that change has brought yet another legal challenge.
Wednesday, April 08, 2015
Larry Flynt hustles his way into Missouri litigation over lethal injection
As reported in this local article, headlined "Larry Flynt can intervene in lawsuit to unseal execution protocol records, appeals court rules," a notable publisher is now able to be a player in on-going Missouri lethal injection litigation. Here are the details:
A three-judge U.S. appeals court panel ruled Tuesday that pornographic magazine publisher Larry Flynt has a right to join death row inmates in lawsuits seeking to reveal the state of Missouri’s execution protocols. Several media and consumer watchdog groups interested in lawsuits with potential consequences for government transparency had filed briefs to support him.
Flynt, the iconic publisher of the magazine Hustler, invoked a First Amendment right to view sealed documents that might identify an anesthesiologist on the state execution team. That information is confidential under Missouri law. In a separate case, he also asserted a right to view docket entries that were sealed without explanation in a suit challenging the legality of Missouri’s execution protocol. Both lawsuits failed, but if Flynt wins his bid to unseal the documents, the public can get a look at the factors considered by the federal courts.
Flynt argued he had an interest because he was one of the victims of white supremacist Joseph Paul Franklin. Missouri executed Franklin in November 2013 for the 1977 sniper killing of Gerald Gordon, 42, outside a Richmond Heights synagogue. Franklin, upset that Hustler published pornographic images of an interracial couple, also shot Flynt on the steps of a Georgia courthouse in 1978, paralyzing him. Flynt had advocated that Franklin be punished by spending the remainder of his life in prison, rather than be killed by the state and put out of his misery.
Nanette Laughrey, a judge in the Western District of Missouri, had denied Flynt’s petition with a one-sentence order: “A generalized interest in a subject of litigation does not justify intervention.” But the appeals court panel ruled the lower court had applied an incorrect legal standard in denying Flynt. It sent the case back to U.S. District Court to consider Flynt’s bid to unseal records....
Organizations signing briefs in support of Flynt’s intervention included the New York Times, the Washington Post, Politico and the Missouri Press Association, whose members include 250 newspapers, including the Post-Dispatch. Public Citizen, a consumer watchdog group founded by Ralph Nader, also added its support....
“The public needs to know what is being done in its name and these judicial records will answer a lot of questions that we and members of the media have been asking,” Tony Rothert, legal director of the ACLU of Missouri, said in a prepared statement.
Tuesday, March 31, 2015
Another pharmacy group expresses opposition to involvement in executions
As noted in this prior post, last week a trade group for compound pharmacists has discouraged its members from preparing or dispensing drugs for executions. Now, as reported in this new NBC News article, the "American Pharmacists Association voted Monday to oppose participation in executions, declaring that helping put prisoners to death violates the goals and oath of the profession." Here is more about these developments:
Neither policy is binding, but they could dissuade specialty pharmacists — now the only source for lethal injections in many states — from selling their products to prisons for executions. "It adds to the difficulty," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports capital punishment. "It's unfortunate that groups such as this would allow themselves to be dragged into a political dispute."
But Corinna Lain, a professor at the Richmond School of Law, said it has more to do with the bottom line. With just 35 executions across the country last year, lethal injections are not a big profit center. "The cost of these drugs has skyrocketed from something like $83 a vial to $1,200 to $1,500 a vial. But that's still a drop in the bucket for a pharmacy's total sales. And look at the downside — the negative publicity is tremendous. Executions are bad for business for compounding pharmacies for the same reason they were bad for business for the pharmaceutical companies."...
Scheidgger said he hopes that at least a few compounding pharmacies will buck the trade groups and continue to sell their products to prisons until a new source is found. "I expect states will eventually find a supply and this problem will go away," he said.
Monday, March 30, 2015
California and Ohio facing capital congestion without a functioning execution chamber
Theses two local stories concerning death row realities in two states strike a similar note:
From California here, "California's death row, with no executions in sight, runs out of room." This story starts this way:
With no executions in nearly a decade and newly condemned men arriving each month, the nation's largest death row has run out of room. Warning that there is little time to lose, Gov. Jerry Brown is asking the California Legislature for $3.2 million to open nearly 100 more cells for condemned men at San Quentin State Prison. The proposed expansion would take advantage of cells made available as the state releases low-level drug offenders and thieves under a new law voters approved last year.
California's death penalty has been the subject of a decade of litigation. One case led to a halt to executions in 2006. Another resulted in a federal judge's ruling last July that the state's interminably slow capital appeals system is unconstitutionally cruel. Through it all, the death row population has grown from 646 in 2006 to 751 today.
From Ohio here, "Backup of killers awaiting execution is building." This story starts this way:
Midway through Ohio’s two-year death penalty moratorium, a backup of men awaiting execution is building. There are 20 inmates either scheduled for execution or for whom prosecutors are seeking execution dates from the Ohio Supreme Court, according to the Capital Crimes Annual Report released today by Attorney General Mike DeWine. [The report also indicates 145 murderers are on Ohio's death row now.]
Especially because no state other than Texas ever shown a consistent ability to conduct more than 10 executions in any given year, these data necessarily mean many years (and likely many decades) will be needed to actually carry out a significant number of imposed capital punishments in these states when (if?) these states get their death machineries operating again.
Wednesday, March 25, 2015
Are compounding pharmacies likely to cut off drug dealing to states for executions?
The question in the title of this post is prompted by this notable Wall Street Journal article headlined "Compound Pharmacists Trade Group Discourages Supplying Execution Meds." Here are excerpts:
As more states turn to compounding pharmacies to supply medicines for executions, the leading trade group for compound pharmacists is now discouraging its members from preparing or dispensing drugs for this purpose.
The move reflects growing concern among some compound pharmacists that some states – in response to ongoing controversy over the supply of drugs for lethal injections – may decide to alter regulations in ways that would cause pharmacists to face legal problems, according to the International Academy of Compounding Pharmacists. “We have concerns about what may occur,” says David Miller, the IACP chief executive. The trade group represents approximately 3,700 pharmacists who compound medicines, a process that involves customizing ingredients for a specific use.
Separately, the American Pharmacists Association will also consider adopting a similar position at a meeting that begins later this week, according to an official of the trade group, which represents about 62,000 pharmacists nationwide. The vast majority of APA members work for traditional pharmacies that dispense medicines manufactured by drug makers.
Until now, the IACP had not taken any position on supplying drugs for executions, but adopted this new stance after a growing number of drug makers began restricting the use of their medicines for executions. At least nine drug makers have formally taken this step, according to Reprieve, an advocacy group in the U.K. that has been pressuring companies to withhold their medicines for executions.
As a result, more states have gradually turned to compound pharmacies to supply drugs for lethal injections. To date, nine states have either used or indicated they intend to use compounded medicines for lethal injections, according to the Death Penalty Information Center....
Currently, pharmacists are permitted by law to dispense medications for executions if a licensed doctor writes a legitimate prescription, says Carmen Catizone, the executive director of the National Association of Boards of Pharmacy, which represents the state boards, the government agencies that regulate pharmacy practice. At the moment, he says there is no indication that any state legislature is considering a change to its regulations that might pose legal problems for pharmacists.
However, he explains that new policy statements may attract attention from state boards, especially given ongoing controversy over executions and the availability of medicines. “For any change in regulations or rule, the state boards would have to take action.” says Catizone, “But a change in policy can be significant because it may prompt our members to take a closer look at an issue.”
For his part, Miller says the IACP is concerned that state boards may decide to consider such action and, as a result, its members could eventually face legal action. “We definitely think it’s a possibility,” he says. At the same time, the trade group also worries pharmacists who supply drugs may face harassment if their identities become known. The IACP points to a recent episode in Tennessee where the name of a compound pharmacist was inadvertently disclosed. The IACP notes that nearly a dozen states are considering legislation to provide confidentiality.
Tuesday, March 24, 2015
"The Executioners' Dilemmas"
The title of this post is the title of this timely new article by Eric Berger now available via SSRN. Here is the abstract:
Despite several prominent recent botched executions, states usually resist external pressure to improve their lethal injection procedures. This symposium contribution explores why states fail to address lethal injection’s systemic risks and, relatedly, why they so vigorously resist requests to disclose execution procedure details.
This analysis is necessarily speculative; it is impossible to know for certain what drives states’ behavior in this area, and motivations likely differ from state to state and from official to official. That said, a constellation of epistemic, structural, strategic, and political factors likely shape much official behavior in this area.
Examining those factors more closely can help us better understand why so many states have acted so irresponsibly in designing and implementing their lethal injection procedures. Of course, these explanations hardly excuse states’ frequent indifference to the risk of pain their execution procedures create. Collectively, however, they help shine important light more generally on why state officials sometimes seem insensitive to constitutional values.
Saturday, March 21, 2015
Effective discussion of nitrogen gas as execution method alternative
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:
- Is nitrogen gas the best modern execution alternative to lethal injection?
- Serious talk about a serious alternative (nitrogen) to lethal injection in Oklahoma
- As SCOTUS considers Oklahoma lethal injections, Oklahoma considers a gas chamber
- Shouldn't Congress be holding hearings to explore federal and state execution methods?
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods
- A worldly perspective on different execution methods
- Should problems with lethal injection prompt return of other execution methods?
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.
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.
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.
Wednesday, March 11, 2015
Utah legislature brings back firing squad as alternative execution method
As 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.
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.
Wednesday, March 04, 2015
Cloudy with (less of) a chance of executions in Georgia
As 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.
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.
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.
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.
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.
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.
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.