Thursday, December 25, 2014

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, December 23, 2014

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, December 21, 2014

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

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

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

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

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

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

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

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

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

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

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

Sunday, November 30, 2014

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

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

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

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

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

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

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

Friday, November 21, 2014

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

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

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

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

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

Thursday, November 20, 2014

Hoping to help Kickstart a notable new death penalty documentary

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

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

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

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

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

Cross-posted at PrawfsBlawg.

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

Wednesday, November 19, 2014

Missouri completes ninth execution of 2014

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

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

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

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

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

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

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

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

November 19, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Monday, November 17, 2014

"Death Penalty Drugs and the International Moral Marketplace"

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

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

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

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

Tuesday, November 11, 2014

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

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

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

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

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

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

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

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

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

Thursday, October 30, 2014

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

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

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

Related post: 

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

Sunday, October 26, 2014

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

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

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

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

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

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

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

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

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

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

Tuesday, October 14, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few recent related and older posts:

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

Monday, October 13, 2014

Oklahoma AG requests additional delay before state gets back to executions

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

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

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

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

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

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

Tuesday, September 30, 2014

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

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

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

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

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

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

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

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

Monday, September 22, 2014

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

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

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

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

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

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

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

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

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

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

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

A few recent related and older posts:

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

Wednesday, September 10, 2014

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

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

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

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

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

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

Tuesday, September 09, 2014

Pitching argument to pitch death penalty as failed government policy

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

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

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

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

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

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

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

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

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

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

Thursday, September 04, 2014

Oklahoma releases extensive report concerning problems with Lockett execution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, September 03, 2014

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

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

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

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

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

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

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

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

Tuesday, September 02, 2014

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, August 19, 2014

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

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

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

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

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

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

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

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

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

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

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

Monday, August 11, 2014

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

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

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

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

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

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

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

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

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

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

Wednesday, August 06, 2014

Mizzou complete uneventful execution with single dose of pentobarbital

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

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

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

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

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

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

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

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

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

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

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

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

Monday, August 04, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few recent related posts:

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

Wednesday, July 30, 2014

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

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

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

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

Monday, July 28, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, July 25, 2014

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

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

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

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

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

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

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

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

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

"After troubled execution in Arizona, Ohio to use same drugs, dosage"

The title of this post is the headline of this new article in my own Columbus Dispatch, which highlights that the Buckeye State's execution plans for later this year could be further complicated by the ugly execution that took place in Arizona earlier this week.  Here are the details:

Despite problems that plagued an Arizona execution, Ohio officials plan to use the same drugs in the same quantity during Ronald Phillips’ execution scheduled for Sept. 18.

Capital punishment in Ohio has been on hold for two months because of an order by U.S. District Judge Gregory L. Frost in a lethal-injection case.  Frost’s order expires on Aug. 15. Barring further legal action, the execution will proceed for Phillips, a Summit County child-killer who already has had two reprieves.

However, the troubled execution of Joseph Wood in Arizona on Wednesday turned up the heat on a death-penalty debate that began on Jan. 16 when Ohio executed Dennis McGuire using a then-untested chemical combination.

Wood, 55, died after gasping and snorting for about 90 minutes during an execution process that lasted nearly two hours.  The process took so long that Wood’s attorneys had time to file an emergency appeal in federal court during the execution — and the Arizona Supreme Court held an impromptu conference to discuss it. A witness said Wood looked like “a fish on shore gulping for air,” according to The Arizona Republic.

Jill Del Greco, spokeswoman for Ohio Attorney General Mike DeWine, said she could not predict what might happen after Frost’s order expires.  But she added, “As of now, an execution is still scheduled for Sept. 18.” Meanwhile, the Ohio Department of Rehabilitation and Correction is “always evaluating our policies to ensure executions in Ohio are carried out in a humane and lawful manner,” spokeswoman JoEllen Smith said. “Because there is pending litigation regarding this matter, I cannot comment further.”

While prison officials concluded that McGuire, 53, did not feel “pain or distress” during his execution, witnesses observed that he repeatedly gasped, choked, clenched his fists and appeared to struggle against his restraints for more than 10 minutes after the administration of midazolam, a sedative, and hydromorphone, a painkiller.  McGuire was executed for the murder of 22-year-old Joy Stewart in 1989.  It was the first time that those drugs were used in an execution in the United States.

Ohio officials said the dosage for the next execution will be 50 milligrams of midazolam, up from 10 milligrams, and 50 milligrams of hydromorphone, up from 40 milligrams. That is the same quantity used in Wood’s execution.  Ohio will have a third syringe ready containing 60 milligrams of hydromorphone; other syringes will be prepared and available “if needed.”

Phillips, 40, was scheduled to be put to death last Nov. 14, but Gov. John Kasich postponed his execution by seven months to give the inmate the opportunity to make good on his desire to donate a kidney to his ailing mother.  Time ran out before arrangements could be finalized, and Phillips was scheduled to die on July 2. That date was postponed by Frost’s order.

The state switched to the two drugs for intravenous injection for McGuire's execution because pentobarbital, the single drug used before, no longer is available because manufacturers will not sell it for use in executions.

Recent related posts:

July 25, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (12) | TrackBack

Wednesday, July 23, 2014

After stays vacated, Arizona needs two hours to complete another ugly execution

As reported in this AP piece, "Arizona executed Joseph R. Wood on Wednesday afternoon, but the execution lasted for nearly two hours as Wood struggled to breathe, according to his attorneys."  Here are more of still-developing details of the latest in a series of ugly executions in 2014:

During his execution, Wood’s attorneys filed a request to halt the lethal injection because he was still awake more than an hour after the process began. Wood was “gasping and snorting for more than an hour,” they wrote in their filing.

The execution continued and Wood was pronounced dead at 3:49 p.m. (local time), the office of Arizona Attorney General Tom Horne said. This was nearly two hours after the execution began at 1:52 p.m.

Wood was the third inmate executed in Arizona since last October and the first put to death using a combination of the drugs midazolam and hydromorphone. “The experiment using midazolam combined with hydromorphone to carry out an execution failed today in Arizona,” Dale Baich, an attorney for Wood, said in a statement. “It took Joseph Wood two hours to die, and he gasped and struggled to breath for about an hour and forty minutes.”

Baich said he and others would continue seeking information about the drugs used. “Arizona appears to have joined several other states who have been responsible for an entirely preventable horror — a bungled execution,” Baich said. “The public should hold its officials responsible and demand to make this process more transparent.”

Recent related posts:

July 23, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (20) | TrackBack

After SCOTUS vacates First Amendment stay, Arizona Supreme Court delays execution

As reported in this new AP story, after the US Supreme Court late yesterday vacated the novel stay imposed by the Ninth Circuit based on lethal injection drug secrecy concern, "Arizona's highest court on Wednesday temporarily halted the execution of a condemned inmate so it could consider a last-minute appeal."  Here is more:

Joseph Rudolph Wood, 55, was scheduled to be put to death Wednesday morning at the state prison in Florence, but that was delayed when the Arizona Supreme Court said it would consider whether he received inadequate legal representation at his sentencing. The appeal also challenges the secrecy of the lethal injection process and the drugs that are used.

The state Supreme Court could still allow the execution to move forward later Wednesday once it considers the arguments.

The U.S. Supreme Court on Tuesday cleared the way for Arizona to carry out its third execution in the last year following a closely watched First Amendment fight over the secrecy issue. Wood's lawyers used a new legal tactic in which defense attorneys claim their clients' First Amendment rights are being violated by the government's refusal to reveal details about lethal injection drugs. Wood's lawyers were seeking information about the two-drug combination that will be used to kill him, including the makers of the drugs.

A federal appeals court ruled in Wood's favor before the U.S. Supreme Court put the execution back on track. The 9th U.S. Circuit Court of Appeals decision marked the first time an appeals court has acted to delay an execution based on the issue of drug secrecy....

Wood was sentenced to death for killing Debra Dietz and her father, Eugene Dietz, in 1989 at the family's automotive shop in Tucson.... On the day of the shooting, Wood went to the auto shop and waited for Dietz's father, who disapproved of his daughter's relationship with Wood, to get off the phone. Once the father hung up, Wood pulled out a revolver, shot him in the chest and then smiled. Wood then turned his attention toward Debra Dietz, who was trying to telephone for help. Wood grabbed her by the neck and put his gun to her chest. She pleaded with him to spare her life. An employee heard Wood say, "I told you I was going to do it, I have to kill you." He then called her an expletive and fired two shots in her chest....

Arizona has executed 36 inmates since 1992. The two most recent executions occurred in October.... The fight over the Arizona execution has also attracted attention because of a dissenting judge's comments that made a case for a firing squad as a more humane method of execution.

Recent related posts:

July 23, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, July 22, 2014

After Kozinski's candor, what will SCOTUS due about First Amendment stay in Arizona capital case?

The question in the title of this post follows up the news, reported here by the AP, that the full Ninth Circuit yesterday denied Arizona officials en banc review of the remarkable panel ruling putting in place an execution stay on First Amendment grounds (basics here).   The AP reports that Arizona is, unsurprisingly, planning to ask SCOTUS to vacate the stay, and I suspect First Amendment challenges to executions protocols will become commonplace nationwide if SCOTUS leaves the stay in place.

Chief Judge Alex Kozinski make extra sure his dissent — which is available here along with another dissent authored by Judge Callahan for 11 other members of the Ninth Circuit — garnered extra attention by providing these candid comments at the close of his operion about the fundamental problems with lethal injection as an execution method:

Whatever happens to Wood, the attacks [on lethal injection execution procedures] will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. See Callins v. Collins, 510 U.S. 1141, 1143 (1994) (Scalia, J., concurring in denial of certiorari) (“How enviable a quiet death by lethal injection . . . .”). But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive — and foolproof — methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the supply. And nobody can argue that the weapons are put to a purpose for which they were not intended: firearms have no purpose other than destroying their targets. Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

While I believe the state should and will prevail in this case, I don’t understand why the game is worth the candle. A tremendous number of taxpayer dollars have gone into defending a procedure that is inherently flawed and ultimately doomed to failure. If the state wishes to continue carrying out executions, it would be better to own up that using drugs is a mistake and come up with something that will work, instead.

July 22, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, July 21, 2014

Split Ninth Circuit panel stays Arizona execution based on First Amendment (really?!?!) drug secrecy concerns

BartAs reported in this new New York Times piece, a "federal appeals court has delayed the imminent execution of an Arizona man, saying he has a legal right to details about the lethal injection drugs to be used and about the qualifications of the execution team." Here is more about a ruling sure to garner more attention (and litigation) in the week ahead:

The ruling on Saturday, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, contrasted sharply with recent decisions by other state and federal courts defending states’ rights to keep information about drug sources secret. “This is the first time a circuit court has ruled that the plaintiff has a right to know the source of execution drugs,” said Jennifer Moreno, an expert on lethal injection law at the Death Penalty Clinic of the University of California, Berkeley, School of Law.

The appeals court ruling came four days before the scheduled execution of Joseph Wood, who was convicted of the killings of two people and sentenced to death....

Arizona officials ... Sunday ... appealed to the Ninth Circuit for reconsideration by a wider panel of judges and it appeared possible that the state would appeal all the way to the United States Supreme Court if necessary.

Federal or state courts in places including Georgia, Louisiana, Missouri, Oklahoma and Texas have permitted executions to take place despite similar challenges to secrecy about drug manufacturers. So far, the Supreme Court has refused to intervene. The Arizona case reflects the growing turmoil in the administration of capital punishment as the supply of traditionally used drugs has dried up, mainly because companies are unwilling to sell them for executions. States are trying out new drug combinations and scrambling for secret sources, while lawyers for the condemned have argued that they have a right to know precise details about drug origins and quality....

Mr. Wood was sentenced to death for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father. He was scheduled to be executed on Wednesday. Lacking its two preferred execution drugs, Arizona officials said they would use a combination of the drugs midazolam and hydromorphone, which has been used by Ohio.

The state said it obtained drugs approved by the Food and Drug Administration with expiration dates in the fall of 2015, but refused to reveal the manufacturers and batch numbers. It also refused to provide details about the qualifications of those who would administer the drugs, saying this could lead to disclosure of their identities.

Lawyers for Mr. Wood, led by Dale Baich, a federal public defender in Phoenix, challenged the secrecy, arguing that it violated their client’s First Amendment rights of access to public proceedings. A Federal District Court sided with the state, but on Saturday, the appeals panel ruled that Mr. Wood “has presented serious questions going to the merits of his claim,” according to the majority opinion, written by Judge Sidney R. Thomas. Arizona’s secrecy, he wrote, “ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered.”

In a dissent, Judge Jay S. Bybee said the court had drastically expanded the “right of access” and had misused the First Amendment “as the latest tool in this court’s ongoing effort to bar the state from lawfully imposing the death penalty.”

The majority Ninth Circuit panel opinion runs 28 pages, is available at this link, and concludes this way:

Because we conclude that Wood has raised serious questions as to the merits of his First Amendment claim; that the balance of equities tips sharply in his favor; that he will face irreparable harm if the injunction is not granted; and that the injunction is in the public interest; we conclude that the district court abused its discretion in denying Wood’s preliminary injunction request.  We do not decide with certainty that a First Amendment right exists to the information Wood seeks, nor do we resolve the merits of the Plaintiffs’ underlying § 1983 claim. We do, however, reverse the district court’s denial of Wood’s preliminary injunction motion. We grant a conditional preliminary injunction, staying Wood’s execution until the State of Arizona has provided him with (a) the name and provenance of the drugs to be used in the execution and (b) the qualifications of the medical personnel, subject to the restriction that the information provided will not give the means by which the specific individuals can be identified. Once he has received that information, the injunction shall be discharged without more and the execution may proceed.

The dissenting opinion by Judge Bybee runs 35 pages, is available at this link, and makes these concluding points:

The decision to inflict the death penalty is a grave and solemn one that deserves the most careful consideration of the public, the elected branches of government, and the courts. We must be cognizant that a life is at stake. But we cannot conflate the invocation of a constitutional right belonging to the public at-large — such as the First Amendment right of public access to certain proceedings and documents — with a policy judgment about if and when the death penalty ought to be imposed. In so doing, we usurp the authority of the Arizona legislature and disregard the instructions of the Supreme Court.

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

Thursday, June 19, 2014

Florida completes third uneventful US execution in less than one day

As reported in this CNN piece, a "double murderer was executed in Florida Wednesday night, becoming the third man put to death in an American prison during a 24-hour period." Here are the basics:

John Ruthell Henry, 63, was declared dead at 7:43 p.m. ET at the Florida State Prison in Starke, according to CNN affiliate WFLA, which had a media witness inside the prison. Henry fatally stabbed his wife and her 5-year-old son from a previous marriage in December 1985.

In Georgia, Marcus A. Wellons, 59, was declared dead at 11:56 p.m. ET Tuesday. Wellons was convicted in 1993 of raping and killing India Roberts, 15, in Cobb County, just outside Atlanta. In Missouri, John Winfield was declared dead at 12:01 a.m. CT Wednesday, the state Department of Public Safety said....

Those three executions were the first in the United States since the botched execution of an Oklahoma man in April. The Oklahoma execution raised questions about how prisons use drugs in lethal injections.

June 19, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Wednesday, June 18, 2014

Georgia and Missouri complete uneventful executions, Florida up next

As reported in this AP article, "Within an hour, Georgia, then Missouri carried out the nation’s first executions since a botched lethal injection in Oklahoma in April raised new concerns about capital punishment." Here is more:

Neither execution had any noticeable complications. Another execution, the third in a 24-hour span, is scheduled Wednesday evening in Florida.

Georgia inmate Marcus Wellons, 59, who was convicted of the 1989 rape and murder of a 15-year-old girl, received a single-drug injection late Tuesday night after the U.S. Supreme Court denied his late appeals. His sentence was carried out about an hour before John Winfield, who was convicted of the 1996 killing two women, was executed early Wednesday in Bonne Terre, Missouri.

Looks like at least two states have their machineries of death up and running smoothly again.

June 18, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (4) | TrackBack

Monday, June 16, 2014

"Lethal Injection Secrecy and Eighth Amendment Due Process"

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

The U.S. Supreme Court has held that death row inmates possess an Eighth Amendment right protecting them against execution methods posing a substantial risk of serious harm. Despite the clear existence of this liberty interest, lower federal courts have repeatedly denied inmates’ requests to know important details of the lethal injection procedure with which the state plans to kill them.

This Article argues that the Eighth Amendment includes an implicit due process right to know such information about the state’s planned method of execution. Without this information, inmates cannot protect their Eighth Amendment right against an excruciating execution, because the state can conceal crucial details of its execution procedure, thereby effectively insulating it from judicial review.

As in other constitutional contexts, then, due process norms require that the inmate be permitted access to information necessary to protect his other constitutional rights. These same norms likewise require courts, rather than administrative agencies, to judge the execution procedure’s constitutionality. Indeed, judicial recognition of this due process right would not only protect Eighth Amendment values but would also encourage states to make their execution procedures more transparent and less dangerous. Just as importantly, judicial recognition would also discourage secretive governmental practices more generally, thereby promoting openness and fair process as important democratic values.

June 16, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

After two-month hiatus, will Georgia and Florida get US machineries of death back on line this week?

A few days after the ugly execution in Oklahoma at the end of April, I wondered in this post whether all the attention and controversy that one execution generated would impact death penalty administration outside the Sooner State.  Now, with nearly two months having gone by without any subsequent executions completed anywhere in the United States (and it seems only a handful of executions now scheduled for the coming summer months), I am prepared to assert that Oklahoma's woes have had a national impact.  

While litigation over lethal injection protocols and various drug shortages had slowed the pace of executions down considerably, before the ugly Oklahoma execution the pace was starting again to pick back up.  Indeed, over the first 4 months of 2014, the US completed on average five executions each month and was on pace for the highest yearly total of executions in more than a decade.  But with everything seemingly slowing down after the Oklahoma mess, it now seems possible the US will have the fewest executions in 2014 than in any year in over two decades.

For those who pay very close attention to the death penalty and wonder about its future in the US, this coming week is one to watch real closely.  As detailed in local press reports here and here, both Gerogia and Florida have executions schedule for the next few days.  If these executions go forward and lethal injections proceed without a hitch, there is a greater likelihood that the US will be starting its return to execution business as usual.  But if one or both of these executions get stayed or end up being botched in some manner, I suspect US death penalty and execution realities will remain quite dyanmic and unpredictable for the months and perhaps years ahead.

Some recent related posts:

June 16, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, June 11, 2014

In wake of ugly lethal injection, Oklahoma legislator talking up "firing squad, hanging and electric chair"

As reported in this AP article, headlined "Republican Oklahoma lawmaker seeks study on adding firing squad, other death penalty options," at least one state legislator is talking about moving sooner rather than later to new execution methods in the Sooner State. Here are the details:

A Republican lawmaker reacting to an Oklahoma inmate's botched lethal injection said Tuesday he wants to explore giving condemned prisoners the option of death by firing squad, hanging or the electric chair.

State Rep. Mike Christian said he's formally requesting a legislative hearing on the state's death penalty procedures following the April 29 death of Clayton Lockett, whose vein collapsed prompting prison officials to halt his punishment and note the execution drugs weren't administered properly. Lockett died of an apparent heart attack about 43 minutes after the execution began.

Christian, a former state highway patrolman from Oklahoma City, said he believes a firing squad would be the most logical second option after lethal injection. "Firing squad, hanging and electric chair. I think those are the three that are definitely constitutional," said Christian, who earlier this year called for the impeachment of state Supreme Court justices who supported a temporary stay of execution for Lockett. "I think just about anybody in Oklahoma would support some of these ideas we're talking about." Christian has said previously he wouldn't care if condemned inmates in Oklahoma were beheaded or fed to lions....

Under Oklahoma law, if lethal injection is declared unconstitutional, the state would switch to electrocution. If both of those methods are determined unconstitutional, a firing squad is a third option. Christian said he intends to explore whether to change the law to make a firing squad the second option, and if inmates should be allowed to select the method. He said any law change likely wouldn't apply to the 50 Oklahoma inmates already sentenced to die by lethal injection.

State Rep. Aaron Stiles, a Norman Republican and chairman of the House Judiciary Committee, said he's interested in Christian's study. He has said in the past that he supports looking at alternative options for executions, including a firing squad.

Christian plans to solicit testimony from experts in Utah, the last state to use a firing squad when it executed inmate Ronnie Lee Gardner in 2010. Five executioners armed with .30-caliber rifles stood about 25 feet from Gardner and fired at a white target pinned to his chest. One rifle was loaded with a blank so no one knows who fired the fatal shot.

June 11, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Tuesday, June 03, 2014

After botching the first attempt, should Ohio be allowed a second chance to execute Romell Broom?

The old saying goes, "If at first you don't succeed, try, try again."  But, as reported in this new AP article, the Ohio Supreme Court is going to considerwhether, after the state was unable to suceed in executing Romell Brown back in 2009, it will be permitted to try again.  The AP article is headlined "Ohio Court to Weigh Repeat Execution Attempt," and here are excerpts:

Ohio's top court has agreed to hear arguments that the country's only survivor of a botched lethal injection would face cruel and unusual punishment and double jeopardy if the state again attempts to put him to death.

Romell Broom, 57, was sentenced to die for the 1984 rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland as she walked home from a Friday night football game with two friends.

His 2009 execution was stopped by then-Gov. Ted Strickland after an execution team tried for two hours to find a suitable vein.  Broom has said he was stuck with needles at least 18 times, with pain so intense that he cried and screamed.  An hour into the execution, the Department of Rehabilitation and Correction recruited a part-time prison doctor with no experience or training with executions to try — again, unsuccessfully — to find a vein.

Broom's appeals in federal court are on hold while the state court hears the constitutional arguments.  Broom has been back on death row since.  No new execution date has been set.

In 1947, Louisiana electrocuted 18-year-old Willie Francis by electric chair a year after an improperly prepared electric chair failed to work.  The U.S. Supreme Court ruled 5-4 to allow the second execution to proceed, rejecting double jeopardy arguments.  A state's administration of its criminal law isn't affected by due process rights, when "an accident, with no suggestion of malevolence, prevents the consummation of a sentence," the court ruled at the time.

Broom suffered more than inmates during "a normal execution," meaning a second attempt would punish him twice for the same offense, defense attorneys Tim Sweeney and Adele Shank told the state Supreme Court in a May 2012 filing....  The state argues that Broom never underwent the execution process since the procedure was called off before the drugs could be introduced into his veins. 

For a number of reasons, the precedental force of the split SCOTUS ruling on this issue way back in 1947 is somewhat shaky.  In addition, the Ohio Supreme Court might rely on state constitutional law to block giving Ohio officials another shot at completing Broom's death sentence.   But I suspect the state will argue forcefully that it still can and should be allowed to carry out Broom's imposed sentence.  Stay tuned.

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

Monday, June 02, 2014

Is midazolam the key problem drug in recent lethal injection experiments?

The question in the title of this post is prompted by this informative new Wall Street Journal article headlined "Lethal-Injection Drug Is Scrutinized: Midazolam, Used in Botched Oklahoma Execution, Tied to Two Other Cases Seen as Troubling."  Here are excerpts:

Anesthesiologists say midazolam works like a dream. A few milligrams of the sedative calms patients' preoperative anxiety, while leaving them alert enough to talk with doctors and nurses before the more potent drugs kick in.

Reviews of its newer role as part of states' lethal-injection protocols aren't as unanimous. The drug, made by several companies in the U.S., has come into the spotlight with April's high-profile botched execution in Oklahoma, the first in that state to use midazolam. State officials injected Clayton Lockett, convicted of kidnapping and murdering a 19-year-old woman, with 100 milligrams of midazolam to render him unconscious. They then injected another drug to paralyze him and a third to stop his heart....

The drug has been used in nine executions since last fall, and lethal-injection experts have voiced concerns about three of those—the Oklahoma case, one in Florida and another in Ohio.

In the past, executioners would typically use thiopental and pentobarbital, which belong to a class of drugs known as barbiturates. Anesthesiologists say thiopental, which has largely been phased out of use, was aimed mostly at preventing a patient from feeling stimuli that would typically be painful. Pentobarbital is still used, they say, mostly to induce comas.

The makers of thiopental and pentobarbital, worried about the drugs being associated with capital punishment, cut back their availability for executions, leading some states to turn to midazolam. It belongs to a drug class known as benzodiazepines, which anesthesiologists say are most often used to sedate or calm patients, not anesthetize them. Anesthesiologists say they typically administer midazolam to a patient only a few milligrams at a time and therefore know little about the effects of much larger doses, like those given in lethal-injection protocols.

There is little agreement about how much to use in executions. Florida uses 500 milligrams, while Oklahoma used 100 milligrams on Mr. Lockett. Ohio used only 10 milligrams of midazolam in a January execution, but in April announced that it would change to 50 milligrams. None of the three states would comment on why they chose midazolam or how they settled on dosages.

"It's uncharted territory," said David Waisel, an anesthesiologist at Boston Children's Hospital who has testified on behalf of death-row inmates. "States literally have no idea what they're doing to these people." Dr. Waisel and others say that even when administered properly and at high doses, it is unclear whether midazolam sufficiently anesthetizes the sensations caused by the other drugs often used alongside it, such as vecuronium bromide, a muscle relaxant that causes paralysis, and potassium chloride, which stops the heart. Both of those drugs were used on Mr. Lockett.

June 2, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Friday, May 30, 2014

"Photos from a Botched Lethal Injection"

The title of this post is the headline of this notable lengthy new piece by Ben Crair in The New Republic which carried the subheadline "An exclusive look at what happens when an execution goes badly." Here is how the piece starts, including its "preamble":

Warning: This article contains graphic images from the autopsy of an executed prisoner.

On December 13, 2006, the state of Florida botched the lethal injection of Angel Diaz. The execution team pushed IV catheters straight through the veins in both his arms and into the underlying tissue.  As a result, Diaz, who was convicted of murder in 1986, required two full doses of the lethal drugs, and an execution scheduled to take only ten to 15 minutes lasted 34.  It was one of the worst botches since states began using lethal injection in the 1980s, and Jeb Bush, then the governor of Florida, responded with a moratorium on executions.

Other states hardly heeded Diaz’s death at all. Since he died, states have continued to botch lethal injections: A recent study by Austin Sarat at Amherst College estimated that at least 7 percent of all lethal injections have been visibly botched. The most controversial was in Oklahoma this past April, when the state executed a convicted murderer and rapist named Clayton Lockett using a three-drug protocol, like most other death-penalty states. The execution team struggled for 51 minutes to find a vein for IV access, eventually aiming for the femoral vein deep in Lockett’s groin. Something went wrong: Oklahoma first said the vein had “blown,” then “exploded,” and eventually just “collapsed,” all of which would be unusual for the thick femoral vein if an IV had been inserted correctly. Whatever it was, the drugs saturated the surrounding tissue rather than flowing into his bloodstream. The director of corrections called off the execution, at which point the lethal injection became a life-saving operation.  But it was too late for Lockett.  Ten minutes later, and a full hour-and-forty-seven minutes after Lockett entered the death chamber, a doctor pronounced him dead.

Witnesses to the execution say Lockett writhed, clenched his teeth, and mumbled throughout the procedure.  We won’t better understand what happened until Oklahoma releases an autopsy report some time this summer.  But we do know what happened to Angel Diaz, who died under similar conditions.  While the details of his execution have been known since 2006, The New Republic is publishing for the first time photographs of the injuries Diaz sustained from the lethal injection.  I discovered the photographs in the case file of Ian Lightbourne, a Florida death-row inmate whose lawyers submitted them as evidence that lethal injection poses an unconstitutional risk of cruel and unusual punishment.

May 30, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Wednesday, May 28, 2014

"Judge orders temporary moratorium on Ohio executions"

The title of this post is the headline of this notable capital news emerging in my local legal arena.  Here are the basics:

A federal judge has ordered a temporary moratorium on executions in Ohio while legal issues related to new lethal injection protocol are worked out. The order issued yesterday by U.S. District Judge Gregory L. Frost stops the scheduled July 2 execution of Ronald Phillips of Summit County and the Aug. 6 execution of William Montgomery of Lucas County. Two other executions scheduled later in the year are not affected for the time being, but Frost left his order open-ended.

Frost said an execution can be scheduled no earlier than Aug. 15. The delays are repercussions from the troubled execution of Dennis McGuire on Jan. 16. Witnesses observed that McGuire, 53, gasped, choked, clenched his fists and appeared to struggle against his restraints for 10 minutes after the administration of two drugs, midazolam and hydromorphone, before being pronounced dead at the Southern Ohio Correctional Facility near Lucasville.

As a result, the Ohio Department of Rehabilitation and Correction announced April 28 that it would use the same drugs, but in higher doses in future executions.... Frost ordered the attorneys representing condemned inmates and the state to “work together to coordinate efforts so that the court can set necessary deadlines following expiration of the stay.”

May 28, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, May 24, 2014

Is nitrogen gas the best modern execution alternative to lethal injection?

Liquid-nitrogen-250x250-250x250The question in the title of this post is prompted by this Slate commentary by Tom McNichol headlined "Death by Nitrogen; If lethal injection falls out of favor, death penalty states could turn to a new method: nitrogen gas." Here are excerpts:

The Supreme Court ruled in 2008 that Kentucky's three-drug protocol for carrying out lethal injections was constitutional, but there’s no question that the method looks grimly suspect in the wake of Clayton Lockett’s apparently painful, botched execution in Oklahoma last month. Not so long ago, though, this was the method that represented progress. Hanging. Firing squad. The guillotine. The electric chair. The gas chamber. Lethal injection. Every age seems to feature a new and improved method of capital punishment, billed as more efficient and humane. The spectacle of Lockett’s death, and the Supreme Court’s hesitation, shines a spotlight on the latest idea — death by nitrogen.

This new proposed method, known as nitrogen asphyxiation, seals the condemned in an airtight chamber pumped full of nitrogen gas, causing death by a lack of oxygen. Nitrogen gas has yet to be put to the test as a method of capital punishment — no country currently uses it for state-sanctioned executions. But people do die accidentally of nitrogen asphyxiation, and usually never know what hit them. (It’s even possible that death by nitrogen gas is mildly euphoric. Deep-sea divers exposed to an excess of nitrogen develop a narcosis, colorfully known as “raptures of the deep,” similar to drunkenness or nitrous oxide inhalation.)

In late April, Louisiana Department of Corrections Secretary James LeBlanc suggested to a state legislative committee that Louisiana should look into using nitrogen gas as a new method of execution, since lethal injection has become so contentious. “It’s become almost impossible to execute someone,” LeBlanc complained to the Louisiana House Administration of Criminal Justice Committee.

“Nitrogen is the big thing,” LeBlanc told the committee. “It’s a painless way to go. But more time needs to be spent [studying] that.” The committee instructed LeBlanc to do some research on the subject and report back. In the meantime, Louisiana has delayed a pending execution. “I’m not taking anything off the table,” says state Rep. Joseph P. Lopinto III, chairman of the state’s Administration of Criminal Justice Committee. “If someone says nitrogen gas is the way to go, then we can debate that and do it if need be.”

As long as 32 states have capital punishment on the books, there should be a less reliably cruel method of execution than lethal injection.  “If we’re going to take a life, then we should do it in the most humane, civilized manner as is possible,” says Lawrence Gist II, an attorney and professor of business and law at Mount St. Mary's College. “Right now, nitrogen is the best of the available options.”  Gist, a death penalty opponent, runs a website dedicated to promoting nitrogen asphyxiation for state-sanctioned executions....

Nitrogen gas, unlike the lethal drugs that states have relied on, is widely available.  The gas is used extensively in industrial settings, from aerospace to oil and gas production “Lethal injection is just fine if you can get the pentobarbital,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a group that favors capital punishment. “But if that’s not available, an alternative like nitrogen gas would work.”

In contrast to lethal injection, no medical expertise would be needed to introduce nitrogen gas into a sealed chamber.  The gas chamber itself is technology that has been around since the 1920s. In fact, three states — Arizona, Missouri, and Wyoming — still authorize lethal gas as a method of execution (depending on the choice of the inmate, the date of the execution or sentence or the possibility that lethal injection is held unconstitutional).

The last gas chamber execution in the U.S. was in 1999 — the method fell out of favor because hydrogen cyanide is a poison causing suffering that lasts 10 minutes or longer. Lethal injection, of course, was supposed to be painless and better.  What if it’s not? That’s the question the Supreme Court now finally seems to be returning to.  The history of capital punishment suggests that as long as there’s a will to kill criminals, someone will come up with an improved way.  The new tool in the executioner’s bag may turn out to be nitrogen, a better way to carry out a gruesome task.

If nitrogen gas is really an easy, effective and painless means for killing a condemned inmate, I hope Louisiana and other states might move to this method of execution in the near future. In recent years, the only folks truly well served by lethal injection are those who enjoy last-minute appellate litigation and the prospect of a painful execution. Moreover, as I have often said before, if Congress would have the good sense to care about helping both the feds and states find a better way to carry forth capital justice, perhaps they could consider having a hearing to explore what reasonable modern alternatives to lethal injection might be worth seriously considering.

A few recent related and older posts:

May 24, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (13) | TrackBack

Friday, May 23, 2014

Tennessee adopts electric chair as back-up execution method

Tenn executionAs reported in this AP article, "Tennessee has decided to bring back the electric chair." Here are the details:

Republican Gov. Bill Haslam on Thursday signed a bill into law allowing the state to electrocute death row inmates in the event the state is unable to obtain drugs used for lethal injections.  Tennessee lawmakers overwhelmingly passed the electric chair legislation in April, with the Senate voting 23-3 and the House 68-13 in favor of the bill.

Richard Dieter, the executive director of the Death Penalty Information Center, said Tennessee is the first state to enact a law to reintroduce the electric chair without giving prisoners an option.  "There are states that allow inmates to choose, but it is a very different matter for a state to impose a method like electrocution," he said. "No other state has gone so far."

Dieter said he expects legal challenges to arise if the state decides to go through with an electrocution, both in terms of whether the state could prove that lethal injection drugs were not obtainable and on the grounds of constitutional protections against cruel and unusual punishment....

Republican state Sen. Ken Yager, a main sponsor of the electric chair measure, said in a recent interview that he introduced the bill because of "a real concern that we could find ourselves in a position that if the chemicals were unavailable to us that we would not be able to carry out the sentence."

A Vanderbilt University poll released this week found that 56 percent of registered voters in Tennessee support the use of the electric chair, while 37 percent are against it. Previous Tennessee law gave inmates who committed crimes before 1999 the choice of whether they wanted to die by electric chair or lethal injection.  The last inmate to be electrocuted was Daryl Holton, a Gulf War veteran who killed his three sons and a stepdaughter with a high-powered rifle in Shelbyville garage in 1997.  He requested the electric chair in 2007.

A provision to apply the change to prisoners already sentenced to death has also raised a debate among legal experts.  Nashville criminal defense attorney David Raybin, who helped draft Tennessee's death penalty law nearly 40 years ago, has said lawmakers may change the method of execution but they cannot make that change retroactive.  To do so would be unconstitutional, he said.

Supporters of the bill requested a legal opinion from state Attorney General Bob Cooper, who said the law would pass constitutional muster, but there was no guarantee it would not be challenged in court....  The Supreme Court has never declared a method of execution unconstitutional on the grounds that it is cruel and unusual.  It upheld the firing squad in 1879, the electric chair in 1890 and lethal injection in 2008.

May 23, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, May 22, 2014

Has the ugly execution in Oklahoma succeeded in slowing US machineries of death?

The question in the title of this post is prompted by the notable new reality that, after Missouri's effort to carry out an execution on Wednesday was ultimately blocked by the Supreme Court (CNN story here), it now appears that there will not be an execution in the United States during the month of May. In addition, as detailed in this listing from the Death Penalty Information Center, it appears that only a handful of serious execution dates are scheduled for the coming summer months.

Of course, a host of factors both legal and extra-legal explain why in recent years the US has averaged only three to four executions a month, whereas 15 years ago the US averaged more than twice as many executions. Notably, though, in 2014 the pace of executions throughout the United States had ticked up with 20 executions completed in five different states over the first four months of the year. But in the wake of Oklahoma making very messy the execution of Clayton Lockett, it now seems that a set of various factors and actors are gumming up the works of machineries of death throughout the United States.

I suspect Texas and perhaps a few other states without a history of problematic executions will be able to carry out death sentences in the months ahead. So I do not think it is right to suggest that the ugly Oklahoma execution created a de facto moratorium. Still, it seems more than a coincidence that the US in 2014 was on pace for 60 executions for the first time in a decade until Oklahoma messed up and now we are on track to go perhaps a few months with very few executions.

A few recent related posts:

May 22, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (8) | TrackBack

Wednesday, May 21, 2014

Eighth Circuit and SCOTUS staying (and then later unstaying?) Missouri's execution plans

As detailed in this AP story, now headlined "Missouri Inmate's Hopes Rest With Supreme Court," the federal judiciary has been getting in the way of Missouri's plans to execute a murderer today. Here are the details:

A Missouri inmate with a rare condition that affects the blood vessels was handed a reprieve less than two hours before his scheduled execution, but the state may end up killing him later Wednesday if the U.S. Supreme Court says it can.

Russell Bucklew was scheduled to be executed at 12:01 a.m. Wednesday for the 1996 killing of a romantic rival. He would have been the first U.S. inmate put to death since last month's botched execution in Oklahoma, in which the prisoner's vein collapsed while the lethal drugs were being administered.

Bucklew, 46, has a condition that causes weakened and malformed veins, and his attorneys say this and the secrecy surrounding the state's lethal injection drug combine to make for an unacceptably high chance of something going wrong during his execution.

After an 8th U.S. Circuit Court of Appeals panel suspended the execution Tuesday, only to be overruled hours later by the full court, Supreme Court Justice Samuel Alito issued his own stay, setting the stage for the full high court to weigh the appeal. If the Supreme Court rejects the appeal, Missouri would have until midnight to carry out the execution.

Mike O'Connell, a spokesman for the Missouri Department of Corrections, cautioned against reading too much into Alito's intervention. Alito handles emergency matters for states covered by the 8th Circuit, and two of the six inmates Missouri has executed since switching to a single-drug system in November had appeals that stretched well into the state's 24-hour execution window before the Supreme Court allowed the state to proceed. One of them was executed nearly 23 hours after he originally was scheduled to die....

Bucklew won't be getting help from Missouri Gov. Jay Nixon, a Democrat and death-penalty proponent who rejected Bucklew's clemency request late Tuesday....

Missouri switched from a three-drug protocol to the single drug pentobarbital late last year. None of the six inmates executed since Missouri made the change has shown outward signs of pain or suffering.

May 21, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, May 20, 2014

Georgia Supreme Court rejects attack on execution drug secrecy

As reported in this local article, yesterday the Georgia Supreme Court "upheld the constitutionality of a state law that keeps secret the identities of the makers and suppliers of Georgia’s lethal-injection drugs." Here is more about the ruling:

The court, in a 5-2 decision, rejected a challenge to the statute filed by lawyers for condemned killer Warren Hill. The ruling should clear the way for a number of executions, which have been on hold while the case was pending.

The reasons for offering privacy are “obvious,” Justice Harris Hines wrote for the majority. These include avoiding the risk of harassment or retaliation from persons related to the prisoners or from others who might disapprove of the execution “as well as simply offering those willing to participate whatever comfort or peace of mind that anonymity might offer,” Hines wrote.

In addition, “we believe that the same logic applies to the persons and entities involved in making the preparations for the actual execution, including those involved in procuring the execution drugs,” Hines wrote. “(W)ithout the confidentiality offered to execution participants by the statute … there is a significant risk that persons and entities necessary to the execution would become unwilling to participate.”

Benham, who authored the dissent, noted the recently botched execution in Oklahoma of inmate Clayton D. Lockett, who died of a heart attack after he writhed, gasped and struggled to lift his head after being declared unconscious on the lethal-injection gurney. “I write because I fear this state is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in Oklahoma,” wrote Benham, who was joined by Justice Carol Hunstein. “There must be certainty in the administration of the death penalty.”...

In a statement, Hill’s attorneys said the ruling “effectively affords the state of Georgia to alter (its) lethal-injection protocol in any way it sees fit and to conceal from the public and even the courts the identity and provenance of the chemicals it intends to use to carry out executions.” Benham’s dissent, the statement said, “correctly found that this decision conflicts with basic requirements of due process.”

The full Georgia Supreme Court ruling in Owens v. Hill is available at this link.

May 20, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Friday, May 16, 2014

Lots of intriguing "show me" litigation as Missouri prepares for next execution

As reported in this Kansas City Star article, a number of news organizations, "including The Kansas City Star and The Associated Press, filed suit Thursday against the Missouri Department of Corrections over its refusal to reveal the source of drugs used to carry out executions." Here is more about the suit:

The suit, filed in Cole County Circuit Court in Jefferson City, alleges that the Corrections Department is violating the Missouri Sunshine Law by denying repeated requests for information about the “composition, concentration, source and quality of drugs used to execute inmates in Missouri.” By withholding access to information that historically has been publicly available, the department also is violating the First and Fourteenth amendments of the U.S. Constitution, according to the suit....

Thursday’s suit [claims] that public disclosure of the information “reduces the risk that improper, ineffective or defectively prepared drugs are used.”

“The constitution thus compels access to historically available information about the type and source of drugs used in lethal injection executions because disclosure promotes the functioning of the process itself and is essential for democracy to function,” according to the suit.

Joining The AP and The Star in the suit are Guardian US, the New York-based digital news service of England’s The Guardian; the St. Louis Post-Dispatch; and the Springfield News-Leader.

Meanwhile, over in federal court has detailed in this new Reuters report, a "Missouri death row inmate is asking a federal court to allow videotaping his execution, scheduled for next week, to record any evidence of cruel and unusual punishment in violation of the U.S. Constitution." Here is more on this other legal front:

A lawyer filed a motion on Friday in Kansas City on behalf of Russell Bucklew, 45, who is scheduled to die by lethal injection on May 21 for the 1996 murder of Michael Sanders in southeast Missouri. Last week, Bucklew filed a motion in the same court to halt his execution because of a rare health condition that his lawyer, Cheryl Pilate, said would cause him extreme pain and possible suffocation.

A videotape would preserve evidence if he survives and wants to oppose another execution or is injured and wants to file a claim, the motion states. It further states that if the inmate dies but suffers "prolonged and excruciating execution or chokes and suffocates to death," the video would be evidence for a claim by his estate. "If Missouri officials are confident enough to execute Russell Bucklew, they should be confident enough to videotape it," Pilate said in a news release. "It is time to raise the curtain on lethal injections."

May 16, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Thursday, May 15, 2014

Poll after ugly execution highlights enduring death penalty support and openness to various execution methods

As highlighted by this NBC News article, headlined "Americans Back Death Penalty by Gas or Electrocution If No Needle: Poll," a new poll seems to confirm my suspicion in this recent post that the ugly execution in Oklahoma would not change many modern capital perspectives. Here are the results of this poll:

A badly botched lethal injection in Oklahoma has not chipped away at the American public's support of the death penalty, although two-thirds of voters would back alternatives to the needle, an exclusive NBC News poll shows.

One in three people say that if lethal injections are no longer viable — because of drug shortages or other problems — executions should be stopped altogether, according to the survey of 800 adults by Hart Research and Public Opinion Strategies for NBC News. But many others are open to more primitive methods of putting prisoners to death: 20% for the gas chamber, 18% for the electric chair, 12% for firing squad and 8% for hanging....

The most recent example of what can go wrong [with lethal injection] is the April 29 execution of Clayton Lockett, who appeared to regain consciousness and writhe in pain midway through. The procedure was halted but Lockett, convicted of rape and murder, died anyway. The details of his death were condemned by the White House and provoked fresh debate over capital punishment and how it's carried out.

Most people polled said they knew about the uproar, but it did not appear to change minds about whether the government should kill murder convicts. A comfortable majority of those questioned — 59% — said they favor the death penalty as the ultimate punishment for murder, while 35% said they are opposed.

That split is in line with surveys done before Lockett's death in the last two years, and also reflects the erosion of support for capital punishment since the 1990s, when it was more than 70%. "I don’t think this fundamentally altered views about the death penalty," said Bill McInturff of Public Opinion Strategies.

Republicans, whites, Protestants and older people were more likely to favor execution than Democrats, blacks and Latinos, Catholics and young people. More than a third of those in favor said the strongest argument for the death penalty is that it's an "appropriate consequence." A similar proportion of those against it said the risk of killing someone who had been wrongly convicted was the most powerful argument....

All 35 capital punishment states use lethal injection as their primary method, although eight of them would allow electrocution, gas, hanging or firing squad in some cases, according to the Death Penalty Information Center. But lethal injections are becoming increasingly difficult to carry out because pharmaceutical companies don't want their products used, some compounding pharmacies are getting out of the execution business, and inmates are trying to force states to reveal their suppliers.

Some state lawmakers have introduced measures that would bring back the older methods, but some pro-execution advocates believe that would lower support from a public that has gotten used to "medicalized" deaths.

A few recent related posts:

May 15, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, May 12, 2014

Despite execution problems elsewhere, Texas poised to carry out another death sentence on Tuesday

As highlighted by this new New York Times article, headlined "Facing Challenge to Execution, Texas Calls Its Process the Gold Standard," problems encountered by other states has not led official in Texas to question how it runs its machinery of death. Here are excerpts from the lengthy Times piece about modern Lone Star State capital punishment realities:

If Texas executes Robert James Campbell as planned on Tuesday, for raping and murdering a woman, it will be the nation’s first execution since Oklahoma’s bungled attempt at lethal injection two weeks ago left a convicted murderer writhing and moaning before he died.

Lawyers for Mr. Campbell are trying to use the Oklahoma debacle to stop the execution here.  But many in this state and in this East Texas town north of Houston, where hundreds have been executed in the nation’s busiest death chamber, like to say they do things right.

For two years now, Texas has used a single drug, the barbiturate pentobarbital, instead of the three-drug regimen used in neighboring Oklahoma.  Prison administrators from other states often travel here to learn how Texas performs lethal injections and to observe executions.  Texas officials have provided guidance and, on at least a few occasions, carried out executions for other states.

Even the protesters and TV cameras that used to accompany executions here have largely dissipated.  “It’s kind of business as usual,” said Tommy Oates, 62, a longtime resident who was eating lunch at McKenzie’s Barbeque last week, about one mile from the prison known as the Walls Unit.  “That sounds cold, I know. But they’re not in prison for singing too loud at church.”

More than any other place in the United States, Huntsville is the capital of capital punishment.  All of the 515 men and women Texas has executed since 1982 by lethal injection and all of the 361 inmates it electrocuted from 1924 to 1964 were killed here in the same prison in the same town, at the redbrick Walls Unit.  Over all, Texas accounts for nearly 40 percent of the nation’s executions....

Gov. Rick Perry is a staunch defender of the state’s record, saying that “in Texas for a substantially long period of time, our citizens have decided that if you kill our children, if you kill our police officers, for those very heinous crimes, that the appropriate punishment is the death penalty.”  On “Meet the Press” recently, he added, “I’m confident that the way that the executions are taken care of in the state of Texas are appropriate.”...

David R. Dow, a law professor at the University of Houston who has represented more than 100 death row inmates during their appeals, explained the state’s record of seeming success simply.  “When you do something a lot, you get good at it,” he said, adding archly, “I think Texas probably does it as well as Iran.”...

Some of those who work in the system are proud of their expertise.  Jim Willett, who was the warden at the Walls prison from 1998 to 2001, oversaw 89 executions.  Staff members who prepare prisoners for execution are trained and skilled, he said. The “tie-down team” that straps the prisoners onto the table, “can take that man back there and put those straps on perfectly and easily in 30 seconds.  This may sound odd to an outsider, but they take pride in what they do.” He added, “They’ve done it so often that it’s almost second nature to them.”...

Since 1976, Texas has carried out more executions than six other states combined — Alabama, Florida, Georgia, Missouri, Oklahoma and Virginia — all of which have some of the busiest death chambers.

On Monday, an appeal by Mr. Campbell's lawyers to stop the execution reached the United States Court of Appeals for the Fifth Circuit in New Orleans. The lawyers cited the execution in Oklahoma, where Clayton D. Lockett writhed and moaned on the table until prison officials halted the procedure.  Mr. Lockett died 43 minutes after the delivery of drugs into a vein in his groin began. Oklahoma has declared a six-month stay of the next execution.

The argument in the original complaint in the Campbell case, filed in federal court in Houston, tracks arguments in several current lawsuits challenging Texas’ execution process.  It focuses on efforts by Texas, Oklahoma and other states to restrict information about the source of the drugs.  Texas has declined to disclose such information as how its drug is tested for potency and purity, among other details of the process.  The lawyers for Mr. Campbell argue that “to permit this execution to proceed in light of the eye-opening events in Oklahoma should not be countenanced by a civilized society, nor tolerated by the constitutional principles that form the basis of our democracy.”

State officials say Texas is not like Oklahoma partly because it uses a single drug, the barbiturate pentobarbital, instead of the three-drug series employed north of the Red River.  This approach, along with other protections for prisoners in the process, was favored by a new report on the death penalty from The Constitution Project, a group that includes supporters and opponents of capital punishment....

Greg Abbott, the Texas attorney general, has opposed the request to stop the execution, stating that “recent problems in another state following an entirely different execution procedure do nothing to change this fact.”  The state argued that pentobarbital has been used successfully in 33 executions in Texas, and that testing showed the batch of the drug to be used, which came from a compounding pharmacy, was potent and “free of contaminants.”...

Support for the death penalty in Texas runs higher than in the rest of the country; a May 2012 University of Texas-Texas Tribune online poll showed that 53 percent of Texas voters said they supported the death penalty for murder over life imprisonment without the chance for parole. A Quinnipiac University telephone poll conducted in May 2013 found that 48 percent of American voters favored the death penalty over a life term for people convicted of murder.

May 12, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, May 11, 2014

"It's time to televise executions"

The title of this post is the headline of this new CNN opinion piece authored by trial consultant Richard Gabriel.  Here are excerpts:

In 1936, the last public execution in the United States was held in Owensboro, Kentucky. It was witnessed by more than 20,000 people, including hundreds of reporters.  From that point forward, states decided that executions needed to be private affairs, held in small rooms and witnessed only by agents of the state, lawyers, family members of the victim and a handful of journalists.

In the years since Owensboro, the states -- with the approval of the U.S. Supreme Court -- have refined their definition of humane executions by utilizing firing squads, electric chairs and gas chambers.  The states further sanitized the execution process by developing the lethal injection method, turning it into a medical procedure complete with operating table, intravenous injections and considerable ethical questions for doctors and pharmaceutical companies who have sworn to "do no harm."

None of these refinements in execution technology has anything to do with "humane" methods.  There is no real measurement for how painful a death prisoners suffer when they are being hanged, shot, gassed or electrocuted, no matter how quickly they die. Lethal injection simply gives us greater psychological distance from killing another human being, making it feel more like a doctor-prescribed procedure than an execution....

It is natural to be both horrified and angered at the senseless and brutal killings committed by a convicted murderer.  It is natural to want revenge -- to visit the pain we imagine the victim suffered onto his or her perpetrator.  But there is a difference between punishment and revenge, no matter how we dress it up with legislation and legal procedures.  We have built a system of laws to raise us above those we judge.

In this system we have built, we must be honest and ask ourselves, "Is vengeance justice?" If we want truly to codify revenge, let's not pretend. Let's admit that we are willing to live with the byproducts of our retribution. Let's admit that we are willing to kill a number of innocent people. Let's admit that it is fine to execute a disproportionate number of minorities. And let's admit that we want condemned murderers to suffer like they made their victims suffer. Let's not dress the execution up as a medical procedure.

And by all means, let's televise it. Let's watch them pump the drugs into a condemned man or woman, strapped to a gurney. Let's hear their last words.  Let's watch them writhe and twitch, or listen as they groan and their last breath quietly leaves their body.  Let's watch them die.  Let us see what we are really choosing when we vote to implement the death penalty in our state.

Many Americans support the death penalty in principle. But, as a juror in a capital case, it is different when you look across that courtroom and stare into the eyes of the accused. At that point it is real, and not just a principle. You will decide whether that person dies.

Let's make the death penalty real. Let's open the blinds and stare into the eyes of those we condemn to death.  Let's be honest about what the death penalty really is. And then we can choose what kind of society we really want to be. 

May 11, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack