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 lethal injection case, 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 lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Thursday, May 08, 2014

"In Defense of Capital Punishment: A 'botched' execution does not render the death penalty illegitimate"

The title of this post is the headline of this potent commentary by Jonah Goldberg at National Review. Here are excerpts:

Last week the state of Oklahoma “botched” an execution.  Botched is the accepted term in the media coverage, despite the fact that Clayton Lockett was executed.  He just died badly, suffering for 43 minutes until he eventually had a heart attack.

Oklahoma’s governor has called for an investigation.  President Obama asked Attorney General Eric Holder (who is seeking the death penalty in the Boston Marathon bombing case) to review the death penalty. Obama’s position was a perfectly defensible straddle: “The individual . . . had committed heinous crimes, terrible crimes, and I’ve said in the past that there are certain circumstances where a crime is so terrible that the application of the death penalty may be appropriate.”

On the other hand, Obama added: “I’ve also said that in the application of the death penalty . . . we have seen significant problems, racial bias, uneven application of the death penalty, situations in which there were individuals on death row who later on were discovered to be innocent.  I think we do have to, as a society, ask ourselves some difficult and profound questions.”

As a death-penalty supporter, I agree.  Although I’m not sure we’d agree on what those questions — and answers — should be.  As for Lockett, he was entitled to a relatively painless and humane execution under the law. As for what he deserved in the cosmic sense, I suspect he got off easy....

Capital-punishment opponents offer many arguments why people like Lockett shouldn’t be executed.  They point out that there are racial disparities in how the death penalty is administered, for example. This strikes me as an insufficient argument, much like the deterrence argument from death-penalty supporters.  Deterrence may have some validity, but it alone cannot justify the death penalty.  It is wrong to kill a man just to send a message to others.  Likewise, Lockett, who was black, wasn’t less deserving of punishment simply because some white rapist and murderer didn’t get his just punishment.

The most cynical argument against the death penalty is to point out how slow and expensive the process is.  But it is slow and expensive at least in part because its opponents have made it slow and expensive, so they can complain about how slow and expensive it is....

Some believe the best argument against the death penalty is the fear that an innocent person might be executed. It’s hotly debated whether that has ever happened, but it’s clear that innocent people have been sent to death row. Even one such circumstance is outrageous and unacceptable. But even that is not an argument against the death penalty per se.  The FDA, police officers, and other government entities with less constitutional legitimacy than the death penalty (see the Fifth and 14th amendments) have made errors that resulted in innocent deaths.  That doesn’t render these entities and their functions illegitimate.  It obligates government to do better.

Radley Balko, a death-penalty opponent, in a piece in the Washington Post, says that ultimately both sides of the death-penalty debate have irreconcilable moral convictions. I think he’s right. As far as I’m concerned, Lockett deserved to die for what he did. Everything else amounts to changing the subject, and it won’t convince me otherwise.

There are various parts of this commentary that I consider astute (e.g., I call Lockett's execution ugly, not botched, because he did end up dead), and others that seem to me quite peculiar (e.g., if deterrence cannot justify the death penalty, why can it be used to justify any state punishment?). But I find especially valuable this commentary's emphasis that "irreconcilable moral convictions" may be at the base of all modern heated death penalty debates.

Notable missing, though, is the parallel reality I see that irreconcilable political convictions seemingly influence both supporters and opponents of the death penalty.  Notably, in this commentary from last year, Jonah Goldberg effectively explains why the "only people in the world who don’t want the government to get much smarter are the ones working for it."  In light of that astute observation, how can  he have any confidence that, in response to the ugly Lockett execution, governments can or will fulfill their "obligat[ion] to do better"?

Of course, similarly telling and curious view about government powers and possibilities often seems to infest liberal critics of the death penalty.  As Goldberg highlights, a lot of claims about inevitable government dysfunction drives a lot of the modern abolitionist movement.  But the modern death penalty is arguable the most effectively and comprehensive regulated of all government activities, and in other settings folks on the left often respond to government and regulatory failings by calling for more government and regulation, not less.

I make these points not to chide either supporters or opponents of the death penalty, but rather to encourage folks to notice not only that irreconcilable moral convictions are often involved in death penalty debates, but also that these moral convictions often regularly eclipse typical political convictions in this setting.

May 8, 2014 in Baze lethal injection case, Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, May 04, 2014

Shouldn't Congress be holding hearings to explore federal and state execution methods?

The question in the title of this post is my reaction to this Wall Street Journal article headlined "Justice Department Expands Review of Death-Penalty Procedures." Here are excerpts, with the key fact prompting my question emphasized:

The Justice Department has launched a review of state-run executions of death-row inmates, after President Barack Obama raised concerns about a botched execution earlier this week in Oklahoma.  A department spokesman said the agency would begin a review of state-run death-penalty programs, similar to one it has been conducting on federal capital punishment. Federal executions are rare, and there has been a moratorium in place since 2011 while the Justice Department reviews its policies. "The department is currently conducting a review of the federal protocol used by the Bureau of Prisons, and has a moratorium in place on federal executions in the meantime," said the spokesman, Brian Fallon. "At the president's direction, the department will expand this review to include a survey of state-level protocols and related policy issues."

Mr. Obama, speaking at a news conference Friday after a bilateral meeting with German Chancellor Angela Merkel, called the seemingly flawed execution "deeply troubling" and said he would discuss with Attorney General Eric Holder this particular case and an analysis of U.S. death penalty practices more broadly.

The Oklahoma execution highlights some of the wider problems with U.S. death-penalty practices, he said. Mr. Obama supports the death penalty, and noted the Oklahoma inmate's "heinous" crime, but he has raised questions about it, including racial bias in the American justice system.

Regular readers know I have long been wondering and worried about how the feds were dealing with lethal injection problems in light of the fact that there are nearly a half-dozen federal death row prisoners who have nearly exhausted their appeals and should be heading soon to the execution chamber.  I surmise from this WSJ story that DOJ has been content to take its sweet time to "review its policies" on lethal injection and thus kick this controversial matter to the next person in the Oval Office.  Now, I fear, this expansion of the DOJ review to include a "survey of state-level protocols and related policy issues" is likely to provide a convenient excuse for this "review" to take another couple of years or longer.

All the national and international attention following the ugly execution in Oklahoma, as well as the President's latest comments on this topic, provide further evidence that execution methods and practices are an important issues that implicate lots of federal interests.  Federal courts, of course, have been the focal point of the constitutional debate over lethal injection now for well over a decade. The US Justice Department, it now seems, is heading toward a more than a half-decade of its own "review" of these matters.  At some point I hope (but do not readily expect) that the Article I branch of our national government will finally decide it ought to get involved with these matters.

Some recent related posts:

May 4, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack

Friday, May 02, 2014

Other than perhaps in Oklahoma, will this week's ugly execution change any death penalty dynamics?

Throughout this week there has been plenty of old and new media attention given to the ugly execution that was completed in Oklahoma Tuesday night.  And Oklahoma official will likely need a number of months to sort out everything before getting its machinery of death up and running again.  But outside of Oklahoma, does anyone believe that yet another ugly lethal injection is likely to change, in any major way, the standard modern policy and litigation dynamics that now surround the administration of capital punishment in the United States?

The Oklahoma ugliness did force a few federal officials — the President and the US Senators from  Oklahoma — to finally say something about lethal injection practices that have been long discussed and litigated in state and federal courts nationwide.  But comments by federal officials, as well as those by state officials in Oklahoma and elsewhere, as well as by the well-known advocates in the pro- and anti-death penalty camps, seem just like another round of the usual reactions to the usual claims and concerns that arise whenever a lethal injection execution fails to go smoothly.

Lots of folks who follow these issues closely (in the pro- and anti-death penalty camps) have talked about states exploring other execution methods, but I have seen little serious discussion of that possibility among lawmakers even in the wake of the Oklahoma ugliness.  And though abolitionists are sure to use this incident as one more talking point to advocate formal repeal of the death penalty in those states that rarely execute, there is little evidence that those states which remain eager to carry out death sentences see what happened in Oklahoma as a reason to slow down the march of convicted murderers to execution chambers.

Perhaps I have grown too cynical and jaded about the state and fate of modern death penalty debates.  But even details of the ugly Oklahoma execution are still emerging, this is already feeling like old and tired news to me.  Are my instincts here wrong, dear readers?

Some recent related posts:

UPDATE So only a matter of hours after I wrote this post, the President of the United States decided to prove me wrong.  Specifically, as this Reuters report and headline highlights, it appears that Attorney General Eric Holder has a new assignment from his boss because of the ugliness in OK: "Obama to have attorney general look into botched execution in Oklahoma." Here are the details:

President Barack Obama on Friday said the botched execution of a murderer in Oklahoma raises questions about the death penalty in the United States and he will ask the U.S. attorney general to look into the situation. "What happened in Oklahoma is deeply troubling," he said....

Obama cited uneven application of the death penalty in the United States, including racial bias and cases in which murder convictions were later overturned, as grounds for further study on the issue. "And this situation in Oklahoma just highlights some of the significant problems," he said at a news conference.

"I'll be discussing with (Attorney General) Eric Holder and others to get me an analysis of what steps have been taken - not just in this particular instance but more broadly - in this area," he said. "I think we do have to, as a society, ask ourselves some difficult and profound questions around these issues."

May 2, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (10) | TrackBack

Thursday, May 01, 2014

New details emerge concerning ugly Oklahoma execution

As reported in this article from The Guardian, headlined "Oklahoma inmate Tasered by prison staff on day of botched execution; Timeline report from director of Oklahoma corrections department also recommends indefinite stay of executions in the state," some interesting new details about Tuesday night's ugly execution are starting to emerge.  Here are some of the new details:

Clayton Lockett, the death-row inmate who was the subject of a botched execution by the state of Oklahoma, was Tasered by prison staff and had cut his own arm on the day of the failed procedure, according to a timeline released by the state's corrections chief on Thursday.

The interim report by the director of the corrections department, Robert Patton, found that medical staff could not find a suitable vein anywhere on his body in which to inject the lethal drugs intended to kill him and had to use his groin area. It recommends an indefinite stay of executions in Oklahoma until procedures for judicial killings in the state are completely rewritten and staff retrained. The execution of another inmate, Charles Warner, also due to have been carried out on Tuesday, has already been postponed.

"It will take several days or possibly weeks to refine the new protocols," Patton wrote in a letter to the Republican governor of Oklahoma, Mary Fallin. "Once written, staff will require extensive training and understanding of new protocols before an execution can be scheduled. I recommend asking the court of criminal appeals to issue an indefinite stay of execution." Patton said he supported an "external investigation" of Lockett's death....

The timeline released by Patton shows that just after 5am on Tuesday, Lockett had refused to be restrained when officers arrived to take him for X-rays. A correctional emergency response team (Cert) was called to use force on him, and he was Tasered at 5.50am. Three minutes later he was found to have a self-inflicted cut on his arm. At 8.15am, the wound was determined not to be serious enough to require sutures.

Oklahoma's timeline also goes into detail about what happened before and during the attempted execution. At 5.22pm, Lockett was restrained on the execution table, but a suitable vein could not be found anywhere on his body in which to insert an intravenous line. His legs and arms were rejected before a doctor examined his neck, and then finally his groin.

The timeline reveals that the insertion point was covered by a sheet "to prevent witness viewing of the groin area". The execution began at 6.23pm with the injection of the first of a cocktail of three drugs, but the intravenous line – covered by the sheet – was only checked after 6.44pm, when the blinds between the execution chamber and the viewing room were lowered.

The report says: "The doctor checked the IV and reported the blood vein had collapsed, and the drugs had either absorbed into tissue, leaked out or both. The warden immediately contacted the director by phone and reported the information to the director."

According to the timeline, Patton asked if enough drugs had been administered to cause death, to which the doctor replied "no". The director then asked if another vein was available to complete the execution, and if so, were there enough drugs left. The doctor answered no to both questions, the timeline reveals. The doctor reported a "faint heartbeat", and at 6.56pm, Patton called off the execution. The timeline does not detail what happened between then and 7.06pm, when Lockett was declared dead.

Some recent related posts:

May 1, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack

Sampling of reactions and commentary in wake of Oklahoma's execution problems

Thanks largely to coverage and links provided by How Appealing and The StandDown Texas Project, I can do a quick sample of some of the reactions and commentary emerging this week in response to Oklahoma's ugly execution:

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

Wednesday, April 30, 2014

Ugly Oklahoma execution leading to calls for national moratorium

Not surprisingly, the failing of government agents in Oklahoma to effectively and efficiently carry out a sentence of death yesterday (basics here) is now prompting new calls for a mortorium on all executions around the country.  This lengthy new Washington Post article, headlined "Botched Oklahoma execution reignites death penalty debate," provides lots of details about last night's dysfunction in Oklahoma's machinery of death and the early reactions thereto. Here are the basics:

Tuesday night’s botched execution in Oklahoma, which resulted in an inmate’s writhing death from a heart attack 43 minutes after he received what was supposed to be a lethal injection, was just one in a series of bungled execution attempts the past few years. It’s prompting calls for a moratorium on capital punishment from death penalty opponents....

Patton told reporters Lockett’s vein line had “blown.” When asked what he meant, Patton said the vein had “exploded.”  

Soon afterward, an alarmed Oklahoma Gov. Mary Fallin stayed for 14 days the other execution that was scheduled for Tuesday night....  “I have asked the Department of Corrections to conduct a full review of Oklahoma’s execution procedures to determine what happened and why during this evening’s execution of Clayton Derrell Lockett,” Fallin said. “I have issued an executive order delaying the execution of Charles Frederick Warner for 14 days to allow for that review to be completed.”

Ryan Kiesel, executive director of the American Civil Liberties Union of Oklahoma, also called for an investigation as well as an immediate moratorium on all executions in the state, saying, “In Oklahoma’s haste to conduct a science experiment on two men behind a veil of secrecy, our state has disgraced itself before the nation and world.”  And National Coalition to Abolish the Death Penalty responded in a statement: “This night will be a catalyst for those aggrieved and outraged to continue to fight to abolish the death penalty in Oklahoma and every other state in America.”

Executions have become increasingly difficult for states to carry out over the past two years because of similar incidents....  These controversies have begun a whole new phase in the decades-long struggle over capital punishment.  For years, opponents of the death penalty fought about its fundamental fairness under the Constitution.  When they lost that fight, they attacked the capacity of the criminal justice system to actually mete out the death penalty reliably and without racial bias. They lost that fight, too, in the 1980s.  

Now the battle concerns not who dies, but how they die, and the competence of states to carry out executions humanely.  The visibility and drama of Oklahoma’s trouble Tuesday night is likely to intensify that conflict, though, there has been no doubt about the guilt of these two condemned men.  Lockett, 38, was convicted of shooting a teenager and watching as she was buried alive.  Warner, 46, was convicted of raping and murdering his girlfriend’s 11-month-old baby.  Both were set to be executed Tuesday, Lockett at 6 p.m. Central time and Warner at 8 p.m.

Lockett’s execution was halted when it appeared the lethal injection administered to him was ineffective.   Contrary to the description from media eyewitnesses, officials said he remained unconscious and passed away in the execution chamber at 7:06 p.m. “There was some concern at that time that the drugs were not having that [desired] effect, and the doctor observed the line at that time and determined the line had blown,” Patton said in a news conference. “After conferring with the warden, and unknown how much drugs went into him, it was my decision at that time to stop the execution.”  Still, 43 minutes after the first injection, Lockett suffered a heart attack and died....

After Tuesday’s failure, Lockett’s attorney David Autry questioned the amount of the sedative, midazolam, that was injected, saying he thought the 100 milligrams called for in the Oklahoma’s execution protocol was “an overdose quantity.”  He said he was also skeptical of the department’s determination that Lockett’s vein had failed. Tuesday was the first time the state had administered midazolam as the first drug in its execution protocol.  

Earlier this year, the state attorney general’s office announced that a deal to obtain pentobarbital and vecuronium bromide, a muscle relaxer, had fallen through, and Lockett and Warner’s executions were delayed.  The new protocol was identified in court papers and included the combination of midazolam and hydromorphone....

Regarding Warner’s scheduled execution, federal public defender Madeline Cohen, one of his attorneys, told the Washington Post, “Oh, we will be pursuing further action.”

No matter what is revealed during the "full review of Oklahoma’s execution procedures" ordered by Oklahoma's Governor, I would be very surprised if Oklahoma succeeds in going forward with Warner's execution in the next two weeks. And I have seen this morning press releases from the ACLU and the NACDL urging a national moratorium on executions nationwide in response to what happened in Oklahoma last night. I doubt that any other state Governors will be quick to announce execution moratorium in states that regularly carry out death sentence, but I also doubt that various groups will let up on the pressure to halt executions.

According to this DPIC "Upcoming Executions" page, there are serious execution dates scheduled in May in the states of Texas, Missouri and Ohio. Notably, as reported in this local article (which I will discuss in a later post), clemency has now been recommended in the Ohio case, and I predict it will be granted. So the states to watch real closely for execution debate an action over the next month are Missouri and Texas.

Recent related posts:

April 30, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, April 29, 2014

First of two planned Oklahoma executions botched, though condemned dies of heart attack after getting execution drugs

As reported in this CNN article, an "Oklahoma inmate died Tuesday evening of an apparent heart attack after authorities botched the delivery of drugs and stopped his execution.  Another execution scheduled for the same day was postponed."  Yikes.  Here are the details:

Convicted murderer Clayton Lockett was sedated and then given the second and third drugs in the protocol, Oklahoma Department of Corrections Director Robert Patton told reporters.  "There was some concern at that time that the drugs were not having the effect, so the doctor observed the line and determined that the line had blown," he said.  When asked what he meant by "blown," Patton said that Lockett's vein had "exploded."

"I notified the attorney general's office, the governor's office of my intent to stop the execution and requested a stay for 14 days for the second execution scheduled this afternoon," said Patton, referring to the execution of Charles Warner.

Lockett later suffered what appeared to be a heart attack and died, the director said. Gov. Mary Fallin issued an executive order granting a stay for Warner and ordered an investigation.  Lockett remained unconscious after the drugs were administered and died in the execution chamber at 7:06 p.m., according to her office.

"I have asked the Department of Corrections to conduct a full review of Oklahoma's execution procedures to determine what happened and why during this evening's execution of Clayton Derrell Lockett," Fallin said in a statement.  "I have issued an executive order delaying the execution of Charles Frederick Warner for 14 days to allow for that review to be completed."...

"Something went horribly awry," Warner's attorney told CNN late Tuesday.  "Oklahoma cannot carry out further executions until there's transparency in this process," said Madeline Cohen.

Recent related posts:

UPDATE:  As he does so well, Howard Bashman in posts at How Appealing here and here effectively collects lots of press reports on Oklahoma's execution struggles, which seems sure to be the biggest US death penalty story over the next few days and weeks (and months and years, perhaps).

April 29, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (9) | TrackBack

Double execution scheduled for tonight in Oklahoma drawing international interest

As reported in this Tulsa World article, "Oklahoma's rare dual execution Tuesday is drawing international attention, with reporters from Japan, the United Kingdom and the Netherlands requesting to serve as media witnesses, prison officials say." Here is more about tonight's plans in the Sooner state:

Barring any last-minute court rulings in their favor, inmates Clayton Lockett and Charles Warner will be executed Tuesday at 6 p.m. and 8 p.m., respectively, at the Oklahoma State Penitentiary in McAlester. Jerry Massie, a spokesman for the state Department of Corrections, said 17 news organizations, including 12 from Oklahoma, have requested media credentials to cover the executions.

Media outlets from outside the state requesting to witness the executions are The New York Times, The Guardian, Esquire Magazine UK, Kyoto (Japan) News and NRC, a newspaper based in the Netherlands. The Department of Corrections allows up to 12 media witnesses, with preference given to The Associated Press and to Oklahoma media outlets, including the Tulsa World, The Oklahoman and local newspapers where the crimes occurred. Because more than that have requested credentials, the DOC likely will hold a lottery to select the media witnesses for each execution, Massie said.

Lockett was sentenced to die for killing 19-year-old Stephanie Neiman of Perry during a botched home-invasion robbery in 1999. Warner received the death penalty for raping and killing 11-month-old Adrianna Waller in Oklahoma City in 1997.

The executions have drawn wide interest following a complicated legal battle by the inmates to throw out the state's execution-secrecy law. The law shields the identities of those who supply and administer drugs during the execution process. States including Oklahoma have passed such laws in reaction to shortages of execution drugs....

Two executions on the same day weren't a rare occurrence in Oklahoma in the 1930s. The last double execution was June 11, 1937. On four separate occasions, Oklahoma put three men to death on the same day. On Sept. 20, 1935, it took only 14 minutes to execute three self-confessed murderers in the electric chair at the Oklahoma State Penitentiary, according to Tulsa World archives.

Massie said the prison has developed procedures for the dual execution, including having more staff on hand than usual. Both inmates will be moved into single adjoining cells next to the death chamber on Tuesday morning, he said.

This New York Times article about the two planned executions includes this account of why tonight's activities have drawn more than the usual modern execution attention:

The planned executions of Clayton D. Lockett, 38, and Charles F. Warner, 46, dramatized the growing tension nationally over secrecy in lethal injections as drug companies, saying they are fearful of political and even physical attack, refuse to supply drugs, and many states scramble to find new sources and try untested combinations. Several states have imposed secrecy on the suppliers of lethal injection drugs, leading to court battles over due process and the ban on cruel and unusual punishment.

“Tonight, in a climate of secrecy and political posturing, Oklahoma intends to kill two death row prisoners using an experimental new drug protocol, including a paralytic, making it impossible to know whether the executions will comport with the Eighth Amendment’s ban on cruel and unusual suffering,” said Madeline Cohen, a federal public defender for Mr. Warner. “We have serious questions — were these drugs imported, are they counterfeit, what is the expiration date, are they tainted?”

But the appeals were over as Gov. Mary Fallin, expressing the sentiment of many here, said: “Two men that do not contest their guilt in heinous murders will now face justice.”

Recent related posts:

April 29, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Ohio concludes condemned murderer experienced no pain during troubled execution

As reported in this Columbus Dispatch article, headlined "Inmate did not experience pain during execution, report says; State to continue using same drugs but in higher doses," a three-month investigation of a seemingly problematic Ohio execution has led the state to conclude on a tweak in the execution protocol is needed. Here are the details:

Ohio prison officials will use the same drugs, but in much higher dosages, as those used in the troubled execution of Dennis McGuire on Jan. 16. A report issued yesterday by the Ohio Department of Rehabilitation and Correction concluded that McGuire “did not experience any pain or distress. The massive doses of drugs given to McGuire rendered him unconscious before any of the irregular bodily movements were observed.”

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. It was the first time that those drugs were used in an execution in the United States.

The prison review said McGuire’s reactions were “consistent with the effects of the drugs, his obesity and other body characteristics, and involuntary muscle contractions associated with the ending of respiratory function.” The report concluded: “DRC is confident that Inmate McGuire was not conscious beginning a few minutes after the drugs were administered. He did not experience pain, distress or air hunger after the drugs were administered or when the bodily movements and sounds occurred.”

However, because of concerns about McGuire’s execution, the agency will boost the dosage of midazolam, a sedative, to 50 milligrams from 10 milligrams, and increase the dosage of hydromorphone, a powerful painkiller, to 50 milligrams from 40 milligrams. In addition, the revised policy calls for having a third syringe ready containing 60 milligrams of hydromorphone; other syringes will be prepared and available “if needed.”

The next execution, of Arthur Tyler of Cuyahoga County, is scheduled for May 28.

McGuire was executed for the murder of 22-year-old Joy Stewart in 1989. The condemned man’s attorneys warned in advance that using the two drugs might result in “air hunger” as his body struggled in the final death gasps. State officials dismissed that claim at the time and in yesterday’s report.

Some recent related posts on Ohio's recent controversial execution:

April 29, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Sunday, April 27, 2014

"What botched executions tell us about the death penalty"

The title of this post is the headline of this lengthy new Boston Globe op-ed by Austin Sarat.  Here are excerpts:

[I]n keeping its death penalty, New Hampshire did preserve a strange distinction: It is one of three states where hanging still is a legal method of execution.

If it seems surprising, even brutal, that hanging would still be technically legal in 2014, that’s because the evolution of the death penalty in America has been so closely entwined with our belief in technological progress.  As executions have evolved from one method to the next—from hanging to electrocution, from electrocution to lethal gas, from electrocution and gas to lethal injection — supporters have proclaimed the dawning of an era of more humane executions while denouncing previous methods as barbaric and unreliable.  The story of execution in the United States is partly a story of technology making a final punishment less painful and cruel.

But has it?  Using newspaper accounts and a database of all American executions, my collaborators and I recently completed the first comprehensive study of botched executions in the United States and documented the ways that different methods of execution go wrong.  We examined every execution from 1890 to 2010 and found that no technology has been able to ensure that capital punishment would not, on occasion, become either a gruesome spectacle of suffering or a messy display of incompetence.

During the time period covered by our research, 3 percent of all executions were botched, from the decapitations that happened at hangings to the “high tech” electric chair in which condemned criminals have caught on fire.  Botched executions have not disappeared since America has adopted the current state-of-the art method of lethal injection.  In fact, executions by lethal injection are botched at a higher rate than any of the other methods employed since the late 19th century, 7 percent.

This history of botched executions suggests whatever benefits we think we are bringing when we invent and deploy new execution methods may be illusory.  A close look at executions in America suggests that despite our best efforts, pain and potential for error are inseparable from the process through which the state extinguishes life — and that the conversation about capital punishment needs to take that fact into consideration.

April 27, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (13) | TrackBack

Thursday, April 24, 2014

Oklahoma Supreme Court allows executions to get back on track

As reported in this local article, headlined "Oklahoma Supreme Court lets executions go forward; Justices lift stay after ruling inmates don’t have right to know source of drugs," a controversial execution stay put in plae in the Sooner State earlier this week will no longer mean executions in the states have to come much later.  Here are the basics:

The Oklahoma Supreme Court Wednesday evening ruled two convicted murderers’ executions can go forward. Justices had voted 5-4 Monday to halt the executions — until a legal challenge could be resolved.

Justices on Wednesday ruled unanimously against the inmates on that legal issue and let the executions proceed. Clayton Derrell Lockett and Charles Frederick Warner are now scheduled to be put to death by lethal injection next Tuesday.

Both complained in February that they need to know who was supplying the execution drugs. They contended they needed the information in order to challenge their executions as cruel and unusual punishment. Under state law, the identity of the drug supplier is confidential. An Oklahoma County judge in March — ruling in favor of the murderers — declared that law unconstitutional.

The Supreme Court Wednesday reversed the Oklahoma County judge’s ruling, saying the secrecy provision does not violate the inmates’ constitutional right of access to the courts. Justices noted that “the inmates have been provided with the identity of the drug or drugs to be used in the executions and with the dosages to be injected.”

The ruling Wednesday appears to put an end to what Attorney General Scott Pruitt had called a constitutional crisis. The Supreme Court had never before in its history blocked an execution. Both Gov. Mary Fallin and the attorney general complained after Monday’s ruling that the Supreme Court had overstepped its constitutional authority.

Normally, in Oklahoma, the Supreme Court handles civil issues and the Court of Criminal Appeals handles criminal matters. The Court of Criminal Appeals had not blocked the executions and Lockett was supposed to be put to death Tuesday. Faced with conflicting court orders, the governor on Tuesday rescheduled Lockett’s execution for next week.

Lockett, now 38, was convicted of the 1999 fatal shooting of Stephanie Neiman. Warner, 46, was convicted of killing his girlfriend’s baby daughter, Adriana Waller, in 1997.

In a strongly worded concurring opinion Wednesday, Supreme Court Justice Steven Taylor called the inmates’ challenge frivolous and a complete waste of the court’s time and resources.  Taylor has repeatedly contended the Supreme Court never should have taken up the inmates’ challenge at all.  He contends justices should have sent the issue to the Court of Criminal Appeals.

He wrote Wednesday the inmates had no right to information about where the execution drugs came from. “If they were being executed in the electric chair, they would have no right to know whether OG&E or PSO were providing the electricity,” he wrote.  “If they were being hanged, they would have no right to know whether it be by cotton or nylon rope; or if they were being executed by firing squad, they would have no right to know whether it be by Winchester or Remington ammunition.”

April 24, 2014 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, April 21, 2014

Split Oklahoma Supreme Court stays executions based on drug secrecy concerns

As reported in this AP article, headlined "Oklahoma Court Stays Executions of 2 Inmates," a lack of transparency about execution drugs has prompted court action in the Sooner state. Here are the basics:

A sharply divided Oklahoma Supreme Court on Monday stayed the execution of two death row inmates who have challenged the secrecy surrounding the source of the state's lethal injection drugs.

In a 5-4 decision, the state's highest court issued the stays just one day before death row inmate Clayton Lockett was scheduled to be executed for the 1999 shooting death of 19-year-old Stephanie Nieman. The second inmate, Charles Warner, was convicted in the 1997 death of his roommate's 11-month-old daughter. He was scheduled to die on April 29.

Oklahoma County District Judge Patricia Parrish last month struck down the state's execution law in a ruling that said the protocol that prevented the inmates from seeking information about the drugs used in lethal injections violated their rights under the state constitution....

On Friday, the Oklahoma Court of Criminal Appeals denied the inmates' request for a stay in spite of a ruling by the Supreme Court earlier in the week that the appeals court had the authority to issue a stay or reschedule an execution.

"The 'rule of necessity' now demands that we step forward," the Supreme Court's majority opinion says. "We can deny jurisdiction, or we can leave the appellants with no access to the courts for resolution of their 'grave' constitutional claims.

"As uncomfortable as this matter makes us, we refuse to violate our oaths of office and to leave the appellants with no access to the courts, their constitutionally guaranteed measure."

The full opinions in this matter appear to be available at this link.

April 21, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Tuesday, April 15, 2014

"Secret Drugs, Agonizing Deaths"

The title of this post is the headline of this New York Times op-ed published yesterday.  Authored by Megan McCracken and Jennifer Moreno, here is how it starts:

Facing a critical shortage of lethal injection drugs, prison officials in a number of states have recently engaged in an unseemly scramble to obtain new execution drugs, often from unreliable and even illegal sources.  Not only does this trend raise serious questions about the constitutionality of executions, it also undermines the foundations of our democratic process.  In the name of security, states are now withholding vital information about their death penalty procedures — from death row prisoners’ lawyers and from judges, whose stamp of approval they need to impose the ultimate sanction, as well as from the public, in whose name the sentence is carried out.

States have long shielded the identities of executioners, a reasonable policy that should not interfere with judicial review of execution procedures.  But in the past year, Georgia, Missouri, Tennessee and other states have expanded the reach of their secrecy laws to include not just the execution drugs used, but even the pharmacies that supply them.

These laws hide the information necessary to determine if the drugs will work as intended and cause death in a humane manner.  For states to conceal how they obtain the execution drugs, whether those purchases comply with the law and whether the drugs themselves are legitimate prevents courts from analyzing the legality and constitutionality of death penalty procedures.  And that deprives the public of informed debate.

April 15, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, April 03, 2014

Serial killer hoping SCOTUS will be troubled by execution drug secrecy in Texas

As highlighted in this AP article, a legal challenges based on execution drug secrecy is now before the Supreme Court after a Texas death row defendant has won and then lost on lower courts in his effort to block his execution.  Here are the basics:

Attorneys for a serial killer asked the U.S. Supreme Court to halt his execution set for Thursday in Texas as they challenge that state's refusal to release information about where it gets its lethal injection drug.

Lawyers for Tommy Lynn Sells made the plea after a federal appeals court allowed the execution to stay on schedule.  A lower court had stayed the execution Wednesday, ordering Texas to reveal more information about its drug supplier, but the ruling was quickly tossed on appeal.  "It is not in the public interest for the state to be allowed to be deceptive in its efforts to procure lethal injection drugs," Sells' attorneys told the high court.

The appeal was one of two separate issues pending before the justices.  Another before the court since last month asked for the punishment to be stopped to review whether Sells' legal help at his trial was deficient, and whether a court improperly denied him money to hire investigators to conduct a probe about his background.

Sells, who was sentenced to death for fatally stabbing a 13-year-old South Texas girl in 1999, claims to have committed as many as 70 killings across the U.S. The 49-year-old is scheduled to be lethally injected Thursday evening in Huntsville. Sells' attorneys argue that they need to know the name of the company now providing the state with pentobarbital, the drug used during executions, in order to verify the drug's quality and protect Sells from unconstitutional pain and suffering.

But 5th U.S. Circuit Court of Appeals sided with Texas prison officials, who argued that information about the drug supplier must be kept secret to protect the company from threats of violence. It also found that the stock of the pentobarbital, a powerful sedative, falls within the acceptable ranges of potency.  The court said that had Texas wanted to use a drug never used before for executions or a completely new drug whose efficiency or science was unknown, "the case might be different."

It's unclear how the Supreme Court would rule. Last month it rejected similar arguments from a Missouri inmate's attorneys who challenged the secrecy surrounding where that state obtained its execution drugs, and the condemned prisoner was put to death....

A batch of pentobarbital that Texas purchased from a compounding pharmacy in suburban Houston expired at the end of March. The pharmacy refused to sell the state any more drugs, citing threats it received after its name was made public. That led Texas to its new, undisclosed suppler.

The court case challenging the state's stance also included 44-year-old Ramiro Hernandez-Llanas, who is scheduled for execution next week.  But the 5th Circuit ruling affected only Sells. Maurie Levin, an attorney for the inmates, said Sells' case would be appealed to the U.S. Supreme Court. Levin said the lower court ruling, which had ordered the Texas Department of Criminal Justice to give defense attorneys details about the drug supplier and how the drug was tested, "honors the importance of transparency in the execution process."

If Sells' execution is carried out Thursday, it would be the fifth lethal injection this year in Texas, the nation's busiest death-penalty state.

Sells had dubbed himself "Coast to Coast," a nod either to his wandering existence as a carnival worker or to his criminal history. Court documents said he claimed as many as 70 murders in his lifetime in states including Alabama, California, Arizona, Kentucky and Arkansas. "We did confirm 22 (slayings)," retired Texas Ranger John Allen said this week. "I know there's more. I know there's a lot more. Obviously, we won't ever know."

UPDATE: This AP story reports that Sells "was put to death Thursday in Texas after the U.S. Supreme Court rejected his lawyers' demand that the state release information about where it gets its lethal injection drug."

April 3, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (43) | TrackBack

Saturday, March 29, 2014

"What’s the Best Way to Execute Someone?"

The title of this post is the headline of this lengthy new Slate commentary.  Here is an excerpt:

Without an expert in the room, states often rely on executioners who don’t really know what they’re doing.  As one anesthesiologist told me, “the executioners are fundamentally incompetent. They have neither the technical skill nor the cognitive ability to do this properly.”  Another added, “In medicine, the burden of proof is on the doctor to show that something is safe. We would never give a new drug to a patient until it’s been tested, approved by the FDA, etc.  With the death penalty, the burden of proof has been inverted. These compounds, which are clearly causing patients to suffer, are deemed safe until proven otherwise. Yet the department of corrections prevents the release of information pertaining to how the lethal injection is carried out, making it impossible for a lawyer to make a strong case that this method is cruel and unusual.”  Georgia is in fact working on a Lethal Injection Secrecy Act.

As our understanding of cruelty continues to evolve — let’s not forget that drawing and quartering was once an acceptable method of execution — future generations may wonder why lethal injection was performed so poorly and carelessly, and with so little oversight. Part of the problem is the terminology: Words like injection and cocktail and gurney give the illusion that this form of capital punishment is civil.  This allows, regrettably, for a softening of the perception of what is actually happening: Medications that were designed to heal have been repurposed to kill.

And it’s not just the wrong doses — it’s the wrong drugs.  A professor of anesthesiology at a large academic medical center said, “We have the drugs to do it in a way that doesn’t cause suffering.  I read the doses they were using and thought, ‘That’s not enough! Who is coming up with this? Whoever did certainly doesn’t do this for a living.’ You need two components for lethal injection: amnesia and analgesia. This ensures the person is not aware and not in pain. Drugs like potassium chloride and pancuronium (a paralytic) — the drugs approved by the Supreme Court — are unnecessary. When they euthanize a dog, they don't use potassium or a paralytic.  You don’t even need an anesthesiologist! Any physician could look up the proper dosing in a textbook.”

While I was researching this piece and discussing with friends the nuances of optimizing lethal injection, a number of them stopped me midsentence and asked, “Who cares?” Should it be our concern that a monster may have experienced profound discomfort in his or her final minutes?  Recounting precisely what happened to Dennis McGuire — who was convicted of the 1989 rape and murder of 22-year-old Joy Stewart, who was about 30 weeks pregnant at the time — led some to express the hope that he did suffer.  But regardless of your stance on the death penalty, the story of McGuire’s slow asphyxiation should lead you to wonder whether it violated our Constitution’s ban on cruel and unusual punishment....

A compelling case can be made that based on efficacy, diffusion of responsibility, and inexpensiveness, death by firing squad is a better option. (Or perhaps the guillotine.) Some organs would remain intact for donation, and although it might appear grisly, it’s quick, and it is the only method of execution for which we already train people. Interestingly, in states that have offered both shooting and hanging — which also fulfills many of the above criteria — inmates usually opt for the firing squad.  One could argue that if properly done, lethal injection would be more humane than either of these methods, but we can no longer expect that it will be properly done.

March 29, 2014 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (30) | TrackBack

Friday, March 28, 2014

Could Oklahoma ruling declaring drug secrecy unconstitutional impact execution plans nationwide?

The question in the title of this post is prompted by this new Reuters article, headlined "U.S. executions set for possible delay after Oklahoma court decision."  Here are excerpts:

An Oklahoma judge ruled on Wednesday the state's secrecy on its lethal injections protocols was unconstitutional, a decision that could delay executions in other states where death row inmates are planning to launch similar challenges.

County district court judge Patricia Parrish ruled the state violated due process protections in the U.S. Constitution by not providing the name of the drug supplier, the combination of chemicals and the dosages used in executions. Oklahoma's attorney general said the office will appeal.

Oklahoma and other U.S. states have been struggling to obtain drugs for executions. Many pharmaceutical firms, mostly in Europe, have imposed sales bans because they object to having medications made for other purposes used in lethal injections. The states have looked to alter the chemicals used for lethal injection and keep the suppliers' identities secret. They have also turned to lightly regulated compounding pharmacies that can mix chemicals.

But lawyers for death row inmates argue drugs from compounding pharmacies can lack purity and potency and cause undue suffering, in violation of the U.S. Constitution. "Judge Parrish's decision is a major outcome that should have a reverberating impact on other states that are facing similar kinds of transparency issues," said Fordham Law Professor Deborah Denno, who specializes in the legalities of lethal injections....

Legal experts expect more states to face challenges that will delay executions, but if they settle transparency issues, many will resume putting inmates to death. "Almost every state is hiding part of the process, or is attempting to," said Richard Dieter, the executive director of the Death Penalty Information Center....

For now, several of the 32 states with the death penalty are keeping mum about business transactions for execution drugs. Texas, which has executed more prisoners than any other state since the U.S. Supreme Court reinstated the death penalty in 1976, has obtained a fresh batch of the drug it uses for its executions. But Texas will not identify the supplier, citing "previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process," the Texas Department of Criminal Justice said in a statement.

Alabama said this week it has run out of one of the main drugs it uses, putting on hold executions for 16 inmates who have exhausted appeals and face capital punishment. It is also looking at ways to keep the name of drug providers secret. Inmates in Missouri, which carried out an execution this week, have sued the state over execution protocols that include layers of secrecy.

Arizona said on Wednesday it had to change its lethal injection cocktail because it could not obtain the drugs it once used. "Being lost in the conversation and political maneuvering is the fact that family of murdered loved ones are paying the ultimate price as they wait for justice to be carried out," Arizona Attorney General Tom Horne said in a statement.

Some related prior posts:

March 28, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

Tuesday, March 25, 2014

Could 2014 be a "comeback" year for state executions?

Because last Saturday my fantasy baseball league had its annual auction, I have spent time recently thinking about which MLB players might have a big "comeback" year after struggling through 2013.  (As I Yankee fan, I am hoping Derek Jeter has a great comeback; as a fantasy GM, I am hoping Beckett might reward me for using a roster spot to pick him up.)  With comeback concerns in mind, I have lately been thinking about whether state executions might also end up staging something of a comeback after struggling through varied challenges with lethal injection protocols and drug shortages though 2013.

As detailed in this yearly execution chart from the Death Penalty Information Center, there were only 39 executions in 2013.  That was the second lowest yearly total in nearly two decades, and the other recent year with less than 40 executions (2008) was the direct result of SCOTUS halting all executions for a number of months while it considered the constitutionality of lethal execution protocols in Baze.  Opponents of the death penalty celebrated the low number of executions in 2013, and they surely were hoping execution difficulties would drive down execution numbers even further in 2014.

Details from DPIC here and here, however, report that there have already been 12 executions in 2014 and that there are another 12 "serious" execution dates scheduled for the next six weeks.  If most of these executions go forward, and especially if states like Texas and Florida continue to be able to find drugs to continue with executions, it seems very possible that there could end up being 50 or more executions in 2014.

March 25, 2014 in Baze lethal injection case, Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (27) | TrackBack

Thursday, March 20, 2014

Texas officials get hooked up by special secret (capital) drug dealer

As reported in this AP story, headlined "Texas finds new execution drug supply," Texas officials seem to have special abilities to acquire the drugs needed to continue with executions. Here are the (cloak-and-dagger?) details:

Texas has obtained a new batch of the drugs it uses to execute death row inmates, allowing the state to continue carrying out death sentences once its existing supply expires at the end of the month.  But correction officials will not say where they bought the drugs, arguing that information must be kept secret to protect the safety of its new supplier. In interviews with The Associated Press, officials with the Texas Department of Criminal Justice also refused to say whether providing anonymity to its new supplier of the sedative pentobarbital was a condition of its purchase.

The decision to keep details about the drugs and their source secret puts the agency at odds with past rulings of the state attorney general's office, which has said the state's open records law requires the agency to disclose specifics about the drugs it uses to carry out lethal injections.  "We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process," said Texas Department of Criminal Justice spokesman Jason Clark.

The dispute in the state that executes more inmates than any other comes as major drugmakers, many based in Europe, have stopped selling pentobarbital and other substances used in lethal injections to U.S. corrections agencies because they oppose the death penalty.  Until obtaining its new supply from the unknown provider, Texas only had enough pentobarbital to continue carrying out executions through the end of March. Earlier this week, a court rescheduled two executions set for this month in Oklahoma — another leading death penalty state — because prison officials were having trouble obtaining the drugs, including pentobarbital, needed for its lethal injections.

Such legal challenges have grown more common as the drug shortages have forced several states to change their execution protocols and buy drugs from alternate suppliers, including compounding pharmacies that are not as heavily regulated by the U.S. Food and Drug Administration as more conventional pharmacies....

Alan Futrell, an attorney for convicted murderer Tommy Sells, whose scheduled April 3 execution would make him the first to be put to death with Texas' new drug supply, said the issue could become fodder for legal attempts to delay his sentence.  "This might be good stuff," he said.  "And the roads are getting very short here."

But Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, an anti-capital punishment organization, said it was doubtful that Texas would get to a point where a lack of drugs led officials to fully suspend capital punishment.  "There are a lot of drugs, and Texas can be creative in finding some," he said.

Texas' current inventory of pentobarbital, the sedative it has used in lethal injections since 2012, will expire April 1.  The state executed one inmate, Ray Jasper, on Wednesday evening and has scheduled executions for five more, including one next week.  That execution, like Wednesday's, will draw from the existing stockpile purchased last year from a suburban Houston compounding pharmacy, Clark said.  The new batch of drugs presumably would be used for three Texas inmates set to die in April, including Sells, and one in May.

Sixteen convicted killers were executed in Texas last year, more than in any other state. Jasper's execution was Texas' third this year, bringing the total to 511 since capital punishment in the state resumed in 1982.  The total accounts for nearly one-third of all the executions in the U.S. since a 1976 Supreme Court ruling allowed capital punishment to resume....

Policies in some states, like Missouri and Oklahoma, keep the identities of drug suppliers secret, citing privacy concerns.  Clark, in refusing AP's request to answer any specific questions about the new batch of drugs, said after prison officials identified the suburban Houston compounding pharmacy that provided its existing supply of pentobarbital, that pharmacy was targeted for protests by death penalty opponents.  It sought to have Texas return the pentobarbital it manufactured, and prison officials refused.

Texas law does not specifically spell out whether officials can refuse to make the name of drug suppliers public, but Texas Attorney General Greg Abbott's office has on three occasions rejected arguments by the agency that disclosing that information would put the drug supply and manufacturers at risk.  In a 2012 opinion, his office rejected the argument that disclosing the inventory would allow others to figure out the state's suppliers, dismissing the same kind of security concerns raised this week....

Clark said the prison agency planned to ask Abbott to reconsider the issue. "We're not in conflict with the law," Clark said. "We plan to seek an AG's opinion, which is appropriate in a situation like this, and the AG's office will determine whether it's releasable."

March 20, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack