Tuesday, May 20, 2014

Georgia Supreme Court rejects attack on execution drug secrecy

As reported in this local article, yesterday the Georgia Supreme Court "upheld the constitutionality of a state law that keeps secret the identities of the makers and suppliers of Georgia’s lethal-injection drugs." Here is more about the ruling:

The court, in a 5-2 decision, rejected a challenge to the statute filed by lawyers for condemned killer Warren Hill. The ruling should clear the way for a number of executions, which have been on hold while the case was pending.

The reasons for offering privacy are “obvious,” Justice Harris Hines wrote for the majority. These include avoiding the risk of harassment or retaliation from persons related to the prisoners or from others who might disapprove of the execution “as well as simply offering those willing to participate whatever comfort or peace of mind that anonymity might offer,” Hines wrote.

In addition, “we believe that the same logic applies to the persons and entities involved in making the preparations for the actual execution, including those involved in procuring the execution drugs,” Hines wrote. “(W)ithout the confidentiality offered to execution participants by the statute … there is a significant risk that persons and entities necessary to the execution would become unwilling to participate.”

Benham, who authored the dissent, noted the recently botched execution in Oklahoma of inmate Clayton D. Lockett, who died of a heart attack after he writhed, gasped and struggled to lift his head after being declared unconscious on the lethal-injection gurney. “I write because I fear this state is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in Oklahoma,” wrote Benham, who was joined by Justice Carol Hunstein. “There must be certainty in the administration of the death penalty.”...

In a statement, Hill’s attorneys said the ruling “effectively affords the state of Georgia to alter (its) lethal-injection protocol in any way it sees fit and to conceal from the public and even the courts the identity and provenance of the chemicals it intends to use to carry out executions.” Benham’s dissent, the statement said, “correctly found that this decision conflicts with basic requirements of due process.”

The full Georgia Supreme Court ruling in Owens v. Hill is available at this link.

May 20, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Sunday, May 18, 2014

Detailing the death-penalty abolitionist's strategy and vision for the path to aboilition

This local article from Oregon, headlined "Death penalty opponent sees tough legal fight ahead," provides a helpful accounting of the current game-plan embraced by many hard-core death-penalty abolitionist.  Here are excerpts:

A professor at American University made no secret of what he hoped to accomplish on a four-city visit to Oregon this week. Richard Stack, author of two books critical of the death penalty, wants to move Oregonians closer to abolishing it. Though Oregon is among the 32 states with it, the number that have abolished it grew from 12 to 18 in the past six years.

“We have a strategy of picking off a state at a time,” he said in an interview prior to a talk at Portland State University. “As we add states to the repeal column, when we hit No. 26, we will have a majority that do not have it.”

Then, he said, the NAACP Legal Defense Fund will go to the U.S. Supreme Court to argue that the death penalty violates the federal constitutional guarantee against “cruel and unusual punishment” under the 8th Amendment. “It’s the only way that some states will fall into line” such as Texas, which has executed 515 people since 1982 when current death-penalty laws were in place. Texas leads the states in executions.

Stack, an associate professor of public communication at the university in Washington, D.C., has written “Dead Wrong” and in 2013, “Grave Injustice: Unearthing Wrongful Executions.” He also spoke at events in Monmouth, Eugene and Corvallis.

Gov. John Kitzhaber, who let two executions proceed in 1996 and 1997 during his first term, has vowed there will be no further executions while he is in office. His temporary reprieve in 2011 of Gary Haugen, an inmate who sought to waive his appeals and be executed, was upheld by the Oregon Supreme Court last year.

Kitzhaber’s current term ends Jan. 12, 2015. If he is re-elected Nov. 4, that term will end Jan. 14, 2019. Washington Gov. Jay Inslee took a similar stance on Feb. 11.

Among other potential states for repeal advocates are Colorado, Delaware, Kansas, Montana and New Hampshire.

Oregon voters would have to repeal the death penalty, which since the state assumed responsibility for executions in 1903, voters have repealed twice and reinstated three times. The most recent vote was on a pair of ballot measures in 1984. They were necessitated when the Oregon Supreme Court overturned a 1978 ballot measure on grounds that juries, not trial judges, had to impose the penalty after determining guilt....

Lawmakers heard but failed to advance a proposed repeal measure in their 2013 session. Ron Steiner, who spoke for Oregonians for Alternatives to the Death Penalty, said repeal advocates seek to qualify an initiative measure for the 2016 general election ballot.

Three former Oregon chief justices dating back three decades – Edwin Peterson, Wallace Carson and Paul De Muniz – have announced their opposition to the death penalty, as has Frank Thompson, who as superintendent of the Oregon State Penitentiary oversaw the 1996 and 1997 executions. Steiner acknowledges that Oregonians sampled in a straight up-or-down poll say they support the death penalty. But he also said that support softens when they are asked more specific questions about it – including the substitution of a true life-without-release option.

May 18, 2014 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, May 16, 2014

Lots of intriguing "show me" litigation as Missouri prepares for next execution

As reported in this Kansas City Star article, a number of news organizations, "including The Kansas City Star and The Associated Press, filed suit Thursday against the Missouri Department of Corrections over its refusal to reveal the source of drugs used to carry out executions." Here is more about the suit:

The suit, filed in Cole County Circuit Court in Jefferson City, alleges that the Corrections Department is violating the Missouri Sunshine Law by denying repeated requests for information about the “composition, concentration, source and quality of drugs used to execute inmates in Missouri.” By withholding access to information that historically has been publicly available, the department also is violating the First and Fourteenth amendments of the U.S. Constitution, according to the suit....

Thursday’s suit [claims] that public disclosure of the information “reduces the risk that improper, ineffective or defectively prepared drugs are used.”

“The constitution thus compels access to historically available information about the type and source of drugs used in lethal injection executions because disclosure promotes the functioning of the process itself and is essential for democracy to function,” according to the suit.

Joining The AP and The Star in the suit are Guardian US, the New York-based digital news service of England’s The Guardian; the St. Louis Post-Dispatch; and the Springfield News-Leader.

Meanwhile, over in federal court has detailed in this new Reuters report, a "Missouri death row inmate is asking a federal court to allow videotaping his execution, scheduled for next week, to record any evidence of cruel and unusual punishment in violation of the U.S. Constitution." Here is more on this other legal front:

A lawyer filed a motion on Friday in Kansas City on behalf of Russell Bucklew, 45, who is scheduled to die by lethal injection on May 21 for the 1996 murder of Michael Sanders in southeast Missouri. Last week, Bucklew filed a motion in the same court to halt his execution because of a rare health condition that his lawyer, Cheryl Pilate, said would cause him extreme pain and possible suffocation.

A videotape would preserve evidence if he survives and wants to oppose another execution or is injured and wants to file a claim, the motion states. It further states that if the inmate dies but suffers "prolonged and excruciating execution or chokes and suffocates to death," the video would be evidence for a claim by his estate. "If Missouri officials are confident enough to execute Russell Bucklew, they should be confident enough to videotape it," Pilate said in a news release. "It is time to raise the curtain on lethal injections."

May 16, 2014 in Baze lethal injection case, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Thursday, May 15, 2014

Poll after ugly execution highlights enduring death penalty support and openness to various execution methods

As highlighted by this NBC News article, headlined "Americans Back Death Penalty by Gas or Electrocution If No Needle: Poll," a new poll seems to confirm my suspicion in this recent post that the ugly execution in Oklahoma would not change many modern capital perspectives. Here are the results of this poll:

A badly botched lethal injection in Oklahoma has not chipped away at the American public's support of the death penalty, although two-thirds of voters would back alternatives to the needle, an exclusive NBC News poll shows.

One in three people say that if lethal injections are no longer viable — because of drug shortages or other problems — executions should be stopped altogether, according to the survey of 800 adults by Hart Research and Public Opinion Strategies for NBC News. But many others are open to more primitive methods of putting prisoners to death: 20% for the gas chamber, 18% for the electric chair, 12% for firing squad and 8% for hanging....

The most recent example of what can go wrong [with lethal injection] is the April 29 execution of Clayton Lockett, who appeared to regain consciousness and writhe in pain midway through. The procedure was halted but Lockett, convicted of rape and murder, died anyway. The details of his death were condemned by the White House and provoked fresh debate over capital punishment and how it's carried out.

Most people polled said they knew about the uproar, but it did not appear to change minds about whether the government should kill murder convicts. A comfortable majority of those questioned — 59% — said they favor the death penalty as the ultimate punishment for murder, while 35% said they are opposed.

That split is in line with surveys done before Lockett's death in the last two years, and also reflects the erosion of support for capital punishment since the 1990s, when it was more than 70%. "I don’t think this fundamentally altered views about the death penalty," said Bill McInturff of Public Opinion Strategies.

Republicans, whites, Protestants and older people were more likely to favor execution than Democrats, blacks and Latinos, Catholics and young people. More than a third of those in favor said the strongest argument for the death penalty is that it's an "appropriate consequence." A similar proportion of those against it said the risk of killing someone who had been wrongly convicted was the most powerful argument....

All 35 capital punishment states use lethal injection as their primary method, although eight of them would allow electrocution, gas, hanging or firing squad in some cases, according to the Death Penalty Information Center. But lethal injections are becoming increasingly difficult to carry out because pharmaceutical companies don't want their products used, some compounding pharmacies are getting out of the execution business, and inmates are trying to force states to reveal their suppliers.

Some state lawmakers have introduced measures that would bring back the older methods, but some pro-execution advocates believe that would lower support from a public that has gotten used to "medicalized" deaths.

A few recent related posts:

May 15, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 13, 2014

Fifth Circuit panel grants last-minute capital stay due to key IQ evidence hidden by Texas prosecutors

As reported in this AP article, headlined "Court halts execution over mental health claims," the Fifth Circuit "halted a convicted Texas killer's scheduled execution Tuesday so his attorneys can pursue appeals arguing he's mentally impaired." The reason this is coming up in this way now, as the Fifth Circuit explain in In re Campbell, No. 14-20293 (5th Cir. May 13, 2014) (available here) is because Texas prosecutors hid key IQ evidence from the defense for a decade. Here is how the Campbell opinion starts and a key paragraphs from its closing pages:

Robert James Campbell, a death-row prisoner whose execution is scheduled for Tuesday, May 13, 2014, contends that he is intellectually disabled (formerly called “mentally retarded”) and is, therefore, constitutionally ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002).  He has filed with this court a motion for authorization to file a successive federal habeas corpus petition asserting his Atkins claim and a motion for stay of execution pending the resolution of that claim. For the reasons that follow, we grant both motions....

The evidence presented by Campbell at this stage indicates that, in 2003, the District Attorney’s office had in its possession evidence reflecting Campbell’s IQ score of 68, yet the State opposed Campbell’s 2003 motion to authorize a successive habeas claim based on Atkins on the basis that the “sparse” school records failed to establish intellectual disability.  The State also asserted that there was no “credible evidence” of intellectual disability.  Also in 2003, Campbell sought funds for intellectual-function testing, which the State opposed even though the District Attorney had evidence of the IQ score of 68.

Moreover, according to Campbell, the Texas Department of Criminal Justice informed Campbell’s prior attorney that, during Campbell’s earlier robbery incarceration, he received an IQ test result of 84.  As Campbell now argues, that was not true and contrary to the actual evidence.  It is not facially unreasonable that Campbell’s prior attorney relied upon the department’s statement and was persuaded that it was fruitless to pursue this claim further.  Indeed, as Judge Alcala of the Texas Court of Criminal Appeals stated in her dissent, “it would be unjust to penalize an applicant for not uncovering such a falsehood previously when he had no basis to believe that a falsehood had been conveyed to him.”...

It is regrettable that we are now reviewing evidence of intellectual disability at the eleventh hour before Campbell’s scheduled execution.  However, from the record before us, it appears that we cannot fault Campbell or his attorneys, present or past, for the delay.  According to Campbell, in the period immediately after Atkins was decided, his attorney diligently searched for evidence of intellectual disability.  And, when the Texas Department of Criminal Justice failed to turn over the results of the intelligence test they had administered on Campbell upon the attorney’s request for “any and all intellectual functioning tests,” the State gave the attorney incorrect and incomplete information. Thus, although the delay is regrettable, we do not see it as militating against a stay of execution in this case

May 13, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Monday, May 12, 2014

Despite execution problems elsewhere, Texas poised to carry out another death sentence on Tuesday

As highlighted by this new New York Times article, headlined "Facing Challenge to Execution, Texas Calls Its Process the Gold Standard," problems encountered by other states has not led official in Texas to question how it runs its machinery of death. Here are excerpts from the lengthy Times piece about modern Lone Star State capital punishment realities:

If Texas executes Robert James Campbell as planned on Tuesday, for raping and murdering a woman, it will be the nation’s first execution since Oklahoma’s bungled attempt at lethal injection two weeks ago left a convicted murderer writhing and moaning before he died.

Lawyers for Mr. Campbell are trying to use the Oklahoma debacle to stop the execution here.  But many in this state and in this East Texas town north of Houston, where hundreds have been executed in the nation’s busiest death chamber, like to say they do things right.

For two years now, Texas has used a single drug, the barbiturate pentobarbital, instead of the three-drug regimen used in neighboring Oklahoma.  Prison administrators from other states often travel here to learn how Texas performs lethal injections and to observe executions.  Texas officials have provided guidance and, on at least a few occasions, carried out executions for other states.

Even the protesters and TV cameras that used to accompany executions here have largely dissipated.  “It’s kind of business as usual,” said Tommy Oates, 62, a longtime resident who was eating lunch at McKenzie’s Barbeque last week, about one mile from the prison known as the Walls Unit.  “That sounds cold, I know. But they’re not in prison for singing too loud at church.”

More than any other place in the United States, Huntsville is the capital of capital punishment.  All of the 515 men and women Texas has executed since 1982 by lethal injection and all of the 361 inmates it electrocuted from 1924 to 1964 were killed here in the same prison in the same town, at the redbrick Walls Unit.  Over all, Texas accounts for nearly 40 percent of the nation’s executions....

Gov. Rick Perry is a staunch defender of the state’s record, saying that “in Texas for a substantially long period of time, our citizens have decided that if you kill our children, if you kill our police officers, for those very heinous crimes, that the appropriate punishment is the death penalty.”  On “Meet the Press” recently, he added, “I’m confident that the way that the executions are taken care of in the state of Texas are appropriate.”...

David R. Dow, a law professor at the University of Houston who has represented more than 100 death row inmates during their appeals, explained the state’s record of seeming success simply.  “When you do something a lot, you get good at it,” he said, adding archly, “I think Texas probably does it as well as Iran.”...

Some of those who work in the system are proud of their expertise.  Jim Willett, who was the warden at the Walls prison from 1998 to 2001, oversaw 89 executions.  Staff members who prepare prisoners for execution are trained and skilled, he said. The “tie-down team” that straps the prisoners onto the table, “can take that man back there and put those straps on perfectly and easily in 30 seconds.  This may sound odd to an outsider, but they take pride in what they do.” He added, “They’ve done it so often that it’s almost second nature to them.”...

Since 1976, Texas has carried out more executions than six other states combined — Alabama, Florida, Georgia, Missouri, Oklahoma and Virginia — all of which have some of the busiest death chambers.

On Monday, an appeal by Mr. Campbell's lawyers to stop the execution reached the United States Court of Appeals for the Fifth Circuit in New Orleans. The lawyers cited the execution in Oklahoma, where Clayton D. Lockett writhed and moaned on the table until prison officials halted the procedure.  Mr. Lockett died 43 minutes after the delivery of drugs into a vein in his groin began. Oklahoma has declared a six-month stay of the next execution.

The argument in the original complaint in the Campbell case, filed in federal court in Houston, tracks arguments in several current lawsuits challenging Texas’ execution process.  It focuses on efforts by Texas, Oklahoma and other states to restrict information about the source of the drugs.  Texas has declined to disclose such information as how its drug is tested for potency and purity, among other details of the process.  The lawyers for Mr. Campbell argue that “to permit this execution to proceed in light of the eye-opening events in Oklahoma should not be countenanced by a civilized society, nor tolerated by the constitutional principles that form the basis of our democracy.”

State officials say Texas is not like Oklahoma partly because it uses a single drug, the barbiturate pentobarbital, instead of the three-drug series employed north of the Red River.  This approach, along with other protections for prisoners in the process, was favored by a new report on the death penalty from The Constitution Project, a group that includes supporters and opponents of capital punishment....

Greg Abbott, the Texas attorney general, has opposed the request to stop the execution, stating that “recent problems in another state following an entirely different execution procedure do nothing to change this fact.”  The state argued that pentobarbital has been used successfully in 33 executions in Texas, and that testing showed the batch of the drug to be used, which came from a compounding pharmacy, was potent and “free of contaminants.”...

Support for the death penalty in Texas runs higher than in the rest of the country; a May 2012 University of Texas-Texas Tribune online poll showed that 53 percent of Texas voters said they supported the death penalty for murder over life imprisonment without the chance for parole. A Quinnipiac University telephone poll conducted in May 2013 found that 48 percent of American voters favored the death penalty over a life term for people convicted of murder.

May 12, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, May 11, 2014

"It's time to televise executions"

The title of this post is the headline of this new CNN opinion piece authored by trial consultant Richard Gabriel.  Here are excerpts:

In 1936, the last public execution in the United States was held in Owensboro, Kentucky. It was witnessed by more than 20,000 people, including hundreds of reporters.  From that point forward, states decided that executions needed to be private affairs, held in small rooms and witnessed only by agents of the state, lawyers, family members of the victim and a handful of journalists.

In the years since Owensboro, the states -- with the approval of the U.S. Supreme Court -- have refined their definition of humane executions by utilizing firing squads, electric chairs and gas chambers.  The states further sanitized the execution process by developing the lethal injection method, turning it into a medical procedure complete with operating table, intravenous injections and considerable ethical questions for doctors and pharmaceutical companies who have sworn to "do no harm."

None of these refinements in execution technology has anything to do with "humane" methods.  There is no real measurement for how painful a death prisoners suffer when they are being hanged, shot, gassed or electrocuted, no matter how quickly they die. Lethal injection simply gives us greater psychological distance from killing another human being, making it feel more like a doctor-prescribed procedure than an execution....

It is natural to be both horrified and angered at the senseless and brutal killings committed by a convicted murderer.  It is natural to want revenge -- to visit the pain we imagine the victim suffered onto his or her perpetrator.  But there is a difference between punishment and revenge, no matter how we dress it up with legislation and legal procedures.  We have built a system of laws to raise us above those we judge.

In this system we have built, we must be honest and ask ourselves, "Is vengeance justice?" If we want truly to codify revenge, let's not pretend. Let's admit that we are willing to live with the byproducts of our retribution. Let's admit that we are willing to kill a number of innocent people. Let's admit that it is fine to execute a disproportionate number of minorities. And let's admit that we want condemned murderers to suffer like they made their victims suffer. Let's not dress the execution up as a medical procedure.

And by all means, let's televise it. Let's watch them pump the drugs into a condemned man or woman, strapped to a gurney. Let's hear their last words.  Let's watch them writhe and twitch, or listen as they groan and their last breath quietly leaves their body.  Let's watch them die.  Let us see what we are really choosing when we vote to implement the death penalty in our state.

Many Americans support the death penalty in principle. But, as a juror in a capital case, it is different when you look across that courtroom and stare into the eyes of the accused. At that point it is real, and not just a principle. You will decide whether that person dies.

Let's make the death penalty real. Let's open the blinds and stare into the eyes of those we condemn to death.  Let's be honest about what the death penalty really is. And then we can choose what kind of society we really want to be. 

May 11, 2014 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Thursday, May 08, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, May 07, 2014

Boston Marathon bomber's defense team starts legal attack on federal death penalt

As reported in this Boston Globe article, "attorneys for accused Boston Marathon bomber Dzhokhar Tsarnaev today asked a federal judge to declare the federal death penalty unconstitutional for a number of reasons, including the fact that Massachusetts itself does not permit capital punishment." Here is more about the filing:

The attorneys also argued that the federal death penalty violates the Eighth Amendment ban on “cruel and unusual punishment" because there is the possibility that innocent people will be executed and there is a history of a “seemingly ineradicable pattern of racially disparate enforcement."

The attorneys, in a filing in US District Court in Boston, noted that the First US Circuit Court of Appeals had rejected similar arguments raised in the case of serial killer Gary Sampson in 2007. But the attorneys argued that new developments, including changes in the law and public revulsion over events such as the recent botched execution in Oklahoma, argued for US District Judge George A. O’Toole Jr. to take a new look.

“The vulnerability of this particular death penalty prosecution to Eighth Amendment challenge is all the greater in light of recent legal authority and scholarship that cast doubt on the power of the federal government to impose the death penalty in states, like Massachusetts, that have abolished it," the attorneys wrote. The attorneys argued that the Eighth Amendment was not just intended to secure individual rights but also to constrain the power of the federal government.

“When the Eighth Amendment is properly understood as part of an effort to limit the power of the federal government, it should prohibit the federal government from inflicting severe punishments that are not authorized by state law,” the attorneys said.

Tsarnaev, 20, is being held at the federal prison at Fort Devens in Ayer. Prosecutors are seeking the death penalty against him if he is convicted of setting off the April 15, 2013, bombs that killed three people and injured more than 260. He has pleaded not guilty to all charges. His older brother and alleged accomplice, Tamerlan, was killed in a confrontation with police in Watertown. The brothers also allegedly killed an MIT police officer; Tsarnaev faces state charges in that case....

In a separate motion, the lawyers also argued that if the grand jury that indicted Tsarnaev on 30 counts did not know he would face the possibility of the death penalty, then he should not be subject to it. The lawyers sought grand jury transcripts to find out what the grand jury knew about the possible consequences of its indictments.

May 7, 2014 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (11) | TrackBack

The Constitution Project issues big new report calling for broad reform of capital punishment administration

As reported in this Los Angeles Times article, a big new report by The Constitution Project recommends more than three dozen changes to the administration of the death penalty in the US.  Here are the basic details:

The death penalty should be overhauled "from the moment of arrest to the moment of death," and the lethal drug cocktail used in Oklahoma's botched execution last week should be abolished in favor of a single drug, according to a bipartisan panel of criminal justice experts.

The committee, which included death penalty supporters who have been responsible for carrying it out, recommended using a single anesthetic or barbiturate approved by the Food and Drug Administration to bring on death, as well as 38 other changes.

"Without substantial revisions — not only to lethal injection, but across the board — the administration of capital punishment in America is unjust, disproportionate and very likely unconstitutional," said committee member Mark Earley, who was a Republican attorney general of Virginia when the state carried out 36 executions.

The study by the panel at the Constitution Project, a Washington legal research group, is billed as one of the most comprehensive reviews of the ultimate punishment ever undertaken in the U.S....

Particularly timely is the report's recommendation that the most commonly used drug protocol for lethal injections — a barbiturate for anesthesia, followed by a muscle relaxant to stop breathing and an electrolyte to stop the heart — be replaced by large doses of a single anesthetic or barbiturate. The report said that difficulties in obtaining the proper drugs, complicated procedures for mixing them and the lack of trained medical staff willing to administer them have led to unnecessary suffering on the part of the condemned....

The committee that undertook the two-year study was led by Mark White, former governor of Texas; Gerald Kogan, former chief justice of the Florida Supreme Court; and attorney Beth Wilkinson, who helped prosecute the Oklahoma City bombing case. The panel included former FBI Director William S. Sessions and several prosecutors and judges, as well as death penalty opponents....

White said the report should be useful to Atty. Gen. Eric H. Holder Jr., whom President Obama asked to examine how the death penalty is carried out in light of what happened in Oklahoma.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a pro-death-penalty group in Sacramento, disputed the Constitution Project's claim that its report was bipartisan. "The Constitution Project always takes the side of the defendants," Scheidegger said. "Their claim to be neutral is dishonest." But he said he agreed with the one-drug approach to capital punishment.

The report says state and federal courts too often refuse to hear claims of new evidence presented by prisoners on death row and use other procedural means to deny prisoners their rights. It calls on states to adopt new procedures to evaluate whether a defendant is intellectually disabled. It urges new federal standards for forensic labs and examiners, and says they should operate independently from law enforcement, which would be a major change.

The report also says states should no longer execute people for "felony murder," in which someone who participates in a crime resulting in death can be convicted of murder even if he or she did not do the killing.

The 200+ page report by The Constitution Project is titled "Irreversible Error: Recommended Reforms for Preventing and Correcting Errors in the Administration of Capital Punishment," and it can be accessed at this link.

May 7, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Monday, May 05, 2014

Notable two-part account of constitutional "Case for Gradual Abolition of the Death Penalty"

I just learned about these two notable new articles by Kevin Barry available via SSRN:

From Wolves, Lambs (Part 1): The Eighth Amendment Case for Gradual Abolition of the Death Penalty

This spring, the Connecticut Supreme Court will decide a novel issue in all of modern death penalty jurisprudence. The issue is this: Can a state gradually abolish its death penalty, that is, can it leave in place the sentences of those currently on death row but abolish the death penalty going forward? This Article argues that it can. As a matter of statutory construction, “prospective-only” repeals of death penalty legislation are not given retroactive effect. Although constitutional questions are admittedly less straightforward, prospective-only repeal does not offend either the Eighth or Fourteenth Amendments. The death penalty remains constitutional per se under the Eight Amendment, and “as applied” challenges fare no better. Under the Fourteenth Amendment’s Equal Protection and Due Process Clauses, rational reasons abound for abolishing the death penalty while maintaining death row intact.

Apart from the thorny legal question before the Connecticut Supreme Court, prospective-only repeal gives rise to two other difficult questions. The first is a pragmatic one: From the perspective of the abolition movement, is it wise to abolish prospective-only? The second is a moral one: Is it right to tell those who committed murder on Day 1 that they must remain on death row, while eliminating the death penalty for those who commit murder on Day 2? This Article answers both questions in the affirmative. Prospective-only death penalty repeal promises both retraction of the death penalty and preservation of the status quo and is therefore a useful tool for winning states with inmates on death row to the cause of abolition. Furthermore, by retaining the death penalty for some so that no others will ever face a similar fate, legislators transform an immoral punishment into an arguably moral sacrifice. This is the uneasy morality of gradual abolition; from wolves, lambs.

From Wolves, Lambs (Part 2): The Fourteenth Amendment Case for Gradual Abolition of the Death Penalty

Can a state abolish its death penalty for future crimes while retaining it for those already on death row? This turns out to be a novel question in modern death penalty law, one that has not been answered in nearly a century. In 2014, in the case of State v. Santiago, the Connecticut Supreme Court will be the first court in modern times to answer the question. This Article predicts that the answer to the question will be yes.

Although the Connecticut Supreme Court will be the first court to answer this question in almost one hundred years, it will not be the last. Two inmates remain on death row in New Mexico following that state’s prospective-only repeal in 2009, five inmates remain on death row in Maryland following that state’s prospective-only repeal in 2013, and Kansas and Delaware, with a total of twenty-eight inmates on death row, are poised to abolish their death penalties prospective-only in the near future. If the Connecticut Supreme Court upholds Connecticut’s repeal in Santiago, the way will be clear for other courts to uphold legislation abolishing the death penalty prospective-only.

This Article is the second of two articles examining the emergence of this new trend of “gradual abolition” of the death penalty, by which state legislatures eliminate the death penalty for future crimes only and the executive retains it for those on death row. It begins with a discussion of the legislature’s strategic decision to abolish the death penalty prospective-only — a time-tested strategy that helped to end another infamous American institution: slavery. This Article next turns from the legislature to the courts, concluding, that prospective-only repeal does not violate the Fourteenth Amendment; rational reasons abound for repealing the death penalty for some but not all, and due process is not offended by retaining death row intact.

Lastly, this Article points the way forward — to the future of those who remain on death row and capital offenders who await sentencing post-repeal. It argues that, post-repeal, the executive should grant clemency and capital sentencing juries should return life sentences — not because it is unconstitutional to execute post-repeal, but because it would be an unfairness of the highest order. Indeed, there is no record of a death row prisoner ever being executed after prospective-only repeal of the death penalty; hopefully, there never will be.

May 5, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, May 04, 2014

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

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

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

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

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

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

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

Some recent related posts:

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

"Criminals Get All the Rights: The Sociolegal Construction of Different Rights to Die"

The title of this post is the title of this intriguing new article available via SSRN authored by Meredith Martin Rountree.  Here is the abstract:

In the United States, different people have different rights to die. After sketching the legal standards for hastening death, this article uses empirical research on “volunteers,” death-sentenced prisoners who hastened execution by dropping their appeals, to argue for integrating into adjudications of requests to hasten execution a Fourteenth Amendment analysis comparable to that used in medical cases.

The article discusses socio-legal influences contributing to death-sentenced prisoners’ simultaneously more expansive and less protective right to assistance in dying. Further, it contends that death-sentenced prisoners are more successful in hastening death not simply because of their sentence, but because the law is responding to differently defined social problems. Paradoxically, in this case, the more expansive right reflects and furthers social marginalization.  In addition to raising important questions about the legitimacy of the American death penalty, the Article illuminates the different ways in which rights to accelerate death can be implemented.  In so doing, the Article contributes to the increasingly pressing political debate over ordinary Americans’ ability to end their own lives.

May 4, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, May 02, 2014

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

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

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

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

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

Some recent related posts:

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

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

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

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

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

Thursday, May 01, 2014

New details emerge concerning ugly Oklahoma execution

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

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

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

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

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

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

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

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

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

Some recent related posts:

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

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

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

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

Wednesday, April 30, 2014

Ugly Oklahoma execution leading to calls for national moratorium

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

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

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

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

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

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

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

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

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

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

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

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

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

Recent related posts:

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

Tuesday, April 29, 2014

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

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

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

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

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

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

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

Recent related posts:

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

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

Double execution scheduled for tonight in Oklahoma drawing international interest

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

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

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

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

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

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

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

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

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

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

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

Recent related posts:

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

Ohio concludes condemned murderer experienced no pain during troubled execution

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

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

Witnesses observed that McGuire, 53, gasped, choked, clenched his fists and appeared to struggle against his restraints for 10 minutes after the administration of two drugs, midazolam and hydromorphone, before being pronounced dead at the Southern Ohio Correctional Facility near Lucasville. It was the first time that those drugs were used in an execution in the United States.

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

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

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

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

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

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