Thursday, March 07, 2019

Ohio Governor officially postpones three more scheduled executions

As reported here a few weeks ago, the new Governor of Ohio has imposed something of a de facto moratorium on executions because of concerns over the state's(historically troubled) lethal injection protocol.  This new local article, headlined "DeWine delays three more executions due to lethal drug concerns," reports on the last official manifestation of this unofficial execution moratorium:

After urging from a federal judge, Ohio Gov. Mike DeWine delayed three more executions today.

DeWine has said he doesn’t want to carry out another execution until the judge’s concerns with Ohio’s current method are addressed. He has directed the state Department of Rehabilitation and Correction (DRC) to come up with a new protocol after federal Magistrate Judge Michael Mertz said the “current three-drug protocol will certainly or very likely cause (the one being executed) severe pain and needless suffering.”

David Stebbins, assistant federal public defender who is involved in Ohio death penalty cases, called the governor’s move “a commendable first step.” But the defense lawyer noted Ohioans still have “no indication of what the new protocol will be, when it will be made public, or what kind of litigation schedule may ensue. On the current schedule, there is no guarantee that proper vetting can occur before the first execution in September.

In January, DeWine issued a reprieve of execution to Columbus killer Warren Henness, who had been scheduled to die Feb. 13.

So this morning DeWine delayed the death dates for Cleveland Jackson, who was scheduled to be executed May 29, to Nov. 13; Kareem Jackson, set for July 10, moved to Jan. 16, 2020; and Gregory Lott, slated for Aug. 14, now scheduled for March 12. This was not the first delay for Lott, a Cuyahoga County killer; he originally was scheduled for execution on Nov. 19, 2014.

DeWine’s office said the reprieves were granted “because it is highly unlikely that the state’s new execution protocol, which is still in the process of being developed by DRC, would have time to be litigated by scheduled execution dates. Governor DeWine is also mindful of the emotional trauma experienced by victims’ families, prosecutors, law enforcement, and DRC employees when an execution is prepared for and then rescheduled.”

A few (of many) prior recent related posts:

March 7, 2019 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, February 20, 2019

New Ohio Gov puts halt to all executions until Ohio develops new execution method

As reported in this local article, headlined "Gov. Mike DeWine freezes all Ohio executions while new method developed," the Buckeye state is yet again in a capital holding pattern because it governor is troubled by the state's current execution method. Here are the details:

Gov. Mike DeWine said Tuesday that there will be no more executions in Ohio until a new method of carrying them out can be developed and deemed constitutional by the courts.

“As long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio,” DeWine told reporters at an Associated Press forum in Columbus. “That would not be right, at least in my opinion.”

Pressed on whether he personally supports the death penalty, DeWine paused. Seeming to choose his words carefully, he then said he was a sponsor of Ohio’s current capital punishment law, which took effect in 1981. “It is the law of the state of Ohio. And I’ll let it go [not comment further] at this point. We are seeing clearly some challenges that you have all reported on in regard to carrying out the death penalty. But I’m not going to go further down that path any more today,” he said.

DeWine, a Republican, ordered a review of Ohio’s death penalty protocols last month after a federal magistrate judge wrote that Ohio’s method of carrying out executions would subject a condemned Ohio prisoner to “severe pain and needless suffering.” Judge Michael Merz wrote Ohio could proceed with the execution, since the inmate, Warren Henness, did not produce an alternative that is ”available,” “feasible,” and can be “readily implemented,” required under a 2015 United States Supreme Court ruling that upheld lethal injection.

DeWine delayed Henness’ execution from Feb. 13 to Sept. 12 while the review was underway. But on Tuesday, he declined to place a timetable on how long it might take for a new execution method to be developed, for it to be legally challenged and then found constitutional by the courts. “I’ve dealt with the court system a long time, and I think it’s whenever you think you can figure out how fast or slow something’s going to take, you’re wrong,” he said....

Ohio’s method of execution is to inject the condemned with a combination of three drugs: midazolam (as a sedative), a paralytic drug, and potassium chloride to stop their heart. Death penalty opponents have challenged similar methods in other states, saying they are unconstitutional because they cause cruel and unusual punishment.

In his January opinion, Mertz, the federal magistrate judge, agreed with arguments made by Henness’s lawyers, writing that “it is certain or very likely” that the state’s prescribed dose of midazolam “cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with injection of the paralytic drug or potassium chloride” or the “severe pain and needless suffering that is certain or very likely to be caused by the pulmonary edema which is very likely to be caused directly by the midazolam.”

DeWine’s review marks the second time in five years Ohio has searched for a new method of execution. The state changed the drugs it uses for lethal injection after the January 2014 execution of Dennis B. McGuire took more than 25 minutes.

Ohio had some two dozen execution dates scheduled over the next four years, but I think they are all now functionally on hold pending development of a new execution method. And, reading between the lines, I get the sense that Governor DeWine would be just fine if the state official did not try all that hard to devise a new execution method anytime soon.

A few (of many) prior recent related posts:

February 20, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, February 09, 2019

Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug

Because there have been so many fewer executions nationwide in recent years, it seems there have been fewer struggles over access and use of execution drugs in recent years.  But Ohio, which always struggles in so many ways with carrying out death sentences, has already had significant 2019 developments in this arena.  This lengthy new article at The Intercept, headlined "Ohio’s Governor Stopped An Execution Over Fears It Would Feel Like Waterboarding," provides a great review of these developments.  I recommend the piece in full, and here are some excerpts:

At the coroner's office in Dayton, Ohio, Dr. Mark Edgar stood over the body of Robert Van Hook. The deceased 58-year-old weighed 228 pounds; he wore blue pants, a white shirt, and identification tags around his ankles.  Edgar, a professor of pathology at Emory University School of Medicine, had done countless autopsies over the years. But this would be the first time he examined the body of someone executed by the state.

Van Hook had died one day earlier, on July 18, 2018, inside the death chamber at the Southern Ohio Correctional Facility in Lucasville. After a tearful apology to his victim’s family, he was injected with 500 milligrams of midazolam — the first of a three-drug formula adopted in 2017. Media witnesses described labored breathing from Van Hook shortly afterward, including “gasping and wheezing” loud enough to be heard from the witness room. Nevertheless, compared to recent executions in Ohio, things seemed to go smoothly.

Still, Edgar had cause for concern. For the past few years he had been examining the autopsy reports of men executed using midazolam across the country. He found a disturbing pattern. A majority showed signs of pulmonary edema, an accumulation of fluid in the lungs. Several showed bloody froth that oozed from the lungs during the autopsy — evidence that the buildup had been sudden, severe, and harrowing. In a medical context, where a life is to be saved, pulmonary edema is considered an emergency — it feels like drowning. Even if someone is to be deliberately killed by the state, the Constitution is supposed to prohibit cruel and unusual punishment. To Edgar, the autopsies showed the executed men felt the panic and terror of asphyxiation before they died....

Ohio does not conduct autopsies following executions. But Ohio Federal Public Defender Allen Bohnert secured permission on Edgar’s behalf.  “The autopsy was conducted in the usual manner,” Edgar wrote in a subsequent report.  He made a Y-shaped incision into the chest and abdomen.  A technician removed and weighed Van Hook’s organs and Edgar examined them, looking for anything unusual.  When he got to the lungs, he found “significant abnormalities.”  They were unusually heavy — one telltale sign of congestion.  When he cut into them, he found a mix of blood and frothy fluid.

Of the 27 previously available autopsy reports for people executed using midazolam, Edgar had found evidence of pulmonary edema in 23.  Van Hook was the 24th. A few weeks later, Tennessee used midazolam to execute Irick, who moved and made choking sounds — another grim sign. In a motion seeking a stay of execution and preliminary injunction for Warren Keith Henness, who was scheduled to die in Ohio in February 2019, Bohnert urged a federal magistrate judge to consider these recent developments. “At some point the courts cannot explain away the ever-growing mountain of evidence” against midazolam, he wrote.

Magistrate Judge Michael Merz granted an evidentiary hearing.  After four days of testimony, he issued a damning 148-page order on January 14. The evidence surrounding midazolam had become far more persuasive since Merz last presided over such a proceeding. Not only was he now convinced that midazolam had no analgesic properties, but the drug was “sure or very likely” to cause pulmonary edema, which was akin to “waterboarding.” Yet Merz said he could not stop Henness’s execution. Under Glossip, people challenging lethal injection protocols had to prove that there was an alternative method readily available for the state to use to kill them. Henness had not met this burden.

“This is not a result with which the court is comfortable,” Merz wrote. “If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering. Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment.”

Ohio seemed poised to carry out Henness’s execution. But then, on January 22, the governor’s office issued an order of its own. Newly inaugurated Gov. Mike DeWine granted a warrant of reprieve, delaying Henness’s execution until September. In the meantime, he ordered a review of the state’s options and an examination of “possible alternative drugs.”...

Bohnert points to an irony about Glossip and its legacy. “The fact that the states have been allowed to continue to execute using midazolam is in large part what allowed the evidence to accumulate,” he says. Although it is not clear what will happen next in Ohio, “I think we had a tipping point here.”

A few (of many) prior recent related posts:

February 9, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Friday, January 25, 2019

Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs

As reported in this local article, headlined "Gov. Mike DeWine delays killer’s execution, orders review of lethal-injection drugs," this afternoon brought some interesting news on the capital administration front from Ohio's capital. Here are the details:

Gov. Mike DeWine on Friday postponed the execution of murderer Warren Henness from Feb. 13 to Sept. 12 following a recent judicial ruling that Ohio’s lethal-injection cocktail will “very likely cause him severe pain and needless suffering.”  In a release, DeWine said that he has also directed Ohio’s prisons agency to assess the state’s current options for execution drugs and examine possible alternative drugs.

On Jan. 15, federal magistrate judge Michael Merz ruled that the three drugs Ohio has used since last year for executions — midazolam (as a sedative), a paralytic drug, and potassium chloride (to stop the heart) — are likely unconstitutionally “cruel and unusual punishment.” Merz cited testimony from medical witnesses that high doses of midazolam and other drugs cause pulmonary edema, causing a painful drowning sensation comparable to the torture tactic of waterboarding.

However, Merz allowed Henness’ execution to proceed because, under a 2015 U.S. Supreme Court ruling, death row inmates challenging how they will be put to death must show that an alternative means of execution is “available,” “feasible,” and can be “readily implemented.”

Henness’ proposed alternatives -- drinking secobarbital in a sweet liquid such as apple juice, or an oral injection of four drugs – were rejected by Merz on the grounds that neither method has ever been used to carry out an execution, they would take more than an hour to kill Henness, and that there isn’t a proven way to obtain the drugs.

DeWine, in his statement, noted that Henness has appealed Merz’s ruling, but the governor said he delayed the execution because of the magistrate judge’s opinion.

David Stebbins, Henness’ attorney, said in a statement Friday: “We commend Governor DeWine for his leadership and for ensuring the justice system operates humanely in Ohio.”

Henness was convicted of murdering his drug-abuse counselor, Richard Myers, in 1992.  Prosecutors said Henness kidnapped Myers, shot him five times at an abandoned water-treatment plant, severed Myers’ finger to get his wedding ring, then drove around in Myers’ car for several days forging his checks and using his credit cards to get cash and buy crack cocaine....

Ohio, like many other states with the death penalty, has struggled to obtain lethal-injection drugs since European pharmaceutical companies cut off further sales on moral and legal grounds.  After the controversial execution of killer Dennis McGuire in January 2014, Ohio imposed a three-year moratorium on executions as it worked to find a new lethal-injection protocol — and suppliers willing to sell the state the drugs.

Since the moratorium was lifted in 2017, Ohio has executed three people using the current three-drug cocktail — all without complications or unexpected problems with the drugs.  However, the execution of a fourth condemned inmate, Alva Campbell, was postponed after several unsuccessful attempts to insert an IV.  Campbell died in his cell a few months later.

January 25, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, December 11, 2018

"The Electric Chair Is Back and the Death Penalty Is on Life Support"

The title of this post is the headline of this new commentary by Austin Sarat in Slate.  Here are excerpts:

On Thursday, David Earl Miller became the second person in the last five weeks to choose death in Tennessee’s electric chair over lethal injection. Miller was executed for the 1981 murder of 23-year-old Lee Standifier.

After losing a lawsuit claiming he had a right to be executed by a firing squad, Miller took advantage of a state law allowing death row inmates convicted prior to 1999 to opt for the electric chair rather than lethal injection.  He did so because he feared that the state’s lethal injection protocol, which includes midazolam, a drug that has been involved in several botched executions, would result in a more prolonged and painful death than would electrocution.

The real significance of the return of the electric chair, though, would be missed if we saw it only as a loss of faith in lethal injection by death row inmates.  It signals a larger crisis for the death penalty system in the United States....

Today, nine states retain the electric chair as a legally allowable method of execution. Since 1980, only 11 percent of American executions have involved the electric chair. Most of the other countries that have capital punishment choose one method of execution and stick with it.  In contrast, since the late 19th century, the United States has used five different methods of execution: hanging, electrocution, lethal gas, the firing squad, and lethal injection.  The death penalty has been sustained by the hope of making progress in the grim business of putting people to death.  Indeed, its legitimacy is closely linked to the search for a technological magic bullet to insure the safety, reliability, and humanity of execution.

Even though Miller became just the 16th person put to death by electrocution in the United States since the turn of the 21st century, a period in which there have been 873 lethal injections, the return of the electric chair and other previously abandoned methods of executions signifies more than just the severity of lethal injection’s current problems.  This back-to-the future moment suggests that the United States has reached the end of the road in the search for ever-better execution methods.  It highlights the shaky ground now occupied by America’s death penalty.

Though I share the view that the death penalty remains on shaky ground in the US, it is also the case that the ground is getting just a bit more steady in the Trump era. The prospect of a wholesale striking down of the death penalty by the Supreme Court seems no longer likely in light of Prez Trump's two appointment to SCOTUS. And the last two years, the number of executions completed each year by the states have ticked up slightly since 2016.  As detailed here, there is an execution scheduled in Texas tonight; if it goes through, 2018 will have had more executions nationwide than did 2017.

December 11, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Wednesday, December 05, 2018

Texas completes execution for escapee involved in killing during crime spree

As reported in this local article, headlined "'Texas 7' escapee Joseph Garcia executed in Huntsville," the Lone Star State completed yet another execution last night.  Here are the basics:

Nearly two decades after the brazen prison break-out and cross-state crime spree that landed him on America's Most Wanted and eventually on death row, Texas 7 prisoner Joseph Garcia was executed Tuesday night in Huntsville....  He was pronounced dead at 6:43 p.m., 13 minutes after the lethal dose began.

In recent weeks, the 47-year-old convicted in the Christmas Eve killing of a North Texas police officer launched a slew of appeals, lawsuits, pleas for reprieve and requests for clemency. His last-minute legal moves raised questions about his initial conviction, the controversial "law of parties" and the source of the state's lethal injection supplies.

But on Friday, the parole board rebuffed the condemned man's request for clemency, and lower courts turned down appeal after appeal. By Tuesday morning, he still had a number of claims in front of appeals courts and the U.S. Supreme Court, and a long-shot bid for reprieve sitting on the governor's desk.  "I am on death row because of the actions and intent of others and because I am one of the Texas Seven, case closed," he wrote the Chronicle weeks before his scheduled execution.  "Is it right that I should be murdered for something that I did not do?"

To some friends and family of the slain policeman — Officer Aubrey Hawkins – the answer is clear.  "Whatever participation he had, he went along with it," said Seagoville police Sgt. Karl Bailey, a long-time friend of the Hawkins family. "The whole thing was sparked by the escape from prison, the burglaries - it was a crime spree."

Though Garcia offered no apology in his final statement, he sent out a message of remorse through his attorneys. "I want to offer my heartfelt apology to the family of Officer Hawkins, and the workers at Oshman's in Dallas," he said. "None of this was supposed to happen. I wish it didn't."

At the time of the breakout in December 2000, the Bexar County native was locked up in a prison south of San Antonio, serving a 50-year sentence stemming from a boozy fight that ended with one man dead. Garcia was convicted of murder, but he has long maintained that it was the other man — Miguel Luna — who attacked him, and that the fatal stabbing was only in self-defense.

Behind bars, he made friends with a charismatic thief named George Rivas.  First, they bonded over a "poor man's spread" of prisoner-made food. Then, they plotted an escape. Inspired by a book, their plan took months to prepare.  They picked a crew, spread rumors among the guards, surveyed the grounds and gathered supplies.  On Dec. 13, they made good on their plot....  

After pulling off a pair of robberies to load up with cash and supplies in the Bayou City, the fleeing prisoners left and headed north.  In the Dallas suburb of Irving, the seven escapees staked out an Oshman's sporting goods store....  They took hostages and stole guns, money and supplies.  But before they left, a lone police officer showed up.

Garcia says he was still inside the building when he heard the shots, but some of the other men offered different accounts.  In all, five men fired shots. Rivas admitted he was one of them – but the state never proved that Garcia was. He still maintains that he was inside the building when the shooting started. 

Afterward, they fled to Colorado, driving straight into a blizzard. They stopped at motels along the way, then holed up in a trailer park near Colorado Springs.  For a month, they posed as Christian missionaries before they were finally captured.  One of the men — Larry Harper — killed himself rather than be taken back to prison.

The other six were sent to death row, and three have since been executed.  To the former prosecutor who handled all six of the trials, a fourth execution date comes as a welcome relief.  "It's been almost 18 years," attorney Toby Shook told the Chronicle earlier this year. "It's satisfying that the actual sentence will actually be carried out."

In his final weeks, Garcia has launched an array of appeals. In one claim, he argued that his original Bexar County killing was actually self-defense and not murder. If so, he said, it shouldn't have been used as evidence of future dangerousness — something the state is required to show to secure a death sentence.  Among Garcia's other pending legal actions is a challenge to the state's lethal injection procedures in light of recent reporting about the alleged source of the drugs. In recent days, he'd also tried lobbing a lawsuit at the parole board, arguing the seven-member panel had too many former law enforcement members to be representative of the general public....

He was the 12th Texas prisoner executed this year. Another death date is scheduled for next week.

December 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, November 20, 2018

"Behind the Curtain: Secrecy and the Death Penalty in the United States"

The title of this post is the title of this notable new report released today by The Death Penalty Information Center.  Here is part of its executive summary:  

During the past seven years, states have begun conducting executions with drugs and drug combinations that have never been tried before.  They have done so behind an expanding veil of secrecy laws that shield the execution process from public scrutiny.

As pharmaceutical companies have taken action to prevent states from using their medicines to execute prisoners, states have responded by procuring whatever drugs seem available and obtaining them secretly through questionable means.

Since January 2011, legislatures in thirteen states have enacted new secrecy statutes that conceal vital information about the execution process.  Of the seventeen states that have carried out 246 lethal-injection executions between January 1, 2011 and August 31, 2018, all withheld at least some information about the about the execution process.  All but one withheld information about the source of their execution drugs. Fourteen states prevented witnesses from seeing at least some part of the execution.  Fifteen prevented witnesses from hearing what was happening inside the execution chamber. None of the seventeen allowed witnesses to know when each of the drugs was administered.

This retreat into secrecy has occurred at the same time that states have conducted some of the most problematic executions in American history.  Lethal injection was supposed to be a more humane method of execution than hanging, the firing squad, or the electric chair, but there have been frequent reports of prisoners who were still awake and apparently experiencing suffocation and excruciating pain after they were supposed to be insensate.  These problems have intensified with the use of new drug formulas, often including midazolam.  In 2017, more than 60% of the executions carried out with midazolam produced eyewitness reports of an execution gone amiss, with problems ranging from labored breathing to gasping, heaving, writhing, and clenched fists. In several of these cases, state officials denied that the execution was problematic, asserting that all had proceeded according to protocol. But without access to information about drugs and the execution process, there is no way the public can judge for itself....

This report documents the laws and policies that states have adopted to make information about executions inaccessible to the public, to pharmaceutical companies, and to condemned prisoners.  It describes the dubious methods states have used to obtain drugs, the inadequate qualifications of members of the execution team, and the significant restrictions on witnesses’ ability to observe how executions are carried out.  It summarizes the various drug combinations that have been used, with particular focus on the problems with the drug midazolam, and provides a state-by-state record of problems in recent executions. It explains how government policies that lack transparency and accountability permit states to violate the law and disregard fundamental principles of a democratic government while carrying out the harshest punishment the law allows.

November 20, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Thursday, November 15, 2018

Texas completes its eleventh execution of 2018, bringing the US total to 21 for the year

In 2016, the United States had only 20 total executions, the lowest number in a quarter century.  And that will remain the recent record low number of yearly executions because last night, as reported in this AP article, Texas completed an execution that took the national total for 2018 up to 21 executions.  Here are the details:

A Mexican citizen on death row in Texas was executed Wednesday night for the sledgehammer killings of his wife and two children more than 26 years ago.

Roberto Moreno Ramos was condemned for the 1992 deaths of his 42-year-old wife Leticia, 7-year-old daughter Abigail, and 3-year-old son Jonathan at their home in Progreso, located along the Mexico border.

When asked by the warden if he had a final statement, Ramos thanked the Mexican consulate for assisting with appeals in his case and said he was grateful for “the humane treatment I got in prison in Texas.”...

As the lethal dose of the powerful sedative pentobarbital began taking effect, the 64-year-old Ramos took a couple of deep breaths, sputtered once and began snoring. Within seconds, all movement stopped. Eleven minutes later, at 9:36 p.m. CST, Ramos was pronounced dead.

He became the 21st inmate put to death this year in the U.S. and the 11th given a lethal injection in Texas, the nation’s busiest capital punishment state. No friends or relatives of Ramos or his victims witnessed the execution.

Mexican officials had called for his execution to be stopped, arguing he was part of a group of Mexican citizens condemned in the U.S. who were never told when first arrested that they could get legal help from the Mexican government.

The U.S. Supreme Court on Wednesday night cleared the way for the punishment when it denied two appeals seeking to halt the lethal injection. Ramos’ attorney on Wednesday asked the Supreme Court to stop his execution, arguing that Ramos’ constitutional rights were violated as lower courts refused to fully review his claims that his trial lawyers failed to present any evidence about his mental illness and abusive childhood that could have persuaded jurors to spare his life.

Three retired justices who had served on the Texas Court of Criminal Appeals filed court documents with the Supreme Court on Wednesday in support of stopping the execution. The ex-judges alleged the appeals court appointed an incompetent appellate attorney who early in the post-conviction process failed to investigate Ramos’ case....

In court documents, Ramos’ appellate attorney, Danalynn Recer, had argued Ramos suffered from bipolar disorder most of his life, including during the time of his family’s killings, as well as brain damage that affected his ability to control his impulses and regulate his emotions. Recer said Ramos was also brutally beaten as a child by his father. Ramos was born in Aguascalientes, Mexico, and grew up in Guadalajara and Tijuana before his family moved to the United States in 1970. “No fact-finder or decision-maker entrusted with Mr. Moreno Ramos’ life has ever been provided with evidence of (his) ‘diverse human frailties’ to assist them in dispensing the most severe punishment under law,” Recer said.

The Death Penalty Information Center reports here that there are three more executions scheduled for 2018, two in Texas and one in Tennessee.  Even if these executions all go forward, the total number of executions nationwide in the first two years of the Trump Administration will be less than 50 (47 to be exact), while there were 52 executions nationwide in the very first year of the Obama Administration and 66 executions in the first year of the Bush Administration.  Of course, presidents have almost no direct impact on state capital cases and the pace of executions. But given Prez Trump's affinity for talking up the death penalty, this factoid about executions still seems noteworthy.

November 15, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Wednesday, November 07, 2018

Based on oral argument in lethal injection case, is there reason to think Justice Kavanaugh could end up a swing voter in some capital cases?

The question in the title of this post is a product of my inclination to make too much of this New York Times report and this SCOTUSblog review of Justice Brett Kavanaugh's oral argument performance in Bucklew v. Precythe, a capital case from Missouri involving an "as applied" Eighth Amendment challenge to lethal injection.  The Times piece is headlined "Kavanaugh May Hold Key Vote in His First Death Penalty Case," and here are excerpts:

The Supreme Court heard arguments on Tuesday in an appeal from a death row inmate in Missouri with a rare medical condition that he says will cause excruciating pain if he is put to death by lethal injection. Lawyers for the inmate, Russell Bucklew, said his condition, cavernous hemangioma, would make him choke on his own blood during his execution.

It was Justice Brett M. Kavanaugh’s first death penalty case, and there is good reason to think that he holds the crucial vote. In March, five justices voted to stay Mr. Bucklew’s execution. Justice Anthony M. Kennedy, whom Justice Kavanaugh replaced, joined the court’s four more liberal members to form a majority; the court’s four more conservative justices were in dissent.

Much of Tuesday’s argument concerned earlier Supreme Court decisions that required inmates challenging lethal injection protocols to identify available and preferable methods of execution. Mr. Bucklew said lethal gas was preferable to the state’s current method of an injection of a lethal dose of pentobarbital. But the United States Court of Appeals for the Eighth Circuit, in St. Louis, ruled that Mr. Bucklew had not shown that his alternative would be less painful.

Justice Kavanaugh seemed to express doubts about the requirement of identifying an alternative, at least where the usual method of execution coupled with an inmate’s unusual medical condition could produce excruciating pain. “Are you saying,” he asked a lawyer for the state, “even if the method creates gruesome and brutal pain you can still do it because there’s no alternative?”

The lawyer, D. John Sauer, did not immediately give a direct response, and Justice Kavanaugh pressed him. “Is that a yes?” Justice Kavanaugh asked. “Yes, it is, Your Honor,” Mr. Sauer said....

“What the Eighth Amendment prohibits is the unnecessary infliction of pain,” Chief Justice Roberts said. “If the death penalty is constitutional, as it now is, there must be a way to administer it. But if you can show that there’s another way that is less painful, then the theory is, again, that it’s an Eighth Amendment claim because it’s unnecessary pain.”

The chief justice questioned Mr. Bucklew’s proposed alternative of nitrogen gas. “How can it be a reasonable alternative if it’s never been used before?” he asked. Robert Hochman, a lawyer for Mr. Bucklew, said that “there are details to be worked out.”

The SCOTUSblg argument review includes these observations:

The justices were relatively subdued but seemed to be mostly divided along ideological lines, and it seemed very possible that the outcome could hinge on the vote of the court’s newest justice, Brett Kavanaugh, who at times appeared sympathetic to Bucklew....

Kavanaugh appeared concerned about the prospect that inmates like Bucklew could suffer excruciating pain as a result of the method of execution selected by the state.  He asked Missouri Solicitor General John Sauer, who argued for the state, whether an execution could go forward even if would create “gruesome brutal pain.”  When Sauer responded that it could, Kavanaugh pressed him to explain whether there were any limits on how much pain the execution could inflict. Sauer’s answer: Yes, an execution could not go forward if the pain were so gruesome and brutal that the state would be deliberately inflicting pain for the sake of pain.

I am still inclined to predict that the defendant is going to lose here, but these reports still lead me to wonder whether Justice Kavanaugh could prove to be more open generally to claims of capital defendants than other conservative justices.

Prior related post:

November 7, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, November 05, 2018

Reviewing some previews of Bucklew v. Precythe

The Supreme Court on Tuesday, Nov 6 will hear oral argument in Bucklew v. Precythe, a capital case from Missouri involving an "as applied" Eighth Amendment challenge to lethal injection.  Amy Howe at SCOTUSBlog has this argument preview titled "Justices to consider another lethal-injection challenge, this time by inmate with complicated medical history."  It starts and ends this way:

[T]he Supreme Court will hear oral argument in the case of Russell Bucklew, a Missouri death-row inmate who argues that the state’s plan to execute him by lethal injection violates the Constitution’s ban on cruel and unusual punishment because he suffers from a rare medical condition that could lead to his gagging on his own blood....

Normally, a death-row inmate whose execution has been put on hold can be cautiously optimistic about his chances for success, because a stay of execution requires at least five votes — enough for the inmate to win on the merits.  But Bucklew also knows that four justices — Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — would have allowed his execution to go forward.  This means that one of the five votes to put Bucklew’s execution on hold presumably came from Justice Anthony Kennedy, who retired from the court on July 31.  Although not much is known about the views of Justice Brett Kavanaugh, who replaced Kennedy earlier this month, on capital punishment, Kavanaugh is generally regarded as significantly more conservative than Kennedy, which could bode poorly for Bucklew.

Paul Cassell at The Volokh Conspiracy has this discussion of Bucklew under the heading "Dilatory Tactics in a Death Penalty Case?".  It starts this way:

In 1996, Russell Bucklew murdered Michael Sanders as his two young sons — only four and six years old — watched their father bleed to death in front of them.  Then, as the young daughters of Bucklew's other victim, Stephanie Ray, cried and wailed for their mother, Bucklew handcuffed and dragged her away to endure hours of rape and torture.  Bucklew's reign of terror continued when he broke out of jail, forced victims to go into hiding, and ambushed one victim's mother in her own home. He was tried, convicted, and sentenced to death over 20 years ago.

Tomorrow the Supreme Court will hear oral arguments in Bucklew v. Precythe, in which Bucklew is raising an "as applied" challenge to Missouri's method of executing him (lethal injection).  Counsel of record Allyson Ho, several of her colleagues at Gibson, Dunn & Crutcher, and I have filed an amicus brief in support of Missouri.  We filed the brief on behalf of the sister of Michael Sanders and Arizona Voice for Crime Victims.  Our amicus brief urges the Court to reject Bucklew's challenge and end more than two decades of litigation.

November 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, November 01, 2018

Tennessee completes execution using electric chair

As reported in this lengthy local article,"inmate Edmund Zagorski died at 7:26 p.m. CDT Thursday after Tennessee prison officials electrocuted him with the electric chair." Here is more:

He is the 134th person put to death by Tennessee since 1916 and the second person this year after Billy Ray Irick’s execution by lethal injection on Aug. 9.  He is the first person to die by electric chair since Daryl Horton's execution in 2007.

Zagorski was convicted in the April 1983 murders of John Dale Dotson, of Hickman County, and Jimmy Porter, of Dickson.  Prosecutors argued Zagorski lured them into the woods in Robertson County with the promise to sell them marijuana, and then he shot them, slit their throats and stole their money.

Two minutes before it was set to begin at 7 p.m., the U.S. Supreme Court denied Zagorski's appeal on the grounds of the unconstitutionality of choosing between the electric chair and lethal injection....

Eight people believed to be family members of the victims entered the prison to witness the execution.  They waited in front of a covered large window that looked into the execution chamber where on the other side of the glass Zagorski sat pinned in the electric chair, held down by buckles and straps with electrodes fastened to his feet.

The blinds opened for the rest of the witnesses to see Zagorski dressed in his cotton clothes, smiling and grimacing to the group. Zagorski pronounced his last words: "Let’s rock." He sat smiling in the wired chair as prison staff placed a wet sponge, which had been soaked in salt, and a metal helmet on his freshly shaven head.

Zagorski raised his eyebrows, appearing to be communicating with his attorney Kelley Henry. She sat while nodding and tapping her heart, looking at Zagorski. “I told him, when I put my hand over my heart, that was me holding him in my heart,” Henry told The Tennessean.   She said Zagorski smiled, to encourage her to smile back.  Then his face was covered with a black shroud.

The warden gave the signal to proceed.  Zagorski lifted his right hand several times in what looked like attempts to wave, before he clenched his hands into a fist as the first current ran 1,750 volts of electricity through his body for 20 seconds.

There was a short pause before the second jolt was administered for 15 seconds.  The doctor overseeing the death appeared in view to check on Zagorski’s vitals. Zagorski was dead. The blinds into the chamber closed....

Zagorski was set to die three weeks ago.  His request to die by electric chair saved his life — at least for a few weeks, when Gov. Bill Haslam granted reprieve three hours before his scheduled execution on Oct. 11.  The move bought the state time to prep the chair during last-minute legal wrangling.

Zagorski requested death by electric chair with hope that death would come instantaneously — the “lesser of two evils” compared to lethal injection, argued federal public defender Kelley Henry.

November 1, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3)

Tuesday, October 30, 2018

South Dakota completes execution of prison guard murderer who relinquished appeals

This NBC News piece, headlined "Inmate makes joke in last words before execution for killing South Dakota prison guard," reports on the 19th execution in the US in 2018.  Here are some of the details:

A South Dakota inmate who killed a correctional officer seven years ago during a failed prison escape on the guard's 63rd birthday was put to death Monday evening, marking the state's first execution since 2012.

Rodney Berget, 56, received a lethal injection of an undisclosed drug for the 2011 slaying of Ronald "R.J." Johnson, who was beaten with a pipe and had his head covered in plastic wrap at the South Dakota State Penitentiary in Sioux Falls.  Berget's execution was the state's fourth since it reinstituted the death penalty in 1979.

It originally was to be carried out at 1:30 p.m. CDT (2:30 p.m. ET), but was delayed for hours while the U.S. Supreme Court weighed a last-minute legal bid to block it.  Berget joked in his last words about the wait, saying, "Sorry for the delay, I got caught in traffic."...

Johnson's widow, Lynette Johnson, who witnessed the execution, said her husband experienced "cruel and unusual punishment" but Berget's lethal injection was "peaceful" and "sterile."

"What's embedded in my mind is the crime scene.  Ron laid in a pool of blood. His blood was all over that crime scene," she said.  "That's cruel and unusual punishment."...

Berget was serving a life sentence for attempted murder and kidnapping when he and another inmate, Eric Robert, attacked Johnson on April 12, 2011, in a part of the penitentiary known as Pheasantland Industries, where inmates work on upholstery, signs, furniture and other projects.  After Johnson was beaten, Robert put on Johnson's pants, hat and jacket and pushed a cart loaded with two boxes, one with Berget inside, toward the exits.  They made it outside one gate but were stopped by another guard before they could complete their escape through a second gate. Berget admitted to his role in the slaying.

Robert was executed on Oct. 15, 2012. The state also put an inmate to death on Oct. 30, 2012, but that was the last one before Berget's....

Berget's mental status and death penalty eligibility played a role in court delays. Berget in 2016 appealed his death sentence, but later asked to withdraw the appeal against his lawyers' advice.  Berget wrote to a judge saying he thought the death penalty would be overturned and that he couldn't imagine spending "another 30 years in a cage doing a life sentence."

The Department of Corrections planned to use a single drug to execute Berget. Policy calls for either sodium thiopental or pentobarbital. Pentobarbital was used in the state's last two executions.  South Dakota has not had issues with obtaining the drugs it needs, as some other states have, perhaps because the state shrouds some details in secrecy. Lawmakers in 2013 approved hiding the identities of its suppliers.

Berget was the second member of his family to be executed. His older brother, Roger, was executed in Oklahoma in 2000 for killing a man to steal his car.

October 30, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offense Characteristics | Permalink | Comments (0)

Thursday, October 11, 2018

Tennessee Gov grants last-minute reprieve so state can fulfill condemned's request to be executed by electric chair

As reported in this Tennessean article, "three hours before Edmund Zagorski was scheduled to die, Gov. Bill Haslam delayed the inmate's execution so the state could prepare to use the electric chair to kill him."  Here is more:

Haslam said a short delay would give the state time to accommodate Zagorski's preference for the electric chair over a controversial lethal injection cocktail.  Late Thursday night, the U.S. Supreme Court eliminated two other legal hurdles that might have derailed the execution, making it more likely to move forward soon.

Haslam's temporary reprieve and the high court's decisions came after several days of rapid-fire developments put the state on the defensive and put the timing of Zagorski's execution in question. Haslam's reprieve was for 10 days, but it could take longer for a new execution date to be set by the Tennessee Supreme Court.

The U.S. Supreme Court struck down two stays Thursday night, essentially ending his remaining legal options to avoid execution:

The high court vacated a stay from the 6th Circuit Court of Appeals. The appeals court had planned to weigh whether Zagorski may pursue claims his trial attorneys made errors in representing him.

A majority of justices rejected a request from Zagorski’s attorneys for another stay so the high court could review a constitutional challenge to Tennessee’s lethal injection protocol.

Justices Sonia Sotomayor and Stephen Breyer dissented, saying they would have reviewed the lethal injection protocol. In her dissent, Sotomayor said Tennessee's lethal injection method, which experts say leads to torture, should be scrutinized....

Zagorski sued this week to force the state to use the electric chair for his execution, saying the pain of electrocution would be preferable to the controversial lethal injection. A federal judge issued an order temporarily barring the state from executing him by lethal injection while that suit is pending. The suit could be moot if the state agrees to move forward with the electric chair.

Haslam specifically cited the electric chair suit in his reprieve, suggesting that a delay would give the state time to prepare to execute Zagorski using the electric chair. “I take seriously the responsibility imposed upon the Tennessee Department of Correction and me by law, and given the federal court’s decision to honor Zagorski’s last-minute decision to choose electrocution as the method of execution, this brief reprieve will give all involved the time necessary to carry out the sentence in an orderly and careful manner,” Haslam said in a statement....

The state initially refused Zagorski's request to be executed by the electric chair, saying he was too late and hadn't given two weeks' notice. But District Judge Aleta Trauger at noon Thursday said the state could not use lethal injection until she had considered Zagorski's claim.

Zagorski, 63, faces death for the April 1983 murders of John Dale Dotson and Jimmy Porter. He shot them, slit their throats and stole their money and a truck, prosecutors say. The two men had expected to buy 100 pounds of marijuana from Zagorski.

Verna Wyatt, an advocate with Tennessee Voices for Victims, has been in contact with Dotson’s family as the challenges and uncertainty piled up. “What this process does to the victims’ families is barbaric,” Wyatt said. “Thirty-four years, they don’t get justice and it’s an ongoing reliving of their grief and what happened to their loved one. If they won’t fix this system, it should be abolished. This is not justice on any level. It’s outrageous.”

Justice Sotomayor's dissent on the lethal injection claim is available at this link and it ends this way:

I accordingly would grant Zagorski’s request for a stay and grant certiorari to address what renders a method of execution “available” under Glossip. Capital prisoners are not entitled to pleasant deaths under the Eighth Amendment, but they are entitled to humane deaths. The longer we stand silent amid growing evidence of inhumanity in execution methods like Tennessee’s, the longer we extend our own complicity in state-sponsored brutality. I dissent.

October 11, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, October 09, 2018

On eve of execution, Tennessee Supreme Court rejects challenge to state's execution protocol

As reported in this legal news story, "Tennessee’s execution method is not cruel and unusual, the state supreme court ruled Monday, three days before the state’s next execution, because inmates challenging its three-drug lethal injection protocol did not present a viable alternative." Here is more on the ruling and a link to the full opinion:

Twenty-seven death-row inmates claimed the execution protocol violates the Eight Amendment because midazolam, a sedative, does not counteract the burning and suffocating effects of the next two drugs: vecuronium bromide, a paralytic, and potassium chloride to stop the heart.

But in the 4-to-1 ruling Monday, Chief Justice Jeffrey Bivins wrote: “(T)he Plaintiffs failed to carry their burden to establish that Tennessee’s current three-drug lethal injection protocol constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution or article 1, section 16 of the Tennessee Constitution. As a result, we need not address the Plaintiffs’ claim that the three-drug protocol creates a demonstrated risk of severe pain.”

That burden, Bivins said, included offering a viable alternative, as laid out by the U.S. Supreme Court in Glossip v. Gross (2015), which unsuccessfully challenged Oklahoma’s virtually identical execution protocol.

The Tennessee inmates said at trial that the state could execute them through Tennessee’s other execution protocol: one lethal dose of pentobarbital. Texas and Georgia executed people that way this year.

But the Tennessee Supreme Court disagreed and sided with the state, which said it could not obtain pentobarbital. Many pharmaceutical companies refuse to provide the drug for executions. Bivins also ruled that the court could not “establish new law” by accepting the inmates’ argument that Tennessee secrecy laws involving death penalty protocols affected their ability to argue their case.

Tennessee is scheduled to execute Edmund Zagorski on Thursday, October 11.

October 9, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Saturday, October 06, 2018

"Execution by Nitrogen Hypoxia: The Search for Scientific Consensus"

The title of this post is the title of this new paper authored by Kevin Morrow available via SSRN.  Here is its abstract:

With the declining ability to use lethal injection in executions, states are beginning to take serious consideration of using nitrogen gas in capital punishment.  The article first examines the recent shift away from lethal injection and whether nitrogen hypoxia will survive under current legal jurisprudence.  Next, the article identifies human studies on accidental deaths from nitrogen.  Third, the article examines the recent rise in nitrogen use in suicides and by right to die advocates.  Finally, the article compares the use of nitrogen as an execution method with its use as a euthanizing agent in veterinary medicine.

October 6, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Tuesday, September 18, 2018

Previewing the two capital punishment administration cases before SCOTUS this fall

Garrett Epps has this lengthy new commentary at The Atlantic under the headline "The Machinery of Death Is Back on the Docket: Two Supreme Court cases this fall pose hard questions about the death penalty." Here are some excerpts:

Madison v. Alabamato be argued on October 2, asks whether states can execute demented murderers who no longer remember their crimes; Bucklew v. Precythe asks when, if ever, a prisoner’s individual physical condition makes execution by lethal injection “cruel and unusual.”...

[Vernon] Madison’s legal team — led by Bryan Stevenson of the Equal Justice Initiative—argues that “No penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner.” 

Alabama’s response is that the goals of capital punishment — retribution for the wrong and sending a warning to possible future offenders—are served as long as Madison knows why he is being executed, even if he doesn’t remember committing the acts. Madison’s particular condition may have been verified by doctors, the state argues, but dementia has many causes. Future claims of dementia and memory loss will be too easy to fake.

The high court has already held that states may not execute the mentally ill or the intellectually disabled; the leap to the demented would seem inevitable. But Justice Anthony Kennedy, the force behind these limits, has left the court, and death jurisprudence, as of the first Monday of next month, will likely be more volatile than usual.

In November, the court will take up the case of Russell Bucklew, whom the state of Missouri seeks to execute for the 1996 murder of Michael Sanders.... Bucklew doesn’t contest his guilt, nor does he claim that Missouri’s lethal-injection protocol is in itself “cruel and unusual.” His is what lawyers call an “as applied” challenge. What that means is this: Though lethal injection may pass muster for most executions, he argues, in his individual case, because of his unusual physical condition, the injection will cause him intense and intolerable pain.

He suffers from a rare medical condition call cavernous hemangioma. The condition has given rise to multiple blood-filled tumors in his head and mouth. These make it difficult to breathe and are prone to bloody rupture. He must sleep sitting up to avoid choking on his own blood. Being strapped flat to a gurney will subject him to suffocation, he argues. In addition, since his blood vessels are affected, he says, those administering the drugs will probably have to use a lengthy and painful procedure called a “cutdown” before the drugs can be administered, prolonging the agony....

Bucklew did offer an alternative already provided in Missouri law — a gas chamber filled with nitrogen gas, which would render him unconscious and then dead without the agony of suffocation.  The Eighth Circuit said that he did not prove the gas chamber would be better.  The court below had heard from two expert witnesses — one who described the agony of lethal injection and another who stated that gas would kill him more quickly.  A trial court could compare the two descriptions and reach its own conclusion about relative agony.  Not good enough, said the appeals court; Bucklew was required to provide one expert who would offer “comparative testimony” — in effect, a single witness to say that one method is less cruel than another....

The Bucklew case, however it is resolved, shows how fully the court has become enmeshed in the sordid details of official killing. As the population of death row ages, issues of age-related disease and dementia will become more important in assessing individual death warrants, and the court will be the last stop for those challenged.

The court seems likely to be hostile to prisoners’ claims, however.  In recent years, when the high court stepped in to halt executions, Justice Anthony Kennedy was usually the deciding vote. Kennedy will almost certainly be replaced by Brett Kavanaugh. Kavanaugh is formally an unknown on the issue. His conservatism in general, however, is orthodox, and conservative orthodoxy is hostile to new claims that executions are “cruel and unusual.”

September 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, September 10, 2018

Notable review of Japan's modern administration of its death penalty

This new press piece under the headline "Cruel yet popular punishment: Japan's death penalty" provides an accounting of capital punishment's operation and reception in the only major modern democracy other than the US using it. Here are excerpts:

Years waiting on death row, inmates told their fate just hours before their execution, and guards paid extra to do an "unbearable" job –- Japan's capital punishment system is criticized as cruel and secretive yet remains popular. Unusually for an major industrialised power, capital punishment in Japan enjoys broad public support with few calls for its abolishment.

Inmates are executed not by professionals but by ordinary prison staff who may have been guarding the condemned for months or even years, and who receive extra pay of 20,000 yen each. "It's awful, the body bounces like a 70-kilogram object on a nylon rope," said Toshio Sakamoto, who witnessed noosed inmates plunge to their deaths, and described the process as "unbearable."

Blindfolded convicts, usually those who have killed more than one person, are led to a spot with their feet bound and hands cuffed. Then, a trapdoor opens below. The mechanism is triggered by a button in an adjacent room, pressed simultaneously by several officers, although none is told which button is the "live one" that will cause the prisoner's fall....

Japan is the only major industrialised democracy other than the United States to carry out capital punishment. The system was thrust into the international spotlight in July when the country hanged 13 doomsday cultists but the secretive methods have come under fire for being cruel for criminals, families and guards.

Under law, the death sentence should be carried out six months after confirmed by the top court. In reality however, prisoners languish on death row for many years -- Japan has a total of 110 awaiting execution. "Prisoners are typically only given a few hours' notice before execution, but some may be given no warning at all," said Amnesty International in a recent statement.

"Inmates are kept in isolation suffering the anguish of never knowing when they are going to be put to death -– sometimes for decades," added the pressure group. Families are only informed after the execution, noted Amnesty.

The government cites broad public support as a reason to maintain capital punishment but there is little public debate as the whole process is veiled in secrecy. The authorities have just once allowed a 30-minute media visit inside the glass-walled execution room in the Tokyo Detention House, arguably the best-kept among Japan's seven facilities with gallows.

A 2014 government survey of around 1,800 people showed 80 percent thought capital punishment was "unavoidable", with only one in 10 in favor of abolishing it. But 38 percent thought it should be abolished if Japan introduces life imprisonment without parole -- something the penal code does not currently allow.

One 62-year-old businessman in Tokyo said it would be "insane" to think of scrapping capital punishment. And Mika Koike, a 29-year-old IT engineer, said: "Taking the victims and their families into consideration, I think there is no other clear, absolute way to punish the offenders." Kotaro Yamakami, a 25-year-old politics student, said murderers should pay in kind....

For now, there is no sign that Japan's leaders are pondering any changes. On July 5, the eve of executions of seven Aum cultists, a smiling Prime Minister Shinzo Abe was photographed in a drinking party with fellow politicians, giving the thumbs-up for a collective snapshot with his justice minister who had signed off on the hanging orders.

September 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, August 15, 2018

"The American Execution Queue"

The title of this post is the title of this new interesting article by Lee Kovarsky now available via SSRN. Here is its abstract:

The modern death penalty presents a puzzle: law and norms heavily constrain how American jurisdictions impose death sentences, but not how they select death-sentenced inmates for executions.  In this Article, I explain why this strange void persists, argue that its presence undermines equality, and offer workable institutional responses. In short, I advance a comprehensive theory of the American execution queue — the process by which death penalty jurisdictions decide which condemned inmates will actually die.

My first objective is explanatory.  Because executing a death-sentenced inmate now entails both significant litigation and extensive coordination among under-motivated state institutions, the process takes ten times as long as it did fifty years ago.  Modern executions have become “scarce,” as American jurisdictions simply cannot kill all of their condemned offenders.  Even though the state must make choices, there are no rules for choosing.  Because there is little consensus around decision-making criteria, the process operates with few constraints.  By the time the state must decide which condemned inmates to execute, the capacity of familiar decision-making criteria to meaningfully sort inmates by death-worthiness — things like offense conduct, blame, or future danger — has been exhausted during prior phases of the capital punishment sequence.

My second objective is normative.  I specify several preferred institutional design strategies, anchored to interests in legitimacy, transparency, fairness, and equality.  First, jurisdictions should centralize the process by which they select death-sentenced inmates for executions; localities should have no role in setting execution dates.  Second, a centralized entity should engage in administrative-law-like rulemaking in order to develop transparent, legitimate selection criteria.  Third, jurisdictions should separate the power to determine execution priority from the power to schedule execution dates.  By shifting to a centralized process grounded in transparent rulemaking and rational decision-making criteria, jurisdictions can curb the arbitrariness that plagues the existing system.

August 15, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, August 14, 2018

Nebraska completes its first ever lethal injection, which is first US execution to include use of the opioid fentanyl

The lengthy local article, headlined "'A monumental day'; Nebraska executes Carey Dean Moore in state's first lethal injection," reports on a milestone capital punishment even in the heartland today. Here are a few details:

Nebraska carried out its first execution in 21 years on Tuesday, using four drugs to end the life of double murderer Carey Dean Moore.

Moore, 60, became the first condemned inmate in the state put to death by lethal injection. He had served 38 years on death row for the 1979 killings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland. Helgeland and Van Ness were shot five days apart as Moore targeted cabdrivers because he knew they carried cash. Both men were 47 years old, fathers and military veterans.

Corrections Director Scott Frakes said the first of four execution drugs was administered at 10:24 a.m. The Lancaster County coroner declared Moore dead at 10:47 a.m. Frakes said the execution was carried it out with "professionalism, respect for the process and dignity for all involved."

The scene outside the Nebraska State Penitentiary, where the execution occurred, was subdued on Tuesday morning amid on-and-off rain showers. Only about a dozen death penalty opponents prayed outside the prison; only three capital punishment proponents attended. Many more state troopers and media members stood nearby.

Gov. Pete Ricketts, who helped lead an effort to overturn a 2015 repeal of the death penalty by the Nebraska Legislature, spent the morning in a meeting with state agency officials. “Today, the Nebraska Department of Correctional Services carried out the sentence the court ordered in accordance with the will of the people of Nebraska," Ricketts said in a prepared statement. "The death penalty remains a critical tool to protect law enforcement, corrections officers and public safety.”

Outside the governor's mansion in Lincoln just after the execution, a handful of protesters stood in the rain, one carrying a sign reading "Ricketts has blood on his hands.”

Among the death penalty supporters who came to the prison were Vivian Tuttle, whose daughter was slain inside a Norfolk bank in 2002. "I'm here to support the victims," Tuttle said. "That's the ones I have to stand for." Standing with her was Pierce County Sheriff Rick Eberhardt, who, along with Tuttle, collected hundreds of signatures to allow voters to restore the death penalty in 2016.

​Tuttle's daughter, Evonne Tuttle, was one of five people killed in a bank robbery in Norfolk on Sept. 26, 2002. Evonne Tuttle, a single mother, went to the bank in Norfolk to cash a $64 check. Three gunmen from the robbery, Jose Sandoval, Jorge Galindo and Erick Vela, all are on death row. "I think it's important that we have voices that still say it's important that we stand for the death penalty. And for the families of victims," Tuttle said.

Moore — who had served the longest time on Nebraska's death row — was led to the execution chamber at 10 a.m. After he was strapped to the execution table, he mouthed the words "I love you" multiple times toward his official witnesses, which included a brother and a niece.

His final words were delivered in a handwritten statement: He hoped that lawyers could get his younger brother, Donald, released from parole, and urged death penalty opponents to pursue claims of innocence by four others on Nebraska's death row....

The four official media witnesses to the execution said that Moore's face gradually turned slightly red, then purple, as the four drugs were administered. The execution was the first using the four drugs obtained by Nebraska, over legal objections by death penalty opponents and some drug manufacturers. The curtain to the execution chamber was lowered at 10:39 a.m. after the fourth drug was administered. The curtains reopened eight minutes later after he was pronounced dead....

Duggan called the execution "a monumental day" after the many debates in the state over capital punishment. The death penalty was restored by voters in 2016 by a 61-39 percent margin after a petition drive, in large part funded by Ricketts, placed the issue on the ballot. "There's no question it's a significant day in the state's history," the reporter said.

In a statement, Nebraska Attorney General Doug Peterson said, "Our sympathy is extended to the families of Reuel Van Ness and Maynard Helgeland for the loss of their loved ones nearly thirty-nine years ago. Today's somber event serves to provide a measure of closure for what has been a lengthy enactment of justice."

Nebraska has now carried out 38 state-sanctioned executions. Moore was put to death using a previously untried four-drug combination of diazepam, fentanyl, cisatracurium and potassium chloride.

He is the first inmate executed using the drug fentanyl, a powerful narcotic painkiller that has contributed to the nation's epidemic of drug overdoses. He was put to death despite two federal lawsuits filed last week by drug companies seeking to keep their products from being used. The state's last execution before Tuesday took place in 1997, when the electric chair was the method. Lethal injection was adopted in 2009 after the state Supreme Court outlawed electrocution as cruel and unusual punishment.

August 14, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Highlighting how many states have the death penalty in the books without an active execution chamber

John Gramlich at Pew Research Center has this new FactTank piece headlined "11 states that have the death penalty haven’t used it in more than a decade." Here are excerpts (with a few facts highlighted):

Tennessee carried out its first execution since 2009 this month and Nebraska soon may carry out its first since 1997.  The two states underscore the fact that while a majority of jurisdictions in the United States have capital punishment on the books, a considerably smaller number of them use it regularly.

Overall, 31 states, the federal government and the U.S. military authorize the death penalty, while 19 states and the District of Columbia do not, according to the Death Penalty Information Center, an information clearinghouse that has been critical of capital punishment.  But 11 of the states that allow executions — along with the federal government and the U.S. military — haven’t had one in at least a decade.

Nebraska, in fact, is among seven states that have the death penalty but haven’t carried out an execution in at least 15 years. New Hampshire hasn’t executed an inmate since 1939; the other states in this category are Kansas (last execution in 1965), Wyoming (1992), Colorado and Oregon (both 1997), and Pennsylvania (1999).  Executions have occurred somewhat more recently — though still more than a decade ago — in California, Montana, Nevada and North Carolina (all in 2006).

The last federal execution also took place more than 15 years ago, in March 2003.  While the U.S. military retains its own authority to carry out executions, it hasn’t done so since 1961.

All 11 states that have the death penalty but haven’t used it in at least a decade have inmates on death row, as do the federal government and U.S. military.  The size of these death row populations ranges from just one inmate each in New Hampshire and Wyoming to 744 in California, which has by far the largest death row in the nation.

California’s death row has grown by nearly 100 inmates, or 15%, since January 2006, when it carried out its last execution, and by nearly 30% since 2000, according to the NAACP Legal Defense and Educational Fund, which tracks death row populations for all states.  The increase reflects the fact that California juries have continued to sentence convicted defendants to death even as executions themselves have been on hold in recent years amid legal and political disputes....

The federal government’s death row has also grown substantially since the last federal execution.  There are currently 63 federal inmates sentenced to death, up from 26 in January 2003 (just before the federal government’s most recent execution).

I have highlighted the federal piece of this notable story of execution desuetude because I had thought that Prez Donald Trump and AG Jeff Sessions might seriously try to make America execute again.  But I have not seen any effort or even any discussion by federal officials to have any federal death sentences actually carried out.  As I have noted before, this Death Penalty Information Center list of federal death row prisoners reveals that some sentenced to death have been languishing on death row for a full quarter-century and a number of others have been that for at least two decades.  Because I doubt that Prez Trump and AG Sessions are secret abolitionists, I suspect that there is something going on behind the scenes that is keeping federal justice delayed.  But I still find it notable and a bit curious that the federal death penalty still now does not really exist, practically speaking.

August 14, 2018 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4)

Sunday, August 12, 2018

While I was on road, did others notice that we "stopped being a civilized nation and accepted barbarism"?

The question in this title of this post is my somewhat tongue-in-check reaction after getting a chance to finally read Justice Sotomayor's remarkable dissent from the denial of the application for stay in Irick v. Tennessee handed down last week.  This dissent, which assailed the Court's refusal to stay an execution that Tennessee carried out this past Thursday, concluded this way:

In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis.  I cannot in good conscience join in this “rush to execute” without first seeking every assurance that our precedent permits such a result. No. M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 1.  If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent.

Because no other justice joined this dissent and Irick's execution did in fact go forward around at 7:30 p.m. CDT on Thursday, August 9, 2018, it seems that last Thursday night according to Justice Sotomayor we "stopped being a civilized nation and accepted barbarism." And, notably, this local report on Irick's execution (and the crime that prompted it) reports that the execution was not completed smoothly:

The execution began later than scheduled. The blinds to the execution room lifted at 7:26 p.m., 16 minutes later than expected. Irick, with nearly shoulder-length hair, a scraggly beard and dressed in a white prison jumpsuit and black socks, was coughing, choking and gasping for air. His face turned dark purple as the lethal drugs took over.

August 12, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Saturday, July 28, 2018

State judge rejects constitutional attack on Tennessee's lethal injection protocol

The state of Tennessee has not conducted an execution in nearly a decade, but it has three scheduled for later this year including one slated for August 9.  The prospect of these executions going forward got more likely this past week after, as reported in this local article, a state judge rejected a suit brought by many death row inmates challenging the constitutionality of the state's lethal injection protocol.  Here are the basics:  

Tennessee can use controversial drugs to execute inmates on death row despite concerns from defense attorneys and experts that doing so is "akin to burning someone alive," a Nashville judge ruled Thursday. The ruling is a blow to 33 death row inmates who had challenged the state's lethal injection protocol, saying it led to cruel and unusual punishment forbidden by the U.S. Constitution. Among them is Billy Ray Irick, who is scheduled to be executed Aug. 9.

But the ruling won't be the final word.  The inmates' attorneys quickly announced they would appeal.

Davidson County Chancellor Ellen Hobbs Lyle issued the 51-page ruling on the case Thursday evening, forcefully denying the inmates' claims and saying they failed to meet two critical bars necessary to overturn an execution method....  "Although dreadful and grim, it is the law that while surgeries should be pain-free, there is no constitutional requirement for that with executions," Lyle wrote, echoing an argument made by attorneys for the state....

The inmates, who filed the suit against the state in February, did not argue against the death penalty itself. Instead, they focused on the use of midazolam, the first drug in the state's new protocol, that is meant to put an inmate to sleep before two other drugs stop the heart and lungs.

Experts who testified on the inmates' behalf said midazolam is often ineffective, leaving people awake and aware of the acidic poison that kills them. The experts pulled examples from executions across the country, in which witnesses saw inmates thrashing, moaning and crying as the drugs coursed through their veins. "That is akin to burning someone alive. That is not hyperbole. That is not an exaggeration," said Henry. "That's avoidable."

Lyle acknowledged that the inmates' case included testimony from "well-qualified and imminent experts," and she conceded "the inmate being executed may be able to feel pain from the administration of the second and third drugs."... But, Lyle wrote, the inmates' attorneys did not prove that the three-drug protocol would lead to prolonged periods of "needless suffering," one of the key factors that could lead to unconstitutional torture. She pointed to the relatively brief executions cited by the inmates' attorneys, which ended after an average of 13.55 minutes.

Deputy Attorney General Scott Sutherland, who represented the state and the Department of Correction, tied midazolam to ongoing work to make executions more humane. He pointed to rulings from the U.S. Supreme Court and other judicial panels that upheld executions using midazolam. And he said that the inmates had failed to prove pentobarbital was readily available to be used instead of the three-drug protocol.

Lyle agreed. "It is not enough, the United States Supreme Court has held, for the inmate to claim that the State’s method of execution is cruel and unusual," Lyle wrote. "The inmate must also make a claim in the lawsuit he files and must prove at trial in his case that there is a known and available method to execute him that, in comparison to the State’s execution method, significantly reduces a substantial risk of pain."

The state court ruling referenced in this article is available at this link, and here is a portion of the introduction to the 50-page opinion:

The law of the United States requires that to halt a lethal injection execution1 as cruel and unusual, an inmate must state in his lawsuit and prove at trial that there is another way, available to the State, to carry out the execution.  That is, the inmate is required to prove an alternative method of execution. Glossip v. Gross, 135 S. Ct. 2726, 2732-33 (2015). Absent proof of an alternative method, an execution can not be halted....

Thus, whether a lethal injection method is unconstitutional is a comparative analysis.  To halt a lethal injection execution as cruel and unusual, an inmate must prove not only that there is a better drug for lethal injection but that the better drug is available to the State.  That proof has not been provided in this case.

The Inmates who filed this lawsuit have failed to prove the essential element required by the United States Supreme Court that there exists an available alternative to the execution method they are challenging.  On this basis alone, by United States law, this lawsuit must be dismissed.

July 28, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, July 24, 2018

Louisiana Attorney General suggests pursuing alternative execution methods in letter to Governor

This local article, headlined "Electrocution, firing squads should be options for death penalty in Louisiana, AG Jeff Landry tells Gov. Edwards," reports on an interesting letter about the death penalty in the midst of a kind of intramural fight between Louisiana office-holders of different parties.  Here are the basics:

In their ongoing bickering over the death penalty, Louisiana’s Republican attorney general Tuesday asked the Democratic governor to support bringing back hanging, firing squads and the electric chair.

After the back and forth over capital punishment last week between the two possible rivals in next year's gubernatorial race, Attorney General Jeff Landry issued a letter Tuesday [available here] saying Gov. John Bel Edwards’ statements on why Louisiana hasn’t moved forward on executing convicted murderers are “both intentionally misleading and cold comfort to victims’ families.”

Landry again demanded Edwards say where he personally stood on the death penalty.  Then Landry proposed legislation that would change the state's capital punishment law to allow for different forms of execution other than just lethal injection.  He recommended the Legislature pass a law that would allow the state Department of Corrections to choose between hanging, firing squads, and electrocution to put condemned criminals to death if other methods are unavailable.  He asked for Edwards' support.

"Mr. Landry is accurate in that new legislation must be proposed to solve the death penalty issue.  However, in the past three legislative sessions Mr. Landry’s office has not presented any legislation to help alleviate this roadblock, until now," Department of Corrections Secretary James M. LeBlanc said.  Only a legislator can submit a bill for consideration of becoming law.  The next legislative session is scheduled to begin April 8.

Edwards has consistently ducked stating his personal view on capital punishment, saying instead that he has sworn to uphold state and federal laws.  “But I am not going to pretend that we have the ability to do something we don’t have. It’s not about scoring political points.  It’s about being realistic in the way we govern,” Edwards told reporters Monday, the day before Landry’s letter was released publicly.

In answering questions during a highway project groundbreaking ceremony on Monday, Edwards said he specifically did not favor hangings or firing squads. "I am not inclined to go back to methods that have been discarded (when) popular sentiment turned against methods that were deemed to be barbaric and so forth.  We have a law in place we will continue to try to search for solutions around that law," which allows execution by lethal injection, the governor said.

After Landry’s letter was released to a television station Tuesday, the governor’s spokesman, Richard Carbo, said in a prepared statement: “We are pleased that he has conceded that current law, not the governor, is standing in the way of the state resuming executions, which have been on hold since 2010.  Quitting the very lawsuit that was meant to bring justice for these families was never the answer, so his commitment to re-engage is welcome news.”...

Louisiana last executed an inmate, who volunteered to be put to death, in 2010.  Before that the last person executed was in 2002 during Gov. Mike Foster’s administration. Seventy-two inmates are on death row at the Angola penitentiary awaiting execution....

Landry would change the law to say that if lethal injection is unavailable then the method would be nitrogen hypoxia.  That mode basically fills an air tight mask on the condemned with nitrogen gas, thereby causing death by a lack of oxygen.  Oklahoma legislators have looked at that method of execution as a way around the inability to purchase the drugs needed for lethal injections. If nitrogen hypoxia is found unconstitutional or becomes otherwise unavailable, then Corrections Department secretary could choose between hanging, firing squad or electrocution, under Landry’s proposal.

July 24, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

Wednesday, July 18, 2018

Ohio completes its first execution since botched execution of another inmate late last year

As reported in this local article, Ohio managed to get its machinery of death functioning again this morning. Here are the details and context:

Robert Van Hook horrifically murdered a Cincinnati man, but he seemed remorseful as he died by lethal injection on Wednesday at the Southern Ohio Correctional Facility.

Van Hook, 58, was strapped to the gurney in Ohio’s death house and the lines carrying the deadly drugs had been inserted in his arms when he turned his head to three witnesses from the family of his victim, David Self....

Van Hook served a violence-plagued 32 years in prison after a death-penalty conviction for what now could be considered a hate crime — of the utmost violence.

On Feb. 18, 1985, Van Hook met Self in a gay bar in downtown Cincinnati and went home with him. Van Hook’s clemency report says he lured Self into a vulnerable position and strangled him into unconsciousness. “He then took a paring knife from the kitchen and stabbed the victim behind the right ear, aiming the thrust upward toward the brain, accompanied by a blade-twisting movement,” the report said....

During his incarceration Van Hook amassed a disciplinary record of more than two dozen incidents, including stabbing another inmate in the face and chest, threatening to kill corrections officers and damaging property.

Joe D’Ambrosio served 22 years on death row with Van Hook until D’Ambrosio was exonerated and released in 2010. “He had mental problems, I don’t care what anyone says,” said D’Ambrosio who was at the prison Wednesday to protest Van Hook’s execution. “He would go for long periods of time and then he would explode.”

In their unsuccessful bid for clemency, Van Hook’s attorneys cited his difficult childhood. His mother, who had a history of mental illness, abused alcohol and drugs and became enmeshed in repeated, mutually abusive relationships. His father also drank heavily, beat Van Hook and was a virulent homophobe, the lawyers wrote.

Van Hook’s father, a musician, introduced his son to alcohol and drugs when Van hook was 11 or 12, his lawyers said. At 14, Van Hook moved with his father to Florida and eventually ran away. He lived on the streets, sometimes supporting himself by having sex for money with men....

D’Ambrosio said there was no point in killing Van Hook. “It was unneeded, unnecessary, cruel, unusual,” he said. “It’s barbaric.”

But three members of Self’s family, who sat quietly holding hands through the execution, wanted Van Hook to die. They declined comment on Wednesday. But Self’s sister, Janet Self, told the parole board that her brother’s murder reduced him in the public mind to nothing more than a gay man in a bar, when in reality he was an intelligent, witty person. She also noted that Self was abused by his own father and had to face prejudice because he was gay.

Van Hook’s execution was the first in Ohio in 2018. The last attempted execution — of Alva Campbell in November — was called off when corrections workers could not find a suitable vein for intravenous drugs. He died earlier this year of natural causes.

Gary Otte and Ronald Phillips were executed last year. They were the first to be killed in Ohio’s death chamber after a three-year moratorium following the 2014 execution of Dennis McGuire, 53, who gasped, choked, clenched his fists and appeared to struggle against his restraints for about 10 minutes before being pronounced dead.

Van Hook was the 56th man to be executed in Ohio since 1999. Two more executions are scheduled for later this year. A total of 137 people remain under death sentences in Ohio.

July 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

Wednesday, July 11, 2018

Drug company succeeds in getting Nevada execution using its drug postponed

As reported in this local article, "Nevada’s plan to execute a convicted murderer with a never-before-used combination of drugs is on hold for at least 60 days." Here is more:

The state was planning to use three drugs — midazolam (a sedative), fentanyl (the high-potency opioid) and cisatracurium (a paralytic) — to execute Scott Dozier on Wednesday night.

Clark County District Judge Elizabeth Gonzalez ruled in favor of the company that makes midazolam, which sued the state, saying Nevada had illegitimately acquired the product for the execution. It wants the state to return its stock of the drug to the company. Gonzalez granted a temporary restraining order. “If the state is permitted to use the midazolam manufactured by plaintiff, plaintiff has shown a reasonable probability it will suffer irreparable damages,” Gonzalez said in her Las Vegas court.

The drug maker, Alvogen, and the state are scheduled to return to court September 10 for another hearing in the case.

The execution would have been the first time that fentanyl, one of the central drugs in the US opioid epidemic, has been used in a capital punishment case in the United States, said Robert Dunham, executive director of the Death Penalty Information Center. It would likely have been a first for cisatracurium to be used as well, he said.

Dozier, 47, is not making legal challenges to halt his execution. “Life in prison isn’t a life,” he told the Las Vegas Review-Journal. “This isn’t living, man. It’s just surviving.”... His attorney, Thomas Ericsson, told CNN that his client wants to be executed.

Although Dozier is not trying to stop his execution, there is opposition to the drug cocktail the state plans to use in carrying out the death sentence. “Nevada should not use prisoners as guinea pigs in experimental executions, even if they ask to die,” tweeted the ACLU of Nevada.

Dozier was convicted of first-degree murder in the death of Jeremiah Miller, who was killed and dismembered in 2002. The victim’s torso was found in a suitcase dumped in a trash bin in Las Vegas, according to the Nevada Department of Corrections. Dozier was also convicted of second-degree murder in the death of another victim found buried in the Arizona desert.

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July 11, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (9)

Tuesday, July 10, 2018

Drug maker sues Nevada seeking to prevent state from using its drug in state's first execution in a dozen years

As reported in this local article, the "maker of a sedative set for inclusion in a Nevada execution on Wednesday — the state’s first in 12 years — is suing to stop it from being used to kill Scott Dozier." Here is more:

American pharmaceutical company Alvogen filed a lawsuit Tuesday in Clark County District Court, saying the Nevada Department of Corrections purchased the drug on false pretenses even though they knew Alvogen objected to its use for executions. The company is asking a judge for a temporary restraining order, for the drug midazolam to be impounded and for it to be barred from any use in capital punishment.

“Defendants intentionally defrauded Alvogen’s distributor by, on information and belief, concealing the April 2018 letter from the distributor and/or the fact that Defendants intended to use the Alvogen Midazolam Product for purposes of an execution,” the lawsuit said. “Defendants omitted relevant information and implicitly made the false representation that they had legitimate therapeutic rationale to purchase the Alvogen Midazolam Product.”

A spokeswoman for the Nevada Department of Corrections didn’t immediately respond to a request for comment on Tuesday, and it’s unclear whether the suit — filed a little more than 24 hours before the execution — will prompt a delay.

Alvogen says on its website that it tries to prevent its product midazolam from use in executions. But the Nevada Department of Corrections announced last Tuesday that it was adding midazolam to its three-drug lethal injection combination after another drug expired, and on Friday it distributed photos of the packaging with Alvogen labels — a response to a request from the American Civil Liberties Union of Nevada for more information about the drugs’ origins.

The pharmaceutical company said it learned its product would be used when it started to receive press inquiries on July 7. “Alvogen does not market, promote or condone the use of any of its approved prescription drug products, including midazolam, for use in state sponsored executions,” spokesperson Halldór Kristmannsson said in a statement on Monday. “To avoid any improper, off label use of our products, Alvogen does not accept direct orders from prison systems or departments of correction. Alvogen works with our distributors and wholesalers to restrict any resale, either directly or indirectly, of our midazolam product to any prison system or department of correction.”

Alvogen’s suit said the state has refused to return the products, and added that the prison agency “was aware of and actively fought disclosure of certain execution-related information because such information had been used to persuade manufacturers to cease selling their products for executions.” NDOC’s actions “have caused, and will continue to cause unless enjoined, substantial and irreparable injury to Alvogen, its reputation, and its goodwill,” the lawsuit said.

The 80-page complaint can be found at this link.

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July 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (6)

Monday, July 09, 2018

Texas proves, yet again, where there is a will to get executions drugs, there seems to be a way

This local article from Texas, headlined "With 7 execution dates on the calendar, Texas just got more lethal injection drugs," spotlights yet again how the folks in Texas are uniquely able to continue with capital justice without much of a hitch. Here are the details and some context:

Amid speculation about its ability to carry out the flurry of new executions on the calendar, state records show the Texas prison system in recent weeks received 15 more doses of the powerful barbiturate used in its Huntsville death chamber.  The additional vials ensure that the state can now carry out all the currently scheduled death dates, but some experts say it raises questions about how officials obtained new doses of pentobarbital at a time when drug-makers have backed away from its use in executions.

"That I'm aware of, there is no legal source for pentobarbital, compounded or otherwise. None," said Maurie Levin, a defense attorney with expertise in lethal injection litigation. "All the companies that previously provided compounded pentobarbital are now subject to end-use controls by the manufacturers and if they are distributing it to a prison for use in executions they are violating that contract."

The state pushed back against that suggestion.  "The Texas Department of Criminal Justice complies with all state and federal laws," said department spokesman Jeremy Desel.

But whatever the provenance of the added supplies, the fact that they exist could impact death-sentenced inmates in other states. Weeks before the new doses showed up on the state's logs, a group of prisoners in Arkansas asked Texas to turn over the name of its lethal injection supplier, in the hope of convincing their own state to switch to the drug the Lone Star State uses.  Midazolam, one of the drugs currently used in Arkansas, has been repeatedly linked to "botched" executions.

Since 2012, Texas has relied on a single drug — compounded sodium pentobarbital — to carry out lethal injections.  The state came close to exhausting its supplies with executions still on the calendar in spring 2015. But in the end, TDCJ got more without needing to push back any death dates, prison officials said previously.

Then in January of this year, the state's stash of drugs was set to expire days before a scheduled execution. The state replenished its supply in time.  But it wasn't immediately clear whether they'd obtained new doses or established a new expiration date for the ones they already had, a possibility that's been raised repeatedly in lawsuits seeking to challenge the state's lethal injection procedures.

Again by May, Texas seemed poised to run out of drugs with three executions scheduled beyond the expiration date of the drugs.  Then on June 18, records show the addition of 15 five-gram vials.

In recent years, drug-makers have put up roadblocks to states seeking execution drugs, forcing states to switch protocols in some places.  "Every major pharmaceutical manufacturer in the U.S. has policies against the distribution of its medicines for unapproved medical purposes, and killing prisoners has never been an approved medical purpose," said Robert Dunham, executive director of the Death Penalty Information Center.  Many drug-makers, he said, also specifically prohibit the sale of their drugs for use in executions.

"If Texas is getting these drugs legally that's important to know for death penalty cases across the country," Dunham said.  "If they're getting them illegally or by making misrepresentations to pharmaceutical distributors that's also important to know because states should not be violating the law or breaching contracts in the name of law enforcement."

It's not clear exactly where the state is getting its drugs, and state secrecy laws keep the department from revealing its source.

July 9, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Thursday, June 28, 2018

Texas completes execution of serial killer, its seventh of 2018

As reported in this local article, headlined "'Burn in hell for eternity': Houston serial killer Danny Bible executed in Huntsville," Texas completed another execution last night.  Here are the details:

Shaking from Parkinson's tremors, voice quavering as he muttered "it hurts," Houston serial killer Danny Bible took his last gasping breaths on the gurney in Huntsville before closing one eye, snoring and falling forever silent.  He offered no final statement Wednesday night, but protesters outside shouted angrily into a megaphone, defending the aging four-time killer.

Afterward, in a quiet conference room above the warden's office, the family of one of Bible's victims offered a final word.  "Danny Paul Bible is as a vile and evil a person that has ever drawn breath," said Larry Lance, whose sister fell prey to Bible's wrath in 1983. "We are glad to have witnessed him draw his last breath.  I know that he will burn in hell for eternity."

Despite concerns about the difficulty of finding a vein on the ailing murderer, the lethal injection team hooked up IV lines in under 15 minutes.  After the lethal dose began at 6:17 p.m., Bible started breathing heavily before saying it "burned."  He stopped moving three minutes later and was pronounced dead at 6:32 p.m.  He was the seventh killer to die in Huntsville this year.

Bible was sent to death row in 2003 after a crime spree zig-zagging across the country for the better part of 20 years.  Though he murdered two other women and a baby, raped five young relatives and claimed an assortment of other violent crimes, it was his first killing -- back in 1979 -- that sent him to the death chamber....

In the weeks leading up to his scheduled execution, his defense team launched a flurry of legal claims, arguing that the aging prisoner might be too sick to execute by injection. Instead, they said, he should die by firing squad or nitrogen gas. In the end, the lethal injection team found viable veins in Bible's hands.

The so-called ice pick killer had a "galaxy of medical issues" that raised the possibility of a prolonged and painful lethal injection process his lawyers argued would violate the Eighth Amendment's ban on cruel and unusual punishment.  "Texas will almost certainly join Alabama and Ohio and add itself to the unconscionable list of botched executions in America," his attorney Jeremy Schepers predicted beforehand....

Bible's attorneys on Wednesday took his case all the way up to the Supreme Court.  Denying his challenge, they argued, could shut the door on any other similar claims from ailing prisoners who could suffer botched executions. But the high court denied his plea just after 5:30 p.m....

The Lone Star State has now executed seven men this year, including another Houston serial killer, Anthony Shore.  There are seven other death dates on the calendar in Texas.

Notably, Texas only had seven executions through all of 2017, but it has hit that number through just the first part of 2018.

June 28, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Thursday, June 21, 2018

Nevada now scheduled to conduct execution, its first in a dozen years, using an opioid lethal injection cocktail

This new AP piece, headlined "Nevada sets 1st execution in 12 years after fight over drugs," reports on the latest development in Nevada's efforts to restart its machinery of death. Here are details:

Nevada plans to carry out its first execution in 12 years using a never-before-tried combination of drugs that drew a court challenge over concerns that a convicted murderer could suffer during the lethal injection.  Scott Raymond Dozier is scheduled to die July 11, Department of Corrections spokeswoman Brooke Santina said Wednesday, a day after a judge in Las Vegas signed the death warrant.

It comes after the state Supreme Court decided last month not to stop the execution on procedural grounds despite challenges by lawyers and a rights group, who argued that the procedure would be less humane than putting down a pet.  There also were concerns that some of the state's drugs would have expired.  "We have what we need to complete the execution order," Santina told The Associated Press.  "The same three drugs. We have some that are not expired."

Dozier's death warrant was signed Tuesday by Clark County District Court Judge Jennifer Togliatti, who last November blocked the scheduled execution over concerns that one drug in the three-drug cocktail would immobilize the inmate and mask any signs of pain and suffering.  The warrant didn't address her previous concerns.

Batches of the disputed muscle paralytic called cisatracurium began expiring April 1, but Santina has said the state had supplies that were good until Nov. 30.  The sedative diazepam, the powerful painkiller fentanyl and the paralytic cisatracurium have never been used for lethal injections in any state.  Diazepam is commonly known as Valium. Fentanyl is synthetic opioid that has been blamed for overdose deaths nationwide during an opioid epidemic....

Dozier, 47, has been on death row since 2007 for convictions in separate murders in Phoenix and Las Vegas. He has said repeatedly that he wants to be put to death as soon as possible and doesn't care what drugs are used.  Dozier, who also used the name Chad Wyatt, would become the first person put to death in Nevada since 2006.  His death would mark the first lethal injection since a new execution chamber was completed in 2016 at Ely State Prison, 250 miles (402 kilometers) north of Las Vegas.

Aides to Republican Gov. Brian Sandoval and state Attorney General Adam Laxalt did not immediately respond to messages Wednesday.  Jonathan Van Boskerck, a chief deputy Clark County district attorney involved in nearly a year of court hearings over Dozier's fate, pointed to the death sentence by a jury and the state high court ruling last month. "The decision of this jury deserves respect," he said.

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June 21, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Monday, June 18, 2018

Ailing "ice pick killer" in Texas, seeking to halt his scheduled execution, points to failed efforts in Alabama and Ohio

As reported in this Reuters piece, headlined "Too frail for death row? Texas inmate seeks execution reprieve," a notorious capital defendant has a notable new claim in federal court in an effort to avoid execution. Here are the details:

After two recent botched U.S. executions of inmates with compromised veins, a convicted murderer and rapist is arguing he is too ill to be put to death by lethal injection in Texas later this month.  Lawyers for Danny Bible, a 66-year-old inmate set to be executed on June 27, said in a federal court filing in June that his health and vein access were worse than inmates in Alabama and Ohio whose executions were called off after IV placements failed.

The cases have capital punishment critics questioning whether justice is served by executing a person convicted of horrific crimes but who is now too weak or sick to be considered a threat....  Some death penalty proponents counter that sympathy should not be shown to inmates who they accuse of trying to game the system by filing appeals that take decades to wind through the courts, denying justice to the victims’ families.

The average age of death row inmates has increased in the United States as the number of executions has trended downward, as fewer states conduct lethal injections and appeals take more time.  More than 40 percent of U.S. death row inmates are 50 years of age or older, according to U.S. data and the nonprofit Death Penalty Information Center.

In recent years, death row inmates were just as likely to die awaiting execution as they were to be executed.  Last year, 24 death row inmates across the country died in prison awaiting execution, mostly due to natural causes, while 23 inmates were executed, according to data compiled by Reuters.

Of the first group, six of those inmates died awaiting executions in California, which has the largest death row of 746 inmates but has not conducted an execution since 2006.

In 2016, there were 19 non-execution deaths and 20 executions in the United States, according to the Bureau of Justice Statistics.

Bible was sentenced to death in Texas for a string of rapes and murders that started in the Houston area in 1979 and earned him the nickname “ice pick killer” for the weapon he used.

His lawyers now are seeking to halt his execution, saying he is confined to a wheelchair after he fractured his spine in a prison bus crash in 2003 and has coronary artery disease, diabetes and hypertension.  “Under the current circumstances, attempts to place IVs in Mr. Bible would be futile and likely result in significant pain and suffering,” his lawyer wrote in their court filing.

The Texas Attorney General’s Office did not respond to a request for a comment, and the Texas Department of Criminal Justice said it had full confidence in its ability to complete Bible’s execution.

Lawyers for the inmates whose lethal injections were aborted in the past year say those cases offer a cautionary tale. The execution of convicted murderer Doyle Hamm, 61 and suffering from terminal cancer and chronic illnesses, was called off in February after medical personnel tried for 2-1/2 hours to place an intravenous line. The effort left Hamm with more than a dozen puncture wounds, court records showed, and came after his lawyers argued that any lethal injection attempt would be futile due to his compromised veins.

Ohio also called off the execution of convicted murder Campbell, 69, because death chamber personnel could not find a suitable vein in the inmate, frail from cancer and other diseases. Campbell died about four months later in prison.

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June 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Friday, June 01, 2018

Making the case against nitrogen as an execution method

Download (14)Charles Blanke, an oncologist and professor of medicine, has this notable new commentary in Newsweek headlined "Death by nitrogen should not be america's new capital punishment method." Here are excerpts:

Ever since the first recorded state punishment, when the Jamestown colony executed a Spanish spy by firing squad more than 400 years ago, Americans have tinkered with the technologies used to kill condemned prisoners....  Since 2015, three states, Oklahoma, Alabama and Mississippi, trying to improve upon the current methods of execution in America — gas chamber, hanging and lethal injectio n— have added nitrogen gas asphyxiation to their capital punishment arsenals.

Nitrogen, which makes up about 78% of the air we breathe, is a colorless, odorless, tasteless gas used in a broad commercial range that includes ceramics manufacturing and steelmaking.  While it is not poisonous, breathing in pure nitrogen keeps the brain from getting enough oxygen, which itself is directly fatal.  In fact, a number of lethal industrial accidents involving inhaled nitrogen are reported every year.  Though its potential use in executions has not been formally studied, advocates have already suggested legal death via nitrogen inhalation would be quick, peaceful, and humane.

We need to ask three questions about the possible use of nitrogen in capital punishment cases.  Would it work? Does it offer advantages over current methods? And, is it cruel and unusual, violating the Eighth Amendment to the U.S. Constitution? The answers are yes, maybe, and we don’t know (but probably yes).

Though it has not yet been used in a death penalty case, there is no doubt using nitrogen to execute prisoners would be highly effective.  Placed into a pure nitrogen environment, the convict would be unconscious within a minute (possibly even after a breath or two) and would be dead soon after.  Its failure rate, that is, cases in which the prisoner survives, would likely be much lower than what we see with current death penalty methods.

The second question, whether or not using nitrogen is better than what we currently do, is harder to answer. We need to be cautious in adopting new methods for use in capital punishment cases.  Every technique embraced to date, no matter what advantages they were thought to offer in theory, has been fraught with real-life shortcomings, ranging from modest to heinous.  Convicts in the electric chair have burst into flames, or required multiple jolts. The gas chamber, adopted by 12 states as being humane, fails in five percent of cases, with some prisoners observed to gasp for air for prolonged periods. Others have convulsed.

Lethal injection, the go-to procedure in every state with a capital punishment provision, has the highest fail rate of any method, exceeding seven percent. It can require multiple needle pokes to access veins in prisoners scarred from drug abuse or chronic illness, and one recent botched execution attempt in Alabama reportedly led to profuse bleeding and a punctured bladder....

There are many unanswered questions on what could go wrong with nitrogen use. If prisons forced the convicts to wear a tight fitting mask, would this increase the feeling of suffocation?  Could they still leak?  Or, would an entire room need to be filled with pure nitrogen? Would accidental dilution with oxygen-containing room air (mask or room) slow or even prevent death, leaving prisoners in comas or brain-damaged?

Also, nitrogen use isn’t medically regulated, and it’s hard to imagine much quality control would be applied to inspecting the gas used in death penalty cases.  What happens if prisons buy contaminated product?  Finally, would the nitrogen manufacturers take their cue from those making medications used in lethal injection and restrict sales to penitentiaries?...

Humans normally breathe in life-sustaining oxygen and breathe out carbon dioxide produced during respiration.  Choking victims, who cannot get enough oxygen, say it is agonizing.  Supporters of using nitrogen in capital punishment cases believe the feeling of suffocation actually comes not from lack of oxygen (known as hypoxia), but from the buildup of carbon dioxide.  Since prisoners could still blow off carbon dioxide while breathing pure nitrogen, advocates say they wouldn’t suffer from air hunger.

What if they are wrong? Some studies suggest that fatal low oxygen levels alone do cause anxiety and the fear of suffocation.  And, it wouldn’t actually matter, even if they are right.  Hypoxia itself can cause severe nausea, disorientation, confusion, dizziness, inability to move, and seizures, regardless of what the carbon dioxide levels are doing.

Nitrogen gas doesn’t put people to sleep as do the medicines used in anesthesia, so prisoners could be painfully aware.  To be sure, sedating them first would prevent any distress from the hypoxia, but it would leave all the other problems associated with lethal injection.

It should be noted that nitrogen was previously used to kill animals, but it’s not a method that’s used anymore—the American Veterinary Medical Association does not recommend nitrogen euthanasia because evidence suggests gassed dogs and cats can actually suffer horribly before dying. Determining in advance whether or not nitrogen asphyxiation offers a “peaceful” death is impossible. We don’t have a lot of interviews with survivors of industrial nitrogen accidents, and experimentation is unethical—we can’t partly gas convicts and ask them how it went.

If our old-fashioned methods are not ideal, and nitrogen asphyxiation is not proven humane, are there other alternatives? Yes. I testified in hearing where the United States District Court for the Northern District of Alabama recently ruled in the case of Doyle Lee Hamm that oral drugs used medically in states allowing terminally ill patients to take their own lives — “death with dignity”. This method could lawfully be employed in capital punishment cases. Though Alabama still ultimately tried (unsuccessfully) to use standard intravenous injection following the legal action spawning that ruling, medications given by mouth are under consideration in death penalty cases elsewhere in the south....

Capital punishment remains constitutional, and it isn’t going away any time soon.  However, our Supreme Court has ruled the death penalty cannot involve unnecessary or wanton infliction of pain, and that there must be a constitutional means of applying it.  We need to put more thought into the methods used, especially since there are no means to scientifically test in advance whether or not they violate the Eighth Amendment.  We don’t and can’t know that nitrogen asphyxiation would be painless, and it simply doesn’t qualify as an acceptable means of carrying out a death sentence.

A few (of many) prior related posts:

June 1, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (10)

Monday, May 07, 2018

Examining whether nitrogen gas could be a viable new method for executions

538143779The New York Times has this extended new article about the latest innovation in execution methods under the headline "States Turn to an Unproven Method of Execution: Nitrogen Gas."   The piece is worth reading in full, and here are excerpts:

Hamstrung by troubles with lethal injection — gruesomely botched attempts, legal battles and growing difficulty obtaining the drugs — states are looking for alternative ways to carry out the death penalty. High on the list for some is a method that has never been used before: inhaling nitrogen gas.

Oklahoma, Alabama and Mississippi have authorized nitrogen for executions and are developing protocols to use it, which represents a leap into the unknown.  There is no scientific data on executing people with nitrogen, leading some experts to question whether states, in trying to solve old problems, may create new ones....

In March, Oklahoma’s attorney general, Mike Hunter, said that using nitrogen was “the safest, the best and the most effective method available.”  There is scant scientific data to back up that statement. What little is known about human death by nitrogen comes from industrial and medical accidents and its use in suicide.  In accidents, when people have been exposed to high levels of nitrogen and little air in an enclosed space, they have died quickly.  In some cases co-workers who rushed in to rescue them also collapsed and died.

Nitrogen itself is not poisonous, but someone who inhales it, with no air, will pass out quickly, probably in less than a minute, and die soon after — from lack of oxygen.  The same is true of other physiologically inert gases, including helium and argon, which kill only by replacing oxygen....

(Although nitrogen itself would be novel, gas chambers have existed as an American execution method since the 1920s. The last case was in 1999, when Arizona used clouds of hydrogen cyanide to execute an inmate.  Coughing and hacking, he took 18 minutes to die.)

Death from nitrogen is thought to be painless.  It should prevent the condition that causes feelings of suffocation: the buildup of carbon dioxide from not being able to exhale.  Humans are highly sensitive to carbon dioxide — too much brings on the panicky feeling of not being able to breathe.  Somewhat surprisingly, the lack of oxygen doesn’t trigger that same reflex.  Someone breathing pure nitrogen can still exhale carbon dioxide and therefore should not have the sensation of smothering.  Before passing out, a person may feel lightheaded, dizzy or maybe even a bit euphoric, and vision may dim.

Dr. Charles D. Blanke, who has studied data on physician-assisted dying, said it was not at all clear that nitrogen inhalation would bring a peaceful death.  Dr. Blanke, a medical oncologist and professor at Oregon Health and Science University, said he had consulted colleagues in pulmonary medicine and anesthesiology, and they had concerns that carbon dioxide actually could build up and cause feelings of suffocation....

Unlike lethal injection, the use of nitrogen would not require that the execution team dig around for a vein.  An anesthesiologist, who requested anonymity because medical societies bar members from participating in executions or providing information to encourage them, said that nitrogen inhalation was less cruel than lethal injection.  And since it presumably would involve no paralytic agent, witnesses would be able to see whether the person seemed to be suffering, he said.  Seizures might occur from inhaling nitrogen, he said. But if the technique appears to go smoothly, he predicted that other states would quickly adopt it. 

In fact, according to state documents, in May of 2016, an Arizona company sent a sales-pitch letter for nitrogen gas executions to Nebraska corrections officials. Among the standout features of its Euthypoxia Chamber: It “produces calm and sedation followed by inebriation and euphoria;” it “requires no medical expertise;” and it guarantees “the demise of any mammalian life in 4 minutes.” In passing along the letter to another official, a state corrections department executive hand-wrote: “I’m not intending to respond — just thought it was an odd correspondence.”

Ms. Moreno, of the Berkeley Law Death Penalty Clinic, said that implementing nitrogen gas is not as simple as states suggest.  There are different grades of nitrogen, including medical and industrial, she said, with commensurate purities and regulations.  Observers of the execution would need protection.  Officials would have to figure out how to safely clear nitrogen from the room before a physician could declare death and the staff could remove the body.

The Final Exit Network, a volunteer organization that supports the rights of people with terminal illness or intractable suffering to end their lives, considers nitrogen inhalation a reasonable method, and directs people to information about it.  The technique involves putting a plastic bag over one’s head and pumping in nitrogen.  Janis Landis, president of the network, said: “The science behind inert gases is quite well settled. Any inert gas, one can breathe it in, in place of oxygen. You don’t have air hunger.  You can keep breathing. You pass out and you die.”

A few (of many) prior related posts:

May 7, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (8)

Monday, April 30, 2018

Following a stay last month, SCOTUS grants cert on a method of execution Eighth Amendment case from Missouri

The US Supreme Court this morning issued this order list this morning that includes a trio of grant of certiorari.  The only criminal case of the three is Bucklew v. Precythe.  Interestingly, Bucklew only first came to SCOTUS last month when, as noted in this prior post, the Supreme Court Justice split 5-4 when granting Russell Bucklew a stay from his execution in Missouri based in part on his claim that any lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he has "blood-filled tumors [growing] in his head, neck, and throat."  

Here is how this SCOTUSblog case page describes the issues presented by Bucklew's cert petition: 

Issues: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; and (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.

Interestingly, on the order list when granting cert, the Supreme Court asked the parties to brief some additional issues.  Here is what the Court said when granting cert:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. In addition to the questions presented in the petition, the parties are directed to brief and argue the following Question: Whether petitioner met his burden under Glossip v. Gross, 576 U. S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution.

This Bucklew case likely will not be argued until October or November 2018, and likely will not produce an opinion from the Court until probably around this time next year. So, stay tuned.

April 30, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Tuesday, March 27, 2018

Texas completed fourth execution on 2018

As reported here, a "man dubbed Lubbock’s 'suitcase killer' was executed Tuesday evening, one day after his 38th birthday." Here is more:

Rosendo Rodriguez was sentenced to death in the 2005 murder and sexual assault of Summer Baldwin, a newly pregnant prostitute, according to court records. Baldwin’s body was found folded inside a suitcase at the city’s landfill. Rodriguez was also implicated in the 2004 murder of 16-year-old Joanna Rogers, whose body was also found in a suitcase in the landfill after Baldwin was discovered.

Just minutes before his execution was scheduled at 6 p.m., the U.S. Supreme Court denied his final appeal, and the process to put Rodriguez to death began on time. He was placed on a gurney, connected to an IV, and uttered his last words while his family and the parents of Baldwin and Rogers watched on through a glass pane. In his final statement, Rodriguez called for an investigation into the Lubbock County district attorney and medical examiner, saying they were involved in thousands of wrongful convictions. He also called for a boycott of Texas businesses until the death penalty is stopped....

He died at 6:46 p.m., 22 minutes after a lethal dose of pentobarbital was injected into his veins. He was the fourth person executed in Texas this year and the seventh in the nation.

March 27, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (3)

After botched effort last month, Alabama agrees not to try again to execute Doyle Lee Hamm

As reported in this NBC News piece, an "Alabama death-row inmate who survived a botched lethal injection will not face another date with death under a settlement his attorney struck with the state." Here is more:

Doyle Lee Hamm filed a civil rights action last month after the prison medical team repeatedly punctured him in an effort to place an IV before calling off the execution just before his death warrant expired.

His attorney, Columbia law professor Bernard Harcourt, said the procedure amounted to "torture" and was so painful that the 69-year-old Hamm hoped for a quick death. "During this time Mr. Hamm began to hope that the doctor would succeed in obtaining IV access so that Mr. Hamm could 'get it over with' because he preferred to die rather than to continue to experience the ongoing severe pain," Dr. Mark Heath, who was retained by Harcourt to examine Hamm, wrote in a report after examining the inmate.

Hamm was sentenced to death for the 1987 murder of hotel clerk Patrick Cunningham.

His legal team warned the state that his veins were in such bad shape from drug use and cancer treatment that it would be very challenging, if not impossible to place the needle that would deliver the lethal drugs.

After that prediction proved true, Harcourt and the state began confidential negotiations. The result is that the state won't set another execution date and Hamm will drop his legal challenges.

Prior related post:

March 27, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

Tuesday, March 20, 2018

SCOTUS, by 5-4 vote, stays Missouri execution

As reported here by Amy Howe at SCOTUSblog, "over the objection of four justices, the Supreme Court tonight blocked Missouri from executing Russell Bucklew, who was scheduled to die tonight."  Here is more:

Bucklew was convicted for the 1996 murder of Michael Sanders, who was living at the time with Bucklew’s former girlfriend, Stephanie Ray. Bucklew kidnapped and raped Ray, and he wounded a state trooper during the shootout that preceded his capture.

Bucklew argues that allowing the state to execute him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat.”  If Bucklew has trouble breathing when the execution begins, he contends, the tumor in his throat could rupture, filling his mouth and airway with blood.  As a result, he tells the justices, his “execution will very likely be gruesome and painful far beyond the pain inherent in the process of an ordinary lethal injection.”

The U.S. Court of Appeals for the 8th Circuit rejected Bucklew’s challenge to the constitutionality of his execution, holding that he had not shown that his suggested alternative method of execution —  lethal gas —  would significantly reduce the likelihood that he would suffer unnecessarily.

Last week Bucklew filed a petition asking the Supreme Court to review that ruling, which he described as resting on “3 distinct misreadings and dangerous extensions of this Court’s” earlier decisions on lethal injection. The state filed a brief opposing review, and Bucklew has filed his reply, but the case has not yet been scheduled for consideration at one of the justices’ private conferences. Tonight’s order staves off Bucklew’s execution to allow them to consider his petition. If the justices deny the petition, the stay will automatically end and the state can go forward with his execution; if they grant it, the stay will continue until the justices rule on the merits of his case.

I am inclined to speculate that the recent execution difficulties of Alabama and Ohio may have played at least some role in the willingness of swing Justice Anthony Kennedy in joining his colleagues voting for a stay in this case.

March 20, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Wednesday, March 14, 2018

Oklahoma embracing nitrogen gas instead of lethal drugs as method of execution

Images (3)As detailed in this new CNN piece, headlined "Oklahoma plans to use new execution method," the Sooners are soon to be trying a novel execution protocol. Here are the details:

Unable to obtain drugs to use for its lethal injections, Oklahoma will use inert gas inhalation as the primary method for death penalty executions once a protocol is developed and finalized, the state's attorney general announced Wednesday. Oklahoma is the first state to adopt this method.

"As you know, in Oklahoma, a bill that was signed back in 2015 by the governor states that if lethal injection is held unconstitutional or is unavailable, an execution shall be carried out by nitrogen hypoxia," Attorney General Mike Hunter said. "We are exercising that option." Nitrogen is one of several inert gases that can cause hypoxia, an oxygen deficiency that causes death.

Oklahoma Department of Corrections Director Joe M. Allbaugh said his office will prepare the legal documents within the next 90 to 120 days and, if that's acceptable, the attorney general will move forward with the protocol. Hunter said the state is "at the very beginning of this process ... and will provide updates as they become available."

Currently, 49 people sit on death row in Oklahoma; 16 have exhausted their ability to appeal their cases, Allbaugh said. The state has struggled to find legally obtainable lethal injection drugs, he said. It previously used a three-drug combination: an anesthetic (either sodium thiopental, pentobarbital or midazolam), a paralytic agent (pancuronium bromide) and a heart-stopping agent to cause death (potassium chloride), according to the nonprofit Death Penalty Information Center....

The bipartisan Oklahoma Death Penalty Review Commission issued a study of the death penalty in the state on April 25. The report concluded that the moratorium should remain in place until significant reforms to the death penalty process are made, and recommended a one-drug barbiturate execution protocol.

But Hunter said inert gas inhalation is used in countries that have legalized assisted suicide. A 2010 Journal of Medical Ethics study, based on experiments performed by Swiss organization Dignitas, found that the dying process of oxygen deprivation caused by an inert gas is "potentially quick and appears painless." "It also bypasses the prescribing role of physicians, effectively demedicalizing assisted suicide," the researchers wrote.

Hunter said that "using an (inert gas inhalation) will be effective, simple to administer, easy to obtain and requires no complex medical procedures." "Research has shown that individuals exposed to an excessive amount of inert gas experience fatigue, dizziness, perhaps a headache, loss of breath and eventual loss of consciousness," he said, citing the US Air Force Flight Surgeon's Guide, which looks at cases of pilots breathing excessive amounts of inert gas.

Hunter said that people who die by inhalation of inert gases are dead within just a few minutes. The method is "safest, best and most effective," he said.

By contrast, the American Veterinary Medical Association's Guidelines for the Euthanasia of Animals recommend the use of nitrogen for chickens, turkeys and pigs but say it's unacceptable for other mammals. "These gases create an anoxic environment that is distressing for some species," the authors say.

Oklahoma re-enacted the death penalty in 1973 and, since 1976, has performed 112 executions. Hunter noted that an overwhelming majority of the Oklahoma electorate voted to amend the Constitution and guarantee the state's power to impose capital punishment two years ago.

March 14, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (11)

Monday, March 05, 2018

Spotlighting the modern realities and challenges of geriatric executions

Adam Liptak has this new Sidebar piece in the New York Times headlined "Too Old to Be Executed?  Supreme Court Considers an Aging Death Row." Here is how the piece gets started:

The nation’s death rows are starting to look like geriatric wards. Condemned inmates in many states are more likely to die of natural causes than to be executed.  The rare ones who are put to death often first spend decades behind bars, waiting.

It turns out that executing old men is not easy.  In November, Ohio called off an attempt to execute Alva Campbell, 69, after the execution team could not find a suitable vein into which to pump lethal chemicals.  The state announced that it would try again in June 2019, by which time he would have been 71.

But Mr. Campbell suffered from what one judge called an “extraordinary list of ailments.”  He used a walker, could barely breathe and relied on a colostomy bag.  He was found lifeless in his cell on Saturday, having died in the usual way, without government assistance.

In Alabama last month, state officials called off the execution of Doyle Lee Hamm, 61, also because they could not find a suitable vein. Mr. Hamm has at least two kinds of cancer, cranial and lymphatic, and he may not have long to live with or without the state’s efforts.

Last week, the Supreme Court agreed to hear the case of another Alabama inmate, Vernon Madison, 67, who suffers from dementia and cannot remember the crime that sent him to death row.  The court, which has barred the execution of juvenile offenders and the intellectually disabled, is now turning its attention to old people.

Prior related posts:

March 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, March 03, 2018

With death of Alva Campbell, Ohio need no longer worry about trying to execute ill prisoner after first botched attempt

As reported in this local article, "Alva Campbell, "an inmate on Ohio’s death row who had his scheduled execution halted in November after a medical team could not find an accessible vein for the lethal injection, has died." Here is more:

Franklin County Prosecutor Ron O’Brien said the office of Gov. John Kasich notified him that Campbell died early Saturday of natural causes . No other information was available, and the Ohio Department of Rehabilitation and Correction could not immediately be reached.

Campbell, 69, was a twice-convicted killer, one that O’Brien has often called the “poster child” for the death penalty. Campbell was on parole from another murder conviction when, on April 2, 1997, he killed 18-year-old Charles Dials.  At that time, Campbell was on his way to court to face a series of armed-robbery charges but had been faking paralysis. When he was taken to the courthouse, he sprang from his wheelchair, seized a deputy’s gun and carjacked Dials outside.  The two drove around Columbus for hours before Campbell forced Dials onto the floor of his truck and executed him. Campbell was sentenced to die for that.

Over the years, authorities objected to and grumbled about Campbell’s attempts to delay the justice that a judge and jury had ordered for him.  Upon hearing of Campbell’s death Saturday, O’Brien said, “Due to 20 years of frivolous post-conviction litigation, he successfully ran the clock out on justice due to the state and the victim’s family.”

After the failed execution in November, Campbell’s attorneys had said it was unlikely he could live to see another execution attempt.  They said he suffered from a host of serious cardiopulmonary problems and ailments.  He was returned to Death Row.

Recent prior related posts:

March 3, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

Monday, February 26, 2018

Alabama joins Ohio as only modern state to truly botch an execution

As long time readers know, I try to draw a distinction between ugly and botched executions: ugly executions are those that do not go smoothly, but still result in the condemned prisoner ending up dead (as in Oklahoma in 2014); botched execution are those that involve prison official actively seeking to complete an execution and ultimately failing.  Leaving aside a botched electrocution in Louisiana in the 1940s, my own state of Ohio had the distinction of being the only jurisdiction with a modern botched execution history and, as noted here, has had two inmates return to death row after failed lethal injection attempts.

But now, as this NBC News piece details, Alabama is clearly a new player in this sad universe as details of its execution efforts last week are emerging.  The press report is headlined "Lawyer describes aborted execution attempt for Doyle Lee Hamm as ‘torture’," and here are some details (as well as a reminder Ohio is still beating Alabama in botched executions) :

An Alabama execution team left a death-row inmate with more than a dozen puncture marks in his legs and groin and may have penetrated his bladder and femoral artery before the lethal injection was called off, the prisoner's attorney said Sunday. "This was clearly a botched execution that can only be accurately described as torture," attorney Bernard Harcourt said in a statement after a doctor examined his client, convicted murderer and cancer survivor Doyle Lee Hamm, in prison.

State officials did not respond to a request for comment following the examination. Last week, they said that after the execution started late Thursday because of last-minute appeals, the team wasn't sure it could find a good vein before the death warrant's midnight expiration. "I wouldn't necessarily characterize what we had tonight as a problem," Corrections Commissioner Jeff Dunn told reporters at the time.

Afterward, Harcourt went to federal court and convinced a judge to permit a doctor of his choosing to examine Hamm, who has been on death row for 30 years for the 1987 murder of a motel clerk. The attorney said that while Hamm was strapped to the gurney, the IV team "simultaneously worked on both legs at the same time, probing his flesh and inserting needles."

"The IV personnel almost certainly punctured Doyle’s bladder, because he was urinating blood for the next day," he said. "They may have hit his femoral artery as well, because suddenly there was a lot of blood gushing out. There were multiple puncture wounds on the ankles, calf, and right groin area, around a dozen." During the execution, Hamm "was lying there praying and hoping that they would succeed because of the pain, and collapsed when they took him off the gurney," Harcourt said. In addition to the puncture marks, Hamm has bruising and swelling in his groin and pain from his abdomen to upper thigh, the lawyer said. He was still limping on Sunday....

Before Thursday, Harcourt had warned that due to Hamm's history of drug abuse and his illnesses, it would be impossible to find good veins to deliver the deadly drugs. A judge ruled the execution could proceed as long as the IV wasn't inserted in Hamm's arms. The U.S. Supreme Court, with three justices dissenting, then declined to stop the lethal injection.

Prison officials have given few details about what went on in the death chamber before Hamm got a reprieve. Dunn told reporters Thursday that he did not think the trouble the team had finding a vein would prevent the state from killing Hamm in the future.  "The only indication I have is that in their medical judgement it was more of a time issue, given the late hour," the commissioner said.

Harcourt wanted to examine the execution chamber and the notes prison workers took during the procedure, but the judge turned him down.  The judge did, however, order the Department of Corrections to preserve the notes and any other material from the execution try, including the clothing Hamm was wearing.

Hamm is not the first inmate to survive an execution attempt because of bad veins.  Three months ago, Ohio called off the execution of Alva Campbell after the medical team tried for 30 minutes to find an access point without success.  And in 2009, another Ohio inmate, Romell Broom, was spared after the execution worked for two hours to insert a needle. In appeals, he argues a second attempt would constitute cruel and unusual punishment.

February 26, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (6)

Friday, February 23, 2018

Only one of three planned executions completed: Florida carries out death sentence, Texas Gov commutes at last minute, and Alabama misses deadline

As noted in this prior post, yesterday there were executions scheduled in Alabama, Florida and Texas. If all three had been carried out, it would have marked first time in eight years that three killers were all executed on the same day. But, and the press stories below detail, only Florida completed its planned execution:

Texas: "Gov. Greg Abbott commutes death sentence minutes before Bart Whitaker's scheduled execution":

Kent Whitaker was praying when he got the news: The governor had spared his son. In an unexpected last-minute decision, Gov. Greg Abbott granted clemency to the Sugar Land man slated for execution Thursday, just minutes before he was to be strapped to the gurney in Huntsville.

Thomas "Bart" Whitaker was sent to death row for targeting his own family in a 2003 murder-for-hire plot aimed at landing a hefty $1 million inheritance.

Florida: "Eric Branch's last words target governor, AG: 'Let them come down here and do it'":

Convicted murderer Eric Branch used his final moments before he was executed to make a political statement, falling into unconsciousness as he shouted "murderers" between blood-curdling screams on the execution gurney.

The state of Florida carried out the execution of Branch, 47, on Thursday evening at the Florida State Prison in Raiford — roughly 335 miles from where he abducted, sexually assaulted and killed University of West Florida student Susan Morris as she was leaving a night class in January 1993.

Branch, who was on death row for nearly 25 years, was pronounced dead of a lethal injection at 6:05 p.m. Central Standard Time.

Alabama: "Execution of Alabama inmate Doyle Lee Hamm called off"

Doyle Lee Hamm survived his date with the executioner Thursday, as Alabama was unable to begin the procedure before the death warrant expired at midnight.

It was after 11:30 p.m. when word came that the execution had been called off. Alabama Department of Corrections Commissioner Jeff Dunn said medical personnel had advised officials that there wasn't enough time to ensure that the execution could be conducted in a humane manner. However, Dunn declined to detail the exact medical factors behind the decision, and said he didn't want to characterize them as a problem.

Hamm, 61, was convicted of killing Cullman hotel clerk Patrick Cunningham in January 1987. Recent appeals in his case involved the question of whether cancer had left him healthy enough to be executed without excessive suffering. His advocates had argued that his veins were in such bad shape that it wouldn't be possible for the state to carry out its lethal injection protocol cleanly.

One of Hamm's attorneys, Bernard Harcourt, was among those waiting outside death row at Holman Correctional Facility near Atmore. Afterward, via Twitter, he speculated that "they probably couldn't find a vein and had been poking him for over 2 1/2 hours."

Also worth noting is that the Alabama inmate's appeals to the Supreme Court generated some comments from some Justices detailed in this order: Justice Breyer issued a short statement respecting the denial of a stay which spoke to the defendant's lengthy time on death row; Justice Ginsburg issued a dissent, which Justice Sotomayor joined, expressing concerns "about how Hamm’s execution would be carried out."  Since the execution was not carried out, it will be interesting to see now if and when courts get asked again to scrutinize Alabama's execution plans and protocols.

February 23, 2018 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (2)

Thursday, February 22, 2018

How many of the executions scheduled today in Alabama, Florida and Texas will be completed?

The question in the title of this post is prompted by this Reuters article which begins, "Alabama, Florida and Texas plan to execute inmates on Thursday and if carried out, it would be the first time in eight years that three people on death row have been executed on the same day."  Here is more about what could be a busy day in both courts and execution chambers:

But in each state there are reasons why the executions could be halted, including an unprecedented clemency recommendation in Texas, where all three of this year’s U.S. executions have been carried out.

In Florida, questions were raised about holding an execution based on a majority, not unanimous, jury decision. In Alabama, lawyers have said the death row inmate is too ill to be executed.

Alabama plans to execute Doyle Hamm, 61, at 6 p.m. local time for the 1987 murder of motel clerk Patrick Cunningham.

Hamm’s lawyers have said he has terminal cancer, adding years of intravenous drug use, hepatitis C, and untreated lymphoma have made his veins unstable for a lethal injection. However, a court-appointed doctor examined Hamm on Feb. 15 and found he had “numerous accessible and usable veins in both his upper and lower extremities,” according to court filings.

Texas plans to execute Thomas Whitaker, 38, for masterminding a 2003 plot against his family in which his mother Tricia, 51, and brother Kevin, 19, were killed.  His father Kent Whitaker was shot in the chest and survived.  The father, 69, a devout Christian and retired executive, has said he forgives his son and his family does not want him to be executed. In a clemency petition, he said if the death penalty is implemented, it would make his pain worse.

On Tuesday, the Texas paroles board in a unanimous decision recommended clemency, largely based on the request of a victim’s forgiving family.  Republican Governor Greg Abbott has final say, and has not yet announced if he plans to halt the execution.

Florida plans to execute Eric Branch, 47, for the 1993 murder of University of West Florida student Susan Morris. Lawyers for Branch appealed to the U.S. Supreme Court on arguments including that the court has previously blocked a Florida provision that allows executions for a non-unanimous jury decision and it should do so again in this case.

February 22, 2018 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Monday, January 22, 2018

Documentary film about capital punishment, "The Penalty," starts screening in Ohio

Ohio+Tour+The+PenaltyI had heard some time ago that a documentary film was being made that included former student of mine, Allen Bohnert, who has spent the last decade defending persons on Ohio's death row as they approach execution dates. That film, called The Penalty, is complete and is now about to start a week-long Ohio series of showings.

An extended preview of the film is available at this link, and here are parts of the film's official description from its website:

Three extraordinary people embark on journeys of recovery, discovery and rebellion and find themselves centre stage in the biggest capital punishment crisis in modern memory.

The Penalty is a feature documentary film following three people with extraordinary experiences of America's modern death penalty and goes behind the scenes of capital punishment's most recent headlines....

America’s most divisive issue — capital punishment — is running into some trouble. With drug supplies for lethal injections drying up and public support at an all-time-low, the struggle to keep executing is taking its toll.

The Penalty follows three people caught in the crosshairs of capital punishment and the political landscape that could decide their fate.  Going behind the scenes of some of the biggest headlines in the history of America's death penalty, the film follows the lethal injection protocol crisis that resulted in a botched execution; the rehabilitation of a man who spent 15 years on death row for a crime he didn't commit, and the family of a young woman — brutally murdered — split by the state's pursuit of the ultimate punishment.

And here are details about this week's Ohio screenings (with links from the original):

We're very excited to announce that in 2018 we'll be taking The Penalty on tour around the US, starting with a week long tour of Ohio from the 22nd-28th of January. 

Ohio currently has over 25 executions scheduled up to 2022 with the next one scheduled for just a few weeks time on February 13th. After the last attempted execution ended in disarray, there couldn't be a better time to take this film around the state. 

We've teamed up with Ohioans to Stop Executions and The Inter-community Justice and Peace Centre to put on 9 FREE SCREENINGS around the state. Each screening will be followed by a talkback session with the film's co-director Will Francome and special guests, plus the opportunity to take action. 

For those of you in Ohio, or who have friends or family in the state, go to this link to reserve your free tickets. 

If you're not in Ohio - don't fear - there will be more screenings this year, with multiple state tours and one-off screenings. 

January 22, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Wednesday, January 10, 2018

Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed?

The Wall Street Journal has this notable article today headlined "U.S. to Seek Death Penalty More Often for Violent Crimes; Attorney General Jeff Sessions authorizes federal prosecutors to seek capital punishment in two murder cases and is said to be weighing it in others, including Manhattan terror attack." Here are excerpts (with two particular lines emphasized):

The Justice Department has agreed to seek the federal death penalty in at least two murder cases, in what officials say is the first sign of a heightened effort under Attorney General Jeff Sessions to use capital punishment to further crack down on violent crime.

In a decision made public Monday, Mr. Sessions authorized federal prosecutors to seek the death penalty against Billy Arnold, who is charged with killing two rival gang members in Detroit.  The decision followed the first death-penalty authorization under Mr. Sessions, made public Dec. 19, when he cleared prosecutors in Orlando to seek a death sentence against Jarvis Wayne Madison, who is charged with fatally shooting his estranged wife in 2016.

The Justice Department is also considering seeking death sentences against Sayfullo Saipov, accused of killing eight people in November by driving a truck onto a Manhattan bike lane, and against two defendants in the 2016 slaying of two teenage girls by MS-13 gang members on Long Island, outside of New York City, according to people familiar with the deliberations.

Mr. Sessions views the death penalty as a “valuable tool in the tool belt,” according to a senior Justice Department official. The official said the death penalty isn’t only a deterrent, but also a “punishment for the most heinous crimes prohibited under federal law.” The Justice Department under President Donald Trump expects to authorize more death penalty cases than the previous administration did, the official said....

The last federal execution was in 2003. Since 1963, three federal defendants have been executed. The federal government has secured 25 death sentences since 2007, down from 45 death sentences between 1996 and 2006....

Only 2% of death-penalty cases are sentenced in federal court. Several types of murder cases fall under federal jurisdiction, including those involving drug trafficking, racketeering or — in Mr. Madison’s case — interstate domestic violence and interstate stalking.

The Obama administration sought the federal death penalty in at least four dozen cases, fewer than the Bush administration, according to the Federal Death Penalty Resource Counsel, a federally funded program to assist death penalty lawyers. The cases authorized under the previous administration included ones involving terrorism, the killing of children or law-enforcement officers, and murders by prisoners already serving life sentences.

But in recent years, a Justice Department review of the drugs used to execute prisoners prompted an effective moratorium on federal executions.

Mr. Sessions appears to be seeking the death penalty against a broader set of violent crimes. Former Justice Department officials under President Barack Obama said they typically wouldn’t have authorized capital punishment in a case like Mr. Arnold’s, which involves gang-on-gang violence. Murder cases with “victims who were themselves involved in criminal activity” are the ones where death penalty decisions tend to fluctuate by administration, said David Bitkower, a former Justice Department official under Mr. Obama who prosecuted two death-penalty gang cases.

Eric Holder, who served as attorney general from 2009 to 2015, personally opposed the death penalty. Loretta Lynch, Mr. Holder’s successor, called capital punishment “an effective penalty” at her confirmation hearing.

Mr. Sessions has put combating violent crime at the center of his agenda, encouraging prosecutors to pursue longer prison sentences and approving the hiring of dozens of new violent-crimes prosecutors.

The moves come as the death penalty on the state and federal level has been in decline. State executions are hovering near 26-year lows, partly due to dwindling supplies of lethal drugs and growing legal scrutiny from courts....

Former prosecutors say an increase in death-penalty cases could be time-consuming and expensive for both government and defense lawyers. Appeals in death penalty cases can take decades.

There are 61 prisoners on federal death row, compared with more than 2,800 in the states.

The de facto federal moratorium on executions got started more than a decade ago in the run up to the Supreme Court's first review of the constitutionality of lethal injection protocols in Baze.   After Baze resolved the basic constitutionality of lethal injection protocols, and especially after Glossip back in 2015 had the Supreme Court making pretty clear that jurisdictions could lawfully use a number of potential lethal injection drugs, the justification for continuing the de facto federal moratorium on executions became shaky at best.  Consequently, if AG Sessions is really serious about the death penalty as a "valuable tool in the tool belt," he needs to make an effort to make sure that the tool is actually fully operational.  Sending folks to US death row when there are no executions going forward is really just another way to impose LWOP while perpetuating a functional legal fiction.

Notably, this helpful list of all 61 federal death row prisoners from the Death Penalty Information Center reveals that 10 condemned have been languishing on federal death row for two decades or longer, and most have been there more than a decade.  Especially given that Justice Breyer has often argued that long stays on death row violate the Eighth Amendment, AG Sessions might even suggest he is duty bound to try to speed up the federal execution process in order to avoid possible constitutional violations.

January 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Friday, December 22, 2017

Noting executions uncompleted in 2017

This recent Houston Chronicle story, headlined "71 percent of scheduled executions not carried out in 2017," provides another perspective on US execution data for the year winding down. Here are some details:

Nearly three out of four death dates scheduled nationwide in 2017 were cancelled, after courts and governors intervened in 58 executions across the country.  That's one of the striking takeaways from a pair of end-of-year reports that offer sweeping overviews of capital punishment in 2017.

The broader trends offer no surprises: executions are down, but Texas is still the nation's killingest state. Nearly a third of the year's 23 executions took place in Texas....

"The process is better than it was a decade ago," said Robert Dunham of DPIC. "And there were some potentially wrongful executions that resulted in stays this year that would have resulted in executions a decade ago, but there are still significant and troubling failures."

Ohio and Texas both contributed significantly to the number of cancelled executions, Dunham said.  The Lone Star state saw nine prisoners' execution dates called off this year, many due to claims of false or misleading testimony or forensic evidence. San Antonio death row inmate Juan Castillo had three dates called off, including one delayed due to Hurricane Harvey and another cancelled in light of claims that his conviction was based on false testimony.

Prior recent related post:

December 22, 2017 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Wednesday, December 20, 2017

Lamenting that the "law descends into a ghoulish inferno" as it contemplates the execution of a condemned Alabama murderer

LawProf Bernard Harcourt has this lengthy new op-ed in the New York Times under the headline "The Ghoulish Pursuit of Executing a Terminally Ill Inmate."  Both the substance and style of the commentary is compelling, and here are excerpts:

When judges schedule a lethal injection for a terminally ill prisoner whose struggle against lymphatic cancer and extensive medical history has left him without any easily accessible veins, our law descends into a ghoulish inferno.  It is a dreadful place where our most august jurists ruminate over catheter gauges and needle sizes, and ponder whether to slice deep into the groin or puncture internal jugular veins. History will not judge us favorably.

Last week, only a few hours after the stunning electoral victory of a Democratic candidate in the Alabama senatorial race, the justices of the Alabama Supreme Court signed a death warrant in the case of a 60-year-old man who has been languishing on death row for 30 years and fighting cranial cancer since 2014.

I had barely managed to absorb the news from Alabama’s election when I got the call at noon the next day. I recognized the Alabama area code but thought it was a reporter seeking a comment on the election.  Instead, a clerk from the Alabama Supreme Court dryly notified me that the justices had just set an execution date for my longtime client, Doyle Lee Hamm.

Mr. Hamm has been on Alabama’s death row since 1987, after being convicted of murdering a motel clerk, Patrick Cunningham, during a robbery.  For over three years now, he has been battling a fierce lymphatic and cranial cancer.  In February 2014, Mr. Hamm was found to have a large malignant tumor behind his left eye, filling the socket where the nerves from his brain went into his eye.  The doctors found B-cell lymphoma, a type of blood cancer of the lymph nodes, with a large mass protruding through the holes of his skull. They also discovered “numerous abnormal lymph nodes” in the abdomen, lungs and chest....

His medical treatment and history has left him without any usable peripheral veins.  Back in late September, an anesthesiologist from Columbia University Medical Center, Dr. Mark Heath, conducted an extensive physical examination to determine whether there were any veins suitable to deliver a lethal injection.  Dr. Heath found no usable veins. He also found that Mr. Doyle’s lymphatic cancer was likely to interfere with any attempt to utilize his central veins.  In Dr. Heath’s expert opinion, “the state is not equipped to achieve venous access in Mr. Hamm’s case.”

Yet, without even addressing the risks associated with attempting venous access for a man who will be 61 years old with no usable veins in his arms or legs, the justices of the Alabama Supreme Court set an execution date.  Some other judges — perhaps on the federal bench — now will have to deal with the bloody mess.  And a bloody mess it would be.

Those other judges will have to pore over medical reports and sonograms — as a federal judge did in the case of David Nelson, another Alabama death row inmate, in 2006, before he died of cancer — to decide whether they can insert an 18-gauge catheter into Mr. Hamm’s femoral vein in his groin, or scalpel him open to find a subclavian vein, or poke around his neck to find his internal jugular vein; whether the thickness of the catheter would preclude pricking a vein in his hand where a butterfly needle can no longer enter; and how to navigate around malignant lymph nodes while trying to achieve percutaneous access to his central veins....

This is justice today. Court opinions filled with ghastly details about how we prick and poke, and slice and cut, and poison other human beings. Opinions that, someday soon, we will look back on with embarrassment and horror.  Our justice is so engrossed with how we kill that it does not even stop to question the humanity of executing a frail, terminally ill prisoner.

In Doyle Hamm’s case, the lack of peripheral veins and lymphatic inflammations create the unconstitutional risk of a cruel and unnecessarily painful execution.  But the constitutional violation is only half of it.  It is justice itself that is in peril.

You may recall the machine that Franz Kafka brilliantly described in the haunting pages of “The Penal Colony.” That machine tattooed the penal sentence on the condemned man’s body, over hours and hours, before sucking the life out of him.  Our machinery of death today makes Kafka’s imaginative machine seem almost quaint.  Ours not only tattoos the condemned man’s body with needles and scalpels but also irremediably taints our justice for years to come.

Stories like these continue to reinforce my belief that states seriously interested in continuing with the death penalty ought to be seriously involved in exploring execution alternatives to lethal injection.

Meanwhile for more background on this particular lawyer's work to prevent his client from being executed, one should check out this New Yorker post  headlined, "The Decades-Long Defense of an Alabama Death-Row Prisoner Enters a Final Phase."

December 20, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (10)

Monday, December 11, 2017

Will any state really start conducting executions with opioids?

The question in the title of this post is prompted by this lengthy Washington Post article, headlined "States to try new ways of executing prisoners. Their latest idea? Opioids." Here is how it gets started:

The synthetic painkiller fentanyl has been the driving force behind the nation’s opioid epidemic, killing tens of thousands of Americans last year in overdoses. Now two states want to use the drug’s powerful properties for a new purpose: to execute prisoners on death row.

As Nevada and Nebraska push for the country’s first fentanyl-assisted executions, doctors and death penalty opponents are fighting those plans. They have warned that such an untested use of fentanyl could lead to painful, botched executions, comparing the use of it and other new drugs proposed for lethal injection to human experimentation.

States are increasingly pressed for ways to carry out the death penalty because of problems obtaining the drugs they long have used, primarily because pharmaceutical companies are refusing to supply their drugs for executions. The situation has led states such as Florida, Ohio and Oklahoma to turn to novel drug combinations for executions. Mississippi legalized nitrogen gas this spring as a backup method — something no state or country has tried. Officials have yet to say whether it would be delivered in a gas chamber or through a gas mask. Other states have passed laws authorizing a return to older methods, such as the firing squad and the electric chair.

“We’re in a new era,” said Deborah Denno, a law professor at Fordham University. “States have now gone through all the drugs closest to the original ones for lethal injection. And the more they experiment, the more they’re forced to use new drugs that we know less about in terms of how they might work in an execution.”

Supporters of capital punishment blame critics for the crisis, which comes amid a sharp decline in the number of executions and decreasing public support for the death penalty. States have put 23 inmates to death in 2017 — the second-fewest executions in more than a quarter-century. Nineteen states no longer have capital punishment, with a third of those banning it in the past decade.

“If death penalty opponents were really concerned about inmates’ pain, they would help reopen the supply,” said Kent Scheidegger of the Criminal Justice Legal Foundation, which advocates for the rights of crime victims. Opponents “caused the problem we’re in now by forcing pharmaceuticals to cut off the supply to these drugs. That’s why states are turning to less-than-optimal choices.”

Prison officials in Nevada and Nebraska have declined to answer questions about why they chose to use fentanyl in their next executions, which could take place in early 2018. Many states cloak their procedures in secrecy to try to minimize legal challenges. But fentanyl offers several advantages. The obvious one is potency. The synthetic drug is 50 times more powerful than heroin and up to 100 times more powerful than morphine.

“There’s cruel irony that at the same time these state governments are trying to figure out how to stop so many from dying from opioids, that they now want to turn and use them to deliberately kill someone,” said Austin Sarat, a law professor at Amherst College who has studied the death penalty for more than four decades.

Another plus with fentanyl: It is easy to obtain. Although the drug has rocketed into the news because of the opioid crisis, doctors frequently use it to anesthetize patients for major surgery or to treat severe pain in patients with advanced cancer. Nevada officials say they had no problem buying fentanyl. “We simply ordered it through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” Brooke Keast, a spokeswoman for the Nevada Department of Corrections, said in an email. “Nothing out of the ordinary at all.”

Notably, Nevada has not had an execution since 2006 and Nebraska has not had an execution from 1997, and that reality leads me to question whether these states are likely to be conducting opioid-based executions anytime soon. But, as the Post article details, Nevada was fully geared up for a fentanyl-included execution last month before a court intervened, and they may have plans for another execution early in 2018.

December 11, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (7)

Sunday, November 26, 2017

Is California finally going to get it machinery of death operational come 2018?

The question in the title of this post is prompted by this new Los Angeles Times article headlined "Pace of executions in California may be up to Gov. Jerry Brown." Here are excerpts:

When the California Supreme Court upheld a voter initiative in August to speed up executions, some death penalty advocates assumed lethal injections would resume before the end of the year. Three months after the court’s action, both backers and opponents of the death penalty concede that executions might be more than a year away.

Gov. Jerry Brown’s administration has yet to finalize an execution protocol, which is necessary to resolve a federal court case that has blocked lethal injection in California for nearly 12 years.  An injunction stopping executions also is pending in state court.

“Brown is the shot caller” in the litigation over lethal injection, said Michele Hanisee, president of the Assn. of Deputy District Attorneys for L.A. County. Hanisee expects the state to finalize a lethal injection protocol by January, but if Brown “doesn’t want it to move forward quickly, it won’t move forward quickly,” she said.

Although no one can now predict when executions will resume, UC Berkeley law school Dean Erwin Chemerinsky said “it is just a matter of time.”

“The uncertainty in all of this,” he added, “is what will Jerry Brown do.”  Brown personally opposes the death penalty but enforced it as attorney general.  He took no position on two recent and unsuccessful ballot measures that would have ended the death penalty.

Chemerinsky and other lawyers said it was conceivable that Brown and defense lawyers could delay executions until Brown steps down as governor in January 2019. Brown also could try to commute death sentences to life without parole, but his power is limited by the California Constitution. Unlike former Illinois Gov. George Ryan, who just before leaving office in 2003 commuted the death sentences of all of Illinois’ condemned inmates, Brown would need the support of the state Supreme Court to spare inmates with multiple felonies on their records.

Lawyers estimate that at least half of all death-row inmates have committed two felonies. The governor would need the support of four of the seven California high court justices to commute those inmates’ sentences. Brown has three appointees on the court and a fourth vacancy to fill. But whether his appointees would support commutations is questionable. Two of them — Justices Goodwin Liu and Mariano-Florentino Cuéllar — are moderately liberal, but Justice Leondra Kruger, the third, has voted with conservatives on criminal justice issues.

Ronald Reagan was the last California governor to commute a death sentence, deciding in 1967 to move Calvin Thomas off death row because Thomas had serious brain damage. Under former Gov. Pat Brown, Jerry Brown’s father, 35 death row inmates were executed. The elder Brown commuted the capital sentences of 20 others.

Among the most famous executions under Pat Brown’s watch was that of Caryl Chessman, convicted of robbery, sexual assaults and kidnapping. He was sentenced to death under a law, later repealed, that made certain kidnappings capital offenses. Chessman, who represented himself at trial, wrote four books on death row and attracted international sympathy. The elder Brown tried to commute Chessman’s sentence, but the California Supreme Court refused to go along, on a 4 to 3 vote.

Jerry Brown has never faced the wrenching decisions that confronted his father over executions, and the issue also is new for Atty. Gen. Xavier Becerra, appointed by Brown after Kamala Harris was elected to the U.S. Senate. Becerra, now the top law enforcement officer in California, has testified that he supports the death penalty, but not “the way it is being executed,” and would enforce Proposition 66, the execution speed-up measure largely upheld by the state supreme court in August. Becerra also has said he would run for election to continue as attorney general.

Prosecutors are expected to press Becerra to move quickly to overturn the injunctions preventing executions, but his role is to represent Brown’s Department of Corrections and Rehabilitation in the case, a Becerra press aide said. Prosecutors, who sponsored Proposition 66, and crime victims also are considering trying to intervene in the two court cases preventing executions....

“There is no enthusiasm inside the administration to do anything” to hasten executions, said Michael D. Rushford, the founder and top executive of the Criminal Justice Legal Foundation, a conservative nonprofit that helped write Proposition 66. Voters narrowly approved the measure a year ago. The state Supreme Court ruling that permitted its enforcement became final only a few weeks ago, delayed by an unsuccessful request from challengers for the court to reconsider. “There are laws in this state that if the administration doesn’t want to enforce, they don’t,” Rushford said, “and this is one of them.”

Rushford’s group sued to force the Brown administration to produce a single-drug lethal injection method, which has not yet been made final, and has warned it would sue the administration again if it does not move toward executions.

There are about 18 inmates who could immediately be executed because they have no appeals left. But these inmates have obtained federal stays to prevent their executions until the lethal injection case overseen by Seeborg is concluded. For the stays to be lifted, Seeborg would have to decide that California’s new single-drug method of execution, once finalized, did not violate the U.S. Constitution’s ban on cruel and unusual punishment. Whatever he decides could then be appealed....

Brown’s press office referred questions about executions and possible commutations to the Department of Corrections and Rehabilitation, which said it was revising a lethal injection protocol but declined to estimate how long that might take.

Ana Zamora, a policy director of the ACLU of Northern California, said she does not expect executions to resume soon. “The D.A.s and the proponents of Prop. 66 really sold voters a false bill of good,” she said. “Nothing has changed. There are still significant problems around lethal injection, and those are not going to go away anytime soon.”

If I understand the sequence of events that needs to take place before a California execution goes forward, it includes (1) California officials finalizing an execution protocol, (2) the federal district court approving that protocol, (3) the Ninth Circuit and SCOTUS affirming a decision about the protocol. and (4) setting a real execution date by California officials.  I am inclined at this moment to predict that California will not complete these tasks (in part because it seems many do not wish to) before the end of 2018.

November 26, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Saturday, November 18, 2017

Reviewing Ohio's unique execution difficulties ... which perhaps explains seemingly ho-hum reaction to latest botched Ohio execution

As detailed in this DPIC listing, this past week, there were scheduled executions in Nevada, Ohio and Texas, but two of these planned lethal injections were stayed.  And in Ohio, as first reported here, Ohio tried but failed to complete the lethal injection of a double murderers.  Only thrice in recent US history has the execution process been started and then halted with the condemned inmate living on, and two of those cases have taken place in the last decade in Ohio.  Moreover, as reviewed in this recent ACLU posting, Ohio has an extraordinary recent history with troubled executions (links from the original):  

Ohio’s lethal injection team spent more than 30 minutes poking Alva Campbell’s decrepit body in search of any decent vein into which they could inject their lethal cocktail to no avail. They finally relented — but only temporarily.  Hours later, Gov. John Kasich announced not a commutation — or a plan to investigate what went wrong — but that Campbell’s execution would be rescheduled for 2019....

It was predictable and avoidable not only because of information furnished to the state by the defense, but because Ohio had already committed a similar bungle in 2009 when it failed to find a suitable vein to execute Rommell Broom after sticking him with needles for over two hours.

The ability to find a suitable vein is basic to lethal injection. When it cannot be done — because of lack of training and qualifications of the lethal-injection team or the health of the prisoner — the process becomes impossible and the risk of a failure or botch undeniable.

The botched two-hour execution of Christopher Newton in 2007 also stemmed from the execution team’s inability to access a suitable vein. The state’s botched execution of Dennis McGuire in 2014 has been attributed to the use of midazolam — great if you need a sedative for a medical procedure but unsuitable for executions.

The takeaway should be clear. Ohio cannot be trusted to use the death penalty, as time and time again the state fails and causes needless pain and unconstitutional torture. But Ohio is forging ahead.  The state’s schedule of more than two dozen lethal-injections through 2022 gives Ohio the dubious distinction of maintaining the longest list of upcoming executions in the nation. A second attempt to take Campbell’s life is now set for 2019, while Rommell Broom’s new date is in 2020. Last year, a divided Ohio Supreme Court ruled that Ohio could attempt to execute Broom, yet again....

Because I know and have respect for lots of folks involved in Ohio's criminal justice system, I am somewhat amazed and greatly troubled that Ohio has a uniquely disconcerting recent record in the carrying out of executions. At the same time, I have this week also been somewhat intrigued that Ohio's latest botched execution has not received all that much attention in Ohio or nationwide.

As highlighted via this post and this one, when Oklahoma had an ugly execution in 2014, it engendered lots of national attention and commentary and calls for a national moratorium on executions.  Of course, that ugly execution was arguably more grotesque that what happened this past week in Ohio, and surely death penalty abolitionists figured in 2014 they had more national leaders who were sympathetic to their capital punishment criticisms.  Still, I think it is notable and telling that the reaction to Ohio's latest execution difficulties is relatively "ho-hum."

Recent prior related posts:

November 18, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (17)

Wednesday, November 15, 2017

Ohio unable to complete execution for elderly murderer once called death penalty “poster child”

As detailed in this AP report, headlined "Ohio calls off execution after failing to find inmate's vein" the state of Ohio had the wrong kind of eventful lethal injection experience this morning.  Here are the details:

It was only the third time in U.S. history that an execution has been called off after the process had begun.

The execution team first worked on both of Alva Campbell's arms for about 30 minutes Wednesday while he was on a gurney in the state's death chamber and then tried to find a vein in his right leg below the knee.  Members of the execution team used a device with a red flashing light that appeared to be a way of locating veins while also periodically comforting Campbell, patting him on the arm and shoulder.

About 80 minutes after the execution was scheduled to begin, the 69-year-old Campbell shook hands with two guards after it appeared the insertion was successful. About two minutes later, media witnesses were told to leave without being told what was happening.

Gary Mohr, head of the Ohio Department of Rehabilitation and Correction, said the team humanely handled the attempt, but the condition of Campbell's veins had changed since checks in Tuesday.  He said he called off the execution after talking with the medical team. "It was my decision that it was not likely that we're going to access veins," Mohr said.

Campbell, who was scheduled to die for killing a teenager during a carjacking two decades ago, shook hands with execution team members and wiped away tears after being informed the execution was being called off, said his attorney, David Stebbins.  "This is a day I'll never forget," Campbell said, according to Stebbins. 

Stebbins said he doesn't know what will happen next, but he added that Campbell's health problems and poor veins are a continuing problem.  Campbell, who was scheduled to die for killing a teenager during a carjacking two decades ago, will be sent back to death row and there will be some consideration for a future execution date, Mohr said....

Campbell's attorneys had warned the inmate's death could become a spectacle because of his breathing problems and because an exam failed to find veins suitable for IV insertion.  They argued he was too ill to execute, and also should be spared because of the effects of a brutal childhood in which he had been beaten, sexually abused and tortured....

Franklin County prosecutor Ron O'Brien called Campbell "the poster child for the death penalty." Prosecutors also said Campbell's health claims were ironic given he faked paralysis to escape court custody the day of the fatal carjacking.  On April 2, 1997, Campbell was in a wheelchair when he overpowered a Franklin County sheriff's deputy on the way to a court hearing on several armed robbery charges, records show. Campbell took the deputy's gun, carjacked the 18-year-old Charles Dials and drove around with him for several hours before shooting him twice in the head as Dials crouched in the footwell of his own truck, according to court records....

Earlier this month, Campbell lost a bid to be executed by firing squad after a federal judge questioned whether lawmakers would enact the bill needed to allow the method.

Perhaps unsurprisingly, the ACLU of Ohio already has issued this press release headed "Ohio Must Enact Moratorium on Executions."  It will be interesting to see if the rhetoric at the start of the press release becomes used by abolitionists throughout not just Ohio but the country:

After nearly 30 minutes of torture as medical personnel attempted to find a useable vein for the lethal injection of Alva Campbell, Jr the Ohio Department of Rehabilitation and Corrections called off his execution. This comes after weeks of advocacy from Campbell’s counsel explaining that he was too ill and death by lethal injection would be tortuous. The following statement can be attributed to ACLU of Ohio Senior Policy Director Mike Brickner:

"This marks the fifth botched execution for Ohio in recent years, and the second time the state could not complete an execution.  This is not justice, and this is not humane.  Campbell was poked and prodded for nearly two hours as prison officials and medical personnel attempted to find a useable vein.  This type of state-sponsored torture is not acceptable and the state of Ohio must place a moratorium on executions immediately.  Today the state made a spectacle of a man’s life, and the cruel and unusual practice of lethal injection must end."

Recent prior related post:

November 15, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (5)