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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, 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 lethal injection case, Death Penalty Reforms, Sentencing around the world, Who Sentences? | Permalink | Comments (23) | TrackBack