Sentencing Law and Policy

Which elected official(s) should Ohio voters hold accountable for the legal mess with its execution process?

The question in the title of this post is my reaction to this new piece in Cleveland Plain Dealer, which is headlined "U.S. Supreme Court's decision brings execution of prisoners in Ohio to halt."  First, he are some notable parts of this latest press review of where legal story stands:

A U.S. Supreme Court decision on Wednesday has effectively put executions on hold in Ohio.

Until Ohio revises its lethal injection procedures to the satisfaction of a federal judge on the case, no more inmates will be executed, Ohio Attorney General Mike DeWine acknowledged.   "I can't predict what is going to happen," said DeWine, whose office represents Gov. John Kasich and the Ohio Department of Rehabilitation and Correction. "The next scheduled execution is for April, and so that's a little ways off, and we'll just see what happens between now and then."

Kasich and DRC had appealed two federal court rulings that had blocked the scheduled Jan. 18 execution of a Trumbull County double murderer.  But the Supreme Court, without explanation, declined to hear the case, letting the lower court rulings stand.   That means the stay of execution granted to Charles Lorraine by a district judge and upheld by a federal appeals panel will remain in place.  Lorraine is one of about a dozen death row inmates suing the state, claiming Ohio's lethal injection procedures are unconstitutional.

With that case pending, Ohio had continued to execute inmates.  But Lorraine successfully argued that the question of whether the procedures are unconstitutional could have merit and he should be allowed to live long enough to participate in a trial.  The court rulings to this point involve only Lorraine's request to stave off execution and not on whether Ohio's execution process passes constitutional muster.

"The evidence we've presented makes it substantially likely that Lorraine would win at trial," said the inmate's attorney Allen Bohnert, a federal assistant public defender.  "So as a result of that and some other factors, fairness says he should be able to participate in that trial which would be impossible, obviously, if he had been executed on Jan. 18." Bohnert said that Kasich should make a moratorium on executions official in view of the ruling.

The original order was issued by U.S. District Judge Gregory Frost of the Southern District of Ohio. Frost has handled several cases questioning Ohio's death penalty procedures in recent years and ordered changes.  He didn't hide his frustration with the state for how it has handled this issue.  "Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms," Frost wrote in his scathing Jan. 11, 2012 ruling in favor of Lorraine....

The state appealed to the U.S. Sixth Circuit Court of Appeals, saying that none of the items -- which it called "deviations" -- noted by Frost would mean Ohio's procedures are unlawful, so Lorraine's execution should be carried out....  The appeals court backed Frost.

DeWine said DRC was already revising its execution procedures even before the Supreme Court was asked to review Lorraine's case. And while the state was making changes, DeWine said he still sought to carry out Lorraine's execution because he didn't agree with Frost's ruling. "We believe that the discrepancies cited by Judge Frost do not rise to a constitutional violation," DeWine said.

DeWine said when DRC completes its revision of the procedures he will present them to Frost, who must sign off on them before executions can resume.

Anyone not readily convinced by the court rulings in this on-going litigation or not really concerned about the execution process might be inclined just to blame federal judges for this legal mess.  But, besides the fact that Judge Frost and the Sixth Circuit (not to mention the Roberts Court) do not have reputations as radical judicial activists, there is nothing the voters in the state of Ohio can do about these appointed jurists.  Moreover, their rulings seem principally responsive to the ugly realities of how Ohio is administering executions and how poorly the state is responding to legal complains by death row defendants.  After all, none of this legal mess would not have happened absent Ohio's "dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms."

Against this backdrop, I am genuinely interested and eager to hear from readers who should Ohio voters seek to hold accountable for this legal mess, which not only is delaying the achievement of justice for society and victims, but also is surely costing the taxpayers a pretty penny?  (For the record, none of these execution protocol issues have yet been discussed or even raised by the Ohio Joint Task Force currently studying the death penalty on which I have the honor of serving.)

Notably, a lot of these problems seem to be festering during the prior (Democratic) Ohio administration of Gov. Ted Strickland and AG Richard Cordray.  But those folks were shown the door by Ohio voters in 2010, and now it is Gov. John Kasich and AG Mike DeWine in charge.  Are they the ones to be held accountable?  Should elected members of the Ohio General Assembly be faulted for not having hearings and trying to help clean up this mess?  

Tellingly, the Plain Dealer has this companion piece which is headlined "Should Ohio consider putting a permanent hold on the death penalty? A Closer Look."   That is, of course, a key substantive question lurking behind all that is on-going in the state.   But this post is intended to explore whether and how the political process can and should respond to these sorts of death penalty administration problems.

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

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Ohio decides not to appeal federal district court ruling in Smith halting execution
• Ohio ready to try to get its machinery of death back in operation
• Federal judge again halts Ohio execution because state not following its own protocol
• Sixth Circuit panel upholds stay of Ohio's next planned execution
• Ohio asks SCOTUS to vacate stay of state execution
• Another Ohio execution postponed due to execution protocol issues
• US Supreme Court refuses to vacate execution stay in Ohio

US Supreme Court refuses to vacate execution stay in Ohio

As reported in this Reuters article, this morning the US Supreme Court "refused to lift a stay of execution for Ohio convicted killer Charles Lorraine because the state failed to follow agreed-upon reforms for procedures on how it carries out the death penalty." Here is the full text of the SCOTUS one-sentence order:

The application to vacate the stay of execution of sentence of death entered by the United States District Court for the Southern District of Ohio on January 11, 2012, presented to Justice Kagan and by her referred to the Court is denied.

As SCOTUS-watchers know, this decision does not mean the Justices fully subscribe to all the novel rulings of District Judge Greg Frost in this on-going saga over Ohio's lethal injection protocol difficulties, it just means the Court did not think the it appropriate to vacate the stay imposed by Judge Frost and upheld by a Sixth Circuit panel.  Indeed, because defendant Lorraine stressed to the Justices that the death warrant had expired even before Ohio sought to vacate the stay of execution, it is quite possible the Court simply concluded that the passage of time served to moot the application.

What will happen next if the big question going forward.  It seems that, in order to get its machinery of death operational again, Ohio is going to yet again have to convince Judge Frost that it will actually follow the execution protocol that it keeps claiming it will follow.  In light of the litigation record, this may prove much harder for the state of Ohio than it probably should. 

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

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Ohio decides not to appeal federal district court ruling in Smith halting execution
• Ohio ready to try to get its machinery of death back in operation
• Federal judge again halts Ohio execution because state not following its own protocol
• Sixth Circuit panel upholds stay of Ohio's next planned execution
• Ohio asks SCOTUS to vacate stay of state execution
• Another Ohio execution postponed due to execution protocol issues

Another Ohio execution postponed due to execution protocol issues

As reported in this local article, headlined "Execution postponed for Ohio man in arson death," the on-going litigation over how Ohio conducts lethal injections has led to the postponement of another scheduled execution date.  Here are the details:

Another Ohio execution has been postponed as state prison officials continue refining lethal-injection protocol to meet a federal judge’s requirements.

With the concurrence of Ohio Attorney General Mike DeWine, U.S. District Judge Gregory L. Frost today issued an order halting the scheduled Feb. 22 execution of Michael Webb, of Clermont County.  Frost also permitted Webb to join a number of other death penalty defendants who are contesting the state’s lethal injection protocol.

DeWine personally participated in a conference call with Frost on the case yesterday, “We felt we had no choice,” DeWine said in an interview. “We’re not going to carry out another execution without it being perfect.”

He said the Department of Rehabilitation and Correction has made “great progress” in refining lethal injection procedures,  “but we’re not quite done with that.”

Frost issued a decision earlier this month that included a scathing criticism of the state for failing to follow its established procedures in the Nov. 15 execution of Reginald Brooks at the Southern Ohio Correctional Facility near Lucasville. He called it a “curiously if not inexplicably self-inflicted wound."

Webb, 63, of Goshen, Ohio, was convicted and sentenced to death for setting fire to the family home, causing the death of his son, Mikey, 3½. Webb contends his is innocent and that someone else ignited the deadly arson fire.

DeWine said the state will continue its appeal to the U.S. Supreme Court in the case of Charles Lorraine, a Trumbull County killer whose Jan. 18 execution was postponed by Frost due to the lethal injection debate.  “These are constitutional issues that have to be pursued,” DeWine said.  “Our procedure is constitutional.”

The statements reported here from Ohio AG DeWine strike me a bit peculiar.  These statements suggest to me that the Ohio officials are right now actively refining its lethal injection procedures, and are making “great progress” in those refinements, but are "not quite done" and will not "carry out another execution" until the process is "perfect."  If this is, in fact, an accurate report of what the state is doing and its plans, I do not quite understand why the state should be pursuing its appeal of the January 18th stay of Charles Lorraine's execution. 

In short, DeWine seems to be saying that the state is responding to the concerns expressed by Judge Frost.  This, in turn, which would seem to counsel just returning to Frost to ask him to vacate the stay once the state gets done with its refinements rather than seeking to have the Supreme Court lift a stay which was concerned with an old (and now-refined) Ohio lethal injections protocol.   Very curious.

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

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Ohio decides not to appeal federal district court ruling in Smith halting execution
• Ohio ready to try to get its machinery of death back in operation
• Federal judge again halts Ohio execution because state not following its own protocol
• Sixth Circuit panel upholds stay of Ohio's next planned execution
• Ohio asks SCOTUS to vacate stay of state execution

Ohio asks SCOTUS to vacate stay of state execution

As reported in this AP piece, "Ohio has asked the U.S. Supreme Court to uphold the state’s lethal injection procedures, arguing that minor deviations in policy don’t mean the system is unconstitutional." Here are the basics:

The office of Attorney General Mike DeWine says that, without Supreme Court action, Ohio is in danger of having dozens of executions delayed on a case-by-case basis.

The appeal filed Friday asks the court to let Ohio put to death 45-year-old Charles Lorraine, sentenced to die for fatally stabbing an elderly couple in Warren in 1986.

U.S. District Court Judge Gregory Frost halted Lorraine’s execution on Jan. 12, saying the state failed to properly document the drugs used in its last execution in November and failed to review the medical chart of the inmate who was put to death.

Because Lorraine's execution was scheduled for last week, it is unclear to me whether the state expects or even wants the Supreme Court to rule on this motion to vacate the stay very quickly.  Notably, the introduction in Ohio's SCOTUS filing concludes this way:

The State has scheduled executions into 2014, with the next one planned for February 22, 2012.  There are 101 Ohio capital inmates who have raised these equal protection claims — 87 as parties to this litigation and 14 who have filed similar complaints. If this Court does not vacate the district court’s stay, these executions may not go forward because, in the words of the Sixth Circuit, “the federal courts [will] monitor every execution on an ad hoc basis.”  Appx. A at 2.  Given the weakness of the district court’s legal foundation, that result cannot stand.

These points suggest to me that Ohio is right now less concerned with getting Lorraine executed ASAP and more concerned that it may be unable to move forward with the sizeable number of other executions scheduled for 2012 and beyond.

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

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Ohio decides not to appeal federal district court ruling in Smith halting execution
• Ohio ready to try to get its machinery of death back in operation
• Federal judge again halts Ohio execution because state not following its own protocol
• Sixth Circuit panel upholds stay of Ohio's next planned execution

Ohio to appeal lower federal court execution stay to Supreme Court

As reported in this new AP article, "Ohio's governor and attorney general said Sunday the state is asking the U.S. Supreme Court for a ruling that Ohio's protocol for carrying out the death penalty is constitutional." Here is more:

Gov. John Kasich and Attorney General Mike DeWine said in a statement that the state wants the high court to reverse a federal appeals court decision to delay the Wednesday execution of Charles Lorraine.

Lorraine was condemned to death in the 1986 slaying of an elderly Trumbull County couple. But the federal appeals court said Friday his execution should be delayed to review changes Ohio has made in carrying out the death penalty.

Lorraine argued that Ohio broke its promise to adhere strictly to its execution procedures. But the state said that deviations from the procedures during the last execution were minor and that an inmate's rights would not be violated by changes, such as which official announces the start and finish times of an injection....

The 6th U.S. Circuit Court of Appeals ruling supported an earlier decision by U.S. District Court Judge Gregory Frost, who criticized the state for deviating from policy when an inmate was executed in November.

After the appeals court ruling, Trumbull County Prosecutor Dennis Watkins sent a letter urging the two state officials to appeal.  Watkins argued the federal courts have wrongly interfered with Ohio executions.

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

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Ohio decides not to appeal federal district court ruling in Smith halting execution
• Ohio ready to try to get its machinery of death back in operation
• Federal judge again halts Ohio execution because state not following its own protocol
• Sixth Circuit panel upholds stay of Ohio's next planned execution

Sixth Circuit panel upholds stay of Ohio's next planned execution

Late yesterday (after I was off-line for the night), a Sixth Circuit panel issued this brief order rejecting the state of Ohio's motion to vacate the stay of execution that a US District Judge granted earlier this week.  Here is the heart of the order's substantive discussion:

Based upon the analysis of the district court’s January 11, 2012 Opinion and Order granting a preliminary injunction and a stay of execution, as well as the district court’s July 8, 2011 Opinion and Order entered in this same litigation and reported at 801 F. Supp.2d 623 (S.D. Ohio 2011), we conclude that the State’s arguments in support of the emergency motion to vacate the stay are not well-taken. We agree with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted.   As the district court found, whether slight or significant deviations from the protocol occur, the State’s ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death.

The State’s emergency motion to vacate the stay is DENIED. The stay will remain in place until further order from the district court on the hearing set for February 24, 2012.

I assume the state is considering seeking en banc review in the Sixth Circuit and/or Supreme Court review of this execution stay, but it is hard to assess whether the state's likelihood of success with further appeals might justify the effort.

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

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Why Smith Equal Protection ruling and execution stay in Ohio is a huge (and national?) new death penalty story
• Ohio's queue for executions now 11 deep and more than a year long
• Ohio decides not to appeal federal district court ruling in Smith halting execution
• In wake of lethal injection ruling and stay, Ohio Governor postpones next execution (for 18 months!?!)
• Ohio ready to try to get its machinery of death back in operation
• Federal judge again halts Ohio execution because state not following its own protocol

Federal judge again halts Ohio execution because state not following its own protocol

As reported in this piece from the Columbus Dispatch, "U.S. District Judge Gregory Frost today blocked next week’s scheduled execution [in Ohio] of convicted murderer Charles Lorraine because the state has not adhered to its own execution policies."  Here are the basics:

Lorraine, 45, was slated to be executed Jan. 18 for murdering 80-year-old, bedridden Doris Montgomery and her 77-year-old husband, Raymond, in 1986.

However, Frost, who previously raised serious questions about Ohio’s execution procedures, ruled today that the Ohio Department of Rehabilitation and Correction didn’t properly document the drug used or check the medical chart of inmate Reginald Brooks when he was lethally injection on Nov. 15 at the Southern Ohio Correctional Facility near Lucasville.

The ruling today from Judge Frost, in a case now captioned In Re Ohio Execution Protocol, runs 23 pages and can be downloaded below.  Here is how it gets started (emphasis in original):

This case is frustrating.

For close to eight years, the Court has dealt with inmate challenges to the constitutionality of Ohio’s execution protocol.  During that time, the litigation has morphed from focusing primarily on allegations of cruel and unusual punishment to allegations of equal protection violations.  Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms.  Occasionally in this litigation, state agents lie to the Court. At other times, different state actors impress this Court with their sincere devotion to carrying out the unenviable task of executing death-sentenced inmates within constitutional parameters.  As a result of laudable effort by the various state actors involved -- motivated either by duty, embarrassment, the decisions of this Court, or a combination of any of the foregoing -- Ohio finally arrived at a protocol that on paper satisfies every Eighth and Fourteenth Amendment challenge thrown against it.  Then once again Ohio decided to carry out the protocol in a manner that simply ignores a key component of the execution scheme.

The end result is that rather than proceeding to a final conclusion in this case that would enable Ohio to proceed to fulfill its lawful duty to execute inmates sentenced to death free from this ongoing litigation, Ohio has unnecessarily and inexplicably created easily avoidable problems that force this Court to once again stay an execution.

This is frustrating to the Court because no judge is a micro-manager of executions and no judge wants to find himself mired in ongoing litigation in which he must continually babysit the parties.  But the law is what it is, and the facts are what they are.  The Constitution demands that a judge honor the rights embodied in that document, that a judge appreciate the nuance involved in those rights rather than adopting a constitutionally irresponsible, “big-picture, close enough” approach, and that a judge follow the evidence presented by the parties to whatever principled conclusion it leads–no matter how easily avoided and frustrating that conclusion may be.  In other words, if Ohio would only do what it says it will do, everyone involved in this case can finally move on.

Download Ohio LI Opinion and Order

"California executions remain in everlasting limbo"

The title of this post is the headline of this new piece in the San Jose Mercury News.  Here are excerpts:

As California nears its sixth year without an execution, state officials find themselves once again grappling with a judge's order that concludes they've botched crafting a new and legal method of putting condemned killers to death by lethal injection.

For the third time during the six-year moratorium on executions, a judge has ordered the state back to square one in creating new lethal injection procedures. The development all but ensures San Quentin's death chamber will remain dormant until at least well into 2013.

The timing could be important: The issue will draw heightened debate next year against the backdrop of a ballot measure designed to repeal the death penalty and replace it with life in prison without the possibility of parole.

And last week, California Supreme Court Chief Justice Tani Cantil-Sakauye added her voice to the debate, telling the Los Angeles Times the death penalty is "not effective" and needs an overhaul the state cannot afford....

Death penalty foes have pounced quickly on a Marin judge's order earlier this month scrapping California's latest version of its lethal-injection method. They cite it as another example of why voters should do away with a seldom-used punishment on the state's 720-inmate death row, the nation's largest.

Meanwhile, death penalty advocates find the state's lengthening pattern of bungled bids to kick-start executions maddening. "Some frustration is an understatement," said Kent Scheidegger, executive director of the Criminal Justice Legal Foundation, a leading death penalty group....

The latest roadblock to executions is part of two separate but related legal challenges unfolding in the state and federal courts. In last week's order, Marin County Superior Court Judge Faye D'Opal found California failed to follow proper state administrative procedures when it adopted a new lethal-injection procedure in 2010.... D'Opal identified numerous flaws in the state's method but singled out the fact that prison officials failed to explain why they did not choose a single-drug method that involves using a fatal dose of a sedative to execute the condemned. California's own expert recommended using that method to replace the three-drug combination used in past executions, which has been challenged because of concerns the third and final paralytic drug can mask an inmate's pain before death.

Two states, Ohio and Washington, have already opted for the single-drug option. And as early as 2006, San Jose U.S. District Judge Jeremy Fogel essentially invited California to resolve the legal challenge to lethal injection by switching to the single-drug method because it would eliminate worries about the effect of the third drug. But California stuck to the three-drug method -- and finds itself back at the drawing board....

Scheidegger has urged state prisons chief Matthew Cate to adopt the single-drug method to move executions forward. And he maintains that state officials can end run the administrative process by citing "operational needs" to avoid further delays. "All he has to do," Scheidegger said, "is click his ruby slippers and say, 'one drug, operational needs.' There is no excuse for holding up justice any longer."

The story of California's abject inability to reform its lethal injection protocol successfully in the last six years is both sad and comical.  In the end, it is very hard not to think that many state actors are really not much interested in getting its machinery of death operational again.   

California state judge finds more problems with state's lethal injection plans

As detailed in this local article, which is headlined "Judge plans on tossing California's death penalty," a state judge appears poised to make it still harder for California to ever get back in the death penalty business.  Here is the start of the piece:

A Marin County judge will decide Friday whether to finalize his decision to toss out California's newly adopted lethal injection procedure after he ruled prison officials failed to properly adopt the state's new procedures for lethal injection execution. In a tentative ruling Thursday, Marin County Superior Court Judge Faye D'Opal found prison officials failed to properly consider a one-drug alternative to the three-drug lethal injection cocktail used to execute inmates.

Attorneys representing the California Department of Corrections and Rehabilitation will get a chance to change the judge's mind during a hearing Friday morning. CDCR spokeswoman Terry Thornton said Thursday the department was reviewing the lengthy ruling and declined to comment.

If the judge upholds his ruling, it would throw California's stalled capital punishment system into further doubt. Prison officials would either have to appeal or again revise their lethal injection procedures and submit them to public comment, a process that took more than a year last time.

It also could become the second court ruling barring executions in California. A federal judge imposed a de facto moratorium on executions in 2006 after finding the lethal injection process flawed in the state.   One of the state's responses to that finding was to adopt the new regulations, which D'Opal's tentative ruling said was severely deficient.

D'Opal said that prison officials failed to properly explain why they rejected a one-drug process using only a barbiturate, even though one of their experts recommended it as being superior to the three-drug cocktail CDCR adopted. The judge wrote that critics of the three-drug lethal injection submitted comments to the CDCR saying that one of those three drugs -- pancuronium bromide -- "is unnecessary, dangerous, and creates a risk of excruciating pain."

D'Opal said that the CDCR also failed to disclose the costs of executions, all of which are conducted at San Quentin Prison in Marin County.   The judge noted that former San Quentin Prison Warden Jeanne Woodford said each execution costs the state between $70,000 and $200,000 in overtime for staff, crowd control, training, security and other expenses with carrying out lethal injections.   D'Opal also took exception to three new procedures introduced without explanations in the new protocols.

Ohio on verge of getting its execution chamber operational again

As detailed in this local Ohio story, headlined "Inmate on Death Row loses two court appeals," it appears that officials have done enough to satisfy judges that Ohio should be able to get back to executions after a mini-moratorium for nearly half the year.  Here are the particulars:

Condemned Cleveland killer Reginald Brooks’ bid to avoid execution on Nov. 15 was rejected yesterday by the Ohio Supreme Court and a federal judge.  U.S. District Judge Gregory L. Frost denied a motion for a restraining order sought by attorneys for Brooks, 66. However, Frost said he was not ruling one way or the other on the constitutionality of Ohio’s lethal-injection process.

“Ohio has time and again struggled with competence and consistency, and the court remains wary,” Frost said in a decision.  However, he said Brooks did not make the case that questions about lethal-injection protocol — which has caused problems in past executions — are sufficient reason to halt his execution.

Later yesterday, the Ohio Supreme Court denied Brooks’ motion seeking to postpone his execution, in part to allow a court-appointed task force to complete its yearlong task of studying the state’s capital-punishment system.

Carlo LoParo, spokesman for the Ohio Department of Rehabilitation and Correction, said the prison agency has “substantially bolstered its training, documentation and quality-review procedures to demonstrate Ohio’s commitment to a humane, dignified and professional implementation of” lethal injections. “Ohio’s revised lethal-injection policy and practices are the most comprehensive in scope and will be the best documented in the nation,” LoParo said.

Brooks was sentenced to death for fatally shooting his three sons, ranging in age from 11 to 17, while they slept in 1982. Two days earlier, his wife had him served with divorce papers. He would be the oldest Ohioan to be executed of the 45 who have been lethally injected since 1999.

California lethal injection litigation now unlikely to be resolved until 2013!?!

This new little AP article, headlined "Cal's death penalty ban likely to extend into 2013," spotlights that the lawyers involved in the seemingly-never-ending battle over California's execution protocol are now on an even slower pace than before:

The moratorium on California's death penalty will likely extend into 2013.  Government lawyers on Wednesday agreed to resume their court battle with inmate lawyers no earlier than September, which will push back any scheduled executions into 2013 because of the time it takes a judge to rule and the expected appeals by the losers.

A federal judge halted executions nearly six years ago after finding flaws in California's executions process.  Prison officials have since revised their procedures, which death row inmates allege are still flawed and exposing them to cruel and unusual punishment.

Another judge in Marin County is scheduled to hear arguments Friday over whether prison officials followed proper procedures in revising the lethal injection process.  There are 720 inmates on California's death row.

What has been going on in California in its lethal injection litigation serves as a great demonstration of the converse of the slogan "Where there is a will, there is a way."  In California, there clearly is little or no will on the part of government lawyers or other state officials to get back in the execution business, and thus the state is unable to find a way to get its death chamber operational again.  (Indeed, I would not be surprised if a number of state lawyers and officials are hoping that California's voters abolish the death penalty via referendum just so they no longer have to figure out how and when to executed the huge number of condemned persons on the state's death row.)

A few more recent related posts:

• "California's idea of the death penalty is to bore them to death"
• California gives up trying to get executions started until at least 2012
• Could California have lots of executions once its death machinery is operational again?
• Gearing up for "The Next Death Penalty Battleground" in California

Despite on-going lethal injection litigation, Ohio schedules two more executions

As detailed in this new AP piece, Ohio's Supreme Court has scheduled two more executions and the queue for the death chamber now extends all the way to Fall 2013.  Here are the basics:

The Ohio Supreme Court has set execution dates for a man who killed a hotel clerk in northeast Ohio and a double killer whose victims included a suburban Cleveland police officer. The court’s announcement today makes it 13 executions scheduled through September 2013.

The first new date from the court, Jan. 16, 2013, is for Ronald Ray Post. He was sentenced to die for shooting the clerk at the Slumber Inn in Elyria in 1983. The second date, Sept. 25, 2013, is for Harry Mitts. He was sentenced to die for killing John Bryant and Garfield Heights Sgt. Dennis Glivar in 1994.

The Ohio Parole Board meanwhile is weighing whether to grant clemency to Reginald Brooks, scheduled to die next month for killing his three sons in 1982.

A list of all the 20 most-recent scheduled executions in Ohio is available on this webpage, which reveals that Ohio has not actually completed a scheduled execution since May 2011.  This recent period with no executions is the combined result of still-pending lethal injection litigation and Governor Kasich's recent decisions to commute a few death sentences.  For this reason and others, I think one would need a well-functioning crystal ball to figure out how many of the currently scheduled 13 executions will actually take place over the next two years in Ohio.

Some recent related posts:

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Why Smith Equal Protection ruling and execution stay in Ohio is a huge (and national?) new death penalty story
• Ohio's queue for executions now 11 deep and more than a year long
• Ohio decides not to appeal federal district court ruling in Smith halting execution
• In wake of lethal injection ruling and stay, Ohio Governor postpones next execution (for 18 months!?!)
• Ohio ready to try to get its machinery of death back in operation
• Ohio Gov Kasich postpones another execution based on lethal injection litigation
• "Kasich commutes convicted killer's sentence to life without parole"
• Following Ohio Parole Board's recommendation, Gov Kasich commutes another murderer's death sentence

Could California have lots of executions once its death machinery is operational again?

The question in the title of this post is prompted by this effective new article from the San Jose Mercury News, which is headlined "California's execution machine could crank up." Here are excerpts:

Amid renewed efforts to repeal California's death penalty and nearly six years into a de facto moratorium on executions, San Quentin's death row has quietly piled up an unprecedented number of inmates who have exhausted their legal appeals and would face imminent death by lethal injection if the state resumes carrying out the ultimate punishment.

At least a dozen inmates could be executed in a span of a few months if an oft-stalled legal challenge to the state's lethal injection method is resolved, roughly the same number of condemned murderers California has put to death in more than three decades of capital punishment.

A Bay Area News Group review shows 12 death row inmates have been turned away in their appeals all the way through the U.S. Supreme Court, generally considered the final stage in the lengthy death penalty review process.  At least two other inmates have lost their appeals through the 9th U.S. Circuit Court of Appeals, which ordinarily is the last, best hope to overturn a death sentence, while others are awaiting rulings from that court.

Three Bay Area condemned killers are among the 12 -- David Allen Raley, from Santa Clara County; Harvey Heishman, from Alameda County; and Douglas Mickey, sentenced in San Mateo County.  The dozen inmates eligible for execution dates have averaged 27 years on death row, where 720 prisoners await their fate.

For a state where executions have been such a rarity, the prospect of a flurry of them could test California's appetite for the death penalty, possibly at a time when foes of capital punishment are working furiously toward a November 2012 ballot measure that would abolish death sentences altogether....

The timing of a resumption of executions is no sure thing.  The lethal injection challenge continues to languish in the federal courts, but may get moving early next year because prison officials recently notified a federal judge they finally will have a new execution team in place by this coming week.  Lawyers on both sides had been awaiting that development to proceed to a hearing.

But if the case continues to drag on, that will only add to the backlog of inmates who finish their appeals.  Even the generally liberal 9th Circuit has been upholding more death sentences in recent years, and has found itself quickly reversed in several instances by the U.S. Supreme Court when it has attempted to overturn them....

Experts say there could be a variety of reactions and results if California becomes a state that regularly carries out executions, including further strains on the legal system. Ohio's state Supreme Court, faced with a similar rush a few years ago, has now scheduled one execution per month through 2013 to pace the process.  In California, prosecutors would need to turn to judges in their counties to secure execution dates for each inmate, a scattered process that could take months or longer to unfold.

In addition, Gov. Jerry Brown and his approach to the death penalty would be quickly tested in a string of clemency requests; no California governor has commuted a death sentence in the modern death penalty era.

Death penalty advocates say executions would remove one common argument against capital punishment in California.   "If we do actually start carrying out executions, it would undermine the argument that the death penalty is not being enforced and we should get rid of it," said Kent Scheidegger, director of the Criminal Justice Legal Foundation.

"Florida firing squads? What has death penalty supporters all riled up?"

The title of this post is the headline of this new article in the Christian Science Monitor, which gets started this way:

A majority of Americans seem to agree: They want the death penalty. And in a majority of states, the death penalty is legal.  So why are supporters of the death penalty engaging in so much heated rhetoric when, by all appearances, they seem to have both public opinion and the law on their side?

A case in point: Republican presidential contender Rick Perry received booming applause from a debate audience last month after he said he “never struggled” with any of the 234 executions he presided over during his watch as Texas governor.

And now in Florida, a state that already has capital punishment on the books and carried out an execution as recently as late September, a Republican lawmaker is proposing a bill to do away with lethal injection and only allow execution by electrocution or firing squad.

So what is happening here?  Some analysts suggest that those who think capital punishment is the ultimate crime deterrent are becoming increasingly insecure in the face of a resolute opposition to the death penalty, and that is moving them to find louder and more visible ways of making their position known.

In Florida, state Rep. Brad Drake (R) said his legislation is in response to the execution of Manuel Valle on Sept. 29, which was delayed by legal battles over the mixture of lethal drugs used in the procedure.

In a statement, Representative Drake said he is “tired of being humane to inhumane people,” and believes harsher punishment is justified to achieve justice for the most heinous crimes in his state.  “Let’s end the debate.  We still have Old Sparky,” he said. “And if that doesn’t suit the criminal, then we will provide them with a .45 caliber lead cocktail instead.”

Some recent and older related posts: 

• Florida legislator introduces bill to replace lethal injection with firing squad as execution method
• Interesting new numbers in latest Gallup poll of death penalty public opinions
• Should problems with lethal injection prompt return of other execution methods?
• "Anesthesia shortage may delay executions"
• Is it finally time to just go back to firing squads for executions?

Florida legislator introduces bill to replace lethal injection with firing squad as execution method

This local story out of Florida, headlined "State Rep. files bill to add firing squad to death penalty laws," reports on a notable legislative reaction to litigation over lethal injection protocols. Here are excerpts:

State Rep. Brad Drake filed a bill Tuesday that would eliminate lethal injection as a method for execution in Florida.  Instead, people facing the death penalty would be allowed to choose execution by firing squad.  Electrocution still would be allowed under the bill [which is available here].

Drake, R-Eucheeanna, said in a news release issued Tuesday night [available here] that he filed the bill in response to debate over the effectiveness of certain drugs used in lethal injection executions.  “So, I say let’s end the debate,” he said in the release. “We still have Old Sparky. And if that doesn’t suit the criminal, then we will provide them a .45 caliber lead cocktail instead.”

In the release, Drake said the bill was in reaction to a group of doctors and legal experts who had been asking Gov. Rick Scott for a stay of execution for Manuel Valle, a 61-year-old man convicted of murder in the death of a law enforcement officer in Miami in 1978.

Valle was executed late last month after 33 years on death row. He was the first Florida inmate executed using pentobarbital as the first of three drugs in the injection.  His lawyers questioned the drug, saying it had not been tested for use to render an inmate unconscious.

“I am sick and tired of this sensitivity movement for criminals,” Drake said.  “Every time there is a warranted execution that is about to take place, some man or woman is standing on a corner holding a sign, yelling and screaming for humane treatment.  I have no desire to humanely respect those that are inhumane,” he said in the release.

Some recent and older related posts:

• Florida Supreme Court delays execution to allow hearing on new drug in protocol
• "Controversy Follows New Execution Drug"
• AP finds most states running out of drugs for lethal injection executions
• Should problems with lethal injection prompt return of other execution methods?
• "Anesthesia shortage may delay executions"
• Is it finally time to just go back to firing squads for executions?

Eighth Circuit panel unanimously affirms dismissal of challenges to Arkansas execution protocol

Earlier today, an Eighth Circuit panel handed down an opinion in Williams v. Hobbs, No. 10-1573 (8th Cir. Oct. 7, 2011) (available here), which rejects various claims by death row prisoners in Arkansas concerning the state's execution plans.  Here is how the opinion starts:

Several Arkansas prisoners on death row challenged the state's Method of Execution Act (the Act) under 42 U.S.C. § 1983 arguing that it violates the ex post facto clause and their due process right to access the courts.  The district court dismissed the prisoners' claims, finding that their arguments were merely speculative, that they had access to Arkansas's current execution protocol, and that they could submit a FOIA request to obtain information on future protocols.  In this consolidated appeal the prisoners argue that the district court erred in dismissing their ex post facto clause and due process claims. Appellant Williams also appeals individually contending that the district court erred in denying his habeas petition as second or successive and by refusing to exercise supplemental jurisdiction over a state law claim.   Appellant Jones and the prisoners that intervened in his suit appeal the denial of their motion to vacate the judgment. We affirm.

Some late day pending execution headlines from all over (and a question)

I am about to go off-line for the next few hours (if not longer), and there are two high-profile executions scheduled to be scheduled during this time.  Here are some recent headlines from an array of sources covering these stories:

• From the Huffington Post here, "Troy Davis And Lawrence Brewer, A Tale Of Two Executions"

• From CNN here, "Appeal to stay Troy Davis execution denied, court says"

• From the Houston Chronicle here, "The city of Jasper still copes with racial tensions 13 years after dragging death" 

• From Reuters here, "Victim's son objects as Texas sets execution in hate crime death"

• From the Atlanta Journal-Constitution here, "Kim Kardashian, Diddy, Big Boi, Indigo Girls and other celebs tweet to protest Troy Davis execution"

• From The Nation here, "Wider Issues Surrounding the Execution of Troy Davis — and the Death Penalty in America"

In addition to hoping the comments to this post will stay civil, I would also like to hear thoughts or opinions on a few execution-related questions: Why hasn't the Troy Davis team sought to contest constitutionally aspects of Georgia's execution process and/or make a final request that the Davis execution be recorded?

As regular readers know, death row defendants in recent years have been quite successful at slowing down the "machinery of death" in numerous states by raising concerns about the way the states operate this machinery.  I have been wondering all day today, especially as all sorts of other last-ditch legal efforts are being made to try to stop the Davis execution, whether the Davis defense team has tried or even considered the kind of 1983 lethal injection suit that has worked for other defendants in other states.

Ohio Gov Kasich postpones another execution based on lethal injection litigation

The fortuity of the setting of execution dates and the pace of lethal injection litigation has now led to an Ohio murderer getting a new two year lease on life.  The basics are explained in this local Columbus Dispatch story, headlined "Kasich postpones another execution; Judge’s criticism of lethal-injection protocol leads to delay until 2013":

Ohio’s third execution in a row has been postponed because of a court battle over lethal-injection procedures.  Gov. John Kasich yesterday postponed the scheduled Sept. 20 execution of Billy Slagle of Cuyahoga County until Aug. 7, 2013.  Slagle, 42, was sentenced to death for the 1987 murder of his neighbor, Mari Anne Pope.  He stabbed Pope 17 times with a pair of scissors after breaking into her house to rob her.

The nearly two-year delay is necessary because other executions are scheduled monthly, except in December, between now and that date.  The Slagle postponement is related to a lawsuit contesting Ohio’s lethal-injection protocol.  It is being heard by U.S. District Judge Gregory Frost. In blocking the July execution of Kenneth Wayne Smith, 45, of Hamilton, Frost criticized Ohio’s lethal-injection rules and procedures, calling them “haphazard” and unacceptable.

That prompted Kasich to postpone the Aug. 16 execution of convicted killer Brett Xavier Hartmann, 37, of Summit County, for 15 months.  The next scheduled execution is that of Joseph Murphy of Marion County, sentenced to death for murdering Ruth Predmore, 72, in 1987.  So far, there has been no delay in that case.

The Ohio Parole Board on Thursday recommended against clemency for Slagle, concluding that the excessively violent nature of the crime outweighed the mitigating effects of his turbulent childhood.

I find this latest postponement somewhat surprising given that, as reported in this prior post, Ohio a few weeks ago released a new lethal injection protocol.  But, given the inevitability of more litigation over this new protocol, perhaps Gov Kasich should simply be complimented for helping to ensure that the constitutional debates over the new protocol do not have to take place in the shadow of a September execution date.

Some recent related posts:

• Federal district judge finds Equal Protection Clause violated by Ohio's injection processes
• New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
• Why Smith Equal Protection ruling and execution stay in Ohio is a huge (and national?) new death penalty story
• Ohio's queue for executions now 11 deep and more than a year long
• Ohio decides not to appeal federal district court ruling in Smith halting execution
• In wake of lethal injection ruling and stay, Ohio Governor postpones next execution (for 18 months!?!)
• "Ohio and the Death Penalty"
• Ohio ready to try to get its machinery of death back in operation

"Let public see executions"

The title of this post is the headline of this editorial from Newsday.  Here are excerpts:

Executions in the United States used to be carried out in the public square for all to see. They should be again, which in this digital age means on video.

The death penalty is barbaric, risks killing people who are not guilty, and provides no deterrent to those who would commit heinous crimes.  The nation should abandon the practice. But as long as people are being executed, the machinery of death shouldn't be hidden.  The criminal justice system operates in the open for a reason: It's the best way to ensure what it does is fair, just and acceptable to the public.

The issue of public executions arose recently when Georgia, one of 34 death penalty states, executed convicted killer Andrew DeYoung by lethal injection.  His lawyers wanted his death videotaped because a man executed in June using the same, three-drug cocktail was seen jerking, mumbling and thrashing after the injection, an indication the method may be inhumane....

Widely available images of executions carried out in this country might make people indifferent to the spectacle.  But they just might make people recoil instead -- and lead them to put an end to the grisly business of government-sanctioned killing.

Recent and older related posts:   

"Executions Should Be Televised"
Why shouldn't Georgia lethal injection — and all executions — be recorded on video?
• "DeYoung executed with videographer documenting his death"
• Another view of viewing an execution
• NYT piece on lethal injection
• Shouldn't all executions now be recorded on video?
• A call for truly public executions?
• The uncut Saddam's execution video and death penalty aesthetics
• "Video of a Lethal Injection Reopens Questions on the Privacy of Executions"
• Are there any compelling arguments against now recording all executions?

Florida Supreme Court approves state's new execution protocol

As detailed in this UPI report, "Florida's Supreme Court ruled Tuesday a barbiturate can be used in the state's lethal injection cocktail and the execution of a convicted killer can proceed." Here is more:

The drug, pentobarbital, came into question when lawyers representing Manuel Valle, who was scheduled to be executed Aug. 2, argued that the use of the drug could constitute cruel and unusual punishment...

A Miami-Dade judge rejected the argument, but the Florida Supreme Court postponed the execution so Circuit Judge Jacqueline Hogan Scola could hold a hearing on the effectiveness of pentobarbital....  The high court ruled Tuesday that the use of the drug is constitutional and declined to hear oral arguments.

Valle, who was convicted and sentenced to death for the 1978 shooting and killing of a Coral Gables police officer, is now scheduled to be executed Sept. 1.

The per curiam unanimous opinion in this case from the Florida Supreme Court runs 43 pages and can be accessed at this link.