Wednesday, September 25, 2013

"Lethal Injection Secrecy Post-Baze"

The title of this post is the title of this new and timely piece available via SSRN authored by Deborah Denno.  Here is the abstract:

This article assesses the impact of the 2008 Supreme Court case Baze v. Rees on lethal injection, this country’s prevailing method of execution.  The Baze Court declared Kentucky’s lethal injection protocol constitutional.  Yet the opinion was too weak and vague to quell legal challenges to lethal injection, which have soared in the past five years and led states to modify their lethal injection protocols with unprecedented frequency. This article’s unique analysis of over 300 cases citing Baze from 2008-2013 reveals that states’ lethal injection protocols have become increasingly diverse from one another, and from the original protocol evaluated by the Baze Court.  Consequently, Baze has been rendered largely irrelevant a mere five years after its issuance.

Meanwhile, post-Baze legal challenges have been overshadowed by an even bigger obstacle to lethal injection: unanticipated national shortages in lethal injection drugs, which have resulted in a new wave of litigation and protocol changes as states struggle to procure the drugs they need to carry out lethal injection executions.  A growing number of states are considering the use of compounding pharmacies to manufacture lethal injection drugs.  Yet proposed (and seemingly inevitable) legislation that would increase regulation of these facilities may render compounded drugs ineligible for use in executions.

Left with little guidance from Baze and dwindling drug supplies, states are likely to retreat into secrecy regarding their lethal injection procedures, making it increasingly difficult to identify and address enduring problems with those procedures.  This article calls for transparency as a crucial foundation for efforts to ensure that lethal injections remain constitutional at a time when the future of this execution method is far from clear.

September 25, 2013 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, August 22, 2013

Making a potent argument for executions by firing squad rather than lethal injection

Firing_squadRobert Blecker, responding in part to the seemingly endless litigation and problems surrounding lethal injection execution protocols, has this new provocative CNN commentary under the headline "With death penalty, let punishment truly fit the crime." The full piece is a must-read, and here are excerpts highlighting why:

No matter how vicious the crime, no matter how vile the criminal, some death penalty opponents feel certain that nobody can ever deserve to die -- even if that person burned children alive, massacred a dozen strangers in a movie theater, or bombed the Boston Marathon.  Other opponents admit the worst of the worst of the worst do deserve to die. They just distrust the government ever to get it right.

Now that pharmaceutical companies refuse to supply the lethal drugs that U.S. corrections departments have used for years to execute criminals -- whether from their own genuine moral objections or to escape a threatened economic boycott -- states have begun to experiment.  Death penalty opponents, who call themselves abolitionists, then protest the use of these untried drugs that just might cause a condemned killer to feel pain as he dies.

Let the punishment fit the crime.  We've mouthed that credo for centuries, but do we really mean it?  We retributivists who believe in justice would reward those who bring us pleasure, but punish severely those who sadistically or wantonly cause us pain.  A basic retributive measure -- like for like or giving a person a taste of his own medicine -- satisfies our deepest instincts for justice.

When the condemned killer intentionally tortured helpless victims, how better to preserve some direct connection short of torture than by that murderer's quick but painful death?  By ensuring death through anesthesia, however, we have nearly severed pain from punishment....

I, too, oppose lethal injection, but not because these untried new drugs might arbitrarily cause pain, but because they certainly cause confusion.

Lethal injection conflates punishment with medicine. The condemned dies in a gurney, wrapped in white sheets with an IV in his veins, surrounded by his closest kin, monitored by sophisticated medical devices.  Haphazardly conceived and hastily designed, lethal injection appears, feels, and seems medical, although its sole purpose is to kill....

Publicly opposing this method of execution, I have found odd common ground with Deborah Denno, a leading abolitionist scholar who relentlessly attacks lethal injection protocols. Although Denno vigorously opposes all capital punishment, we both agree that the firing squad, among all traditional methods, probably serves us best.  It does not sugarcoat, it does not pretend, it does not shamefully obscure what we do. We kill them, intentionally, because they deserve it.

Some people may support the firing squad because it allows us to put blanks in one of the guns: An individual sharpshooter will never know whether he actually killed the condemned.  This strikes me as just another symptom of our avoidance of responsibility for punishment. The fact is, in this society, nobody takes responsibility for punishing criminals. Corrections officers point to judges, while judges point to legislators, and legislators to corrections.  Anger and responsibility seem to lie everywhere elsewhere -- that is, nowhere.  And where we cannot fully escape responsibility -- as with a firing squad -- we diffuse it....

Ironically, even as we recoil from punishing those who most deserve it, we readily over-punish those who don't.  A "war on drugs" swells our prisons. We punish addiction and call it crime; we indiscriminately and immorally subject a burglar or car thief to the same daily life in prison we also reserve for rapist murderers.

The time has come to make punishment more nearly fit the crime. To face what we do, and acknowledge, with regret but without shame, that the past counts.

So part of me hopes the abolitionists succeed with their latest campaign against death by lethal injection.  We should banish this method.  Let the abolitionists threaten to boycott gun manufacturers.  See where that gets them.  Meanwhile, the rest of us will strive to keep our covenants with victims, restore a moral balance, and shoot to kill those who deserve to die.

Rest assured, when we can only achieve justice by killing a vicious killer, We, the People will find a constitutional way to do it.

August 22, 2013 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (27) | TrackBack

Monday, August 19, 2013

Latest news on chemical logistical challenges now surrounding lethal injection

The New York Times has this effective new report, headlined "Death Row Improvises, Lacking Lethal Mix," discussing some of the latest notable logistical realities surrounding lethal injection protocols. Here are excerpts:

The decision by the Missouri Supreme Court to allow propofol, the same powerful anesthetic that caused the death of Michael Jackson, to be used in executions — coming at a time when Texas, Ohio, Arkansas and other states are scrambling to come up with a new drug for their own lethal injections — is raising new questions about how the death penalty will be carried out.

“The bottom line is no matter what drugs they come up with, despite every avenue these states have pursued, every drug they have investigated has met a dead end,” said Deborah Denno, a professor at Fordham Law School who studies execution methods and the death penalty. “This affects every single execution in the country. It just stalls everything, stalls the process.”

With manufacturers now refusing to supply corrections departments with the drugs they had been using for executions, some states, like Georgia, have been resorting to obtaining drugs from compounding pharmacies — specialty drugmakers — which death penalty opponents say lack the proper quality control. Other states, as they run low on their old stock of drugs and are unable to replace them, are turning to new, untried methods like propofol or simply announcing that they are searching for a solution....

[Recent developments have] left states unsure of what to do when their stockpiles run out — use some other drug like propofol, buy versions of sodium thiopental or pentobarbital from a compounding pharmacy, or abandon lethal injections altogether and return to some other form of capital punishment.

“It’s an artificially created problem,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty. “There is no difficulty in using a sedative such as pentobarbital. It’s done every day in animal shelters throughout the country. But what we have is a conspiracy to choke off capital punishment by limiting the availability of drugs.”

The issue is expected to come to a head soon. Both Texas, the state with the busiest death house, and Ohio have said they would introduce a new lethal injection protocol in the next couple of months. Officials in both of those states have said in court filings that they would run out of their stockpiles in September.

“Corrections departments often buy a year’s supply of the drugs they use, but it has a shelf life and it’s expiring,” said Richard C. Dieter, the executive director of the Death Penalty Information Center.  “I think we are about to have some new breakthroughs on what the states are using.  A lot of them will probably follow whatever Texas decides to do.”

On Wednesday, the Missouri Supreme Court decided to allow executions using propofol to move ahead in October and November. There is no question that it would kill, but since it has never been used in an execution, death penalty opponents say, there is no way to say how much pain might be involved or what dose should be administered.

Arkansas had announced that it would use pentobarbital in its executions, but when that drug became unavailable, the governor refused to schedule any more executions until the state came up with a substitute — which has not happened. California also announced, in June, that it would abandon the use of a three-drug cocktail and is studying what to replace it with. “This drug issue is a temporary problem that is entirely fixable,” Mr. Scheidegger said. “It is not a long-term impediment to the resumption of capital punishment.”

Death penalty opponents, however, feel that the rejection of one drug after another will inevitably limit capital punishment.... There were 43 executions in the United States in 2012, Mr. Dieter said, and a slightly lower number — 30 to 40 — is expected this year....

“This issue of the drugs is just a way to stop things or slow them down,” said Robert Blecker, a professor of criminal law at New York Law School and a death penalty supporter. “It’s an abolitionist tactic to gum up the works. I know why they’re doing it. From their perspective, every death delayed is a day in favor of abolition. It’s just another tactic.”

I share the perspective that we may soon have "some new breakthroughs" on how states seek to conduct executions and that many states will "follow whatever Texas decides to do." I also expect that Texas state courts and the Fifth Circuit will be relatively unlikely to halt executions based on (inevitable?) legal challenges to any new lethal injection protocols or plans. But when and how other state courts and federal courts respond to such challenges may script whether the number of execution nationwide will continue to decline in coming years or may actually start to rise at some point in the not-too-distant future.

August 19, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack

Saturday, August 03, 2013

With seven executions scheduled, Texas running out of needed drugs

As this AP story reports, Texas is on the verge of having problems already facing other states with expired or expiring execution drugs.  Here are the details:

The nation's most active death penalty state is running out of its execution drug. The Texas Department of Criminal Justice said Thursday that its remaining supply of pentobarbital expires in September and that no alternatives have been found. It wasn't immediately clear whether two executions scheduled for next month would be delayed. The state has already executed 11 death-row inmates this year, and at least seven more have execution dates in coming months.

"We will be unable to use our current supply of pentobarbital after it expires," agency spokesman Jason Clark said. "We are exploring all options at this time."

Texas switched to the lethal, single-dose sedative last year after one of the drugs used in its three-drug execution process became difficult to obtain and the state's supply expired. Other death-penalty states have encountered similar problems after some drug suppliers barred the drugs' use for executions or have refused, under pressure from death-penalty opponents, to sell or manufacture drugs for use in executions....

"When Texas raises a flag that's it having a problem, obviously numerically it's significant around in the country because like they're doing half the executions in the country right now," Richard Dieter, executive director of the Washington-based Death Penalty Information Center, an anti-death penalty organization, said Thursday....

Some death penalty states, most recently Georgia, have announced they're turning to compounding pharmacies, which make customized drugs that are not scrutinized by the Federal Drug Administration, to obtain a lethal drug for execution use.

Missouri wants to use propofol, the anesthetic blamed for pop star Michael Jackson's 2009 death - even though the drug hasn't been used to execute prisoners in the U.S. Its potential for lethal injection is under scrutiny by the courts and its first use isn't likely anytime soon. The Missouri Supreme Court has declined to allow execution dates to be set in that state until the legal issues are resolved.

Missouri Attorney General Chris Koster recently suggested that if a suitable execution drug can't be found, the state should consider the gas chamber. State law still allows for execution by lethal gas, though Missouri no longer even has a gas chamber....

Texas has by far executed more inmates than any other state in the U.S. since the Supreme Court allowed executions to resume. Since 1982, six years after the high court's order, Texas has executed 503 inmates. Virginia is a distant second at 110.

August 3, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, July 25, 2013

Arkansas struggling to work through how to lawfully complete executions

As reported in this local article, headlined "Arkansas Committee Looks for Ways to Administer Death Penalty," officials in The Natural State are having a very hard time coming up with a natural and constitutional method for carrying out executions:

Arkansas officials are considering what steps to take in the wake of comments by Attorney General Dustin McDaniel claiming Arkansas’ death penalty system is broken. McDaniel told the joint Judiciary Committee the nationwide unavailability of the lethal injection drug, a lack of medical personnel willing to administer the dose, and a continuing stream of costly litigation has rendered the state unable to perform its duty.

Some lawmakers suggested other methods used elsewhere. McDaniel said those options carry many of the same problems as well as an additional burden of meeting what the court’s deem to be our evolving societal values.

"Of course we don't know for sure how the courts would view an execution by firing squad, or gas chamber, or by electric chair. But I think I have a pretty good guess. Although the specific factual issues in a challenge to execution by one of those alternative methods would be different the legal issues regarding claims of cruelty and the possibility of undue pain or mistake would be exactly the same as the claims raised in the lethal injection cases," said McDaniel.

Republican Senator Jeremy Hutchison of Benton said challenges to carrying out the death penalty, especially the unavailability of the lethal drug, is not a reason to stop pursuing other options. "This is on the books and as long as juries are rendering capital punishment we are obligated as legislators, and the as the Attorney General, to do everything we can to see that it's carried out," said Hutchison.

McDaniel said he will continue working to uphold the law, but that the state has very few options and other states around the country are facing similar problems. McDaniel said options include the abolition of the death penalty, continuing litigation, and pressuring Congress to lift an FDA ban on imports of lethal barbiturates.

July 25, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, July 23, 2013

Mixed DC Circuit ruling in suit against FDA allowing execution drug importation

As reported in this AP piece, the DC Circuit "ruled Tuesday that the Food and Drug Administration violated its duty by allowing a misbranded and unapproved new drug to be imported for use in executions by lethal injection."  But the ruling also "reversed another part of the lower court’s order and allowed state correctional departments to keep stocks of the drug they currently have."  Here is the concluding paragraph of the unanimous panel ruling today in Cook v. FDA, No. 12-5176 (DC Cir. July 23, 2013) (available here):

The FDCA imposes mandatory duties upon the agency charged with its enforcement. The FDA acted in derogation of those duties by permitting the importation of thiopental, a concededly misbranded and unapproved new drug, and by declaring that it would not in the future sample and examine foreign shipments of the drug despite knowing they may have been prepared in an unregistered establishment. The district court could not remedy the FDA’s unlawful actions, however, by imposing upon the interests of nonparties to this suit. The order of the district court pertaining to the thiopental already in the possession of the states, quoted in the paragraph above, is therefore vacated, but the underlying judgment of the district court is Affirmed.

July 23, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, July 16, 2013

Lethal injection litigation stops Georgia execution efforts in notable Hill case

As reported in this Reuters article, yesterday condemned Georgia murderer Warren Hill "won a temporary reprieve just three hours before his scheduled execution by a judge who cited concerns over the state's new law governing lethal injections."  Here are the details along with some reasons why this case has been noteworthy in the past:

Warren Lee Hill, 53, had been sentenced to die by lethal injection at 7 p.m. But Fulton County Superior Court Judge Gail Tusan stayed the execution until at least Thursday so she could hear more arguments from Hill's lawyers who say the new law is unconstitutional because it shrouds in secrecy a drug used to execute Georgia citizens.

The law, which prohibits the release of information about the lethal drug's manufacturer, was passed in March after the state's cache of the sedative drug expired and national and international pressure made it more difficult for states to obtain it for executions, according to Hill's attorneys. Hill was set to be executed using a dose of pentobarbital provided to the state by an unnamed manufacturer.

Hill killed a fellow prisoner, Joseph Handspike, in August 1990 by beating him to death. Hill was already serving a life sentence for the 1986 shooting death of his 18-year-old girlfriend, Myra Wright.

In addition to the injection issue, Hill's attorneys argue that he should not be executed under Georgia's law that bans capital punishment for mentally disabled inmates. State prosecutors say that early examinations showed that Hill has the capacity to understand his execution and argue that it should move forward.

According to court records, Hill scored 69 on one intelligence test and in the 70s on other examinations. Mental disability is generally defined as having a score of 70 or below on intelligence tests, Hill's attorneys said.

In February, Hill's lawyers filed affidavits in a Georgia court by three doctors who found Hill competent 13 years ago but who now believe he is mentally disabled. In the affidavits, one doctor called the earlier evaluation for the state "extremely and unusually rushed" while another said his opinions were "unreliable because of my lack of experience at the time." A third doctor cited "advances in the understanding of mental retardation" since 2000.

However, in court documents, the state of Georgia said the three state doctors reviewed "extensive materials" before concluding in 2000 that Hill was not mentally disabled, and were thoroughly cross-examined by Hill's attorneys at the time. The doctors noted in 2000 that Hill had been a recruiter for the U.S. Navy, budgeted his money and was a "father figure" for his siblings, the state said in court documents.

In 1988, Georgia became the first U.S. state to enact a law banning the execution of mentally disabled defendants. But according to death penalty experts, Georgia has perhaps the toughest standard in the nation for defining mental disability, requiring proof "beyond a reasonable doubt." Last week, an Atlanta-based non-profit group, All About Developmental Disabilities, called for Georgia to change its death penalty law to lower the standard for proving mental disability.

July 16, 2013 in Baze lethal injection case, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Thursday, July 11, 2013

Years late, California gives up defense of three-drug execution protocol

Way back in 2009, Ohio started completing executions successfully using the one-drug lethal injection protocol that death penalty litigants were claiming would be more humane.  At that time, California's execution protocol had already been tied up in litigation for a couple of years, and I could think of no strong reason why California ought not just embrace a new one-drug protocol.  This local story, headlined "California death penalty: State abandons defense of three-drug executions," reports that prison officials have finally come to see the error of their ways:

California has abandoned the legal defense of its delay-ridden lethal injection procedures, moving ahead to adopt a single-drug option that has been embraced by other states trying to enforce their death penalty laws.

The Brown administration has decided against appealing a May ruling that invalidated the state's three-drug execution method, which has been mired in years of state and federal court legal tangles. Faced with a Wednesday deadline, the state chose not to seek a California Supreme Court review of the decision striking down the three-drug procedure because state officials failed to follow administrative rules when adopting them several years ago.

A prison system spokeswoman said the governor and other state officials will proceed with working out a method of executing condemned inmates with a single fatal dose of a sedative, which other states -- such as Ohio, Arizona and Washington -- have adopted to short-circuit legal challenges to their lethal injection procedures.

The governor has ordered prison officials to craft the single-drug option to "ensure that California's laws on capital punishment are upheld," the Department of Corrections said in a news release. However, the latest development will not kick-start executions in San Quentin's death chamber. Approving the single-drug method could take a year or longer, and then it must be reviewed by the federal courts, adding further delays to California's death penalty system.

More than 725 inmates live on California's death row, where there has not been an execution since early 2006 as a result of lethal injection legal challenges. Death row inmates sued over the three-drug execution method, arguing that it risked a cruel and inhumane death.

In response to a federal judge's concerns, former Gov. Arnold Schwarzenegger and current Gov. Jerry Brown both tried to overhaul the three-drug procedures, revising training for execution team members, built a new lethal injection chamber and crafted new rules for carrying out executions. But the state has botched the effort, twice violating the state's administrative procedures rules.

In the May ruling, the 1st District Court of Appeal scrapped the regulations, finding, among other problems, that state officials never publicly explained why they opted for the three-drug method instead of the single-drug option when they held hearings in 2010.

California could face other obstacles even if challenges to the single drug option fail. States across the country, including California, are struggling to assemble reliable supplies of execution drugs because of resistance from drug manufacturers and other problems, prompting separate legal challenges in other courts.

July 11, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, July 10, 2013

Talk in Missouri of turning to gas chamber due to lethal injection litigation

This new ABC News article, headlined "Missouri Death Row Legal Battle Could Bring Back Gas Chamber," reports on new talk of a possible return to an older execution technology.  Here is how the article starts:

Twenty-one inmates on Missouri's death row have sued the state's Department of Corrections in federal court, alleging that the state's new lethal injection protocol -- which calls for a single injection of the powerful sedative propofol -- constitutes cruel and unusual punishment.

The Missouri Supreme Court has since halted all executions by lethal injection in the state as a result of the lawsuit, and now state Attorney General Chris Koster has hinted at bringing back the gas chamber.

The inmates claim in their lawsuit filed last August that Missouri cannot execute by lethal injection, because the injections now contain propofol, which has never been used before in any U.S. execution. The effects of propofol at lethal doses, they argue, are unknown and can never be tested in a clinical trial.

Koster said the federal litigation raises an "artificial hurdle … to prevent the state from carrying out the death penalty. Unless the court changes its current course, the legislature will soon be compelled to fund … alternative methods of execution to carry out lawful judgments," he said last week in a statement.

"Our state legalizes only two methods of execution, execution by lethal injection or execution by lethal gas," Nanci Gonder, a spokeswoman for the attorney general's office, told ABC News. "So if we couldn't execute by lethal injection, the alternative would be by lethal gas."

July 10, 2013 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (11) | TrackBack

Monday, July 01, 2013

"Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship"

The title of this post is the title of this new paper on SSRN authored by Paul Litton. Here is the abstract:

Evidence that some executed prisoners suffered excruciating pain has reinvigorated the ethical debate about physician participation in lethal injections.  In widely publicized litigation, death row inmates argue that the participation of anesthesiologists in their execution is constitutionally required to minimize the risk of unnecessary suffering. For many years, commentators supported the ethical ban on physician participation reflected in codes of professional medical organizations.  However, a recent wave of scholarship concurs with inmate advocates, urging the law to require or at least permit physician participation.

Both the anti- and pro-physician-participation literature share a common premise: the ethics of physician participation should be analyzed independently from the moral status of capital punishment.  This considerable literature implausibly divorces the ethics of physician participation from the moral status of the death penalty.  Any ethical position on physician involvement requires some judgment about the moral status of the death penalty and the importance of physician involvement.  The article examines anti- and pro-participation arguments to show that each one either is unpersuasive without discussion of the death penalty’s moral status or implicitly assumes a view on the social worth of the death penalty.

The article then articulates the practical implications of its arguments for both lawmakers and professional medical organizations.

July 1, 2013 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Friday, May 31, 2013

State appeals court agrees California officials have blundered efforts to resume executions

Execution-tableAs reported in this local article, headlined "California's death penalty on hold again," another California court has ruled that the state has failed to act appropriately in efforts to get its execution protocol in order.  Here are the basics of the latest ruling and related California execution protocol developments:

California's death penalty system remains in limbo for the foreseeable future, a state appeals court on Thursday scrapped the state's latest attempt to update its lethal injection procedures.  In a 28-page ruling, the 1st District Court of Appeal found that state prison officials failed to comply with administrative rules when crafting new regulations more than two years ago.  [This ruling can be accessed at this link.]

The unanimous decision of the three-justice panel sends California back to the drawing board, unless the Brown administration takes the case to the California Supreme Court and keeps more than 700 Death Row inmates on an indefinite reprieve.   The appeals court upheld a Marin County judge, who faulted the prison department for a variety of procedural missteps, including offering no public explanation for why San Quentin officials opted to continue with a three-drug lethal injection method instead of a single-drug execution option being embraced by a number of other states.

State officials have indicated in court papers they are exploring the single-drug option, which involves putting condemned inmates to death with one dose of a sedative.  Ohio, Washington and Arizona are among the states that have moved to that option to short circuit legal challenges to the three-drug method....

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said the ruling was not surprising, although he disputed the court's finding that violating the administrative rules justifies halting executions.  Switching to the single-drug method should thwart further legal challenges to California's lethal injection procedures, he said.

However, even if the Brown administration moves to single-drug executions, prisons will again have to comply with the administrative procedures to institute the new method, a process that can take more than a year. And states across the country, including California, are struggling to assemble supplies of execution drugs because of resistance from drug manufacturers and other problems.

California has had a moratorium on executions since 2006 as a result of legal challenges to its execution procedures in both the state and federal courts.  Death Row has more than 725 inmates awaiting execution, including more than a dozen who have exhausted their legal appeals and would be eligible for immediate execution. Several of those inmates have mounted the lethal-injection court challenges.

In response to a federal judge's concerns, former Gov. Arnold Schwarzenegger and current Gov. Jerry Brown have both tried to overhaul the state's lethal injections, revising training for execution team members and building a new execution facility at San Quentin.  But the state's updates have been blocked twice for violating the administrative code, for the most part by failing to offer adequate public review of the proposed changes.

As highlighted in this prior post, there has been talk in California for more than three years about moving to a one-drug lethal injection protocol. I believe that talk has not turned into action in large part because there seem to be very few officials in California who are truly eager to move the state closer to being able to resume executions. 

I am certain death penalty advocates will justifiably assail the foot-dragging we keep seeing from California officials concerning efforts to resume executions in the state.  But I am also certain that fiscal conservatives could be praising the disaffinity of state officials to seek to resume executions.  Because of the flurry of litigation in both state and federal court which every pending execution necessarily generates, Gov. Brown and other executive officials are probably saving the California taxpayers some money by letting condemned prisoners rot on the state's death row rather than trying aggressively to get the long line toward the execution chamber moving again.

A few older related posts about the litigation over lethal injection in California:

May 31, 2013 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Wednesday, May 22, 2013

Reviewing the new challenge facing states seeking to operate machineries of death

This notable new ProPublica story, headlined "A Prolonged Stay: The Reasons Behind the Slow Pace of Executions," reports on the execution drug procurement difficulties now facing many states seeking to carry out executions. Here are highlights from this lengthy and effective new piece of reporting:

States that impose the death penalty have been facing a crisis in recent years: They are short on the drugs used in executions.

In California, which has the country's largest death row population, the chief justice of the state supreme court has said there are unlikely to be any executions for three years, in part due to the shortage of appropriate lethal drugs.  As a result, state prosecutors are calling for a return of the gas chamber.

Ohio, which is second only to Texas in the number of executions carried out since 2010, said it will run out of the drug it uses in executions, pentobarbital, on Sept. 30.  The state has two men scheduled for execution in November, and eight more set to be killed after that.  Every state's supply of pentotbarbital, which has been the principal execution drug, expires at the end of November.

The shortage has forced death penalty states to scramble on two fronts: They are hunting for new suppliers or different drugs to use, and enacting changes to public records laws to keep the names of suppliers and manufacturers of those alternative drugs secret.

The lack of lethal drugs, and the fight over keeping new ones secret, are partly the result of a remarkably effective campaign by opponents of the death penalty, who have, in effect, taken their efforts from the court room to the boardroom.

Each time a state has found a new source for a drug to use in executions, Reprieve, an anti-death penalty organization based in London, in collaboration with death penalty lawyers in the United States, has used freedom of information laws, the local news media and the powers of persuasion to compel the drug's manufacturer to cut off the supply.

"Who's easier to persuade? The Supreme Court or a corporation that has financial interests?" said Clive Stafford Smith, a British-American, who was a death penalty lawyer in the South for many years before founding Reprieve.  "You can make it not worth their while to allow their drugs in executions."...

Death penalty states are now taking measures to keep anti-death penalty activists, and journalists, from learning the identity of suppliers.  A Georgia law enacted in March provides that any information about a "person or entity that manufactures, supplies, compounds, or prescribes the drugs, medical supplies or medical equipment" used in an execution shall be considered a "confidential state secret."  Already this year, at least three other states — Arkansas, South Dakota and Tennessee — have amended their public records laws to exempt the names of suppliers from disclosure....

In Colorado, a man who killed three teenagers and their boss in a pizza restaurant in 1993 is set to be executed in August.  But the state does not have the proper drugs, causing the director of prisons to send an urgent plea to the state's compounding pharmacies.  At "compounding pharmacies," pharmacists mix, or compound, the ingredients for drugs on site.

Last October, South Dakota became the first state to use a compound drug in an execution, and it did so twice.  Lawyers for one of the men to be executed, Robert Moeller, who had kidnapped, raped and murdered a 9-year-old girl, filed a lawsuit to obtain information about the supplying pharmacy.  The state resisted, and a federal judge sided with the state.

South Dakota was among the states to recently pass a law exempting the names of suppliers of lethal injection drugs from its public records law.  The change was necessary, said South Dakota State Sen. Jean Hunhoff, "because there's been harassment that has occurred against non-protected manufacturers and pharmacists, thereby causing difficulty for the state in obtaining the necessary chemicals for the lethal injection."  South Dakota's law passed in the state senate without opposition, and the house by a lopsided 60-8.

May 22, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, May 03, 2013

Democrats kill death penalty reform proposals in California

As reported in this local article, "legislation to shorten death penalty appeals in California, and bring back the gas chamber, has been rejected by a state Senate committee." Here are the details:

The bill, sponsored by the California District Attorneys Association, was defeated by the Public Safety Committee on Tuesday on a party-line 5-2 vote.

Backers of SB779, including its author, state Sen. Joel Anderson, R-Alpine (San Diego County), said the bill would speed up executions in California, which have been blocked by court orders since 2006.  It was introduced following the narrow defeat in November of a ballot measure to repeal the state's death penalty law.

The bill would have limited most condemned prisoners to one round of appeals in the state court system and another in federal court.  Other provisions would have eliminated public review of regulations on execution procedures, barred disclosure of the suppliers of drugs used in executions and authorized a new method of gas chamber executions.

California's last execution by cyanide gas was in 1993.  A federal judge ruled a year later that the gas chamber at San Quentin caused excruciating pain and violated the constitutional ban on cruel and unusual punishment.

Lethal injections at the prison were halted in 2006 when another federal judge ruled that the executions, carried out by poorly trained staff in a dimly lit chamber, posed an undue risk of a prolonged and agonizing death.  The court-imposed moratorium is likely to remain in place at least through 2013 as the state tries to validate new regulations and cope with a shortage of execution drugs.

May 3, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack

Friday, February 15, 2013

Ohio execution process under review as drug procurement issues create new looming problems

Drc_logo_smallI have been strongly disinclined to blog at all about any aspects of my on-going work as a member of the Joint Task Force to Review the Administration of Ohio’s Death Penalty (background here).  But there was some very interesting news presented at yesterday's public meeting of the Task Force which I thought important to cover in this space.  Part of the story is revealed via this AP article headlined "Ohio wants doctors at executions":

Ohio's prison agency says it wants doctors or other medical professionals to assist with executions, saying it will help promote humane procedures.   Prisons attorney Greg Trout also says state law should be changed to protect any doctor who helps with an execution from sanctions by the state medical board.  Trout said that assistance from a doctor or nurse is unlikely without such protection.

Trout also told a state Supreme Court committee reviewing Ohio's death penalty law that protection should be offered pharmacies that mix supplies of execution drugs.

Trout said in remarks Thursday that without such protection Ohio might not be able to obtain drugs to carry out future executions. The state's current supply of its execution drug runs out in September.

The Ohio DP Task Force has been spending its time and energies considering only the law and practices for the imposition and review of death sentences and had not, before yesterday, given any attention to the actual execution process.  I thought this was a sensible decision given (1) the extensive (and, I believe, still on-going) federal litigation over Ohio's execution protocols, and (2) my belief that Ohio was among the few states without major problems procuring the drugs needed to carry out executions.

But the comments by Greg Trout at the public Ohio DP Task Force meeting yesterday made clear that, as of this writing, Ohio is only going to be able to use its current drug supply to carry out, at most, the four executions scheduled before the end of September 2013 (details here); some other execution plans are going to be needed for the state to be able to carry out the nine subsequent scheduled executions.

Unspoken at yesterday's meeting, but well known to regular readers of this blog, any changes in execution protocols in Ohio (or elsewhere) are sure to be heavily litigated. In other words, stay tuned while dusting off your post-Baze litigation files.

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

February 15, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, February 14, 2013

Notable account of capital realities when death penalty is truly rare

In California and some other states, various challenges presented by the administration of the death penalty might be traced to the fact that there are too many capital cases and not sufficient human resources to deal with them all soundly.  This new AP story from New Hampshire, in contrast, discusses challenges presented by having so very few capiral cases.  The piece is headlined "NH officials discuss the prospect of execution," and here is how it starts:

New Hampshire — which last executed an inmate more than 70 years ago, by hanging — would likely carry out an execution in a prison gymnasium rather than construct a costly death chamber for its lone death row prisoner, Corrections Commissioner William Wren said Wednesday.

Addressing a symposium on the death penalty at the University of New Hampshire School of Law, Wren said he and his staff are ‘‘dusting off’’ execution protocols from the 1930s but the $1.8 million needed to build a lethal injection chamber isn’t in the cards in a state where inmates are so rarely condemned to death.

The symposium offered a rare, behind-the-scenes look at the case of Michael Addison, sentenced to death in 2008 for gunning down Manchester Police Officer Michael Briggs following a violent crime spree. If the state’s highest court upholds his conviction and death sentence, Addison could be the first convict executed in New Hampshire since 1939.

Wren said Addison doesn’t really live on "death row" because the state no longer has one. He is housed in the state prison’s maximum security unit, living alongside other convicts.

The last person executed in New Hampshire was Howard Long, an Alton shopkeeper who molested and beat a 10-year-old boy to death. He was hanged — still a viable form of execution in New Hampshire if lethal injection is not possible.

Panelists made it clear Addison’s case threw a curve at a state criminal justice system that had no modern-day experience with capital litigation.

Attorney Chris Keating, who supervised Addison’s defense, said there was no legal "infrastructure" in place for a death penalty case — no bank of motions built from other cases, no expertise and a severe dearth of resources to handle the astronomical costs of such a case. He likened it to being told to build a nuclear bomb for the first time. "The stakes are really high if I get it wrong," he said.

Keating said he and former Attorney General Kelly Ayotte had to approach the Executive Council to fund their case. "The difference was, Ayotte was welcomed and people were very anxious to provide her with the funding necessary," Keating said. "I had to sheepishly ask for my $137,000 for initial spending."

February 14, 2013 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, January 21, 2013

Will California ever have an active death chamber?

The question in the title of this post is inspired by this new article from the San Jose Mercury News which is headlined "California death penalty: Will state follow Arizona, which has resumed executions after a long hiatus?".  Here are excerpts:

When Arizona prison officials injected condemned rapist and murderer Richard Stokley with a single, fatal drug dose last month, it marked the state's sixth execution of the year in the nation's second busiest death chamber.

Now that California voters in November narrowly preserved the death penalty, Arizona's path could foreshadow the future for this state, where not a single one of the 729 death row inmates have marched to execution in seven years.

As in California, interminable legal tangles once shut down Arizona's death penalty system as the state executed only one inmate, who volunteered to die, from 2001 to 2010. But Arizona emerged from numerous court battles that removed all of the legal roadblocks....

The result has been 11 executions since October 2010, nearly the number California has carried out since it restored the death penalty in 1978. Significantly, the 9th U.S. Circuit Court of Appeals, often the last word for death penalty appeals in the Western states, has not intervened.

Now, legal challenges holding up California's executions are expected to resume this year. "I do think eventually the cases all come to an end," said Dale Baich, who heads a unit representing Arizona death row inmates. "But (in California) it might be later than sooner."

In fact, the timetable may still be measured in years, not months. Chief Justice Tani Cantil-Sakauye in December told reporters it could take three years for executions to resume, particularly because of the lingering legal cloud over the state's lethal injection procedures.

At least 14 inmates have exhausted all of their legal appeals and would be eligible for immediate execution if California resolves the broader legal challenges over the death penalty. Those include Bay Area condemned killers Harvey Heishman (Alameda County), Robert Fairbank (San Mateo County) and Royal Hayes (Santa Cruz). Several more are close to their last chance in the courts, as the 9th Circuit, which used to overturn death sentences with regularity, has after recent U.S. Supreme Court rulings made it tougher to tamper with death judgments....

Kent Cattani, head of death penalty appeals in the Arizona attorney general's office, notes that Arizona had it easier than California because prison officials could switch to the single-drug option with a stroke of a pen, rather than going through California's lengthy administrative process. But, he adds, if California resolves the lethal injection issue, it appears the 9th Circuit's decisions allowing Arizona executions to proceed would also apply in California.

Death penalty opponents, however, are not conceding California will become the next Arizona. Natasha Minsker, campaign manager for Proposition 34, which sought to repeal the death penalty, promises a return to the voters, although it may be a few years.

And Michael Laurence, head of the California agency that represents death row inmates, considers all of the roadblocks insurmountable. "We're stuck with this dysfunctional system."

Prosecutors and death penalty supporters disagree. Senior Assistant Attorney General Ronald Matthias, who heads the state's death penalty unit, said "there is no significant difference between Arizona and California" other than that Arizona has an approved execution method.

January 21, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, December 10, 2012

Is the death penalty now essentially dead in North Carolina?

The question in the title of this post is prompted by this lengthy and thorough article from the Fayetteville Observer, which is headlined "Capital punishment under close scrutiny in Fayetteville, statewide."  Here are excerpts:

Convicted murderer Marcus Robinson of Fayetteville was hours away from execution in 2007.  But his life was spared by a court-ordered stay to give him and other death row inmates a chance to challenge the constitutionality of the state's method of execution.  The delay turned into an unofficial moratorium on executions that nearly six years later remains unresolved in the courts.

For Robinson, the delay provided enough time to save him from the executioner's needle. This year, he became the first — and, so far, the only — North Carolina death row inmate to use a new law, the Racial Justice Act of 2009, to have his death sentence commuted to life in prison without parole. 

Now, the Racial Justice Act, other changes to death penalty law and a decline in jurors' willingness to sentence inmates to death are raising questions about the future of executions in the state.  It's unclear when the state will resume administering its ultimate punishment.

"It's been over six years now since an execution has been carried out, so we're a state that still has the death penalty as a law but does not have executions as a reality," said Ben David, district attorney in New Hanover County. David is president of the N.C. Conference of District Attorneys and a death penalty supporter....

Since the [state's capital] law took effect, North Carolina juries have sentenced 400 people to die.  The state has executed 43 of them, according to Department of Public Safety data.  The state is tied at ninth place with South Carolina in the total number of executions carried out in the modern era, according to the Death Penalty Information Center in Washington....

According to an Elon University poll, a majority of state residents support the death penalty.  But statistics show a growing reluctance to hand down the penalty in court. In 1999, 24 people were sentenced to death.  In 2009, two were sentenced.  This year, no one has been sentenced to death in the state, and no more capital trials are scheduled this year.  This will be the first year since the 1977 law when no one in the state has been sentenced to die.

Jurors are not as likely these days to hand down a death sentence, said Ken Rose, a lawyer with the Center for Death Penalty Litigation.  In 1994, North Carolina eliminated parole for people sentenced to life in prison.  Rose thinks that when jurors are comfortable that a killer will never go free, they are less prone to vote for death.  Meanwhile, high-profile exonerations in the past 15 years and television dramas that focus on crime labs have made jurors more skeptical of prosecutors and police, Rose said....  "I think people are more aware that the system is not infallible," Rose said. "They're more aware of the flaws in the system. They're more aware that people make mistakes, and law enforcement officials are human beings and they're going to make mistakes like the rest of us."...

And a law that took effect in 2001 led to a steep decrease in death penalty prosecutions. The law allows prosecutors discretion in seeking the death penalty.  Before the law took effect, if any of 11 specified circumstances applied in a murder case — for example, more than one person was killed — prosecutors were required to seek death and could not accept a plea bargain to a life sentence.

Now that prosecutors have the option, they often choose not to pursue capital punishment. Or they may use the threat of the death sentence to push a murder defendant into pleading guilty and accepting life in prison.

December 10, 2012 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, November 27, 2012

District court rejects 400-pound Ohio inmate's weighty effort to block execution

As reported in this AP piece, a "condemned killer trying to delay his execution because of his extreme weight hasn't raised enough new issues to warrant the legal challenge, a federal judge ruled Monday." Here are the basics of the case and ruling concerning the next scheduled execution in Ohio:

Death row inmate Ronald Post, who weighs more than 400 pounds, is asking the courts to stop his January execution on the grounds his weight could cause him to suffer severe pain during the procedure. Post is prohibited from challenging his execution by injection because he raised similar claims in his first set of federal appeals in 1997, Judge Lesley Wells said Monday in Cleveland.

In general, death row inmates are only allowed one federal appeal when alleging the same set of facts. Post "has not demonstrated in his new petition that his medical condition has changed so significantly, or that Ohio's new lethal injection procedures have changed so radically, since he filed his first petition in 1997 that his original core complaints are transformed into something new," Wells wrote.

However, the judge sent the question to a federal appeals court in Cincinnati for a final determination according to federal law governing this type of appeal. The state is opposing Post's requests to delay his execution....

Post's attorneys declined to comment Monday. They have previously argued that Post's medical condition hasn't been stable.  At issue, they say, is his condition around the time of his execution, not at the time of an original court challenge.  Post "could not have raised this claim in his earlier petition because the execution was not imminent and his physical and medical condition have not been stable in relation to an execution date," his attorneys wrote in earlier court filings....

Post has tried losing weight, but knee and back problems have made it difficult to exercise, his lawyers say.  They also say Post's request for gastric bypass surgery has been denied, he has been encouraged not to walk because he's at risk for falling, and severe depression has contributed to his inability to limit how much he eats.   A doctor who examined Post for his defense team says Post does not have accessible veins in his arms or hands because of his weight and could not receive a lethal injection in his legs because he is so obese.

November 27, 2012 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (8) | TrackBack

Sunday, November 25, 2012

More buzz about possible death penalty repeal in Maryland

Sunday's Washington Post has this lengthy article discussion the state and fate of Maryland's death penalty.  The piece is headlined "As O’Malley eyes repeal, Md. death row remains at ‘impasse’," and here are excerpts:

Coming off some high-profile wins at the ballot box this month, Maryland Gov. Martin O’Malley is considering another run at repealing the death penalty when lawmakers reconvene in January, aides say.  It’s an issue that could add to his progressive legacy.

But even if the law remains on the books, advocates on both sides agree that O’Malley (D) is all but certain to finish his two terms in office without having presided over a single execution of one of the state’s five condemned prisoners.

That’s largely because O’Malley’s administration has yet to implement regulations required for executions to resume, nearly six years after Maryland’s highest court halted use of capital punishment on a technicality.  And there’s little reason to believe the politically ambitious governor will do so in his remaining two years, as drug shortages and other factors have complicated the mechanics of lethal injection in other states.

“It’s legislating by inaction,” said Sen. Joseph M. Getty (R-Carroll), a member of the Senate Judicial Proceedings Committee and an O’Malley critic.  “I’m among the members of the General Assembly who would like to see the law followed.”...

While it’s unclear if there are enough votes to repeal the law altogether, many lawmakers doubt there are enough votes, particularly in the House of Delegates, to adopt a new law that would restart executions.  “I think there’s an impasse,” said Del. Anne Healey (D-Prince George’s), a death penalty foe.

Recent related post:

November 25, 2012 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, November 19, 2012

"Cal prosecutors seek to jump start death penalty"

The title of this post is the headline of this AP article. (Hat tip: How Appealing.)   Here is how it starts:
Earlier this year, the U.S. Supreme Court rejected Robert Fairbank's appeal of his death sentence for the 1985 rape and murder of college student Wendy Cheek.   With that rejection, Fairbank joined at least 13 other death row inmates who have completed the decades-long capital punishment appeals process and are eligible for execution.
Nonetheless, none of the 14 death row inmates who have "exhausted" their appeals will receive a lethal injection any time soon — even though 53 percent of the California electorate reinforced its support of the death penalty with the rejection of Proposition 34 on Nov. 6. 
Lawsuits in federal and state courts have halted executions since January 2006 and it will take months, maybe years, to resolve the litigation.  Judges have ordered a halt to executions and lawyers with the state's attorney general's office have promised not to pursue any executions until the cases are resolved.
Still, a growing number of prosecutors, law enforcement officials and capital punishment proponents are pushing for the quick resumption of execution, citing the defeat of Proposition 34 as a mandate from the voters.  They're calling for an end-run around the legal hang ups, calling for the scrapping of the three-drug lethal injection at the center of the litigation and replacing it with a single-drug execution.  Six other states have already abandoned the three-drug process and adopted the single-drug execution.

In recent months, Los Angeles County District Attorney Steve Cooley and San Mateo County District Attorney Steve Wagstaffe have formally asked local judges for death warrants for three death row inmates and an order to execute them with a single, lethal dose of pentobarbital, a drug previously used to euthanize animals.

But a Los Angeles judge rejected Cooley's motion and Wagstaffe is expecting the same treatment in San Mateo Superior Court, conceding his legal maneuver to have Fairbank's executed soon is more symbolic than realistic. "I am simply trying to get the system moving," Wagstaffe said. "I'm trying to shake the tree a little bit to get people to pay attention."

November 19, 2012 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (21) | TrackBack