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April 1, 2012

Is undue "secrecy" in the execution process a constitutional problem?

The question in the title of this post is prompted by this lengthy new local article, headlined "Cruel and unusual?: Death row inmate challenges state execution procedure," discussing the on-going litigation over Alabama's execution process and protocol.  Here is how the piece starts:

A death row inmate who had his execution blocked by a federal court that cited Alabama’s “secrecy” concerning its execution procedure says that procedure could leave him conscious while drugs that stop his breathing and his heart flow through his body.

Attorneys for Thomas Arthur, who was convicted in a 1982 murder-for-hire scheme, argue that the use of pentobarbital to anesthetize a prisoner during an execution violates Arthur’s Eighth Amendment protections.

Suhana Han, Arthur’s attorney, claims the drug does not work fast enough to prevent the inmate from feeling the potentially painful effects of the two drugs that follow, and that the state’s secrecy surrounding its execution protocols makes it impossible to determine whether its use constitutes cruel and unusual punishment, or even if the state follows its own procedures during executions.... “What we’re asking the court to do is allow us the opportunity to prove our claim,” Han said. “Alabama has never had its lethal injection process challenged at trial on the merits.”

Arthur was scheduled to be executed March 29, but the 11th Circuit Court of Appeals on March 21 overturned a lower court’s dismissal of Arthur’s appeal on the use of pentobarbital, finding there was no evidence that Alabama was conducting executions in a constitutional manner. The situation, the court wrote, was “exacerbated by Alabama’s policy maintaining secrecy surrounding every aspect of its three-drug execution method. It is certainly not speculative and indeed plausible that Alabama will disparately treat Arthur because the protocol is not certain and could be unexpectedly changed for his execution,” the court wrote.

Brian Corbett, a spokesman for the Alabama Department of Corrections, declined comment last week, saying he was not at liberty to discuss the state’s execution procedures. The Alabama Attorney General’s office also declined comment on the case.

April 1, 2012 at 05:05 PM | Permalink


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Nice little burden shifting by the two judges in the majority. One is of course, Rosemary Barkett, probably the worst federal appeals court judge.

Posted by: federalist | Apr 1, 2012 5:54:06 PM

"Arthur was convicted of murder in the 1982 death of Muscle Shoals businessman Troy Wicker Jr.

Wicker’s murder occurred while Arthur was in a work release program after being convicted of murdering the sister of his common-law wife in 1977."

Now, let's not rush this thing. Don't be rash. Throw a spanner in the works if necessary.

Posted by: Adamakis | Apr 2, 2012 10:53:18 AM

Just as an fyi: the main (only) witness against Arthur was his "co-conspirator". She was Wicker's wife. She initially claimed she had been raped by Wicker's murderer. That didnn't fly before a jury and she was convicted of his murder. Her lawyer then became the DA, struck a deal with his former client to testify against Arthur in exchange for time served. Trace evidence that was used to implicate Arthur was recently shown by DNA to be unconnected to him. As far as I know, Arthur has maintained his innocence throughout.

Posted by: Ala JD | Apr 2, 2012 2:25:09 PM

Ala JD, you should also mention that Mr. Arthur was on parole for another murder.

Posted by: federalist | Apr 2, 2012 4:22:25 PM

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