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

Wednesday, March 19, 2014

Oklahoma court postpones two executions due to drug shortages

As reported in this AP article, an "Oklahoma court on Tuesday rescheduled a pair of executions set for this week and next, so state prison officials will have more time to find a supply of drugs for the lethal injections."  Here is more about the latest challenge facing a state trying to carry out a death sentence:

The decision came in a lawsuit in which two inmates had sought more information about the drugs that would be used to execute them later this month.  The inmates had sought a stay of their executions, but the Oklahoma Court of Criminal Appeals said that request was moot because the state Department of Corrections doesn't have enough drugs on hand to carry out their death sentences.  "The attorney general's attestations give this court no confidence that the state will be able to procure the necessary drugs before the scheduled executions are carried out," the court wrote.

Oklahoma and other states that have the death penalty have been scrambling for substitute drugs or new sources for drugs for lethal injections after major drugmakers — many based in Europe with longtime opposition to the death penalty — stopped selling to prisons and corrections departments.  While the judges didn't rule on the merit of the inmates' stay request, they pushed their executions back a month — Clayton Lockett to April 22 and Charles Warner to April 29....

Oklahoma Attorney General Scott Pruitt said he is upset the executions have been delayed, but said Warner and Lockett will ultimately still be punished for their crimes.  "This delay is not about the facts of the case, nor does it seek to overturn the convictions of these two murderers. Instead, it's about outside forces employing threats, intimidation, and coercion to keep the state of Oklahoma from imposing the punishment handed down for these heinous crimes," Pruitt said.  "It's not a matter of if these punishments will be carried out, but it is only a matter of when."

Lockett, who was to be executed Thursday, was found guilty in the 1999 shooting death of a 19-year-old Perry woman. Warner was set to be executed on March 27 for the 1997 rape and murder of his girlfriend's 11-month-old daughter.  In their lawsuit, Lockett and Warner said they feared the drugs to be used might be contaminated and cause them undue harm, in violation of a constitutional guarantee against cruel or unusual punishment.  A hearing in Oklahoma County District Court is set for March 26 on whether it's proper for the state to keep execution procedures behind a "veil of secrecy."

"We are relieved that the OCCA's decision allows Mr. Warner and Mr. Lockett to proceed on their constitutional challenge to Oklahoma's execution-secrecy law and execution protocol," Madeline Cohen, a federal public defender who previously represented Charles Warner, said. "We hope that no execution will go forward until we are able to obtain full information about how Oklahoma intends to conduct those executions, including the source of its execution drugs."

In briefs filed with the Court of Criminal Appeals on Monday, the state attorney general's office said prison officials were having difficulty finding pentobarbital, a sedative, and vecuronium bromide, a muscle relaxant. The state also uses potassium chloride to stop an inmate's heart. "The state declared it had pursued 'every feasible option to obtain the necessary execution drugs' but its 'Herculean' efforts so far had been unsuccessful," the court wrote.

State lawyers warned that, if it is required to find different drugs, it would have to write a new execution protocol that would likely face another court challenge. Judge Gary L. Lumpkin dissented Tuesday's decision. He said the inmates had failed to meet their burden for a stay but said the court shouldn't have granted a delay because the state hadn't asked for one.

March 19, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, March 10, 2014

Should death penalty abolitionists or proponents be more troubled by "Wild West" response to troubles with execution drugs?

The question in the title of this post is the prompted by this lengthy new USA Today article headlined "Death penalty in U.S. spurs Wild West scramble for drugs; Capital punishment in the USA is in decline as states wrestle to find drugs for lethal injections."  Here is how the piece starts:

Prison guards meet in the desert to hand off chemicals for executions. A corrections boss loaded with cash travels to a pharmacy in another state to buy lethal sedatives. States across the country refuse to identify the drugs they use to put the condemned to death.

This is the curious state of capital punishment in America today. Manufacturers are cutting off supplies of lethal injection drugs because of opposition to the death penalty, and prison officials are scrambling to make up the deficit — sharing drugs, buying them from under-regulated pharmacies or using drug combinations never employed before in putting someone to death.

At the same time, growing numbers of states are ending capital punishment altogether. Others are delaying executions until they have a better understanding of what chemicals work best. And the media report blow-by-blow details of prisoners gasping, snorting or crying out during improvised lethal injection, taking seemingly forever to die.

Legal challenges across this new capital punishment landscape are flooding courts, further complicating efforts by states that want to keep putting people to death. "I've done everything I can do to carry out the executions that have been ordered in my state, and if somebody has an idea of how we can do that, I'd like to hear it," says Arkansas Attorney General Dustin McDaniel.

The state has 33 people on death row, no executions since 2005 and a death penalty sidelined last month by a state judge complaining that the Arkansas law for lethal injection isn't clear about what drugs should be used. "I don't know where it will all end up," says an exasperated McDaniel. "I know that in the near future we will see more litigation. We will see fewer executions. We will see states scrambling to come up with alternative methods. And there will be a lot of finger-pointing."

Regular readers know that the difficulties states have had securing execution drugs, combined with the consistent efforts of capital defense lawyers to legally challenge the ways states plan to kill their clients, has produced a remarkable legal and practical hash of the application of the death penalty in nearly all states with death row defendants who have exhausted all other means of appeals. This lethal injection protocol capital hash has been going strong for nearly a decade now, and I do not see any end in sight.

I am inclined to guess that death penalty proponents are most troubled by all the new litigation and practical barriers in the way of carrying out death sentences. But I suspect lots of death penalty abolitionists are likewise troubled by how hard (and with questionable means) some states are trying to go forward with untried methods for ending like. So, I suppose this post is meant to suggest both a descriptive and normative question: who is most troubled with what is going on, and should be?

March 10, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (14) | TrackBack

Wednesday, February 26, 2014

Mizzou completes fourth execution in last four months

While multiple states continue to have multiple problems securing the drugs needed for execution or deflecting litigation over execution protocols, Missouri has now succeeded in completing four executions in as many months.  Here are the details of the latest one, via this AP story headlined "Missouri Executions Man in '89 Rape, Killing of Teen":

A Missouri inmate was executed early Wednesday for abducting, raping and killing a Kansas City teenager as she waited for her school bus in 1989, marking the state's fourth lethal injection in as many months.

Michael Taylor, 47, was pronounced dead at 12:10 a.m. at the state prison in Bonne Terre. Federal courts and the governor had refused last-minute appeals from his attorneys, who argued that the execution drug purchased from a compounding pharmacy could have caused Taylor inhuman pain and suffering.

Taylor offered no final statement, although he mouthed silent words to his parents, clergymen and other relatives who witnessed his death. As the process began, he took two deep breaths before closing his eyes for the last time. There were no obvious signs of distress.

His victim, 15-year-old Ann Harrison, was in her driveway, carrying her school books, flute and purse, when Taylor and Roderick Nunley abducted her. The men pulled her into their stolen car and drove her to a home, where they raped and fatally stabbed her as she pleaded for her life. Nunley was also sentenced to death. Ann's father and two of her uncles witnessed Taylor's execution. They declined to make a public statement.

In their appeals, Taylor's attorneys questioned Missouri's use of an unnamed compounding pharmacy to provide the execution drug, pentobarbital. They also cited concerns about the state executing inmates before appeals were complete and argued that Taylor's original trial attorney was so overworked that she encouraged him to plead guilty.

After using a three-drug execution method for years, Missouri switched late last year to pentobarbital. The same drug had been used in three earlier Missouri executions, and state officials said none of those inmates showed outward signs of distress. Still, attorneys for Taylor said using a drug from a compounding pharmacy, which unlike large pharmaceutical companies are not regulated by the U.S. Food and Drug Administration, runs the risk of causing pain and suffering during the execution.

The Oklahoma-based compounding pharmacy Apothecary Shoppe agreed last week that it wouldn't supply the pentobarbital for Taylor's execution, forcing Missouri to find a new supplier. Attorney General Chris Koster's office said a new provider had been found, but Koster refused to name the pharmacy, citing the state's execution protocol that allows the manufacturer anonymity. Taylor's attorneys said use of the drug without naming the compounding pharmacy could cause the inmate pain and suffering because no one could check if the operation was legitimate and had not been accused of any violations.

Pete Edlund doesn't want to hear it. The retired Kansas City police detective led the investigation into the teenager's death. "Cruel and unusual punishment would be if we killed them the same way they killed Annie Harrison," Edlund said. "Get a damn rope, string them up, put them in the gas chamber. Whatever it takes."

February 26, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (14) | TrackBack

Tuesday, February 25, 2014

"Compound Sentence: States keep mum on where lethal injection drugs are made"

The title of this post is the headline of this article in the March 2014 issue of the ABA Journal.  Here are excerpts:

Tony Rothert, legal director of the ACLU-Missouri ... says the group is troubled by the secrecy surrounding compounded drugs [to be used in executions].  “Our concern here is about transparency and the government not hiding what it’s doing, especially when it comes to compounded drugs,” he says.  “There are serious questions about whether using compounded drugs is going to be cruel and unusual punishment.”

Hours before [convicted serial killer Joseph Paul] Franklin’s Nov. 21 execution, U.S. District Judge Nanette Laughrey in Jefferson City ordered a stay, ruling that the state’s protocol “presents a substantial risk of inflicting unnecessary pain.”  The 8th U.S. Circuit Court of Appeals at St. Louis vacated that order, and the Supreme Court refused to reinstate it. Other prisoners in Missouri, meanwhile, are continuing to challenge the state’s lethal injection methods.

The same issues are playing out throughout the country.  Six states — Georgia, Missouri, Ohio, Pennsylvania, South Dakota and Texas — have either used pentobarbital from a compounding pharmacy or announced plans to do so, according to the Washington, D.C.-based Death Penalty Information Center.  Of those, Missouri and South Dakota have carried out executions with compounded drugs.  Colorado also made inquiries about compounded drugs, but executions in that state are on hold as long as the current governor remains in office.

Other states have revised their protocols and are no longer using pentobarbital.  Florida incorporated the drug midazolam into its lethal injection cocktail in an execution carried out in October, and Ohio has said it plans to do the same.

At the same time, state officials often refuse to provide information about lethal injections.  In Georgia, where 95 prisoners sit on death row, lawmakers recently passed the Lethal Injection Secrecy Act, which makes the identities of compounding pharmacies a state secret.  Arkansas, South Dakota and Tennessee also recently passed bills aimed at prohibiting disclosure of execution procedures and the identity of people as well as companies involved in executions.

Those changes to the lethal injection protocols, combined with new confidentiality laws, have spurred a wave of litigation, with defendants and their lawyers arguing that the new methods of execution could result in a painful death.  “Any death penalty lawyer worth their salt would be challenging the method of execution in their particular state,” says Fordham University law professor Deborah Denno, who studies capital punishment.

But groups that support the death penalty say many of these challenges are meritless.  “If you have pentobarbital, and if the supply you have has been tested and found to be in the right concentration, the challenges being raised should be dismissed,” says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, based in Sacramento, Calif.  “There isn’t a good argument that the use of that method is in any way cruel.”

Scheidegger adds that state officials have good reason to keep the names of compounding centers a secret.  “It is regrettably necessary to provide confidentiality for the sources, because of a conspiracy to try to choke off the supply by putting pressure on the suppliers,” he says. “Whatever it takes to defeat that conspiracy needs to be done.”

February 25, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (8) | TrackBack

Friday, February 21, 2014

Is an executed murderer now haunting Missouri's efforts to carry out death sentences?

SmallsThe somewhat tongue-in-cheek question in the title of this post is prompted by this notable new commentary by Andrew Cohen at The Atlantic.  Here is the headline and subheadline of the article: "The Ghost of Herbert Smulls Haunts Missouri's Death Penalty Plans; It's been just three weeks since Missouri executed Herbert Smulls before his appeals were exhausted. And virtually nothing has gone right for the state in its efforts to implement the death penalty since." And here is how the lengthy piece gets started:

It has been only 21 days since Missouri began to execute convicted murderer Herbert Smulls some 13 minutes before the justices of the United States Supreme Court denied his final request for stay. And it is fair to say that the past three weeks in the state's history of capital punishment have been marked by an unusual degree of chaos, especially for those Missouri officials who acted so hastily in the days leading up to Smulls' death. A state that made the choice to take the offensive on the death penalty now finds itself on the defensive in virtually every way.

Whereas state officials once rushed toward executions—three in the past three months, each of which raised serious constitutional questions—now there is grave doubt about whether an execution scheduled for next Wednesday, or the one after that for that matter, will take place at all. Whereas state officials once boasted that they had a legal right to execute men even while federal judges were contemplating their stay requests now there are humble words of contrition from state lawyers toward an awakened and angry judiciary.

Now we know that the Chief Judge of the 8th U.S. Circuit Court of Appeals, as well as the justices of the Supreme Court of the United States, are aware there are problems with how Missouri is executing these men. Now there are fresh new questions about the drug(s) to be used to accomplish this goal. Now there are concerns about the accuracy of the statements made by state officials in defending their extraordinary conduct. Herbert Smulls may be dead and gone but his case and his cause continue to hang over this state like a ghost.

February 21, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (32) | TrackBack

Tuesday, February 18, 2014

Execution news in many states thanks to drug shortages and lethal injection litigation

I have gotten more than a little fatigued trying to keep track of all the legal and political developments in states trying to get access to the drugs they need to carry out planned executions.  Nevertheless, a new round of headlines about this topic filled up my news feeds this morning, so I could not resist reporting some of the news through a these stories and links:

February 18, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (13) | TrackBack

Saturday, February 08, 2014

Lethal injection concerns leads Ohio Gov Kasich to postpone next execution for 8 months

As reported in this local article, "unresolved concerns about the drugs used to execute Dennis McGuire last month prompted Gov. John Kasich yesterday to postpone the scheduled March 19 lethal injection of Gregory Lott."  Here is more:

Without comment, Kasich rescheduled Lott’s execution, delaying it for eight months, until Nov. 19.  Kasich spokesman Rob Nichols said the governor wants to give the Ohio Department of Rehabilitation and Correction time to complete its internal review of McGuire’s Jan. 16 execution.  “Gregory Lott committed a heinous crime for which he will be executed,” Nichols added.

It was the second execution that Kasich had postponed in recent months. On Nov. 13, Kasich pushed back Ronald Phillips’ execution to July 2 to give him an opportunity to pursue organ donation to a family member....

Attorneys for Lott, 51, quickly challenged his upcoming execution, arguing that the drugs could cause “unnecessary pain and suffering” in violation of the Eighth Amendment to the U.S. Constitution. A hearing has been scheduled for Feb. 19 in U.S. District Judge Gregory L. Frost’s court.

The next question involves what happens to four other convicted killers scheduled to be put to death before November. They are Arthur Tyler, May 28; Phillips, July 2; William Montgomery, Aug. 6; and Raymond Tibbetts, Oct. 15.

Lott was convicted and sentenced to death for killing John McGrath, 82, by setting him on fire in his Cleveland-area home in 1986. McGrath survived in a hospital for 11 days before dying. Lott came close to execution in 2004, but the U.S. Supreme Court blocked it to give his attorneys time to examine evidence they said had been withheld. “We are very grateful for the governor’s decision,” said Dana C. Hansen Chavis, an assistant public defender from Knoxville, Tenn., who is one of Lott’s attorneys.

Kevin Werner, executive director of Ohioans to Stop Executions, praised Kasich for showing “ leadership and careful consideration” by issuing a reprieve. State Rep. Nickie J. Antonio, D-Lakewood, urged Kasich to “use his executive power to grant a full moratorium on executions until the state can guarantee that humane and constitutional policies will be utilized. Ultimately, I think such guidelines would lead to the abolishment of the use of the death penalty.”

I see little reason why it should take more than a few weeks for the Ohio DRC to conduct a complete review of the execution of Dennis McGuire. In addition, I expect more delay before conducting the next Ohio execution will end up facilitating still more litigation over Ohio's latest execution protocols and its new use of a two-drug execution cocktail.

That all said, I wonder if this delay is primarily designed to give Ohio officials more time to try to secure Ohio's preferred execution drug, pentobarbital, from a compounding pharmacy. Missouri a few weeks ago completed an execution using just a batch of pentobarbital manufactured by a compounding pharmacy, and I suspect Ohio would prefer to find a way to follow that execution approach rather that try again with the two-drug approach use to put down McGuire.

As has been the reality in Ohio for a number of years now, it seems that legal and practical uncertainty will continue to surround the state's efforts to carry out death sentences. But now the next execution date to watch closely will be in May rather than March thanks to Gov. Kasich giving Lott at least eight more months to be alive.

A few recent related posts:

February 8, 2014 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (11) | TrackBack

Friday, February 07, 2014

Ohio prison officials now struggling with array of death penalty administration issues

This new Columbus Dispatch article, headlined "Execution legal issues put prisons in quandary," has me really feeling badly for the various well-meaning state government workers in Ohio who now have a unique set of unique challenges in discharging Ohio's capital punishment laws and regulations.  Here are the basics of the latest dynamic chapter in a long-running story of death penalty difficulties:

Ohio prisons officials are faced with unique circumstances in the 15 years since the state reinstated the death penalty, dealing simultaneously with legal issues from a past execution, one scheduled next month and one being held up over organ transplants.  The outcome of each case could be critical to the future of capital punishment in Ohio.

A preliminary staff review of Dennis McGuire’s execution on Jan. 16 concluded that the “process went very well” and found “no reasons for revision of policy for future executions.”  However, the reports by Warden Donald R. Morgan at the Southern Ohio Correctional Facility, who observed McGuire’s execution, and Joseph Andrews, a former prisons official now with the Department of Public Safety, are not the final word on the execution, an agency official said.  The final report is pending....

Meanwhile, the organ-transplant controversy, also a first in the U.S., involves inmate Ronald Phillips, 40, whose scheduled execution last Nov. 4 was postponed by Gov. John Kasich to allow time for Phillips to donate nonvital organs to his ailing mother.  Kasich postponed his lethal injection until July 2 to allow time for the complicated surgery.

In the intervening two months, the state has received no documents or requests to proceed. Tim Sweeney, Phillips’ Cleveland lawyer, said the transplant procedure is under discussion, but he declined to elaborate.

Ohio Department of Rehabilitation and Correction officials have informed Phillips about transplant restrictions.  Prisons policy allows a living organ donation only to a member of Phillips’ family, not to someone in the general public.  The family member must be on a list maintained by the United Network for Organ Sharing, the national organization that oversees transplants.  The procedure must be done at Ohio State University’s Wexner Medical Center, where the state has a health-care contract.  Taxpayers would not pay for the surgery.  Phillips would be returned to Death Row after recovering to allow the execution to proceed....

The third contested case involves Gregory Lott, 51, scheduled to be executed on March 16. A hearing opposing use of the same drugs for Lott that were used to kill McGuire will be held in U.S. District Court in Columbus on Feb. 19.

Lott, 51, was convicted and sentenced to death for killing John McGrath, 82, by setting him on fire in his Cleveland-area home in 1986.  McGrath survived in a hospital for 11 days before dying.  Lott came close to execution in 2004, but the U.S. Supreme Court blocked it.

Execution dates have been set for 10 other convicted Ohio killers, extending through January 2016.

February 7, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, February 06, 2014

Tennessee now has more scheduled execution dates than it has had modern executions

Tennessee has only had six executions in the modern death penalty era, and it has not completed an execution in nearly five years.  But, as reported in this local article, it now has 10 new execution dates scheduled:

The state of Tennessee plans to execute 10 death row inmates over the next two years after changing the drug protocol to be used in lethal injections, officials said Wednesday.  The state is scheduled to execute the condemned prisoners between April 22, 2014, and Nov. 17, 2015, the Tennessee Administrative Office of the Courts confirmed. Three executions are scheduled this year and seven in 2015.

Gov. Bill Haslam, noting that three execution orders were handed down Friday by the state Supreme Court, told The Tennessean Wednesday that the decision to seek the executions didn’t go through him.  But he said he agrees with it.  “The death penalty has been approved by the state,” he said.  “It’s been our policy. When I ran, I got asked that question, and I said I will follow what the juries decide.”...

Kelley Henry, who supervises capital punishment defense cases with the Federal Public Defender’s Office in Nashville, said it was unfortunate that so many death row inmates were being grouped together.  Henry and other attorneys have asked a Davidson County judge to halt the executions over questions about the drug the state now plans to use. “Each and every one of these cases has a story that is an example of how the death penalty system in Tennessee is broken,” she said Wednesday.  “They each have different stories of ineffective counsel, of evidence that was suppressed by the state, stories of trauma and mental abuse that were never presented to a jury or a judge.”

February 6, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Saturday, February 01, 2014

"Botched executions undermine death penalty"

The title of this post is the headline of this recent op-ed in the Providence Journal authored by Austin Sarat.  Here are excerpts:

This month’s execution of Dennis McGuire made headlines, and rightly so. The start of his execution was followed by a sudden snort and more than 10 minutes of irregular breathing and gasping.  It took Ohio almost 25 minutes to end McGuire’s life.  Newspapers labeled McGuire’s a “slow execution” and a “horrific death.”  His lawyer said, “The people of the state of Ohio should be appalled at what was done here today in their names.”  McGuire, a brutal killer, seemed to become, at least momentarily, an object of pity.

His execution occurred at a time when abolitionists have increasingly turned their attention away from the fate of the people like McGuire, whose guilt in the 1989 murder of pregnant 22-year-old Joy Stewart seems beyond doubt, to focus on those mistakenly and unjustly condemned to die.  Doing so, they have had considerable success in changing attitudes toward America’s death penalty.

In this climate, should we care about what happened to Dennis McQuire? ... Why not treat McGuire’s execution as a freak accident, rather than a symptom of a deeper problem in the death penalty system?

Since the beginning of the republic, we have committed ourselves to punishing without cruelty, to restraining the hand of vengeance no matter how horrible the crimes that give rise to punishment.  On all sides of the death-penalty debate people agree that no method of execution should be used if it involves, as the Supreme Court’s 1947 Francis v. Resweber decision put it, “torture or lingering death” or “something more than the mere extinguishment of life.”

From hanging to electrocution, from electrocution to lethal gas, from electricity and gas to lethal injection, over the course of last century America moved from one technology to another in the hope of vindicating the promise of the Francis decision.... Yet McGuire’s joined a long line of botched executions that have marked America’s use of the death penalty from its beginnings and continued unabated over the last century and more.

Of approximately 9,000 capital sentences carried out in the United States from 1890 to 2010, we know of 276 of them (just under 3 percent) that were botched — 104 of them occurring after 1980.  We might assume that botched executions were more frequent when death came at the end of a rope or in an electric chair or gas chamber, but the percentage of botched executions is higher today, in the era of lethal injection (more than 7 percent), than it was when hanging, electrocution or gas were the predominant modes of putting people to death.

Botched lethal injection procedures are less obviously gruesome than a decapitation during a hanging or someone catching on fire in the electric chair, but they are no less troubling....

It is unacceptable for 3 percent of America’s executions to impose “something more than the mere extinguishment of life.” We should learn from our own history that there is no technological guarantee that we can kill humanely.

February 1, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (15) | TrackBack

Wednesday, January 29, 2014

SCOTUS grants stay of Missouri execution because . . . ? UPDATE: Execution completed after many hours of legal wrangling

As detailed in this AP report, headlined "Supreme Court grants stay of execution for killer Herbert Smulls," it seems concerns about lethal injection drugs and plans in Missouri has gotten the attention of at least one Justice. Here are the details:

The U.S. Supreme Court has granted a stay of execution for Missouri death row inmate Herbert Smulls. Justice Samuel Alito signed the order, sent out late Tuesday night.

Smulls’ attorney, Cheryl Pilate, says the stay is temporary while the high court reviews the case, but she is hopeful it will become permanent. The execution team will reconvene at noon today, expecting the stay to have been lifted, said Mike O’Connell, spokesman for the Department of Public Safety.

Pilate had made last-minute pleas to spare Smulls, focusing on the state’s refusal to disclose from which compounding pharmacy it had obtained the lethal-injection drug, pentobarbital. Missouri has argued that the pharmacy is part of the execution team so its name can’t be released.

Smulls was convicted of killing a St. Louis County jeweler and badly injuring his wife during a 1991 robbery. Smulls had been scheduled to die at 12:01 a.m. today, at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre.“We’re happy to get the stay and we’re glad the court is reviewing it,” Pilate said.

A message late Tuesday seeking comment from Eric Slusher, a spokesman for Missouri Attorney General Chris Koster, was not immediately returned. Gov. Jay Nixon denied clemency on Tuesday afternoon for Smulls. “These crimes were brutal, and the jury that convicted Smulls determined that he deserved the most severe punishment under Missouri law,” he said in an email.

On Monday, a federal judge denied a stay of execution that Smulls’ lawyers had asked for 60 days to prove that Missouri’s injection would violate his Eighth Amendment protections against cruel and unusual punishment, by putting him at risk of an excruciating death.

Smulls, 56, of St. Louis, was sentenced to death for the 1991 murder of Chesterfield jeweler Stephen Honickman. He would be the third inmate to be executed in Missouri in three months using pentobarbital produced for the Department of Corrections by a compounding pharmacy in Oklahoma.

I cannot help but speculate that Ohio's recent lethal injection controversy somehow played a role in the granting of this stay. But this AP report suggests that Missouri was not planning to adopt Ohio's new execution method, but rather its already established method of using compounded pentobarbital. Therefore, I am a bit puzzled as to just why Justice Alito would intervene on this issue, especially after the Eighth Circuit had last week rejected en banc this condemned murderer's complaints abut the execution process.

Among my concerns about this stay is the message it seems to send to anyone scheduled to be executed by any method in any state. If Ohio's troubles using a different execution method prompts SCOTUS to stop or delay Missouri's distinct execution plans, then I think any and every lawyer for a capital defendant arguably has an obligation to re-raise (and re-raise and re-raise) in state and federal courts any and all possible claims about one state's execution methods after each and every execution anywhere else in the US.

UPDATE:  I have now heard from a knowledgeable source that Smulls also had a Batson claim before the Supreme Court and that it may be Batson issues, not any Eighth Amendment claim, that is serving as the basis for the stay.

ANOTHER UPDATE:  This AP report notes the stays were all finally lifed and that Smulls was executed late Wednesday night:

Late Wednesday night, Smulls was put to death with a lethal dose of pentobarbital, Missouri's third execution since November and the third since switching to the new drug that's made by a compounding pharmacy the state refuses to name.

Smulls, 56, did not have any final words. The process was brief, Smulls mouthed a few words to his two witnesses, who were not identified, then breathed heavily twice and shut his eyes for good. He was pronounced dead at 10:20 p.m.

Florence Honickman spoke to the media after the execution, flanked by her adult son and daughter. She questioned why it took 22 years of appeals before Smulls was put to death. "Make no mistake, the long, winding and painful road leading up to this day has been a travesty of justice," she said.

His attorneys spent the days leading up to the execution filing appeals that questioned the secretive nature of how Missouri obtains the lethal drug, saying that if the drug was inadequate, the inmate could suffer during the execution process. The U.S. Supreme Court granted a temporary stay late Tuesday before clearing numerous appeals Wednesday -- including the final one that was filed less than 30 minutes before Smulls was pronounced dead, though the denial came about 30 minutes after his death....

Like Joseph Paul Franklin in November and Allen Nicklasson in December, Smulls showed no outward signs of distress in an execution process that took about nine minutes. Missouri had used a three-drug protocol for executions since 1989, but makers stopped selling those drugs for executions. Missouri ultimately switched late last year to a form of pentobarbital made by a compounding pharmacy. The state claims that since the compounding pharmacy is part of the execution team, it is not required to disclose its name....

Smulls' legal case was protracted over several appeals and over several years, finally ending in 2009 with the death sentence. His accomplice, Norman Brown, was sentenced to life in prison without parole. "It was a horrific crime," [[St. Louis County prosecutor Bob] McCulloch said. "With all the other arguments that the opponents of the death penalty are making, it's simply to try to divert the attention from what this guy did, and why he deserves to be executed."

Compounding pharmacies custom-mix drugs for individual clients and are not subject to oversight by the U.S. Food and Drug Administration, though they are regulated by states. Smulls' attorney, Cheryl Pilate, contended the state's secrecy regarding where the pentobarbital is made makes it impossible to know whether the drug could cause pain and suffering during the execution process.

Pilate also said she and her defense team used information obtained through open records requests and publicly available documents to determine that the compounding pharmacy is The Apothecary Shoppe, based in Tulsa, Okla. In a statement, The Apothecary Shoppe would neither confirm nor deny that it makes the Missouri drug.

Pilate said the possibility that something could go wrong persists, citing recent trouble with execution drugs in Ohio and Oklahoma. She also said that previous testimony from a prison official indicates Missouri stores the drug at room temperatures, which experts believe could taint the drug, Pilate said, and potentially cause it to lose effectiveness.

Some Missouri lawmakers have expressed reservations about the state's execution procedure. On Tuesday, Missouri Senate Democratic Leader Jolie Justus introduced legislation that would create an 11-member commission responsible for setting the state's execution procedure. She said ongoing lawsuits and secrecy about the state's current lethal injection method should drive a change in protocol.

January 29, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Tuesday, January 28, 2014

A useful reminder that many states still have lots of execution methods on the books

This lengthy AP article, headlined "Stated Consider Reviving Old-Fashioned Executions," provides an effective review not only of recent problems with lethal injection as an execution method, but also of the options that lots of states still have available.  Here are excerpts:

With lethal-injection drugs in short supply and new questions looming about their effectiveness, lawmakers in some death penalty states are considering bringing back relics of a more gruesome past: firing squads, electrocutions and gas chambers.

Most states abandoned those execution methods more than a generation ago in a bid to make capital punishment more palatable to the public and to a judicial system worried about inflicting cruel and unusual punishments that violate the Constitution.  But to some elected officials, the drug shortages and recent legal challenges are beginning to make lethal injection seem too vulnerable to complications....

States began moving to lethal injection in the 1980s in the belief that powerful sedatives and heart-stopping drugs would replace the violent spectacles with a more clinical affair while limiting, if not eliminating, an inmate's pain.

The total number of U.S. executions has declined in recent years — from a peak of 98 in 1999 to 39 last year. Some states have turned away from the death penalty entirely. Many have cases tied up in court. And those that carry on with executions find them increasingly difficult to conduct because of the scarcity of drugs and doubts about how well they work. In recent years, European drug makers have stopped selling the lethal chemicals to prisons because they do not want their products used to kill.

At least two recent executions are also raising concerns about the drugs' effectiveness. Last week, Ohio inmate Dennis McGuire took 26 minutes to die by injection, gasping repeatedly as he lay on a gurney with his mouth opening and closing. And on Jan. 9, Oklahoma inmate Michael Lee Wilson's final words were, "I feel my whole body burning."...

Some states already provide alternatives to lethal injection. Condemned prisoners may choose the electric chair in eight states: Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia. An inmate named Robert Gleason Jr. was the most recent to die by electrocution, in Virginia in January 2013.

Arizona, Missouri and Wyoming allow for gas-chamber executions. Missouri no longer has a gas chamber, but Attorney General Chris Koster, a Democrat, and Missouri state Sen. Kurt Schaefer, a Republican, last year suggested possibility rebuilding one. So far, there is no bill to do so.

Delaware, New Hampshire and Washington state still allow inmates to choose hanging. The last hanging in the U.S. was Billy Bailey in Delaware in 1996. Two prisoners in Washington state have chosen to be hanged since the 1990s - Westley Allan Dodd in 1993 and Charles Rodman Campbell in 1994.

Firing squads typically consisting of five sharpshooters with rifles, one of which is loaded with a blank so the shooters do not know for sure who fired the fatal bullet.  They have been used mostly for military executions. Since the end of the Civil War, there have been three civilian firing squad executions in the U.S., all in Utah.  Gary Gilmore uttered his famous final words, "Let's do it" on Jan. 18, 1977, before his execution, which ended what amounted to a 17-year national moratorium on the death penalty. Convicted killers John Albert Taylor in 1996 and Ronnie Lee Gardner in 2010 were also put to death by firing squad.

Utah is phasing out its use, but the firing squad remains an option there for inmates sentenced prior to May 3, 2004. Oklahoma maintains the firing squad as an option, but only if lethal injection and electrocution are deemed unconstitutional.

In Wyoming, Republican state Sen. Bruce Burns said death by firing squad would be far less expensive than building a gas chamber. Wyoming has only one inmate on death row, 68-year-old convicted killer Dale Wayne Eaton. The state has not executed anyone in 22 years.

Jackson Miller, a Republican in the Virginia House of Delegates, is sponsoring a bill that would allow for electrocution if lethal injection drugs are not available.  Miller said he would prefer that the state have easy access to the drugs needed for lethal injections. "But I also believe that the process of the justice system needs to be fulfilled."

January 28, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, January 27, 2014

"Officials investigate whether executed killer faked suffocation"

The title of this post is the headline of this notable new Columbus Dispatch article, which includes these interesting details and developments:

One of Dennis McGuire’s state public defender attorneys was temporarily suspended last week while officials investigated whether he told the condemned man to fake symptoms of suffocation during the early stage of his execution.  Attorney Rob Lowe was scheduled to return to work today after the inquiry found “no wrongdoing,” Ohio Public Defender Tim Young said in a memo sent last Thursday to his staff and obtained by The Dispatch. McGuire was represented by Lowe, from Young’s office, plus two federal public defenders.

Young took the initial allegation so seriously that he called back his attorneys who were scheduled to attend the Jan. 16 execution at the Southern Ohio Correctional Facility near Lucasville. Young’s initial memo, sent about six hours after McGuire’s execution, said he had been contacted by Gov. John Kasich’s legal counsel with information that “a correctional officer overheard Mr. McGuire tell family members that an OPD attorney had encouraged him to feign suffocation when the lethal injection drugs were first administered.”

Incident reports obtained by The Dispatch from the Department of Rehabilitation and Correction show two officers said they overheard McGuire talking with his ex-wife, Darlene Thomas, the day prior to the execution describing what he had been instructed to do by his attorney when he began feeling the effects of the chemicals. “When I begin to gasp for air I will have my thumb in the air per my attorney...If it wasn’t for my daughter I would really put on a show.”

A third, more detailed report came from the unidentified execution team leader recounting a conversation he had with McGuire the night before his execution. McGuire said Lowe told him that if things went wrong during the execution, he “would be the sole reason that executions no longer happen in Ohio and all his buddies on death row would be saved.”

McGuire angrily rejected Lowe’s request to be allowed to witness the execution, the report said. “He (Lowe) wants me to put on this big show in front of my kids all right when I’m dying. I ain’t gonna do this. It’s about me and my kids, not him and him and his cause.” McGuire declined to let Lowe witness, but did as he was requested, giving a “thumbs up” briefly as he looked toward his family members before turning his head away and apparently losing consciousness.

Minutes later, he repeatedly gasped for air, snorted, choked and clenched his fists before succumbing to a lethal two-drug combination that had not previously been used in a U.S. execution. McGuire’s struggles did not begin immediately, but several minutes after the chemicals began flowing into his veins.

Amber and Dennis McGuire, the executed man’s children, who witnessed the execution, filed a lawsuit last week in U.S. District Court claiming their father’s constitutional rights were violated because the two-drug lethal injection triggered a reaction that amounted to “cruel and unusual punishment.” The lawsuit also goes after Hospira Inc., the Chicago drug manufacturer.

In a Dispatch interview today, Young confirmed the details of what happened, but vehemently denied that Lowe or anyone on his staff urged McGuire to fake suffocation. “Absolutely not,” he said. “We would never in any way try to corrupt this process or ask our client to feign any symptoms.”

An internal investigation led by Elizabeth Miller, deputy director in Young’s office, involved interviews with 11 people and reviews of emails and phone messages. “We concluded that there wasn’t any substantial proof or evidence” that McGuire was coached to feign symptoms, Young said. Young said that in McGuire’s execution, as with all death penalty cases, public defenders discuss the process step-by-step with the inmate. “We want to make sure we tell them exactly what is going to occur.

“We did ask Mr. McGuire to signal us so we would know when he lost consciousness,” Young said.

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

January 27, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (9) | TrackBack

Saturday, January 25, 2014

"Bring back the firing squad for the death penalty: The best way to dispatch the monsters among us"

Sqaud_s640x499The title of this post is the headline of this interesting and provocative new commentary by Tammy Bruce appearing in the Washington Times. Here is much of the discussion:

Has the left’s attempt to use the lethal-injection process to ban the death penalty backfired? Consideration of firing squads for implementing the death penalty is not a fringe issue and would bring back the humaneness the left claims it wants in the process.

As often as I can, I laud the importance, value and decency of the death penalty. As a feminist, I’ve spent a great deal of my adult life as an advocate for women, educating on violence against women and agitating for justice for women in a system that far too often forgets the victims on the receiving end of a beast’s rage.

Wiping monsters from the face of the earth is a good thing, and the death penalty provides the ultimate statement from society that we refuse to pamper the heinous and cold-blooded among us. Victims’ families also deserve the closure and respect of a society that takes decisive action against those who dared to rip their worlds apart.

Now, with the use of DNA evidence to confirm guilt, the argument of mistakenly executing an innocent man is also off the table. We all want to eliminate doubt, and modern science now allows us to do just that.

So last week I was especially pleased to see lawmakers in Missouri and Wyoming arguing for the use of the ultimate in fast and humane executions — the firing squad. Finally, common sense is prevailing after years of trying to placate the left by doing everything possible to make an execution seem like a visit to the spa. The only thing we aren’t doing while “putting to sleep” the most craven among us was reading them a bedtime story and surrounding them with puppies.

This renewed call for firing squads hasn’t come out of the blue. A shortage of the drugs (owing to the one U.S. drug manufacturer responding to pressure from anti-death penalty activists) used in the three-drug execution cocktail has forced states to determine exactly how they can carry out the process while making sure the condemned doesn’t get too uncomfortable.

Me? I’d feed the jerks more than a few cocktails (martinis to be exact), put them behind the wheel of a Pinto and let them loose in one of those crash-dummy test ranges. I’d enjoy telling them freedom is just past that brick wall over there and invite them to hit the gas. Next.

A case in point just last week: Dennis Maguire was finally put to death after being found guilty of the torturous and sadistic murder of Joy Stewart in 1989. Joy was seven months pregnant when Maguire raped and sodomized her, slit her throat and stabbed her to death. Her body was then dumped in the woods.

The coroner thinks her unborn baby possibly survived the initial assault and could have lived hours more in his dead mother’s womb. Carl would have been his name. Joy’s husband, Kenny, unable to cope with the atrocity of what happened to his family, killed himself a week before Maguire’s trial.

Finally last week, Ohio got on with the business of execution a quarter of a century after Maguire had been sentenced to die. Yet the media and anti-death-penalty trolls were beside themselves when Ohio opted to execute Maguire with a two-drug cocktail instead of the usual three. The hand-wringing over the possibility that rapist-murderer-child-killer Maguire wouldn’t see kittens in his dreams before dying in his sleep was pathetic....

The lethal-injection system, by its very process, gives credence to the notion that executing someone is a bad thing and, therefore, needs to be made “nice.” Executing the evil among us is a necessary thing, but for those who insist it be compassionate, the firing squad is the answer. Quick, painless and inexpensive, it is, in fact, the ultimate in humane dispatching.

I can hear those, some of whom are well-meaning, who worry about the lives of monsters, appalled about the imagined cruelty and inhumanity of my argument. I’ll tell you what’s inhumane — forcing the innocent to watch society herald the murderers in our midst.

The inhumanity is ignoring the innocent whose worlds were destroyed by craven savages like Maguire, condemning their families to lives devoid of closure and whatever peace might be possible. The death penalty provides justice to those who deserve it. It’s time we take that seriously, end the atrocious delays in executions and bring back the humaneness of the firing squad.

Some recent related posts on Ohio's struggles and execution by firing squad:

January 25, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Tuesday, January 21, 2014

Notable early legislative responses to Ohio's recent lethal injection struggles

Ohio GAAs repotted in this new local article, headlined "Legislative Democrats push anti-death penalty bills following controversial execution," at least a few member of the Ohio General Assembly have a few ideas about how the state should respond to its recent execution challenges. Here are the basics:

In the wake of Dennis McGuire's controversial execution last week, legislative Democrats are ramping up efforts to halt —€” or at least modify — the death penalty in Ohio.

State Sen. Edna Brown, a Toledo Democrat, called for an immediate moratorium on the death penalty and announced she would introduce legislation to abolish its practice in the state. Brown sponsored a similar bill in 2011.

In addition, Democratic state Rep. Bob Hagan of Youngstown said in a release that he's introducing a bill that would require the governor and the state'€™s prisons chief to be personally present during all future executions.

Both bills come after McGuire, convicted of raping, choking and stabbing a 22-year-old woman in 1989, was the first person in the United States to be put to death using a new and untried lethal-injection cocktail involving midazolam, a sedative, and hydromorphone, a morphine derivative. McGuire made several loud snorting sounds during his execution last Thursday, which took more than 15 minutes and was one of the longest executions since Ohio resumed using capital punishment in 1999....

In addition, an already-introduced House bill to abolish the death penalty will come before the House Judiciary Committee on Wednesday. House Bill 385 would substitute capital punishment with life imprisonment, with parole options after 20 or 30 years for some of those who plead guilty to or are convicted of aggravated murder.

Cleveland-area Democratic Reps. Dan Ramos of Lorain and Nickie Antonio of Lakewood introduced the legislation last month. Ramos and Antonio have cited reasons such as DNA evidence testing and racial disparities in sentencing as reasons to abolish capital punishment.

All three Democratic bills face an uphill climb in the Ohio General Assembly, as Republicans have significant majorities in both the House and Senate....

The Department of Rehabilitation and Correction will conduct a review of Ohio'€™s death penalty procedures, as is standard policy after every execution, according to department spokeswoman JoEllen Smith. Smith said she wasn'€™t sure when that review would be completed, though she anticipated it would be done by March 19, when Gregory Lott of Cleveland is scheduled to become the next death row inmate to be executed.

Lott, convicted in 1987 of robbing and murdering an 82-year-old East Cleveland man, is also planning to file a federal lawsuit challenging the use of Ohio's new lethal-injection drugs, his attorney said last week.

As this article highlights, a number of political realities likely ensure Ohio is unlikely to abolish the death penalty anytime soon. But the national and international attention garnered by last week's Ohio execution surely means that those looking to repeal or curtail Ohio's capital punishment system will garner a lot more attention in the days and weeks ahead.

While I am not expecting too much of legal consequence to happen in Ohio on the legislative front, I expect there will be a lot of consequential developments in the weeks ahead emerging from the executive and judicial branches.  Governor john Kasich has shown a willingness to use his clemency powers to delay executions or commute death sentences for a number of reasons. And as this press release reveals, the ACLU of Ohio has already publicly urge the Governor to impose a moratorium on executions. Here is how the press release starts: "[On Sunday], the ACLU of Ohio sent a letter to Ohio Governor John Kasich, asking him to use his executive authority to declare an immediate halt to executions in Ohio. The letter comes on the heels of the state’s fourth botched execution in less than ten years."

Om the judicial side, there is still on-going federal litigation over the constitutionality of Ohio's execution methods (as well as a new lawsuit threated by the McGuire family).  Moreover, in the wake of all the new troubles with the new lethal injection protocol, I cannot help but wonder if advocates for death row prisoners or others interested in abolition of the death penalty might now try to bring some state civil rights litigation in order to require the Ohio Supreme Court to consider and addresss how the state is now administering the punishment of death. 

Recent related posts:

January 21, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, January 19, 2014

Lots of notable reactions to and predictions after Ohio's latest struggles with lethal injection

20141813-firing-squad-2As reported here and here, Ohio's experiment with a new and novel two-drug execution protocol this past week did not look as peaceful as most everyone wants.  While the reaction by the family of the executed murderer is to talk up a possible lawsuit against the state of Ohio, reactions of lots of others are varied as evidenced in some of the quotes found within this sampling of recent media stories:

From the AP here, "Unclear Future for Executions After Ohio's Longest"

From the AP here, "Missouri, Wyoming lawmakers open to allowing executions by firing squad"

From CNN here, "Family, experts: Ohio execution snafu points to flaws in lethal injection"

From the Los Angeles Times here, "Prolonged execution renews debate over death by lethal injection"

From Reuters here, "U.S. states could turn to firing squads if execution drugs scarce"

From the New York Times here, "After a Prolonged Execution in Ohio, Questions Over 'Cruel and Unusual'"

Recent related posts:

January 19, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (9) | TrackBack

Friday, January 17, 2014

"Family to file lawsuit after troubled execution"... seeking what remedy?

The title of this post is the headline of this breaking news from my own Columbus Dispatch coming less than 24 hours after the great state of Ohio carried out an execution using a novel two-drug execution protocol.  Here are the details:

The family of Dennis McGuire will file a federal lawsuit against the state of Ohio over his troubled execution yesterday. Amber and Dennis McGuire, the executed man’s children, scheduled a press conference this morning in Dayton to announce their intention to go to court. The suit will claim McGuire’s 8th Amendment rights under the U.S. Constitution to avoid “cruel and unusual punishment” were violated when he gasped for air, choked and struggled against his restraints for about 10 minutes before being declared dead at 10:53 a.m.

“Shortly after the warden buttoned his jacket to signal the start of the execution, my dad began gasping and struggling to breathe,” Amber McGuire said in a statement. “I watched his stomach heave. I watched him try to sit up against the straps on the gurney. I watched him repeatedly clench his fist. It appeared to me he was fighting for his life but suffocating.” McGuire’s children were witnesses at his lethal injection at the Southern Ohio Correctional Facility near Dayton.

McGuire, 53, was executed for the brutal 1989 murder of Joy Stewart, 22, who was newly married and 30 weeks pregnant at the time of her death. McGuire raped Stewart vaginally and anally, choked her, stabbed her in the chest, and slit her throat. He dumped her body in the woods near Eaton, Ohio, where it was found the next day by two hikers.

There was no clear indication that the drug combination — never before used in a U.S. execution — triggered McGuire’s death struggles. But Allen Bohnert, one of McGuire’s federal public defenders, called the execution a “failed, agonizing experiment by the state of Ohio.” McGuire died from an injection of midazolam, a sedative, and hydromorphone, a morphine derivative. The two drugs had never been used before in an execution in the U.S. The state switched to the new drugs because pentobarbital, the single drug used before, is no longer available as manufacturers will not sell it for use in executions....

Ohioans to Stop Executions called for an immediate death-penalty moratorium after what it called the “horrific events.”

I will be very interested to see the specifics of this federal lawsuit, and I am especially interested in the remedy that will be sought in this matter. Because the person whose constitutional rights were allegedly violated is now dead, I do not think any kind of injunction concerning future executions would be a possible remedy to seek. In addition, the family cannot make a wrongful death claim because McGuire's death was his lawful punishment. Consequently, it would seem the family can only be making a claim for damages based on the alleged pain McGuire suffered over a twenty minute period. (And, I do not believe the family can seek any kind of punitive damages under usual federal civil rights laws for state constitutional violations.)

Recent related post:

January 17, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (33) | TrackBack

Thursday, January 16, 2014

Ohio completes execution using novel two-drug lethal injection protocol... UPDATED with media reports of problems

As reported in this new local article, headlined "Dennis McGuire executed using new 2-drug combination," the great state of Ohio has yet again pioneered and used a brand new execution protocol. Here are the details:

Dennis McGuire and his attorneys wanted his death to be pain-free. His lethal injection at 10:53 a.m. today appeared to be relatively calm and free of the panic and agony that McGuire’s attorneys feared would occur from the combination of drugs used together for the first time in a U.S. execution.

McGuire’s quiet, almost surreal death in a small, windowless room at the Southern Ohio Correctional Facility stood in bleak contrast to the violent, terrifying death suffered by his victim, Joy Stewart.

Stewart, 22, of West Alexandria, a small town about 20 miles west of Dayton, was about 30-weeks pregnant when McGuire raped her, choked her, and slashed her throat so deeply it severed both her carotid artery and jugular vein. At the same point, her unborn child died, too, probably in the woods in the rural area of Preble County where her body was found the next day by two hikers.

McGuire, 53, died from an injection of midazolam, a sedative, and hydromorphone, a morphine derivative. The combination, never before used in a U.S. execution, was chosen by the Ohio Department of Rehabilitation and Correction because pentobarbital, the single drug previously used, is no longer available. McGuire's attorneys argued unsuccessfully that the drugs could cause him to struggle for breath though something known as “air hunger,” and die painfully, a violation of a U.S. constitutional ban against cruel and unusual punishment.

Dennis McGuire's adult children, Amber and Dennis, along with Dennis’ wife, were among those who watched his execution. The inmate had a tearful visit with his children Carol Avery, the victim’s sister, also witnessed.

The execution had an unusually large media contingent on hand; in recent years, the media had dwindled away as executions became almost routine since Ohio re-instated in the death penalty in 1999. Outside, a handful of anti-death penalty protestors demonstrated as temperatures remain in the low 20s even after sunrise this morning.

UPDATE:  Intriguingly, I have now seen that this CNN report on today's Ohio execution starts with this very different account of how it went:

Ohio inmate Dennis McGuire appeared to gasp and convulse for roughly 10 minutes before he finally died Thursday during his execution by lethal injection using a new combination of drugs, reporters who witnessed it said.

And the article I linked above from my own Columbus Dispatch as of 2:40pm now carries a much different headline and lead:

Killer struggles, gasps repeatedly under new 2-drug combination

Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today.

The 24-minute execution process was a “failed, agonizing experiment by the state of Ohio,” said one of the killer’s attorneys, Allen Bohnert, a federal public defender. “The people of the state of Ohio should be appalled by what was done in their name.”

McGuire’s death by lethal injection at 10:53 a.m. may have been marked by the “air hunger” that McGuire’s attorneys feared would occur from the combination of drugs used for the first time in a U.S. execution.

“What we suggested to the court did happen,” said Bohnert, who refused to speculate on whether McGuire suffered. He also would not say whether further legal action would be pursued under the U.S. constitutional ban against cruel and unusual punishment.

January 16, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (11) | TrackBack

Monday, January 13, 2014

Federal judge refuses to stop Ohio's plans to use novel execution method

As reported in this new AP piece, it looks now like Ohio is going to be able to go forward with its first planned execution of 2014. Here is why I was not sure about this before today:

A federal judge today refused to stop the upcoming execution of a condemned Ohio killer facing a never-tried lethal injection process that the inmate’s attorneys say will cause him agony and terror.  Judge Gregory Frost’s ruling moved Dennis McGuire one step closer to execution by the two-drug method developed after supplies of Ohio’s former execution drug dried up. Gov. John Kasich and the Ohio Parole Board have both rejected McGuire’s plea for clemency.

The judge said McGuire had failed to present evidence that he would suffer breathing problems alleged by his attorneys — a phenomenon known as “air hunger” — and said the risk to McGuire is within Constitutional limits. “The evidence before this court fails to present a substantial risk that McGuire will experience severe pain,” Frost said.

The judge rejected a similar request last year by death row inmate Ronald Phillips, who was set to become the first to die by the new method until Kasich delayed his execution to study the feasibility of Phillips’ donating organs to family members.

McGuire, 53, is scheduled to die Thursday for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio....

McGuire also asked the U.S. Supreme Court to delay the execution on the grounds that the jury that sentenced him to die never got to hear the full extent of his chaotic and abusive childhood. In the lethal injection appeal, McGuire’s lawyers had asked Frost to delay the execution while they challenge the proposed two-drug system....

The state opposed any delay, presenting evidence that disputed the air hunger scenario. They called McGuire’s appeal an eleventh-hour request that was years too late....

Supplies of Ohio’s former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions. Ohio’s Department of Rehabilitation and Correction plans to use a dose of midazolam, a sedative, combined with hydromorphone, a painkiller, to put McGuire to death.

Other death penalty states are being challenged by supply shortages. Missouri gave up attempts to use propofol over concerns the move could create a shortage of the popular anesthetic if the European Union, which opposes the death penalty, restricted its export. In Georgia, the state’s attempt to use a non-federally regulated dose of pentobarbital is the subject of a lawsuit.

The combination of drugs Ohio intends to use has never been used in a U.S. execution. They are included in Kentucky’s backup execution method, and Florida uses midazolam as part of its three-drug injection process.

January 13, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, January 07, 2014

Another new legal challenge as Ohio prepares to conduct an execution with another new protocol

As reported in this AP piece, headlined "Attorneys cite 'agony and terror' in untried execution method," Ohio has an execution scheduled for next week that is generate a new round of litigation because of a new execution method. Here are the basics:

Ohio's untried execution method, the first of its kind in the nation, will cause the condemned killer of a pregnant woman "agony and terror" as he struggles to breathe, attorneys trying to stop the execution argued in federal court.

The two-drug combination won't sedate death row inmate Dennis McGuire properly, and he will experience a suffocation-like syndrome known as air hunger, the attorneys said in filings Monday and Tuesday. The drugs were chosen because of a shortage of other lethal injection drugs.

Lawyers had also asked Gov. John Kasich to spare McGuire on the grounds that a jury never got to hear the full details of his chaotic and abusive childhood and abuse. Kasich rejected that request without comment Tuesday. The governor typically does not give a reason when he turns down clemency requests by death row inmates.

McGuire, 53, is scheduled to die Jan. 16 for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio. McGuire's lawyers asked federal judge Gregory Frost to delay the execution while they challenge the proposed lethal injection system. "McGuire will experience the agony and terror of air hunger as he struggles to breathe for five minutes after defendants intravenously inject him with the execution drugs," the inmate's attorneys said in a Monday court filing.

They also said McGuire exhibits several symptoms of sleep apnea, which could exacerbate the problem. The dose planned for McGuire isn't enough to properly sedate him, meaning he'll experience "the horrifying sensation" of being unable to breathe, Harvard anesthesiology professor David Waisel said in a Tuesday filing in support of the inmate.

A message was left with the Ohio attorney general's office, which was expected to oppose McGuire's filing. Frost scheduled a Friday hearing. Supplies of Ohio's former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions. It's a challenge facing other death penalty states as well.

Missouri gave up attempts to use propofol over concerns the move could create a shortage of the popular anesthetic if the European Union, which opposes the death penalty, restricted its export. In Georgia, the state's attempt to use a non-federally regulated dose of pentobarbital is the subject of a lawsuit.

Instead, Ohio's Department of Rehabilitation and Correction plans to use a dose of midazolam, a sedative, combined with hydromorphone, a painkiller, to put McGuire to death.

That combination of drugs has never been used in a U.S. execution. They are included in Kentucky's backup execution method, while Florida uses midazolam as part of its three-drug injection process.

Regular readers know that there is a long history of notable developments in Ohio as a result of federal court litigation over new execution methods. It will be interesting to watch how this round of the litigation plays out.

January 7, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (6) | TrackBack

Notable (and amusing?) account of an execution method gone to the dogs

In various settings, some folks are quick to point out that the United States is uniquely punitivie in its use of imprisonment compared to all other nations in the world and also that the United States is one of the few nations in the western world to make continued and somewhat regular use of the death penalty.  And advocates for sentencing and corrections reform (myself included) sometimes contend that the US ought to try to learn from the policies and practices of other nations.  These realities came to mind when I read this notable recent article sent my way by a helpful reader reporting on a recent high-profile sentencing and punishment in another part of the world:

The execution of Jang Song Thaek, the No. 2 man in North Korea, took Beijing by surprise and will adversely affect bilateral relations. Beijing's displeasure is expressed through the publication of a detailed account of Jang's brutal execution in Wen Wei Po, its official mouthpiece, in Hong Kong, on Dec 12.

According to the report, unlike previous executions of political prisoners which were carried out by firing squads with machine guns, Jang was stripped naked and thrown into a cage, along with his five closest aides.  Then 120 hounds, starved for three days, were allowed to prey on them until they were completely eaten up. This is called "quan jue", or execution by dogs.

The report said the entire process lasted for an hour, with Mr Kim Jong Un, the supreme leader in North Korea, supervising it along with 300 senior officials. The horrifying report vividly depicted the brutality of the young North Korean leader. The fact that it appeared in a Beijing-controlled newspaper showed that China no longer cares about its relations with the Kim regime.

Amusingly, as this new Reuters piece reports, it now appears that the "international media frenzy over reports that North Korean leader Kim Jong Un's uncle had been executed by throwing him to a pack of dogs appears to have originated as satire on a Chinese microblogging website."  Here is more:

One of the pitfalls of reporting on North Korea is that few independent media have offices there and visiting media are tightly controlled in a country which ranks among the lowest in global surveys of press freedom. Because of the lack of first hand information, many lurid stories about the country gain credence.

Trevor Powell, a Chicago-based software engineer, who first spotted the link to the Weibo post and reported it on his own blog said that analysts and experts were "still all missing the obvious fact that the original source of the Wen Wei Po story was a tweet from a known satirist or someone posing as him/her." Powell blogged about the post here.

January 7, 2014 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentencing around the world, Who Sentences? | Permalink | Comments (23) | TrackBack

Monday, December 30, 2013

NY Times editorial talks of "Slow Demise of Capital Punishment"

The title of this new New York Times editorial, "The Slow Demise of Capital Punishment," is probably better viewed as wishful thinking rather than a sound prediction. Nevertheless, as excerpted below, the New York Times editorial board makes its most potent pitch against the death penalty in this piece:

More states are coming to recognize that the death penalty is arbitrary, racially biased and prone to catastrophic error. Even those that have not abolished capital punishment are no longer carrying it out in practice.

In 2013, Maryland became the sixth state to end capital punishment in the last six years. Eighteen states and the District of Columbia have abolished the penalty, and it is dormant in the federal system and the military. Thirty states have had no executions in the last five years.

As it becomes less frequent, the death penalty also becomes more limited to an extremely small slice of the country, and therefore all the more arbitrary in its application. All 80 death sentences in 2013 came from only about 2 percent of counties in the entire country, and all 39 executions — more than half occurred in Texas and Florida — took place in about 1 percent of all counties, according to a new report by the Death Penalty Information Center. Eighty-five percent of all counties have not had a single execution in more than 45 years.

Public support for the death penalty — an important factor in the Supreme Court’s consideration of its constitutionality — is at its lowest level in four decades, and 40 percent of people surveyed by Gallup say they do not believe it is administered fairly....

Of course none of this matters to, say, Troy Davis or Cameron Todd Willingham, both of whom were executed in recent years despite deep doubts about their guilt. Nor is it of much use to the 3,100 people still sitting on death row around the country.

The argument is not that all of these people are innocent, or that they deserve to be released. Most would be justly imprisoned for most if not all of their life. But the death penalty as applied in America now — so thoroughly dependent on where the defendant lives and how much money he can spend on his defense — violates the constitutional guarantees of due process and equal protection, and no longer can overcome the Eighth Amendment’s ban on cruel and unusual punishments.

The dishonor and shame of capital punishment are further highlighted by the current shortage of lethal-injection drugs, a “crisis” resulting from the refusal of European drug makers to provide them for executions. As a result, states that use lethal injection have turned to unregulated compounding pharmacies, and have even passed laws to hide the identity of those pharmacies and the chemical makeup of the drugs. This only underscores the fact that when it comes to the death penalty, the United States is virtually alone in the Western world.

Actually, all of these developments are in fact of great "use to the 3,100 people still sitting on death row around the country." Given that all these developments help explain why the US now averages less than 50 executions each year (and only a few dozen outside of Texas), the vast majority of murderers serving death sentences now should know that they are far more likely to die of old age in prison rather than in an execution chamber. (And, perhaps better yet for these murderers, their legal appeals are far more likely to get extra attention from lawyers and judges than the tens of thousands of defendants serving life sentences for lesser crimes.)

December 30, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (26) | TrackBack

Friday, December 13, 2013

Splitting 5-4 along party lines, SCOTUS vacates stay to allow Mizzou to complete novel execution

Distracted by other stories yesterday, I only now discovered that the US Supreme Court issued late Wednesday night this order (which, as I will explain below, strikes me as a pretty big deal):

The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eighth Circuit on December 9, 2013, presented to Justice Alito and by him referred to the Court, is granted.

Justice Ginsburg with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting. 

I would deny the application to vacate the stay of execution entered by the Court of Appeals.  See Bowersox v. Williams, 517 U.S. 345, 347 (1996) (GINSBURG, J., dissenting) (“At the very least, before acting irretrievably, this Court might have invited prompt clarification of the Court of Appeals’ [stay] order.  Appreciation of our own fallibility, and respect for the judgment of an appellate tribunal closer to the scene than we are, as I see it, demand as much.”).

The start and end of this lengthy AP article about the execution which followed this SCOTUS ruling accounts for why I think this order is a pretty big deal:

Allen Nicklasson once recalled the "euphoria" he felt after fatally shooting a kindly businessman who stopped to help when he saw Nicklasson's car stalled on Interstate 70 near Kingdom City, Mo., in 1994.

Late Wednesday night, Nicklasson was put to death for Richard Drummond's killing — nearly 23 hours after he was originally scheduled to die. It was the second execution in Missouri in three weeks after a nearly three-year hiatus. Racist serial killer Joseph Paul Franklin was executed Nov. 20.

The executions also were the first since Missouri switched from a three-drug protocol to use of a single drug, pentobarbital. Nicklasson, 41, was pronounced dead at 10:52 p.m. Wednesday, eight minutes after the process began.  His eyes remained closed throughout and he showed little reaction to the drug, briefly breathing heavily about 2 minutes into the process. He offered no final words....

Nicklasson's execution was originally scheduled for 12:01 a.m. Wednesday.  But an appeals court panel granted a stay of execution Monday, citing concerns about his counsel at trial and sentencing in 1996.

When the full appeals court refused to take up the case Tuesday, Missouri Attorney General Chris Koster appealed to the U.S. Supreme Court.  It did not return its 5-4 decision to vacate the stay until 10:07 p.m. Wednesday, with Justices Ruth Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting.  Gov. Jay Nixon refused to grant clemency.

Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments.  The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy — the Missouri Department of Corrections declines to say who makes the drug, or where.

My general sense and understanding is that it is relatively rare for the Supreme Court, especially at the last minute, to vacate a lower court's stay in a capital case, especially if and when that stay was entered by a circuit which does not have a long history of getting in the way of state executions.  Moreover, in addition to the legal issues that led to the stay, I think the defendant here was also seeking a stay in order to be able to question and assail Missouri's new lethal injection drugs and method.

Given that the four more liberal Justices were obviously eager to allow the stay of this execution to remain in place, I find it notable and seemingly important that the more conservative Justices were able to get swing Justice Kennedy to vote to vacate the stay and enable the Mizzou execution to be carried out.  Particularly given that, over the last few years, aggressive lower-court litigation has probably played more of a role in reducing the total number of executions than many other factors, I cannot help but wonder if this decision represents a kind of (indirect?) statement by a majority of the Supreme Court that, at least for brutal killers who've already gotten to live on death row for decades, enough is enough.

Especially because this SCOTUS order is only an order and has not generated much attention at all, I may be guilty of trying to make this decision more of a big deal than it is.  Nevertheless, especially as another year filled with capital habeas litigation winds to a close, I cannot help be think this may be an interesting and telling sign of future SCOTUS capital rulings to come.

December 13, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Tuesday, December 10, 2013

Some final squabbling over some of the final executions slated for 2013

This new Reuters piece, headlined "Oklahoma to execute inmate; Missouri execution stayed," provides a run down of some of the final aspects of some of the final executions scheduled for 2013.  Here are the details:

Oklahoma on Tuesday was scheduled to execute a man convicted of raping and murdering two elderly women in the 1980s, while a federal appeals court panel has stayed a Missouri execution planned for hours later.

Missouri appealed the 2-1 ruling by the Eighth Circuit U.S. Court of Appeals panel to stay the execution of Allen Nicklasson, 41, who was found guilty of killing a stranger who offered him roadside assistance.  Nicklasson has raised claims that his trial and appeals counsel were ineffective.  The full Eighth Circuit was expected to hear arguments and rule Tuesday morning on the state's request to lift the stay of Nicklasson's execution, which is set for early Wednesday at a Missouri prison.

The Missouri Department of Corrections is proceeding with its plans for the execution unless instructed differently by the state attorney general, spokesman Mike O'Connell said. Oklahoma is scheduled to execute Ronald Clinton Lott, 53, by lethal injection at a state prison after 6 p.m. Central Time (0000 GMT) on Tuesday.

If carried out, the executions of Lott and Nicklasson would be the 37th and 38th in the United States this year, according to the Death Penalty Information Center.

Lott was convicted of raping and killing Anna Laura Fowler, 83, in 1986 and Zelma Cutler, 90, in 1987 in their Oklahoma City homes after DNA evidence linked him to the crimes.... Another man, Robert Lee Miller Jr., had originally confessed to the rape and murder of the two women and served 11 years, seven on death row, before DNA evidence led authorities to Lott. Miller was released in 1998.

Lott would be the fifth man executed in Oklahoma in 2013. The state is also scheduled to execute Johnny Dale Black, 48, on December 17 for his conviction in the 1998 stabbing death of Ringling, Oklahoma, horse trainer Bill Pogue.

In the Missouri case, Nicklasson was found guilty of murder for the August 1994 shooting of motorist Richard Drummond, who stopped on a highway to help Nicklasson and two other men whose car had broken down. The men had burglarized a home where they stole guns and ammunition before their vehicle broke down. When Drummond stopped to offer a ride, the men abducted him, took him to a wooded area and shot him in the head, according to court records. One of the men, Dennis Skillicorn, was executed in 2009. The other man, Tim DeGraffenreid, was 17 at the time. He pleaded guilty to second-degree murder and received a reduced sentence.

Nicklasson and Skillicorn were also convicted of killing an Arizona couple while they were on the run after killing Drummond. Nicklasson would be the second person executed in Missouri this year.

Nicklasson had been scheduled to die October 23, but Missouri Governor Jay Nixon halted the execution due to broad criticism over the state's planned use of the drug propofol, widely used as an anesthetic in medical procedures. The case is one of many caught up in a nationwide debate over what drugs can or should be used for executions as capital punishment opponents pressure pharmaceutical companies to cut off supplies of drugs for executions. Missouri in November used pentobarbital, a short-acting barbiturate, mixed by a compounding pharmacy to execute serial killer Joseph Paul Franklin.

Because the executions discussed in this piece are the only ones likely to be carried out this month, it appears very likely that there will be less than 40 executions in the United States in 2013. This is only the second time in nearly two decades in which there were less than two score execution throughout the nation, and the last time (in 2008) no executions had been carried out for the first three months of the year as everyone awaited a result in Baze concerning the constitutionality of lethal injection protocols.

December 10, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, November 20, 2013

Missouri mass murderer gets two last-minute execution stays from two federal judges... UPDATE: stays reversed, execution completed

As reported in this new Reuters article, "[t]wo federal judges granted a serial killer stays of execution on Tuesday hours before he was to be put to death, allowing him to challenge Missouri's new lethal drug protocol and his mental competence, and the state immediately appealed the rulings."  Here is more:

Joseph Paul Franklin, an avowed white supremacist, was convicted and sentenced to death for killing one man and wounding two outside a St. Louis-area synagogue in 1977.  He was scheduled to be executed early on Wednesday at a Missouri prison.

Franklin, 63, has been linked to the deaths of at least 18 other people.  He was convicted of killing eight in the late 1970s and 1980s in racially motivated attacks around the country. The victims included two African-American men in Utah, two African-American teenagers in Ohio and an interracial couple in Wisconsin.

Franklin also has admitted to shooting Hustler magazine publisher Larry Flynt in 1978, paralyzing him. Flynt has argued that Franklin should serve life in prison and not be executed.

In October, Missouri changed its official protocols to allow for a compounded pentobarbital, a short-acting barbiturate, to be used in a lethal dose.  The state also said it would make the compounding pharmacy mixing the drug a member of its official "execution team," which could allow the pharmacy's identity to be kept secret.

In granting the stay, U.S. District Judge Nanette Laughrey noted that Missouri had issued three different protocols in the three months preceding Franklin's execution date and as recently as five days before.  "Franklin has been afforded no time to research the risk of pain associated with the department's new protocol, the quality of the pentobarbital provided, and the record of the source of the pentobarbital," Laughrey wrote in the stay order entered in federal court in Jefferson City, Missouri....

In the second case, U.S. District Judge Carol Jackson in St. Louis ordered Franklin's execution stayed, concluding that a delay was required to permit a meaningful review of his claim that he is mentally incompetent and cannot be executed.

The Missouri Attorney General's office asked the U.S. Court of Appeals for the Eighth Circuit to lift the stays.

Missouri Governor Jay Nixon denied Franklin clemency on Monday.  Franklin is one of 21 plaintiffs challenging the constitutionality of the execution protocol issued by the Missouri Department of Corrections.

UPDATE: As the commentors to this post noted before I got back on-line, Franklin was executed by Missouri after the Eighth Circuit reversed both the stays he received. Here is an AP report on the execution:

Joseph Paul Franklin, a white supremacist who targeted blacks and Jews in a cross-country killing spree from 1977 to 1980, was put to death Wednesday in Missouri, the state's first execution in nearly three years.

Franklin, 63, was executed at the state prison in Bonne Terre for killing Gerald Gordon in a sniper shooting at a suburban St. Louis synagogue in 1977. Franklin was convicted of seven other murders and claimed responsibility for up to 20, but the Missouri case was the only one that brought a death sentence.

Mike O'Connell, a spokesman for the Missouri Department of Corrections, said Franklin was pronounced dead at 6:17 a.m. The execution began more than six hours later than intended, and it took just 10 minutes....

Franklin's lawyer had launched three separate appeals: One claiming his life should be spared because he was mentally ill; one claiming faulty jury instruction when he was given the death penalty; and one raising concerns about Missouri's first-ever use of the single drug pentobarbital for the execution.

But his fate was sealed early Wednesday when the U.S. Supreme Court upheld a federal appeals court ruling that overturned two stays granted Tuesday evening by district court judges in Missouri. The rulings lifting the stay were issued without comment.

November 20, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Monday, November 18, 2013

Florida Supreme Court delays execution to hear about new drug used in injection protocol

Concerns about new lethal injection drugs has bought at least a few more weeks of life for a Florida death row defendant.  This Miami Herald update, headlined "Miami killer's execution delayed amid questions about new drug," explains:

In a 5-2 decision, the Florida Supreme Court on Monday ordered that Thomas Knight's scheduled execution be delayed so he can argue that a new drug used to anesthetize a prisoner at the start of a lethal injection could subject him to "serious harm."  Knight, also known as Askari Abdullah Muhammad, had been scheduled to die at Florida State Prison on Dec. 3.

Florida is the only state in the U.S. that uses midazolam hydrochloride as an anesthetic in the first stage of a three-drug lethal injection mixture.  The new drug replaced pentobarbital after the state Department of Corrections exhausted its supply.

The state's high court stayed Knight's execution until at least Dec. 27 and sent his case back the state's Eighth Judicial Circuit, which includes Bradford County, where he is imprisoned. A circuit court judge must hold a hearing on the inmate's claims and issue a ruling no later than 2 p.m. Nov. 26, two days before Thanksgiving, after which time both sides can file additional arguments.

Knight has been on Death Row since 1975 for the murders of a Miami couple. While in prison he stabbed a correctional officer, Richard Burke, to death.  It is that killing for which he is condemned to die.

In its order, the court said: "The Court has determined that Muhammad’s claim as to the use of midazolam hydrochloride as an anesthetic in the amount prescribed by Florida’s protocol warrants an evidentiary hearing. We conclude based on the allegations in Muhammad’s 3.851 motion that he has raised a factual dispute, not conclusively refuted, as to whether the use of midazolam hydrochloride in Florida’s lethal injection protocol will subject him to a 'substantial risk of serious harm.'

"We further direct the DOC (Department of Corrections) to produce correspondence and documents it has received from the manufacturer of midazolam hydrochloride concerning the drug’s use in executions or otherwise, including those addressing any safety and efficacy issues," the court ordered.

November 18, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, November 10, 2013

Reviewing the continuing challenges for states seeking to continue with lethal injection

This New York Times piece, headlined "Executions Stall as States Seek Different Drugs," reports on the latest mechanical challenges for those states seeking to keep their machineries of death running despite new difficulties and old litigation surrounding lethal injection drugs and protocols.  Here are excerpts:

Florida ran out of its primary lethal-injection drug last month and relied on a new drug that no state had ever used for an execution.  At Ohio’s next scheduled execution, the state is planning to use a two-drug combination for the first time.  Last month in Texas, Michael Yowell became that state’s first inmate executed using a drug made by a lightly regulated pharmacy that usually produces customized medications for individual patients.

The decision by manufacturers to cut off supplies of drugs, some of which had been widely used in executions for decades, has left many of the nation’s 32 death penalty states scrambling to come up with new drugs and protocols.  Some states have already changed their laws to keep the names of lethal-drug suppliers private as a way to encourage them to provide drugs.

The uncertainty is leading to delays in executions because of legal challenges, raising concerns that condemned inmates are being inadequately anesthetized before being executed and leading the often-macabre process of state-sanctioned executions into a continually shifting legal, bureaucratic and procedural terrain....

“We have seen more changes in lethal injection protocols in the last five years than we have seen in the last three decades,” said Deborah W. Denno, a professor at Fordham Law School and a death penalty expert.  “These states are just scrambling for drugs, and they’re changing their protocols rapidly and carelessly.”

All 32 states with legalized executions use lethal injection as their primary option for executions. Of the more than 250 executions since 2008, all but five were done with lethal injections.

Facing increasing pressure and scrutiny from death penalty opponents, manufacturers of several drugs used in lethal injections — including sodium thiopental and pentobarbital — over the past few years have ceased production of the drugs or required that they not be used in executions.  Looking for alternatives, state prison systems have been more eager to try new drugs, buy drugs from new sources, keep the identities of their drug suppliers secret and even swap drugs among states.

A week before the execution of a convicted murderer, Arturo Diaz, in September, Texas prison officials received two packages of pentobarbital from the Virginia Department of Corrections, at no charge; the state with the country’s second-busiest death chamber acting as ad-hoc pharmacy to the state with the busiest.

Several states have turned to compounding pharmacies, which are largely unregulated by the Food and Drug Administration and overseen primarily by the states.  They have traditionally made specialized drugs, for instance, turning a medication into a cream or gel if a patient has trouble swallowing pills.

In Missouri, the availability of drugs and litigation have slowed the pace of executions. There have been two since 2009. “We are going to continue to be affected by these pharmaceutical company decisions time and again, unless the death penalty states can find a pharmaceutical product that has some supply stability around it,” said Chris Koster, the attorney general in Missouri, which dropped plans to use the anesthetic propofol after the European Union threatened to limit exports of the drug if it was used in an execution.

The drug shortages and legal wrangling have led some officials to discuss older methods of execution.  In July, Mr. Koster suggested that the state might want to bring back the gas chamber.  Dustin McDaniel, the attorney general in Arkansas, which has struggled with its lethal-injection protocol, told lawmakers the state’s fallback method of execution was the electric chair.  Mr. Koster and Mr. McDaniel said they were not advocating the use of the gas chamber or the electric chair, but were talking about the possible legal alternatives to an increasingly problematic method for states.

“No state has had any success with getting their hands on the cocktail that has heretofore been relied upon,” Mr. McDaniel said. He said that lawyers for the state are trying to navigate the appeals process in death penalty cases while knowing that “if the legal hurdles were magically to go away, we are in no position to carry out an execution in this state.”

November 10, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, November 02, 2013

"Bring Back the Guillotine"

131031_JURIS_Guillotine_MaAntoinette.jpg.CROP.original-originalThe title of this post is the headline of this new Slate commentary by John Kruzel.  Here are excerpts:

A nationwide shortage of a key ingredient used in lethal injections has led some states to experiment with new, untested drug cocktails for executing death row inmates. The practice has raised moral and constitutional questions, and unleashed a wave of litigation. At this point, as a society, we should be asking whether we can stand by and watch as this barbaric practice continues. Are these iffy drug combinations really any better than the guillotine?

Bringing back the guillotine may sound crazy, but it’s certainly better than the current alternative. It’s better for prisoners because quickly severing the head is believed to be one of the quickest, least painful ways to die. And it’s better for organ recipients because the bodies of guillotined prisoners could be more quickly harvested for viable parts, unlike organs that may become unusable after lethal injection due to hypoxemia.

To be clear, I find capital punishment abhorrent in theory and practice. Even if you believe the death penalty is morally acceptable, evidence of wrongful executions and the large number of inmates having been condemned to death before being exonerated shows its undeniable failings. But until the Supreme Court overturns precedents saying that state-sanctioned executions are not cruel and unusual punishment, shouldn’t we strive to make executions the most humane that they can possibly be? Lethal injection — the current method of execution of the federal government and the 32 states with the death penalty — and the guillotine are both evils, but the guillotine is the lesser evil of the two....

One familiar position put forth by advocates of lethal injection is that the three-drug cocktail is far less offensive than the guillotine — to witnesses. Some state laws grant victims’ families the right to view executions. Would bringing back the guillotine fail to consider the feelings of those who would have to watch someone get his head severed?

In short, no. As Michael Lawrence Goodwin argues, there are two main reasons why victims’ families watch executions: out of a desire to represent a murdered family member at what they consider the ultimate stage of criminal justice, and because of a need for closure. A guillotine execution would not devalue someone’s symbolic presence, and it may actually better facilitate closure for certain witnesses....

Those who would be up for watching a state-sanctioned beheading should heed the warning of Albert Camus. The author and philosopher once told a biographer the story of his father’s experience witnessing the guillotine in action: “He got up in the dark to go to the place of execution at the other end of town amid a great crowd of people. What he saw that morning he never told anyone. My mother relates merely that he came rushing home, his face distorted, refused to talk, lay down for a moment on the bed, and suddenly began to vomit.”

As Camus made clear, capital punishment is always a barbaric practice. If we’re going to continue to allow it in the United States, maybe it makes sense to be confronted by how gruesome it really is.

November 2, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (25) | TrackBack

Monday, October 28, 2013

"No Drugs, No Executions: The End of the Death Penalty"

The title of this post is the headline of this lengthy new article in The National Journal.  The piece, which carries the sub-heading "As states scramble to find new cocktails of death, could a lack of options spell the end of capital punishment?," merits a full read. Here are a few excerpts:

On Oct. 15, Florida executed William Happ, a man who most agreed deserved little sympathy. Happ kidnapped 21-year-old Angela Crowley in 1986 from outside a convenience store in Crystal River and raped and strangled her before dumping her tormented body into the Cross Florida Barge Canal....

Happ died for his crimes committed 27 years ago. Like hundreds before him, Happ's death was administered through an intravenous injection of a lethal drug cocktail.  Like no one before him, Happ was injected with midazolam hydrochloride, a sedative that had never before been used for an execution in the United States.

Happ's execution reflects an American death-penalty system in crisis: States are running out of the drugs they rely on to carry out death sentences as alternatives for how to secure them quickly diminish.  And no one wants to innovate in the execution industry.  As the medical community works to distance itself from the science of killing people, states are attempting to forge a difficult road ahead, one fraught with litigation, international tension, and uncertainty....

Florida is just one of several states scrambling to update or refine its capital-punishment protocol amid a sudden shortfall of its lethal injection drugs, resulting in an unprecedented inconsistency in the way inmates are executed in the United States.  Even as a steady majority continues supporting the death penalty, the difficulty in obtaining new lethal drugs, associated legal hurdles, and a gaping void of better execution alternatives has left capital punishment in America with an uncertain future....

Eight days after Florida executed Happ, Missouri planned to put Allen Nicklasson to death with propofol. The anesthetic, which contributed to Michael Jackson's death by overdose in 2009, had also never been used before for a human execution.  But buckling from pressure from the medical community, which argued propofol could inflict inhumane levels of pain, Gov. Jay Nixon halted Nicklasson's execution to ensure "justice is served and public health is protected."  But a more practical matter was likely weighing on Nixon's mind: German manufacturer Fresenius Kabi had threatened to stop shipping propofol to the U.S. if the drug was allowed to be used for executions....

Doctors and researchers aren't exactly clamoring to develop new methods of killing people, and no one is advocating a regression to older forms of execution, like the electric chair or gas chamber.  But even if a new, cutting-edge technique was developed somewhere, that too would almost certainly provoke a torrent of litigation.

UPDATE: Just this afternoon, I saw this local story from my own Columbus Dispatch reporting that a "shortage of pentobarbital will force Ohio prisons officials to rely on two drugs they have never used before for the scheduled Nov. 14 execution of Ronald Phillips of Summit County."

Given Ohio's history with lethal injection litigation, I would expect there to be some court action concerning this development in the next few weeks.   Whether that court action is likely to delay any scheduled executions is hard for me to predict.

October 28, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, October 22, 2013

Mizzou revamps its lethal injection protocol and drug source for next execution

As reported in this new Reuters article, Missouri just announced new execution procedures to deal with lethal drug acquisition problems. Here are the basics and some national context:

A "compounding pharmacy" will supply lethal injection drugs for future executions in Missouri, the latest U.S. state to turn to the lightly regulated sector after major pharmaceutical companies refused to sell drugs for executions, the state said on Tuesday.

The Missouri Department of Corrections said in a brief statement that it would switch to using a single drug for executions, pentobarbital. Missouri had used a three drug protocol until recently. "The department also announced that it has added a compounding pharmacy to its execution team," the statement said. Asked the name of the pharmacy, department spokesman David Owen said that information could not be disclosed.

Missouri is the latest of a half dozen U.S. states turning for lethal injection drugs to compounding pharmacies - which typically mix drugs for individual prescriptions and are subject to light federal government regulation. The practice has drawn protests from opponents of the death penalty and advocates for death row inmates, who say the lack of regulation risks a botched execution.... Compounding pharmacies must register with state authorities but their products are not regulated by the Food and Drug Administration.

Texas this month executed its first prisoner using a drug from a compounding pharmacy. Other states which have turned to such suppliers or have said they may do so soon include Georgia, South Dakota, Colorado and Ohio. A judge in Georgia this year granted a temporary stay of execution for a prisoner in part because of concerns about the quality of the compounded drug.

Missouri announced earlier this month that it would search for a new drug for executions after it came under pressure from drug makers, especially in Europe, not to use the drug propofol in executions.

The New Republic has published a somewhat related article here under the headline "Big Pharma May Help End the Death Penalty: Boycotts don't work against Texas executioners. But they could hurt pharmaceutical firms that make execution drugs."

October 22, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (15) | TrackBack

Sunday, October 13, 2013

Lethal uncertainty: Mizzou Gov postpones execution due to novel drug concerns

As reported in this AP piece, headlined "Missouri gov. halts 1st US execution by propofol," the Show Me State has decided to delay its efforts to show whether a new drug might be used successful to executed condemned murderers. Here are the details:

Missouri Gov. Jay Nixon on Friday halted what was to have been the first U.S. execution to use the popular anesthetic propofol, following threats from the European Union to limit the drug's export if it were used for that purpose.

Nixon also ordered the Missouri Department of Corrections to come up with a different way to perform lethal injections without propofol, the leading anesthetic used in America's hospitals and clinics. Nearly 90 percent of the nation's propofol is imported from Europe.

"As governor, my interest is in making sure justice is served and public health is protected," Nixon said in a statement. "That is why, in light of the issues that have been raised surrounding the use of propofol in executions, I have directed the Department of Corrections that the execution of Allen Nicklasson, as set for October 23, will not proceed."

Nixon, a Democrat and staunch supporter of the death penalty, did not specifically mention the EU threat in his brief statement. Nixon was Missouri's longtime attorney general before he was first elected governor in 2008. During his 16 years as attorney general, 59 men were executed.

The leading propofol maker, Germany-based Fresenius Kabi, and anesthesiologists had warned of a possible propofol shortage that could impact millions of Americans if any executions took place.

In a statement, Fresenius Kabi applauded Nixon's move. "This is a decision that will be welcomed by the medical community and patients nationwide who were deeply concerned about the potential of a drug shortage," said John Ducker, CEO of Fresenius Kabi USA. The company said propofol is administered about 50 million times annually in the U.S....

Drug makers in recent years have stopped selling potentially lethal pharmaceuticals to prisons and corrections departments because they don't want them used in executions. That has left the nearly three dozen death penalty states, including Missouri, scrambling for alternatives. Missouri altered its execution protocol in April 2012 to use propofol. The drug gained some level of infamy in 2009 when pop star Michael Jackson died of a propofol overdose.

Nixon's decision also leaves uncertain the execution scheduled for next month for another convicted killer, Joseph Franklin. Soon after Nixon's announcement, Missouri Attorney General Chris Koster filed a motion with the Missouri Supreme Court to vacate the Oct. 23 execution date for Nicklasson and to set a new date "soon after" Franklin's execution date of Nov. 20. A spokeswoman for Koster declined comment.

In addition to concerns raised about how the EU would respond to the execution, Missouri's decision to use propofol prompted a lawsuit filed on behalf of nearly two dozen death row inmates claiming use of the unproven execution drug could result in pain and suffering for the condemned man.

Koster, a Democrat, and Republican Missouri state Sen. Kurt Schaefer have suggested that if the state can't execute by lethal injection it consider going back to the gas chamber, something that hasn't been used since the 1960s. Missouri no longer has a gas chamber but Schaefer recently wrote to Nixon, urging him to consider funding construction of a new one in his next fiscal year budget.

The corrections department on Wednesday agreed to return a shipment of propofol to Louisiana-based distributor Morris & Dickson Co. The company distributes propofol made in Europe by Fresenius Kabi and told the corrections department in November that its shipment was a mistake. Corrections spokesman David Owen said Wednesday that Missouri had a remaining supply of propofol, all of it domestically made. But Fresenius Kabi spokesman Matt Kuhn said even the use of domestically produced propofol in an execution could prompt the EU to impose export controls.

Meanwhile, Mercer Medical, a Kent, Wash.-based third-party vendor, said Friday in a news release it has asked for the 400 milliliters of propofol it sold to the corrections department in June be returned at the request of the manufacturer, Hospira. The website for Hospira says it is headquartered in Lake Forest, Ill....

Nicklasson's attorney, Jennifer Herndon, said she was pleased with the delay, but expects the state to move quickly to revise its execution protocol. "They're pretty anxious to execute people so I would think that the state would put something forward sooner rather than later," Herndon said.

October 13, 2013 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, October 09, 2013

Arizona and Texas complete executions 29 and 30 in the US in 2013

Throughout the United States, there has been on average less than one execution per week in 2013; this year might end up having the fewest executions in the US in one calendar year in nearly two decades.  (The Death Penalty Information Center has the yearly execution data well assembled here.)  But as reported in the articles linked below, two states today brought total number of executions up to 30:

October 9, 2013 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (14) | TrackBack