Sentencing Law and Policy

Justice Thomas, joined by Justice Alito, dissents from SCOTUS denial of cert regarding challenge to execution methods

The particulars of constitutional challenges over execution methods has generated three modern Supreme Court Eighth Amendment rulings (Baze, Glossip, and Bucklew).  Though the state prevailed in all these rulings against condemned prisoners' various attacks on various lethal injection protocols, litigation over execution methods are still common and the applicable Eighth Amendment jurisprudence remains contested.  These realities provide the background for a dissent from the denial of cert in this morning's SCOTUS order list today by Justice Thomas, joined by Justice Alito, in Hamm v. Smith, No. 22–580. Here are excerpts from the intricate six-page dissent:

In this petition, the State now asks this Court to summarily reverse the Eleventh Circuit’s holding that Smith pleaded a viable Eighth Amendment claim. I would do so. The judgment below rests on flawed Circuit precedent that is irreconcilable with our method-of-execution case law....

In 2018, Alabama enacted a statute authorizing execution by nitrogen hypoxia for inmates who elected that method within 30 days of their sentences becoming final or, for those whose sentences were already final before June 1, 2018, within 30 days of that date.  Ala. Code §15– 18–82.1(b)(2). (Smith did not elect nitrogen hypoxia, so lethal injection remains the only method of execution authorized by state law in his case. §15–18–82.1(a).)  Nearly five years later, Alabama has yet to carry out any execution by nitrogen hypoxia or to finalize a protocol for implementing that method — which “ha[s] never been used to carry out an execution and ha[s] no track record of successful use” in any jurisdiction. Bucklew, 587 U. S., at ___ (slip op., at 22) (internal quotation marks omitted).

[T]he Eleventh Circuit has treated the existence of this Alabama statute as relieving inmates like Smith of their burden to plead and prove that nitrogen hypoxia is feasible and readily implemented in fact.... [But] whether the State has authorized the proffered alternative as a matter of state statutory law has no relevance to the plaintiff ’s burden of showing a constitutional violation.  Bucklew has already explained why: “[T]he Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the State’s choice of which methods to authorize in its statutes.” 587 U. S., at ___–___ (slip op., at 19–20)....

When the question is whether the Eighth Amendment requires a State to replace its chosen method with an alternative method in executing the plaintiff, it is simply irrelevant, without more, that the State’s statutes authorize the use of the alternative method in other executions that are to take place sometime in the indefinite future.  Here, Smith alleged only that, and nothing more. He therefore failed to state a claim, and the Eleventh Circuit erred by holding otherwise.

The Eleventh Circuit’s error is not only plain but also serious enough to warrant correction. Even if “the burden of the alternative-method requirement ‘can be overstated,’” Bucklew, 587 U. S., at ___ (KAVANAUGH, J., concurring) (slip op., at 1), it remains an essential element of an Eighth Amendment method-of-execution claim, and it must be appropriately policed lest it become an instrument of dilatory litigation tactics.  The comparative analysis set forth in Baze, Glossip, and Bucklew contains an inherent risk of incentivizing “an inmate intent on dragging out litigation . . . to identify only a method of execution on the boundary of what’s practically available to the state.”  Middlebrooks v. Parker, 22 F. 4th 621, 625 (CA6 2022) (Thapar, J., statement respecting denial of rehearing en banc).  The Eleventh Circuit’s approach of treating any statutorily authorized method as available as a matter of law — even an entirely novel method that may not be readily implementable in reality — only heightens that danger.  In turn, and as a result, it “perversely incentivize[s] States to delay or even refrain from approving even the most humane methods of execution” any earlier than the moment they are prepared to put them into practice.  Price v. Dunn, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring in denial of certiorari) (slip op., at 11).

Texas completes its fourth execution of 2023

As reported in this AP article, a "Texas inmate convicted of fatally stabbing his estranged wife and drowning her 6-year-old daughter in a bathtub nearly 14 years ago was executed on Tuesday."  Here are more details:

Gary Green, 51, received a lethal injection at the state penitentiary in Huntsville.  He was condemned for the September 2009 deaths of Lovetta Armstead, 32, and her daughter, Jazzmen Montgomery, at their Dallas home. Green’s attorneys did not file any appeals seeking to stop the execution.

A Buddhist spiritual adviser chosen by Green stood beside the death chamber gurney at the inmate’s feet and said a brief prayer. Green then apologized profusely when asked by the warden if he had a final statement.... 

Instead of inserting the IV needles in each arm, prison technicians had to use a vein in Green’s right arm and a vein on the top of his left hand, delaying the injection briefly for Green, who was listed on prison records as weighing 365 pounds (165 kilograms)....  He was pronounced dead 33 minutes later, at 7:07 p.m.

Ray Montgomery, Jazzmen’s father and one of the witnesses, said recently that he wasn’t cheering for Green’s execution but saw it as the justice system at work. “It’s justice for the way my daughter was tortured.  It’s justice for the way that Lovetta was murdered,” said Montgomery, 43.  He and other witnesses did not speak with reporters afterward....

In prior appeals, Green’s attorneys had claimed he was intellectually disabled and had a lifelong history of psychiatric disorders.  Those appeals were rejected by the U.S. Supreme Court and lower appeals courts.  The high court has prohibited the death penalty for the intellectually disabled, but not for people with serious mental illness.

Authorities said Green committed the killings after Armstead sought to annul their marriage....  Armstead was stabbed more than two dozen times, and Green drowned Jazzmen in the home’s bathtub.  Authorities said Green also intended to kill Armstead’s two other children, then 9-year-old Jerrett and 12-year-old Jerome.  Green stabbed Jerrett but both boys survived....

Josh Healy, one of the prosecutors with the Dallas County District Attorney’s Office that convicted Green, said the boys were incredibly brave. Green “was an evil guy. It was one of the worst cases I’ve ever been a part of,” said Healy, now a defense attorney in Dallas....

Green’s execution was the first of two scheduled in Texas this week. Inmate Arthur Brown Jr. is set to be executed Thursday. Green was the eighth inmate in the U.S. put to death this year.

He was one of six Texas death row inmates participating in a lawsuit seeking to stop the state’s prison system from using what they allege are expired and unsafe execution drugs. Despite a civil court judge in Austin preliminarily agreeing with the claims, four of the Texas inmates including Green have been executed this year.

New Arizona Gov pledging not to allow new scheduled execution to go forward

As reported in this AP article, headlined "Arizona Gov. Katie Hobbs refuses to proceed with execution set by court," the new Arizona Governor is continuing to promise to block executions in her state pending a review of state execution protocols. Here are the basics:

Arizona Gov. Katie Hobbs vowed Friday that her administration won’t carry out an execution even though the state Supreme Court scheduled it over the objections of the state’s new attorney general.  The Democratic governor’s promise not to execute Aaron Gunches on April 6 for his murder conviction in a 2002 killing came a day after the state Supreme Court said it must grant an execution warrant if certain appellate proceedings have concluded — and that those requirements were met in Gunches’ case.

Last week, Hobbs appointed retired U.S. Magistrate Judge David Duncan to examine the state’s procurement of lethal injection drugs and other death penalty protocols due to the state’s history of mismanaging executions.  “Under my administration, an execution will not occur until the people of Arizona can have confidence that the state is not violating the law in carrying out the gravest of penalties,” Hobbs said in a statement Friday.

Attorney General Kris Mayes’ office has said it won’t seek court orders to carry out executions while Hobbs’ review is underway.  Mayes, a Democrat who took office in January, tried to withdraw a request by her Republican predecessor, Mark Brnovich, for a warrant to Gunches.  The court declined to withdraw the request on Thursday.

The court said Hobbs’ review “does not constitute good cause for refraining from issuing the warrant.”  Mayes’ office declined to comment on Hobbs’ promise not to carry out the execution next month. Hobbs maintains that while the court authorized Gunches’ execution, its order doesn’t require the state to carry it out.

Dale Baich, a former federal public defender who teaches death penalty law at Arizona State University, said Hobbs can use her authority as the state’s chief executive when the state believes it cannot carry out an execution in a constitutionally acceptable manner.  “What the governor did is not unique,” said Baich, who applauded Hobbs’ move. “Governors in Alabama, Ohio and Tennessee recently used their authority to pause executions because they had serious questions about the protocols in their states.”...

Arizona, which has 110 prisoners on death row, carried out three executions last year after a nearly eight-year hiatus following criticism that a 2014 execution was botched and because of difficulties obtaining execution drugs.  Since resuming executions, the state has been criticized for taking too long to insert an IV for lethal injection into a prisoner’s body in early May and for denying the Arizona Republic newspaper’s request to witness the last three executions.

Gunches is scheduled to be executed on April 6 for the 2002 killing of Ted Price, his girlfriend’s ex-husband, in Maricopa County. Gunches, who isn’t a lawyer, represented himself in November when he asked the Supreme Court to issue his execution warrant so justice could be served and the victims could get closure.  In Brnovich’s last month in office, his office asked the court for a warrant to execute Gunches.  But Gunches withdrew his request in early January, and Mayes asked for the execution warrant submitted during Brnovich’s tenure to be withdrawn.

Alabama officials ready to resume carrying out death sentences

Alabama had two botched lethal injection executions back in Fall 2022, which prompted its Governor to order a review of execution protocols and operation.  As detailed in this local article, headlined "Executions back on in Alabama after brief moratorium," Alabama has completed that review and will now try to get back to conducting executions:

Executions are back on in Alabama. According to an email from Gov. Kay Ivey’s communications director, Ivey received a letter Friday from Alabama Department of Corrections Commissioner John Hamm.  Hamm told the governor that the “top-to-bottom” review of the state’s execution process is complete.

“Upon receiving word from Commissioner Hamm, Governor Kay Ivey asked Attorney General Steve Marshall to ask the Supreme Court to issue an execution warrant for an eligible death row inmate whenever he deems appropriate,” said Ivey’s Communications Director Gina Maiola.  In a letter to Marshall, Ivey said, “it is time to resume our duty of carrying out lawful death sentences.”

On Friday afternoon, Marshall announced on social media that he filed a motion seeking the Alabama Supreme Court to set an execution date for James Barber.  Barber has been on death row since 2004 for the fatal beating of 75-year-old Dorothy Epps. Marshall added that his office “will be seeking death warrants for other murderers in short order.”

No details were provided as to what was learned during the internal review of the execution process, but Hamm wrote that the ADOC has “ordered and obtained new equipment” for future executions....

On Nov. 21, following two failed execution attempts, Ivey ordered a halt to all executions in Alabama.  “Working in conjunction with Alabama Department of Corrections Commissioner John Hamm, Governor Ivey is asking that the Department of Corrections undertake a top-to-bottom review of the state’s execution process, and how to ensure the state can successfully deliver justice going forward,” a press release from that day stated. Ivey also asked the Alabama AG’s office to not seek additional execution dates for any other Alabama Death Row inmates until the review is complete.

The announcement of a halt to executions came just days after Kenneth Smith’s execution was called off just before midnight on Nov. 17.  The state called off the lethal injection after not being able to find veins to start the intravenous lines needed for the three-drug cocktail, which had to be done before midnight when the execution warrant expired. Another execution -- that of Alan Miller -- was called off in September for similar reasons.

The only change publicly known to Alabama’s execution protocol that was made during the three-month moratorium was a change made by the Alabama Supreme Court, ending the midnight deadline.  The state’s highest court authorized a rule change allowing for an execution warrant to be issued for a time frame rather than a single day.  The rule means the governor can choose the timing of an execution, according to the court’s order....

There are currently 166 inmates sitting on Alabama Death Row.

In his letter to Ivey announcing the end of the internal review, Hamm said, “After discussing the matter with my staff, I am confident that the Department is as prepared as possible to resume carrying out executions consistent with the mandates of the Constitution.  This is true in spite of the fact that death row inmates will continue seeking to evade their lawfully imposed death sentences.”

Some prior related posts:

• Alabama botches execution by failing to be able to complete it before expiration of death warrant 
• Alabama unable to complete execution because of lethal injection difficulties
• After another botched lethal injection effort, Alabama Gov orders moratorium on executions in state 
• Alabama Attorney General says "there is no moratorium" on executions in the state ... while executions are suspended
• Could Alabama have an execution using nitrogen gas in 2023? 

Could Alabama have an execution using nitrogen gas in 2023?

The question in the title of this post is prompted by this new AP piece headlined "Alabama 'close' to finishing nitrogen execution protocol."  Here are the basics:

The head of Alabama's prison system said Wednesday that a protocol for using nitrogen gas to carry out executions should be finished this year. "We're close. We're close," Alabama Commissioner John Hamm said of the new execution method that the state has been working to develop for several years.

He said the protocol "should be" finished by the end of the year. Hamm made the comment in response to a question from The Associated Press about the status of the new execution method. Once the protocol is finished, there would be litigation over the untested execution method before the state attempts to use it.

Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving them of the oxygen needed to maintain bodily functions. Alabama, Oklahoma and Mississippi have authorized the use of nitrogen hypoxia, but it has never been used to carry out a death sentence.

Alabama lawmakers in 2018 approved legislation that authorized nitrogen hypoxia as an alternate execution method. Supporters said the state needed a new method as lethal injection drugs became difficult to obtain. Lawmakers theorized that death by nitrogen hypoxia could be a simpler and more humane execution method. But critics have likened the untested method to human experimentation.

The state has disclosed little information about the new execution method. The Alabama Department of Corrections told a federal judge in 2021 that it had completed a "system" to use nitrogen gas but did not describe it.

Although lethal injection remains the primary method for carrying out death sentences, the legislation gave inmates a brief window to select nitrogen as their execution method. A number of inmates selected nitrogen. Hamm also said a review of the state's execution procedures should be completed, "probably within the next month."

As the article highlights, inevitable litigation over a novel execution method likely means the sensible answer to the question in the title of this post is "Quite probably no." But, given the long-standing debates over execution methods, it is still interesting to see Alabama claim it is getting closer to pioneering a new method.

Texas completes in second execution of 2023

As reported in this AP article, "Texas on Wednesday executed an inmate convicted of fatally shooting a Dallas police officer nearly 16 years ago after a high-speed chase." Here is more:

Wesley Ruiz, 43, received a lethal injection at the state penitentiary in Huntsville, Texas, for the March 2007 killing of Dallas Police Senior Corporal Mark Nix....  Nix, 33, a U.S. Navy veteran of Operation Desert Storm, had been on the Dallas force for nearly seven years and was engaged to be married when he was killed....

Ruiz was the second inmate put to death this year in Texas and the fourth in the U.S.  Seven other executions are scheduled in Texas for later this year, including one next week....

The U.S. Supreme Court earlier Wednesday declined an appeal from Ruiz’s attorneys to halt the execution.  The defense had argued that jurors relied on “overtly racist” and “blatant anti-Hispanic stereotypes” in appraising whether Ruiz posed a future danger, an element needed to secure a death sentence in Texas. Ruiz was Hispanic....

Ruiz was one of five Texas death row inmates who sued to stop the state’s prison system from using what they allege are expired and unsafe execution drugs.  Despite a civil court judge in Austin preliminarily agreeing with the claims, the state’s top two courts allowed one of the inmates who had been part of the litigation to be executed on Jan. 10....

Gabriel Luchiano, who knew Nix when he worked as a security guard, said the officer always responded quickly when people needed help at the convenience store in northwest Dallas where Luchiano worked.  He was a “guardian angel,” said Luchiano. “It’s still painful no matter what. Nothing is going to close it.”

Notable review of (increasing?) number of botched lethal injection executions

The Death Penalty Information Center has this notable new posting to mark a notable anniversary under this heading: "As Lethal Injection Turns Forty, States Botch a Record Number of Executions."  Here is how the lengthy posting gets started (with links from the original):

On December 7, 1982, Texas strapped Charles Brooks to a gurney, inserted an intravenous line into his arm, and injected a lethal dose of sodium thiopental into his veins, launching the lethal-injection era of American executions.  In the precisely forty years since, U.S. states and the federal government have put 1377 prisoners to death by some version of the method.  Touted as swift and painless and a more humane way to die — just as execution proponents had said nearly a century before about the electric chair — the method has proven to be anything but.

Experts say lethal injection is the most botched of the execution methods, estimated to go wrong more frequently than any other method.  And autopsies of more than 200 prisoners put to death by lethal injection found that, regardless of the outward appearance of a tranquil death, 84% of those executed showed evidence of pulmonary edema — a fluid build-up in the lungs that creates a feeling of suffocation or drowning that experts have likened to waterboarding.

Moreover, American pharmaceutical companies universally oppose what they consider the misuse of their medicines to take the lives of prisoners, and the medical community universally deems it unethical for medical personnel to participate in executions.  That means states are relying on what drugs they can lay their hands on — increasingly obtained illegally or by subturfege — from often unreliable sources and administered by inadequately trained prison personnel ill equipped to handle the job and performing it behind an expanding veil of secrecy provisions.

As lethal injection turns forty, states are botching executions in record numbers — seven alone in 2022 in 19 execution attempts, an astonishing 37%.  In articles in Slate and The Conversation on November 21 and November 29, 2022, Austin Sarat, the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College and author the 2014 book, Gruesome Spectacles: Botched Executions and America’s Death Penalty, says that from Brooks’ execution through 2009, “more than 7 percent of all lethal injections were botched … [and] things have only gotten worse.”

The parenthetical in the title of this post is prompted by the fact that I do not think our society was scrutinizing lethal injections executions nearly as much in the 1980s and 1990s as we have in more recent decades. Though it is quite possible that more executions are being "botched" in recent years, I think it is also quite possible that we are now just much more likely to take notice of lethal injection execution difficulties.

Alabama Attorney General says "there is no moratorium" on executions in the state ... while executions are suspended

Dictionary.com defines a moratorium as "a suspension of activity," and two weeks ago the Governor of Alabama, as noted here, seemed to call for a suspension of executions after the state exeperienced two botched execution efforts.  But, as reported in this new local article, the Attorney General of Alabama is eager to make the case that the suspension of executions in the state is not a moratorium:

Alabama Attorney General Steve Marshall said Monday afternoon that “there is no moratorium” on executions in Alabama, but he will still allow for an efficient review of the state’s execution process. “I stand before you today to be very clear: Insofar as I and my office are concerned, there is no moratorium, nor will there be, on capital punishment in Alabama,” Marshall said.

Gov. Kay Ivey in late November called for the suspension of executions in Alabama for a “top-to-bottom review” after prison staff failed to complete a second straight execution. Marshall indicated that he won’t request any new execution dates before Ivey’s office carries out its review, so long as it doesn’t cause an “unreasonable” delay.

“What I want to make sure is … that we’ve given [Ivey] an opportunity to do this review, … to make sure that I hear from her that there is confidence that we have the ability to execute,” Marshall said. “…I’m also sitting here telling you that we’re not going to stand very long in a delay.” Ivey's spokesperson, Gina Maiola, said “discussions have already begun” regarding the review of the Alabama Department of Corrections' execution process. Marshall added that he has not spoken with Ivey directly, but that he is “looking forward to [their] conversation.”

There are no pending execution dates before the Alabama Supreme Court and no scheduled executions in Alabama, Marshall said. Marshall’s office solely has power to request an execution date from the Alabama Supreme Court.

On Nov. 17, officials called off the execution of Kenneth Eugene Smith as staff was unable to set the necessary IV lines for the lethal injection. Alan Miller’s execution was similarly called off just two months before because of issues finding a vein. Marshall blamed the failure to carry out the executions on Smith and Miller for filing federal court challenges to their death sentences that were not resolved until as late as 10 p.m. of the day of their scheduled executions....

Alabama has since reached an agreement to not attempt a second lethal injection on Miller, but it may use nitrogen gas to execute him in the future. The state still does not have a protocol in place for the untried method that was approved in 2018, but Marshall said the state is in the “final stages” of developing it.

A few prior related posts:

• Alabama unable to complete execution becuase of lethal injection difficulties
• After another botched lethal injection effort, Alabama Gov orders moratorium on executions in state 

After another botched lethal injection effort, Alabama Gov orders moratorium on executions in state

As reported in this local article, "Alabama Gov. Kay Ivey has ordered a halt to executions in the state after two failed attempts at lethal injections, calling for a 'top-to-bottom' review of the process."  Here is more:

The announcement came in the form of a press release sent Monday morning. According to the press release, the governor asked Alabama Attorney General Steve Marshall to withdraw the state’s two pending motions in the Alabama Supreme Court to set executions for Alan Eugene Miller and James Edward Barber.

“Working in conjunction with Alabama Department of Corrections Commissioner John Hamm, Governor Ivey is asking that the Department of Corrections undertake a top-to-bottom review of the state’s execution process, and how to ensure the state can successfully deliver justice going forward,” the press release stated.

Ivey also asked the Alabama AG’s office to not seek additional execution dates for any other Alabama Death Row inmates until the review is complete. No timeline was provided. A spokesperson for the Alabama AG’s office said Marshall will ”have more to say on this at a later date.”

Miller was set to be executed on Sept. 22, but survived after prison workers couldn’t find a vein to start the intravenous line needed for the three-drug lethal injection cocktail before the death warrant expired at midnight. Kenneth Eugene Smith, who was set to die Nov. 17, experienced a similar situation and also survived after officials couldn’t start an IV.

A federal judge has ordered the ADOC must preserve evidence from both failed execution attempts.

“For the sake of the victims and their families, we’ve got to get this right. I don’t buy for a second the narrative being pushed by activists that these issues are the fault of the folks at Corrections or anyone in law enforcement, for that matter. I believe that legal tactics and criminals hijacking the system are at play here,” Ivey said in the statement. “I will commit all necessary support and resources to the Department to ensure those guilty of perpetrating the most heinous crimes in our society receive their just punishment. I simply cannot, in good conscience, bring another victim’s family to Holman looking for justice and closure, until I am confident that we can carry out the legal sentence.”

Hamm also made a statement, which was sent alongside the governor’s. “I agree with Governor Ivey that we have to get this right for the victims’ sake. Everything is on the table – from our legal strategy in dealing with last minute appeals, to how we train and prepare, to the order and timing of events on execution day, to the personnel and equipment involved. The Alabama Department of Corrections is fully committed to this effort and confident that we can get this done right.”...

The Southern Poverty Law Center, Alabama Arise, and Project Hope to Abolish the Death Penalty sent a joint statement applauding the decision. After the July execution of Joe Nathan James Jr., the groups launched a campaign called “Pull Back the Curtains” to call for transparency in the execution process.

“The ‘Pull Back The Curtains’ campaign references the fact that corrections workers are starting the execution process without public scrutiny. Every government program, especially executions, should be transparent from the start,” the groups said in a statement. “We are relieved that there will be a review, and dismayed that our state won’t simply throw out this archaic and unnecessary punishment. Among other things, at a minimum this review should assess the toll taken on corrections workers & establish PTSD support for tortured prisoners and corrections officers alike.”

Alabama unable to complete execution becuase of lethal injection difficulties

As reported in this AP piece, "Alabama’s execution of a man convicted in the 1988 murder-for-hire slaying of a preacher’s wife was called off Thursday just before the midnight deadline because state officials couldn’t find a suitable vein to inject the lethal drugs."  Here is more:

Alabama Department of Corrections Commissioner John Hamm said prison staff tried for about an hour to get the two required intravenous lines connected to Kenneth Eugene Smith, 57. Hamm said they established one line but were unsuccessful with a second line after trying several locations on Smith’s body. Officials then tried a central line, which involves a catheter placed into a large vein.

“We were not able to have time to complete that, so we called off the execution,” Hamm said.

It is the second execution since September the state has canceled because of difficulties with establishing an IV line with a deadline looming.

The U.S. Supreme Court cleared the way for Smith’s execution when at about 10:20 p.m. it lifted a stay issued earlier in the evening by the 11th U.S Circuit Court of Appeals. But the state decided about an hour later that the lethal injection would not happen that evening.

The postponement came after Smith’s final appeals focused on problems with intravenous lines at Alabama’s last two scheduled lethal injections. Because the death warrant expired at midnight, the state must go back to court to seek a new execution date. Smith was returned to his regular cell on death row, a prison spokesperson said.

Oklahoma completes execution for man who killed his infant daughter 20 years ago

As reported in this extended CNN article, "Oklahoma has executed by lethal injection Benjamin Cole, who was sentenced to death for the 2002 murder of his 9-month-old daughter Brianna Victoria Cole, over the objections of defense attorneys who argued the 57-year-old suffered from schizophrenia and was severely mentally ill."  Here are some more details:

The case highlighted a longstanding issue in the debate over capital punishment: how it should apply to those who suffer from mental illness.  Meanwhile, relatives of the slain infant on Thursday decried the two-decade span between Brianna’s death and Cole’s execution.

The execution — the second of 25 Oklahoma has scheduled through 2024 — began Thursday at 10:06 a.m. CT, Oklahoma Department of Corrections Chief of Operations Justin Farris told reporters.  Cole was pronounced unconscious at 10:11 a.m. CT and pronounced dead at 10:22 a.m. CT....

Donna Daniel, Brianna’s aunt, thanked the state for carrying out the sentence and giving justice to her late niece, whom she described as a blond-haired, blue-eyed baby.  “She died a horrific death,” Daniel told reporters, adding, “And he gets off easy and gets to get a little injection in his arm and go to sleep in his death.  He did not give Brianna the chance to ever grow up, to even have her first Christmas, to meet her family.”...

Cole’s attorney called him a “person with serious mental illness whose schizophrenia and brain damage” led to him murdering his daughter, according to a statement.  By the time of his death, Cole had “slipped into a world of delusion and darkness,” the attorney, Tom Hird said, and was “often unable to interact with my colleagues and me in any meaningful way.”...

Cole is the second death row inmate put to death in the series of more than two dozen executions the state of Oklahoma intends to carry out through 2024 — a spree critics have condemned amid the state’s history of botched lethal injections.  The procedure for Cole on Thursday was “uneventful and without any complications,” Farris told reporters....

Cole’s attorneys insisted he should not be put to death because his mental condition — magnified by his exposure as a child to drugs and alcohol, substance abuse issues and physical and sexual abuse — had deteriorated so much that he was not competent to be executed, according to a clemency petition in a failed bid for mercy.

The US Supreme Court on Wednesday denied Cole’s request for a stay of execution.  Cole’s attorneys also unsuccessfully asked a state appeals court to compel the inmate’s warden to refer his case for review to the district attorney to initiate a competency hearing.

Alabama botches execution by failing to be able to complete it before expiration of death warrant

In prior posts about executions that were ultimately completed, but involved some ugly particulars, I resisted using the adjective "botched" because the standard definition of that term is "unsuccessful because of being poorly done."  As I see it, an execution is fundamentally "successful" if it concludes with the termination of the life of the condemned, even if that task was completed poorly.  I stress those semantics to explain why I think what happened in Alabama last night qualifies as a "botched" execution.  This local article, headlined "Alabama halts execution of Alan Eugene Miller, citing time constraints and vein access," provides these details:

Alan Eugene Miller was set to be executed Thursday night by the state of Alabama for his August 5, 1999 shooting spree that left three men dead in Shelby County. But it was called off minutes before midnight, when the state’s death warrant was set to expire.

The execution was called off at approximately 11:30 p.m. because Miller’s veins couldn’t be accessed within execution protocol time limits, Alabama Department of Corrections Commissioner John Hamm told reporters gathered at the prison system media center. Miller, 57, was returned to his death row cell.

Hamm said the victims’ families were informed of the decision to call off the execution and that Gov. Kay Ivey was sending her thoughts and prayers to the victims’ families. “Due to the time constraints resulting in the lateness of the court proceedings, the execution was called off once it was determined the condemned’s veins could not be accessed in accordance with our protocol before the expiration of the death warrant,” Hamm said.

The U.S. Supreme Court issued a ruling just after 9 p.m., giving the state nearly three hours to conduct the execution before the death warrant expired. Hamm said the execution team did start trying to access Miller’s veins to insert the intravenous lines for the three-drug lethal injection cocktail, but he isn’t sure how long the team worked to try to access a vein. “I’m not sure... I wasn’t looking at that. We were more focused on the time that the court, the Supreme Court, sent their order. Before we start accessing veins, we have other things we have to do that take time.”

When pressed what was being done during that nearly three-hour period, Hamm would not elaborate. “Like I said, there are several things that we have to do before we even start accessing the veins. And that was taking a little bit longer than we anticipated.”

Ivey released a statement shortly after the cancellation was announced. “In Alabama, we are committed to law and order and upholding justice. Despite the circumstances that led to the cancellation of this execution, nothing will change the fact that a jury heard the evidence of this case and made a decision,” the governor said. “It does not change the fact that Mr. Miller never disputed his crimes. And it does not change the fact that three families still grieve. We all know full well that Michael Holdbrooks, Terry Lee Jarvis and Christopher Scott Yancey did not choose to die by bullets to the chest. Tonight, my prayers are with the victims’ families and loved ones as they are forced to continue reliving the pain of their loss.”

Hamm visited with the victims’ families prior to announcing the cancellation and relayed the governor’s prayers and concerns. A spokesperson said Ivey “anticipates that the execution will be reset at the earliest opportunity.”...

The failed execution comes after weeks of legal wrangling, most recently in a flurry of filings on Thursday when the Alabama Attorney General’s Office asked the U.S. Supreme Court to overturn a lower court judge’s ruling that effectively stayed the execution.

At approximately 9:08 p.m., the U.S. Supreme Court granted the state’s application to vacate the injunction, clearing the way for Alabama to execute Miller via lethal injection. Justice Sonia Sotomayor, Justice Elena Kagan, Justice Amy Coney Barrett, and Justice Ketanji Brown Jackson voted to deny the application and block the execution. No opinion was issued.

Miller’s legal battles centered around his claims that in June 2018, he completed a form distributed to death row inmates at Holman electing to die by the state’s newly approved method of execution, nitrogen hypoxia, instead of the default method of lethal injection. The AG’s Office argued there is no record of that form being submitted, and that he should be executed using lethal injection instead.

But a federal judge on Monday stated “Miller has presented consistent, credible, and uncontroverted direct evidence that he submitted an election form in the manner he says was announced to him by the (Alabama Department of Corrections),” along with “circumstantial evidence” that the ADOC lost or misplaced his form after he turned it in.

Is Alabama going to pioneer using nitrogen as a method of execution soon?

The question in the title of this post is prompted by this new AP article headlined "State: Alabama nearly ready with untried execution method."  Here are the details:

Alabama could be ready to use a new, untried execution method called nitrogen hypoxia to carry out a death sentence as soon as next week, a state attorney told a federal judge Monday.

James Houts, a deputy state attorney general, told U.S. District Judge R. Austin Huffaker Jr. that it is “very likely” the method could be available for the execution of Alan Eugene Miller, currently set for Sept. 22, if the judge blocks the use of lethal injection.  Houts said the protocol “is there,” but said the final decision on when to use the new method is up to Corrections Commissioner John Hamm.

Nitrogen hypoxia, which is supposed to cause death by replacing oxygen with nitrogen, has been authorized by Alabama and two other states for executions but has never used by a state.  The disclosure about the possibility of using the new method came during a court hearing on Miller’s request for a preliminary injunction to block his execution by lethal injection.  Miller maintains prison staff lost paperwork he returned in 2018 that requested nitrogen as his execution method rather than lethal injection.  The Alabama attorney general’s office argued there is no corroborating evidence that Miller returned the form.

Huffaker heard testimony and arguments during an evidentiary hearing in Montgomery federal court.  He noted the “high stakes” involved with a looming execution date, but did not immediately rule on the request to block the lethal injection.  When Alabama approved nitrogen hypoxia as an alternative execution method in 2018, state law gave inmates a brief window to designate it as their execution method.  Wearing a maroon shirt and with his hands shackled in front of him, Miller testified that he returned a state form selecting nitrogen on the same day it was distributed to inmates by a prison worker....

Miller described how he disliked needles because of painful attempts at drawing blood. He said nitrogen gas sounded like the nitrous oxide gas used at dentist offices, and that seemed better than lethal injection. “I did not want to be stabbed with a needle,” Miller said....

Alabama told a federal judge last year that it has finished construction of a “system” to put condemned inmates to death using nitrogen gas, but did not give an estimate of when it would be put to use.  Miller’s lawyer, Mara Klebaner, said the state had asked if Miller would waive his claims if nitrogen was ready, but she said they need more information about the nitrogen process. Miller’s lawyers don’t want him to be the test case for an untried execution method, she said.

Klebaner said the Alabama attorney general’s office recently withdrew an execution date request for another inmate after his lawyers provided proof that the inmate had selected nitrogen hypoxia.  She said Miller should be treated the same.

The state argued Miller was trying to delay his execution. Houts told the judge the state had gone as far as to see if Miller would agree to be fitted with a mask for use of nitrogen, but the inmate declined. Miller’s attorney said the state presented the gas mask during a deposition and that Miller was understandably upset.

Miller, a delivery truck driver, was convicted in workplace shootings that killed Lee Holdbrooks, Scott Yancy and Terry Jarvis in suburban Birmingham. Miller shot Holdbrooks and Yancy at one business and then drove to another location to shoot Jarvis, evidence showed.

Long-time readers likely know that nitrogen gas has long been discusses as a possible alternative execution method to lethal injection.  Just some of many prior posts on the topic are noted below:

• Is nitrogen gas the best modern execution alternative to lethal injection?
• Should problems with lethal injection prompt return of other execution methods?
• Effective discussion of nitrogen gas as execution method alternative
• Examining whether nitrogen gas could be a viable new method for executions 
• Making the case against nitrogen as an execution method 
• "Execution by Nitrogen Hypoxia: The Search for Scientific Consensus"
• Might Alabama become the first state to use nitrogen gas for an execution?

South Carolina state judge declares execution by firing squad and electric chair to be unconstitutional

As reported in this AP piece, a "South Carolina judge ruled Tuesday that the state's newly created execution firing squad, as well as its use of the electric chair, are unconstitutional, siding with four death row inmates in a decision sure to be swiftly appealed as the state struggles to implement its new execution protocols." Here is more:

“In 2021, South Carolina turned back the clock and became the only state in the country in which a person may be forced into the electric chair if he refuses to elect how he will die," Judge Jocelyn Newman wrote in a case brought by the inmates against the state. "In doing so, the General Assembly ignored advances in scientific research and evolving standards of humanity and decency.”

Last month, Newman heard arguments from lawyers for four men on the state's death row, who said that the prisoners would feel terrible pain whether their bodies were “cooking” by electricity or heart stopped by a marksman’s bullet — assuming they are on target.

Attorneys for the state countered with their own experts who said death by the yet-to-be-used firing squad or the rarely used electric chair would be instantaneous and the condemned would not feel any pain. The state Supreme Court had ordered Newman to issue her decision within 30 days, with further appeals all but certain. Officials with the state Corrections Department told The Associated Press on Tuesday that the agency was “assessing the ruling.”

From 1995 to 2011 — when the state’s last execution was performed — South Carolina carried out the death penalty with lethal injections on 36 prisoners. But, as the state’s supply of lethal injection drugs expired in 2013, an involuntary pause in executions resulted from pharmaceutical companies' refusal to sell the state more. Condemned inmates technically had the choice between injection and electrocution, meaning that opting for the former would in essence leave the state unable to carry out the sentence.

Prison officials sought help from state lawmakers, who for several years had considered adding the firing squad as an option to approved methods, but debate never advanced. Last year, Democratic Sen. Dick Harpootlian and GOP Sen. Greg Hembree, both of whom previously served as prosecutors, again argued in favor of adding the firing squad option....

The ultimately approved measure, signed into law by Republican Gov. Henry McMaster last year, made South Carolina the fourth state in the country to allow use of a firing squad, and made the state's electric chair — built in 1912 — the default method for executions, thereby giving prisoners a new choice.

During last month's trial, a Corrections Department official said he devised the firing squad protocols after consulting a prison official in Utah, location of the only three inmates to die by firing squad since 1977. Colie Rushton, the department’s security director, testified the .308 Winchester ammunition to be used is designed to fragment and split up in the heart to make death as fast as possible. Much of the rest of the trial was each side calling its own experts to detail whether inmates feel any pain before they die.

In her ruling, Newman relied on this testimony, including two physicians who said that an inmate “is likely to be conscious for a minimum of ten seconds after impact.” During that time, the judge wrote, “he will feel excruciating pain resulting from the gunshot wounds and broken bones,” sensation that “constitutes torture” as it is “exacerbated by any movement he makes, such as flinching or breathing.”

Disconcerting reports about what transpired during recent Alabama execution

A press report on the July 28 execution of Joe Nathan James in Alabama, reprinted in this post, noted that the "execution began a few minutes after 9 p.m. CDT following a nearly three-hourts have started to fill in some ugly details of what transpired during this delay.  For example:

From The Atlantic, "Dead to Rights: What did the state of Alabama do to Joe Nathan James in the three hours before his execution?":

James, it appeared, had suffered a long death. The state seems to have attempted to insert IV catheters into each of his hands just above the knuckles, resulting in broad smears of violet bruising.  Then it looked as though the execution team had tried again, forcing needles into each of his wrists, with the same bleeding beneath the skin and the same indigo mottling around the puncture wounds.  On the inside of James’s left arm, another puncture site, another pool of deep bruising, and then, a scant distance above, a strange, jagged incision, at James’s inner elbow.  The laceration met another cut at an obtuse angle.  That longer, narrower slice was part of a parallel pair, which matched a fainter, shallower set of parallel cuts.  Underneath the mutilated portion of James’s arm was what appeared to be yet another puncture — a noticeable crimson pinprick in the center of a radiating blue-green bruise. Other, less clear marks littered his arm as well.

From AL.com, "Joe Nathan James ‘suffered a long death’ in botched Alabama execution, magazine alleges":

Alabama prison officials spent hours searching for a vein that could be used to deliver lethal drugs in the execution of Joe Nathan James on July 28, according to a recent article in the Atlantic.  Staff punctured his hands, wrists and elbows several times before finally cutting open his arm to expose a vein, according to reporting by Elizabeth Bruenig.

Bruenig attended an independent autopsy performed several days after James’ death and funded by the human rights group Reprieve U.S. “James, it appeared, had suffered a long death,” she wrote.

From The Guardian, "Alabama subjected prisoner to ‘three hours of pain’ during execution – report":

Alabama’s execution of Joe Nathan James Jr last month may have taken longer than any other lethal injection in recorded American history, and no death penalty ever administered in the US may have taken quite as long, according to an analysis by a human rights organization.

An examination by Reprieve US of James’s execution estimates that it took Alabama officials between three and three and a half hours to carry out the lethal injection, a duration that the organization argues violates constitutional protections against inhumane punishments.

Will Oklahoma carry out over two dozen executions over the next couple years?

The question in the title of this post is prompted by this new Washington Post article headlined "Oklahoma plans to execute an inmate nearly every month until 2025." Here are some of the details:

Oklahoma plans to execute 25 prisoners in the next 29 months after ending a moratorium spurred by botched lethal injections and legal battles over how it kills death row inmates.

The Oklahoma Court of Criminal Appeals on Friday set the execution dates for six prisoners in response to a request by Oklahoma Attorney General John O’Connor (R) in mid-June. The court later added dates for an additional 19 prisoners for a total representing more than half of the state’s 44-person death row population.

After a federal judge in Oklahoma ruled in early June that the state’s three-drug lethal-injection protocol was constitutional, O’Connor made his request, saying in filings that the prisoners had exhausted their criminal appeals. O’Connor argued for imminent execution dates as a matter of justice for the family members of those who were killed. In a statement, O’Connor noted that the earliest kill by a prisoner on Oklahoma’s death row was committed in 1993.

The first execution is scheduled for Aug. 25, with subsequent executions scheduled for about once every four weeks through 2024. In Oklahoma, prisoners are automatically granted a clemency hearing within 21 days of their scheduled execution, at which point the state’s pardon and parole board can recommend the governor grant a prisoner a reprieve from death row.

The scheduled flurry of executions is expected to draw Oklahoma back into familiar territory: the center of the nation’s death penalty debate....

Several of the Oklahoma prisoners scheduled for execution have strong innocence claims, histories of intellectual disability that should disqualify them for the death penalty or whose cases have claims of racial bias, their lawyers say.

Among them is Richard Glossip, whose 2015 case against the state’s lethal injection protocol went before the U.S. Supreme Court, which ruled in the state’s favor. His assertion of innocence has not only made him one of the more high-profile death row cases in the United States but has also won him support from Republican lawmakers in the state who object to his execution, scheduled for September.

Prior recent related posts:

• Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol 
• Oklahoma Attorney General requests execution schedule for 25 death row inmates 

By 5-4 vote, SCOTUS reaffirms all method of execution challenges can proceed as § 1983 actions

In an important ruling for capital case litigation, the Supreme Court this morning held in Nance v. Ward, No. 21-439 (S. Ct. June 23, 2022) (available here), that all method of execution claims can be brought via § 1983.  Justice Kagan wrote the opinion for the Court, which starts this way:

In several recent decisions, this Court has set out rules for challenging a State’s proposed method of execution under the Eighth Amendment.  To prevail on such a claim, a prisoner must identify a readily available alternative method of execution that would significantly reduce the risk of severe pain.  In doing so, the prisoner is not confined to proposing a method authorized by the executing State’s law; he may instead ask for a method used in other States. See Bucklew v. Precythe, 587 U. S. ___, ___ (2019) (slip op., at 19).

This case concerns the procedural vehicle appropriate for a prisoner’s method-of-execution claim.  We have held that such a claim can go forward under 42 U.S.C. §1983, rather than in habeas, when the alternative method proposed is already authorized under state law.  See Nelson v. Campbell, 541 U.S. 637, 644–647 (2004).  Here, the prisoner has identified an alternative method that is not so authorized.  The question presented is whether § 1983 is still a proper vehicle.  We hold that it is.

Justice Barrett authored the dissent in this case, and she is joined by Justices Thomas, Alito and Gorsuch. Here is how her opinion starts:

An inmate must bring a method-of-execution challenge in a federal habeas application, rather than under 42 U.S.C. § 1983, if “a grant of relief to the inmate would necessarily bar the execution.” Hill v. McDonough, 547 U. S. 573, 583 (2006).  Under this criterion, Michael Nance must proceed in habeas because a judgment in his favor would “necessarily bar” the State from executing him. Ibid.  Nance asked the District Court to “enjoin the Defendants from proceeding with [his] execution . . . by a lethal injection,” claiming that the use of such method would violate the Eighth Amendment as applied to him. App. to Pet. for Cert. 103a– 104a.  But lethal injection is the only method of execution authorized under Georgia law.  See Ga. Code Ann. §17–1038(a) (2020). Thus, if Nance is successful, the defendants in this case — the commissioner of the Georgia Department of Corrections and the warden — will be powerless to carry out his sentence.  That makes habeas the right vehicle for Nance’s Eighth Amendment challenge.

Arizona completes its second execution in 2022 for crime committed 35 years prior

As reported in this local article, the "state of Arizona executed Frank Atwood by lethal injection Wednesday at the state prison in Florence. Atwood, 66, was sentenced in 1987 for the kidnapping and murder of an 8-year-old girl in Pima County, Vicki Lynne Hoskinson."  Here is more:

Atwood was the the second man put to death by the state after the botched 2014 execution of Joseph Wood led to court action that resulted in a seven-year moratorium.  “Today marks final justice for our daughter Vicki Lynne.  Our family has waited 37 years, eight months and 22 days for this day to come,” Debbie Carlson, Vicki Lynne's mother, said while choking back tears during the media briefing following the execution. “Vicki was a vibrant little girl with an infectious laugh and a smile that would melt your heart."

Atwood was sedated at 10:10 a.m. and was pronounced dead at 10:16 a.m., media witnesses said....  Approximately 40 people were present during Atwood’s execution — among them Carlson and Rachel Atwood, Frank Atwood’s wife.  According to media witness Bud Foster, Atwood's priest was in the execution room with him — a first for the state. He added that this execution was "probably the most peaceful" he has witnessed.

Clarence Dixon was executed on May 11 for the 1978 murder of Deana Bowdoin, a 21-year-old senior at Arizona State University.

On Wednesday morning, the United States Supreme Court denied Atwood’s request for a stay of execution.  Attorneys for Atwood filed numerous legal challenges alleging both choices for the method of execution — lethal injection or the gas chamber — were unconstitutional, and would cause Atwood an excruciating amount of pain.

Atwood is in a wheelchair and suffered from a spinal condition, and his attorneys said restraining him to a gurney would exacerbate the condition and result in unbearable pain. The state responded to those concerns by agreeing to provide a device that would brace Atwood while on the gurney.

While Atwood proposed the use of nitrogen gas as his preferred method of execution, the courts ruled the Arizona Department of Correction's protocols using cyanide were acceptable, and said Atwood did not have that choice.

Atwood was successful in getting the department to change its policy regarding the presence of spiritual advisers. Atwood converted to become Greek Orthodox while in prison. His spiritual adviser, Father Paisios, told the Arizona Board of Executive Clemency in May that he was certain Atwood had experienced a "complete transformation of life,” and such a conversion cannot be feigned.  Paisios said the authenticity of Atwood's faith was to a degree that he had not seen among hundreds of others who had come to him. He said Atwood “unfailingly followed my instructions" and kept to a daily routine of prayer.

Oklahoma death row inmates lose their Eighth Amendment claims against state's lethal injection protocol

As reported in this AP article, a "federal judge in Oklahoma on Monday ruled the state’s three-drug lethal injection method is constitutional, paving the way for the state to request execution dates for more than two dozen death row inmates who were plaintiffs in the case."  Here is more from the press report:

Judge Stephen Friot’s ruling followed a six-day federal trial earlier this year in which attorneys for 28 death row inmates argued the first of the three drugs, the sedative midazolam, is not adequate to render an inmate unable to feel pain and creates a risk of severe pain and suffering that violates the U.S. Constitution’s Eighth Amendment prohibiting cruel and unusual punishment.

“The prerequisites of a successful lethal injection challenge under the Eighth Amendment have been made clear by the Supreme Court,” Friot wrote, citing three earlier rulings on the death penalty. He continued: “The plaintiff inmates have fallen well short of clearing the bar set by the Supreme Court.”

Jennifer Moreno, one of the attorneys for the death row inmates, said they are still assessing their options for an appeal to the 10th U.S. Circuit Court of Appeals in Denver. “The district court’s decision ignores the overwhelming evidence presented at trial that Oklahoma’s execution protocol, both as written and as implemented, creates an unacceptable risk that prisoners will experience severe pain and suffering,” Moreno said in a statement.

Oklahoma Attorney General John O’Connor said in a statement that the state effectively proved that both the lethal injection drugs and the state’s execution protocols are constitutional. “The Court’s ruling is definitive: The plaintiffs in this case ‘have fallen well short’ of making their case, and midazolam, as the State has repeatedly shown, ‘can be relied upon … to render the inmate insensate to pain,’” O’Connor said. “My team is reviewing the U.S. District Court’s order further and will make a decision regarding when to request execution dates from the Oklahoma Court of Criminal Appeals.”...

The state has carried out four lethal injections since October that Oklahoma’s former Solicitor General Mithun Mansinghani said during closing arguments “are definitive proof that the protocol works as intended.” Oklahoma resumed lethal injections in October with the execution of John Grant, who convulsed on the gurney and vomited before being declared dead. Since then, three more executions were carried out without noticeable complications.

The 45-page ruling of the federal district court is available at this link.  This ruling serves as yet another example of the extra difficulties that death row prisoners have in prevailing on execution protocol challenges since the Supreme Court's April 2019 ruling in Bucklew v. Precythe,139 S. Ct. 1112 (2019).  And yet, no doubt in part because of the COVID pandemic, there have still been fewer annual average state executions in the three years since Bucklew than in any other period in the last forty years.

Multiple Tennessee executions put on hold as Gov orders "third-party review" lethal injection process

Tennessee had multiple executions scheduled for 2022.  But, as reported in this post a few weeks ago, the first of these scheduled executions was postponed by the Gov at the last minute because of concerns with the state's lethal injection process.  Now, as reported in this local article, "Tennessee Gov. Bill Lee has paused all executions in the state through 2022." Here are the details and context:

Lee announced the move in a news release early Monday morning, saying the pause will give time for a third-party review and a complete assessment over the lethal injection process.  “I review each death penalty case and believe it is an appropriate punishment for heinous crimes,” Lee said.  “However, the death penalty is an extremely serious matter, and I expect the Tennessee Department of Correction to leave no question that procedures are correctly followed.”...

U.S. Attorney Ed Stanton will oversee the independent review for Tennessee, the release said.  The review will include an exploration into circumstances that led to testing the lethal injection chemicals for only potency and sterility but not endotoxins ahead of the April 21 execution, clarity of the lethal injection process manual that was last updated in 2018 and adherence to testing policies since the update.

“An investigation by a respected third-party will ensure any operational failures at TDOC are thoroughly addressed,” Lee said.  “We will pause scheduled executions through the end of 2022 in order to allow for the review and corrective action to be put in place.”

Three of four executions in Tennessee have been carried out by electric chair since 2019, the release said. Death row inmates are given the choice between lethal injection and the electric chair in Tennessee.  Lethal injection is the default method for execution in the state.

Smith's execution was set to be the first since February 2020 due to COVID-19 delays.  He was one of five death row inmates set to be executed in Tennessee this year.  The Tennessee Supreme Court will set new dates for the 2022 executions, the release said.

Governor Lee's official statement is available at this link.

Though executions are declining, questions about methods and how to litigate them persist

From 1995 to 2005, there were nearly 750 executions in the United States (747 to be exact, an average of 68 per year), almost all of which were by lethal injection, and relatively few of which were significantly delayed by uncertainty or litigation over execution methods.  But by the mid 2000s, litigation challenging the constitutionality of lethal injection began to pick up steam and the Supreme Court began to take up a number of different matters relating to this litigation.  (I blogged, somewhat cheekily, about all the lethal injection "scrummages" during this period.)

Fast forward another 16 years, and there have been "only" another 540 executions in the US from 2006 until today (an average of 34 per year), and there have been fewer executions in the last five years than in a number of single years in the 1995-2005 period.  The considerable amount of litigation over lethal injection is surely part of the reason for the modern decline, even with the Supreme Court repeatedly upholding lethal injection as a method of execution in landmark cases like Baze v. Kentucky (2008) and Glossip v. Gross (2015).

I provide all this background as a mini preview and prelude to the execution method litigation that SCOTUS will be hearing oral argument on Monday.  Nance v. Ward is about what procedural means condemned prisoners must use to challenge execution methods, and I suspect the history just recounted could impacting how various Justices approach this case.  Still, as discussed in the  SCOTUSblog preview post here authored by Lee Kovarsky, complicated procedural precedents may make this matter hard to predict.  That post concludes this way:

Nance is ultimately a case about how aggressively the Supreme Court wants to suppress method-of-execution claims, which it generally views as legalistic ploys to delay imposition of valid death sentences.  If it adopts Georgia’s preferred rule, then it will meaningfully alter the form and timing of Eighth Amendment challenges, and it will substantially reduce judicial enforcement against the states.  The court’s general disposition towards method-of-execution claims notwithstanding, the court agreed to review a lower court decision against a prisoner — which raises the very real prospect that Nance might be a case in which the court is actually prepared to rule in the prisoner’s favor.

Texas completes execution of its oldest death row inmate, while elderly condemned in Tennessee gets temporary reprieve

As detailed in this AP story, "Texas’ oldest death row inmate was executed Thursday for killing a Houston police officer during a traffic stop nearly 32 years ago." Here is more:

Carl Wayne Buntion, 78, was executed at the state penitentiary in Huntsville. He was condemned for the June 1990 fatal shooting of Houston police officer James Irby, a nearly 20-year member of the force. The U.S. Supreme Court had declined a request by Buntion’s attorneys to stop his execution.

Buntion had been on parole for just six weeks when he shot the 37-year-old Irby. Buntion, who had an extensive criminal record, was a passenger in the car that Irby pulled over. In 2009, an appeals court vacated Buntion’s sentence, but another jury resentenced him to death three years later....

With his execution, Buntion became the oldest person Texas has put to death since the Supreme Court lifted its ban on capital punishment in 1976. The oldest inmate executed in the U.S. in modern times was Walter Moody Jr., who was 83 years old when he was put to death in Alabama in 2018.

Buntion was also the first inmate executed in Texas in 2022. Although Texas has been the nation’s busiest capital punishment state, it had been nearly seven months since it carried out an execution. There have been only three executions in each of the last two years, due in part to the coronavirus pandemic and delays over legal questions about Texas’ refusal to allow spiritual advisers to touch inmates and pray aloud in the death chamber.

In March, the U.S. Supreme Court said states must accommodate requests to have faith leaders pray and touch inmates during executions. Texas prison officials agreed to Buntion’s request to allow his spiritual adviser to pray aloud and touch him while he was put to death.

Meanwhile, as discussed in this other AP piece, a much different outcome transpired in a nearby state with similar execution plans:

Tennessee’s governor on Thursday called off what was to have been the state’s first execution since the start of the pandemic, granting a temporary reprieve to the oldest inmate on death row for what was called an “oversight” in preparations for the lethal injection.

Republican Gov. Bill Lee didn’t elaborate on what exactly forced the surprise 11th-hour stop to the planned execution of 72-year-old Oscar Smith. The inmate was to have received a three-drug injection only a short while later in the evening at a Nashville maximum security prison.

“Due to an oversight in preparation for lethal injection, the scheduled execution of Oscar Smith will not move forward tonight. I am granting a temporary reprieve while we address Tennessee Department of Correction protocol,” Lee said in a statement. “Further details will be released when they are available.”

Kelley Henry, an attorney with the federal public defender’s office representing Smith, called for an independent entity to investigate, saying no execution should happen until questions are answered about what had occurred. Henry said the governor did the “right thing” by stopping the execution which would “certainly have been torturous to Mr. Smith.”

Smith was convicted of the 1989 killings of his estranged wife and her two teenage sons. Shortly before the governor intervened, the U.S. Supreme Court had denied a last-hour bid by Smith’s attorneys to block the execution plan.

Dorinda Carter, a Department of Correction spokesperson, said the state Supreme Court would need to reschedule the execution. She said Smith would be removed from death watch and returned to his cell on death row. She declined to provide additional information and referred questions to the governor’s office.

It was to have been Tennessee’s first execution since the start of the pandemic. Hours earlier, Smith had been served what was supposed to be his last meal, including a double bacon cheeseburger and apple pie, and was notified his spiritual adviser could be present in the execution chamber.

Firing squad execution stayed, while another execution date set, by South Carolina Supreme Court

Notable capital developments in South Carolina are covered in the CNN piece, which starts this way: "South Carolina's Supreme Court issued a temporary stay of execution Wednesday for Richard Bernard Moore, who was scheduled to be the first person executed by firing squad in the state." Here is more:

Lindsey Vann, one of Moore's attorneys, told CNN last week that they asked the state's highest court to put the execution on hold in order to give them time to appeal his conviction to the US Supreme Court.

Moore, who was sentenced to death for the 1999 murder of a convenience store clerk, was scheduled to be executed April 29. In a court filing last week, he chose firing squad over the electric chair.. He did not have the option of choosing lethal injection, as South Carolina does not have the necessary drugs, according to the filing. The state Department of Corrections previously told CNN it has not been in possession of a usable dose of lethal injection drugs since 2013.

Moore chose to die by firing squad but added in a statement he will not lose hope in two pending court challenges to the constitutionality of the state's death penalty method. "I believe this election is forcing me to choose between two unconstitutional methods of execution, and I do not intend to waive any challenges to electrocution or firing squad by making an election," he said in the statement.

He chose firing squad, as required 14 days before the date of his execution, because "I more strongly oppose death by electrocution," he wrote. Moore, 57, would be the first person executed in South Carolina in more than a decade.

Last year, the state Legislature passed a law that made electrocution the state's primary execution method, though death row prisoners have the option to choose a firing squad or lethal injection instead if the options are available....

Also Wednesday, the state set an execution date for Brad Keith Sigmon, who was sentenced in 2002 for two murders. Sigmon, who had a stay of execution last year, is scheduled to die May 13.

As I understand matters, Sigmon will now need to select between electrocution and a firing squad as his method of execution by the end of next week.  So it may still only be a matter of weeks before South Carolina conducts an "old school" execution.

Highlighting just some of the notable US executions scheduled for the next few weeks

This Upcoming Executions page at the Death Penalty Information Center has listed six executions scheduled to be carried out by five states over the next three weeks.  Given that there have only been three executions nationwide so far in 2022 and that there were only eight state executions in all of 2021, the fact that six executions might be completed in the span of a few weeks is itself noteworthy.  But, as this Voice of America article details, there are some particularly notable aspects of some of these scheduled executions.  Here is excerpts from the VOA piece:

Capital punishment has been on the wane in the United States but an upcoming slate of executions has refocused attention on the use of the death penalty.

Richard Moore, a 57-year-old African-American man, is to be executed in South Carolina on April 29 for the 1999 murder of a convenience store clerk during a robbery. It would be the first execution in the southern state in over a decade.

Recent US executions have been carried out by lethal injection but South Carolina has been forced to abandon that method because drug manufacturers are refusing to supply the necessary ingredients. So Moore had the choice between the electric chair and a firing squad made up of three rifle-toting volunteers from the Corrections Department. He chose the firing squad....

There have been three executions in the United States this year. There were 11 in 2021, down from 17 in 2020. Only one of the executions in 2021 was of a woman and of the more than 1,540 people executed in the United States since 1976, only 17 have been women. Melissa Lucio, 53, could be the 18th.

Lucio, a Mexican-American mother of 14, is scheduled to be executed by lethal injection in Texas on April 27 for the 2007 death of her two-year-old daughter, Mariah. Lucio claims a confession was coerced by police during a five-hour interrogation and that the toddler's death was actually caused by an accidental fall down a staircase.

Her case has been championed by the Innocence Project, which fights for the wrongly convicted, and reality TV star Kim Kardashian, who has urged Texas Governor Greg Abbott to grant clemency for Lucio.....

Also scheduled to be executed in Texas in coming days is Carl Wayne Buntion, who was sentenced to death in 1991 for the murder of a Houston police officer. Buntion, who does not dispute his guilt, is scheduled to die by lethal injection on April 21.

At 78, he is the oldest man on Death Row in Texas and his lawyers have argued that executing him now - more than 30 years after the crime - would constitute "cruel and unusual punishment." Texas law also requires it be established that Buntion would "likely harm others if he is not executed," his lawyers said.

Buntion, they said, poses no danger to anyone and suffers from multiple ailments including arthritis, vertigo, hepatitis, sciatic nerve pain, and cirrhosis. "Mr. Buntion is a frail, elderly man," his lawyers said in a petition to the Texas Board of Pardons and Parole, "and will not be a threat to anyone in prison if his sentence is reduced to a lesser penalty."

Buntion also has been in solitary confinement for the past 20 years, restricted to his cell for 23 hours a day.

Condemned due to be executed in South Carolina in two weeks opts for firing squad over electric chair

As detailed in this AP article, a "South Carolina prisoner scheduled to be the first man executed in the state in more than a decade has decided to die by firing squad rather than in the electric chair later this month, according to court documents filed Friday."  Here is more:

Richard Bernard Moore, 57, is the also first state prisoner to face the choice of execution methods after a law went into effect last year making electrocution the default and giving inmates the option to face three prison workers with rifles instead.

Moore has spent more than two decades on death row after being convicted of the 1999 killing of convenience store clerk James Mahoney in Spartanburg. If executed as scheduled on April 29, he would be the first person put to death in the state since 2011 and the fourth in the country to die by firing squad in nearly half a century. The new law was prompted by the decade-long break, which corrections officials attribute to an inability to procure the drugs needed to carry out lethal injections.

In a written statement, Moore said he didn’t concede that either method was legal or constitutional, but that he more strongly opposed death by electrocution and only chose the firing squad because he was required to make a choice. “I believe this election is forcing me to choose between two unconstitutional methods of execution, and I do not intend to waive any challenges to electrocution or firing squad by making an election,” Moore said in the statement.

Moore’s attorneys have asked the state Supreme Court to delay his death while another court determines if either available method is cruel and unusual punishment. The attorneys argue prisons officials aren’t trying hard enough to get the lethal injection drugs, instead forcing prisoners to choose between two more barbaric methods. His lawyers are also asking the state Supreme Court to delay the execution so the U.S. Supreme Court can review whether his death sentence was a disproportionate punishment compared with similar crimes. The state justices denied a similar appeal last week.

South Carolina is one of eight states to still use the electric chair and one of four to allow a firing squad, according to the Washington-based nonprofit Death Penalty Information Center. Only three executions in the United States have been carried out by firing squad since 1976, according to the nonprofit. Moore’s would mark the first since Ronnie Lee Gardner’s 2010 execution by a five-person firing squad in Utah....

Moore is one of 35 men on South Carolina’s death row. The state last scheduled an execution for Moore in 2020, which was then delayed after prison officials said they couldn’t obtain lethal injection drugs. During Moore’s 2001 trial, prosecutors said Moore entered the store looking for money to support his cocaine habit and got into a dispute with Mahoney, who drew a pistol that Moore wrestled away from him. Mahoney pulled a second gun, and a gunfight ensued. Mahoney shot Moore in the arm, and Moore shot Mahoney in the chest. Prosecutors said Moore left a trail of blood through the store as he looked for cash, stepping twice over Mahoney.

"The Return of the Firing Squad?"

The question in the title of this post is the headline of this notable new Marshall Project piece, which gets started this way:

Six years ago, a man on death row in Nevada named Scott Dozier said he wanted to give up his legal fight and be executed, but there was a problem.  Prison officials couldn’t find lethal injection drugs.  Amid the ensuing legal turmoil, Dozier tossed off his own solution, telling me during an interview, “I’d have been just as happy if they took me out back and shot me.”

Dozier’s death, in 2019, was ruled a suicide, but now his words seem prescient. On Thursday, South Carolina scheduled the execution of Richard Moore — convicted of murder in a 2001 convenience story robbery — for April 29. Because state officials say they can’t secure lethal injection drugs, they will give him the choice between the electric chair and the firing squad.  Officials have spent $53,000, by their own estimate, to renovate part of a prison to allow a three-person firing squad to carry out executions, including adding bulletproof glass to protect witnesses.

South Carolina’s not alone: Oklahoma and Mississippi have also formally adopted the firing squad, though Utah remains the only state that has actually used the method in the last century. The U.S. Supreme Court has told death row prisoners that if they want to fight lethal injection in court, they need to propose an alternative. Following dozens of botched, evidently painful lethal injections in recent years, prisoners in at least 10 states have been making a surreal argument: They would prefer the firing squad.

So, are we really about to start shooting prisoners?  Although the method strikes many as cruel and archaic, conversations with scholars and a review of history suggest we should also ask why we have so consistently avoided the firing squad. The answers suggest that this is about more than just another execution method.  The firing squad dredges up some of the core contradictions at the heart of American capital punishment.

“It’s an almost instantaneous death, it’s the cheapest, it’s the simplest, it has the lowest ‘botch’ rate,” said Corinna Lain, a law professor at the University of Richmond.  (Federal judges have made similar points.)  At the same time, it’s “more honest,” she said.  Lain and other scholars have argued that Americans have long wanted — not always consciously — to disguise the violence of capital punishment.  “We don’t want a mess,” wrote Douglas B. Kamerow, a former assistant surgeon general, in The BMJ, a medical journal published by the British Medical Association.  “We want these evil people to disappear, to be dead, but most of us don’t want to feel bad about how they died.”

Applying RLUIPA, Supreme Court rules 8-1 in favor of condemned Texas inmate seeking religious touching in execution chamber

The US Supreme Court handed down a lengthy and notable death penalty administration ruling today with Ramirez v. Collier, No. 21-5592 (S. Ct. Mar. 24, 2022) (available here). Chief Justice Roberts authored the opinion of the Court, which every Justice other than Justice Thomas joined. Justices Sotomayor and Kavanaugh did author concurring opinions.  Here is the start and end of the Court's opinion:

A Texas jury sentenced John Ramirez to death for the brutal murder of Pablo Castro. In this litigation, Ramirez does not challenge his conviction. Nor does he challenge his sentence. He asks instead that his long-time pastor be allowed to pray with him and lay hands on him while he is being executed. He says that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq., requires this accommodation. Ramirez sought a preliminary injunction ordering Texas to permit his religious exercise if the State went forward with his execution. The District Court and Court of Appeals declined to grant such relief. We then stayed the execution and granted certiorari....

We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez’s execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Here is the start of Justice Thomas's dissenting opinion:

Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25.  Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas.  This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

South Carolina joins handful of states authorizing firing squad as execution method

As reported in this local article, "executions by a state-approved firing squad are now able to be carried out in South Carolina." Here is more:

The S.C. Department of Corrections informed the state’s Attorney General Alan Wilson Friday that it is now able to execute death row inmates using a three-person firing squad using live ammunition if an inmate chooses that method.

The Legislature passed a law in 2021 that makes the electric chair South Carolina’s primary method of execution, but gives inmates the option to choose death by firing squad or lethal injection if available. Lethal injection has been unavailable for years in South Carolina.

The executions will be carried out at the department’s Broad River Correctional Institution outside of downtown Columbia, after the agency spent about $53,600 on supplies and materials to make the changes and comply with state law.

To carry out the execution, the agency said the firing squad will stand behind a wall and use rifles.  But the department did not specify what type of rifle or what kind of ammunition.  All firing squad members will be volunteers.  The rifles will not be visible to the witness room, and, unlike the electric chair, the witnesses will only be able to see the right side of the inmate’s profile. Witnesses will be separated from the chamber by bullet-resistant glass.

The inmate, wearing a prison-issued uniform, will be giving the opportunity to make a last statement and then will be strapped into the execution chair and a hood will be placed over their head.  A “small aim point will be placed over his heart by a member of the execution team,” at which point the warden will read the execution order and the team will fire, the department said.  When the inmate is declared dead and the curtain is moved, witnesses will be escorted out.

South Carolina has 35 inmates now on death row.  The last execution was carried out in 2011.  The state has been unable to carry out executions because it lacks the drugs necessary for the lethal injection method. In large part because of the delay, lawmakers added the firing squad option to the law.

South Carolina is now one of four states that offer the firing squad as an execution option, according to the Death Penalty Information Center. The other states are Utah, Mississippi and Oklahoma.

Oklahoma completes first execution of 2022

As reported in this AP piece, "Oklahoma executed a man Thursday for the brutal slayings of two hotel workers during a robbery in 2001."  Here is more about the first execution completed in the United States in 2022:

Donald Grant, 46, received a lethal injection at the Oklahoma State Penitentiary in McAlester and was declared dead at 10:16 a.m. It was the first execution in the U.S. in 2022 and the third in Oklahoma since the state resumed lethal injections in October following a nearly seven-year hiatus....

Shirl Pilcher, the sister of one of Grant's victims, Brenda McElyea, said her family felt that justice had been served. “Although Donald Grant's execution does not bring Brenda back, it allows us all to finally move forward knowing justice was served," Pilcher said after witnessing his execution.

Grant had asked a federal judge to temporarily halt his execution, arguing that he should be reinstated as a plaintiff in a separate lawsuit challenging Oklahoma’s three-drug lethal injection protocol as presenting a risk of unconstitutional pain and suffering. But both a federal judge and a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver previously denied that request.  The U.S. Supreme Court denied Grant’s request on Wednesday.

Several Oklahoma death row inmates with pending execution dates have sought to delay their executions after John Grant convulsed on the gurney and vomited after receiving the first dose of midazolam, a sedative, during his October execution.  John Grant's execution was the state's first since problems with the state's lethal injection protocols in 2014 and 2015 led to a de facto moratorium.

Richard Glossip was just hours away from being executed in September 2015 when prison officials realized they received the wrong lethal drug.  It was later learned the same wrong drug had been used to execute an inmate in January 2015.  The drug mix-ups followed a botched execution in April 2014 in which inmate Clayton Lockett struggled on a gurney before dying 43 minutes into his lethal injection — and after the state’s prisons chief ordered executioners to stop.

During a clemency hearing in November, Donald Grant admitted killing Brenda McElyea and Felicia Suzette Smith so that there would be no witnesses to his robbery of the Del City hotel. Court records show both women were shot and stabbed, and Smith was also bludgeoned.  Prosecutors say both women also begged him to spare their lives before he killed them. During November's hearing, he expressed “deep, sincere remorse” and apologized for the killings, but the state’s Pardon and Parole Board voted 4-1 against recommending clemency....

Two of Donald Grant's attorneys, Susan Otto and Emma Rolls from the federal public defender's office, argued that he was mentally ill and had suffered brain damage that made him a candidate for mercy.  They also discussed Grant’s childhood growing up in a New York City housing project during the crack epidemic of the 1980s, a time when he was frequently beaten and members of his family experienced alcoholism, drug addiction and mental illness.  But the board also heard from members of McElyea's family, who tearfully urged them to reject clemency for him.

Oklahoma completes final 2021 scheduled execution in the United States

As reported in this local article, headlined "Bigler Stouffer executed in Oklahoma without problems of previous lethal injections," the latest and last execution in Oklahoma took place this morning and here are the details:

Oklahoma executed inmate Bigler Jobe "Bud" Stouffer II Thursday without the issues that caused the last three lethal injections to be described as botched.

The convicted murderer was pronounced dead at 10:16 a.m. at the Oklahoma State Penitentiary. It was the state's second execution in a month and a half after the practice was halted for more than six years. "No vomiting, no erratic movements or anything like that. Just, you could see his chest moving as he appeared to breathe. That's about it," said one media witness, Sean Murphy of The Associated Press.

The execution process began at 10:01 a m., Corrections Department Director Scott Crow told reporters. Stouffer was declared unconscious at 10:06 a.m. For his last words, Stouffer said, "My request is that my Father forgive them. Thank you," media witnesses reported.

In a policy change, Stouffer was allowed to have his personal spiritual advisor, Baptist minister Howard Potts, in the execution chamber with him. Potts put a hand on Stouffer's foot and read from a Bible, witnesses said. Early in the process, the advisor said something that made Stouffer laugh.

At 79, Stouffer is the oldest inmate in Oklahoma history to be executed. He is the second oldest inmate to be executed in the nation since the U.S. Supreme Court reinstated the death penalty in 1976.

He was put to death by lethal injection for the fatal shooting of Putnam City elementary school teacher Linda Reaves in 1985. He maintained to the end he was wrongfully convicted. "He felt like if he couldn't prove his innocence while alive then his attorneys would prove it after he was gone," said Goforth, who works for The Frontier.

Three more executions are set for next year. As many as 26 more could be scheduled next year if death row inmates lose a legal challenge to the lethal injection process at a trial in Oklahoma City federal court. The trial is set to begin Feb. 28.

Stouffer filed his own legal challenge after his execution was set. He sought to have his execution delayed until after the trial but was turned down in court three times. The U.S. Supreme Court denied his last request for a stay about 8 a.m. Thursday.

His attorneys also had sought clemency for him. Gov. Kevin Stitt last week rejected a recommendation to commute his sentence to life in prison without the possibility of parole.

Stouffer spent more than three decades on death row because he was tried twice. He was first convicted in 1985. He was granted a retrial in 2000 when a federal appeals court agreed his defense attorneys had been inept. He was convicted again in 2003 but did not exhaust his appeals of that conviction until 2017....

After the execution, the family of the murder victim thanked the governor and Attorney General John O'Connor for their willingness to carry justice through. "Although long in coming, justice has prevailed," a cousin, Rodney C. Thomson, told reporters at the penitentiary....

His spiritual advisor told the Oklahoma Pardon and Parole Board in November that Stouffer turned his incarceration into a spiritual ministry and regularly shared his faith with other death row inmates.

According to this Death Penalty Information Center page, there are no more executions scheduled for 2021.  That means the total number of US executions this year was only 11, the lower total yearly number in more than three decades (there were 11 executions in 1988 in the US).  For a host of reasons, I am inclined to predict that execution numbers will start trending back up in coming years.  But, then again, almost everything about the administration of the death penalty in the United States has a way of becoming unpredictable.

Gearing up for SCOTUS argument in Ramirez on religious liberty in death chamber

On Tuesday morning, the US Supreme Court will hear Ramirez v. Collier, which presents these issues:

(1) Whether, consistent with the free exercise clause and Religious Land Use and Institutionalized Persons Act, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest; and (2) whether, considering the free exercise clause and RLUIPA, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest.

Here is some of the press I have seen previewing the case:

From Bloomberg Law, "Lawyer Takes Rare Case on Religion, Executions to U.S. Top Court"

From Newsweek, "Conservatives Find Rare Common Ground With ACLU in Death Penalty Religious Freedom Case"

From SCOTUSblog, "Court to clarify the right of death-row inmates to receive spiritual guidance during execution"

From Time, "‘Why Can’t I Hold His Hand?’ The Supreme Court Will Decide What Comforts a Pastor Can Offer During an Execution"

From Vox, "The Supreme Court must decide if it loves religious liberty more than the death penalty"

From the Washington Post, "Supreme Court considers a minister’s role at the time an inmate is put to death"

Prior related posts:

• SCOTUS stays Texas execution and grants cert on death row inmate's request for pastor's touch during execution 
• A short de facto execution moratorium?: could other condemned inmates secure a stay until SCOTUS decides new Ramirez case on religious liberty? 
• Second Texas inmate gets execution stay based on religion claim SCOTUS considering in Ramirez 
• Texas completes state's third execution of 2021
• Third Texas inmate gets execution stay based on religion claim SCOTUS considering in Ramirez 
• More executions postponed in Texas as SCOTUS considers religious liberty in death chamber 

Will "outcry" over ugly details of latest Oklahoma execution impact its plans to have six more in coming months?

The question in the title of this post is prompted by the first word of the headline, and then the last sentence of the body, of this new Guardian piece: "Outcry after Oklahoma prisoner vomits and convulses during execution."  Here are the basics:

Oklahoma is coming under sharp criticism after witnesses to the state’s first judicial killing for six years described gruesome scenes of the dying prisoner convulsing and vomiting as he was administered the lethal injections.

John Grant, 60, was pronounced dead at 4.21pm on Thursday at McAlester state penitentiary after he was injected with a triple cocktail of midazolam, vecuronium bromide and potassium chloride. Later, the department of corrections said the killing had gone “in accordance with protocols and without complication”.

But eyewitness accounts from reporters at McAlester’s supposedly state-of-the-art death chamber gave a very different account.  Dan Snyder, an anchor at the Oklahoma TV channel Fox 25, said that events went drastically off course the instant the first drug, the sedative midazolam, was injected into the prisoner.  “Almost immediately after the drug was administered, Grant began convulsing, so much so that his entire upper back repeatedly lifted off the gurney,” Snyder reported. “As the convulsions continued, Grant then began to vomit.  Multiple times over the course of the next few minutes medical staff entered the death chamber to wipe away and remove vomit from the still-breathing Grant.”

It took 15 minutes for Grant to be declared unconscious by medical staff, after which the vecuronium bromide, which paralyses the body, and potassium chloride, which stops the heart, were given. On Twitter, Snyder gave his response to the state’s official claim that all had gone according to plan. “As a witness to the execution who was in the room, I’ll say this: repeated convulsions and extensive vomiting for nearly 15 minutes would not seem to be ‘without complication’.”

Accounts of the botched execution of Grant, who was being put to death for the murder in 1998 of a prison cafeteria worker while he was already serving a sentence for armed robberies, will come as a deep embarrassment for Oklahoma. No judicial killings have taken place in the state since 2015 after a spate of botched procedures caused widespread alarm and forced the authorities to review their use of lethal injection drugs.

In 2018, officials in the state went as far as to announce they would abandon lethal injections entirely, due to the protocol’s lack of transparency and to the inhumane executions that had taken place. But in August the state reversed that decision, saying it would resume executions without giving an explanation for the U-turn or revealing critical details about how it intended to carry out the killings.

The state’s six-year hiatus was prompted in part by the execution in 2014 of Clayton Lockett, who writhed and groaned on the gurney for 43 minutes before he was declared dead after the intravenous line through which the lethal drugs were delivered was inserted improperly. The gruesome descriptions of his death by eyewitnesses in the Guardian and elsewhere caused nationwide revulsion. The following year the state used the wrong drug to kill Charles Warner. In the wake of these botched procedures a bipartisan commission reviewed the state’s death penalty system and issued a highly critical report that called for the moratorium on capital punishment to be extended....

Grant’s execution was allowed to proceed on Thursday after the US supreme court voted five to three, with the three liberal justices dissenting, to allow the judicial killing to go ahead. It is unclear whether the descriptions of his death will affect future planned executions in the state.

Oklahoma has an aggressive calendar of executions scheduled, with six set to take place by the end of March.

I put the word "outcry" in quotes because, so far, I have mostly seen opponents of the death penalty comment and assail the latest ugly Oklahoma execution.  If only the "usual subjects" are complaining about the execution, I doubt that will slow the state's current plan to execute another half-dozen people in the coming month. But it also seems possible, especially if more evidence of problems with the execution process emerges, that some death penalty supporters in Oklahoma or elsewhere will express concern and be in a position to slow future trips to the death chamber.

Prior recent related posts:

• Might Oklahoma really try to move forward with seven executions over the next six months? 
• Oklahoma top court sets executions dates for seven condemned men over the next six months 
• By 5-3 order, SCOTUS vacates stays of Oklahoma executions entered by Tenth Circuit ... and one execution carried out 

UPDATE: This local article suggests that Oklahoma officials are not troubled by the execution of John Grant. Here is how it stars:

Oklahoma Department of Corrections Director Scott Crow said Friday the agency has no plans to change its execution protocol after a witness said John Marion Grant had about two dozen full body convulsions and vomited during his lethal injection on Thursday.  “Some of the information is either embellished or is not exactly on point,” the DOC director said during a virtual press conference to “clarify” issues.

Crow, who witnessed the execution, said he saw Grant dry heave fewer than 10 times, not convulse. He said Grant did vomit.  “As he started that process, I conferred with the physician we had on site monitoring the process and he advised me that regurgitation is not a completely uncommon instance or occurrence with someone that is undergoing sedation,” Crow said.

By 5-3 order, SCOTUS vacates stays of Oklahoma executions entered by Tenth Circuit ... and one execution carried out

As set forth in this short order, the US Supreme Court this afternoon has vacated stays of execution for two death row defendants, one of whom is scheduled to be executed today.  Justices Breyer, Sotomayor, and Kagan indicated they would deny Oklahoma's application to vacate the stays that had been entered by the Tenth Circuit yesterday. Justice Gorsuch took no part in matter, presumably because the case came from his old circuit.  This Hill article from yesterday provides the basics on the litigation:

The U.S. Court of Appeals for the Tenth Circuit granted a temporary motion for stay of execution for two Oklahoma death row inmates on Wednesday, just a day before one of the inmates was scheduled to die by lethal injection.

The appeals court stayed the executions of Julius Jones and John Grant on the basis that they met two criteria required for an execution to be stayed. Prisoners must show that the execution method chosen by the state — in this case a three-drug lethal injection — presents “a substantial risk of severe pain" and they must also show that the risk of severe pain is substantial when compared to other available alternatives.

Jones and Grant were part of a federal lawsuit seeking to challenge Oklahoma's three-drug lethal injection. However, Judge Stephen Friot denied a motion for a preliminary injunction that they and three other inmates sought, clearing the way for their executions in the next six months....

The appeals court wrote that though Jones and Grant did not choose an alternative method of execution, it does not mean they did not identify alternatives to lethal injection. The court also wrote that there was no law that requires a prisoner to choose their own method of execution.  The court wrote that the if the inmates are executed they "risk being unable to present what may be a viable Eighth Amendment claim." 

UPDATE: As reported in this AP piece, "Oklahoma ended a six-year moratorium on executions Thursday, administering the death penalty on a man who convulsed and vomited before dying, his sentence for the 1998 slaying of a prison cafeteria worker." Here is more:

John Marion Grant, 60, who was strapped to a gurney inside the execution chamber, began convulsing and vomiting after the first drug, the sedative midazolam, was administered. Several minutes later, two members of the execution team wiped the vomit from his face and neck.

Before the curtain was raised to allow witnesses to see into the execution chamber, Grant could be heard yelling, “Let’s go! Let’s go! Let’s go!” He delivered a stream of profanities before the lethal injection started. He was declared unconscious about 15 minutes after the first of three drugs was administered and declared dead about six minutes after that, at 4:21 p.m.

Grant was the first inmate to be executed since a series of flawed lethal injections in 2014 and 2015. He was serving a 130-year prison sentence for several armed robberies when witnesses say he dragged prison cafeteria worker Gay Carter into a mop closet and stabbed her 16 times with a homemade shank. He was sentenced to die in 1999.

Two states restarting their death machinery with Fall 2021 lethal injections scheduled for long-dormant execution chambers

In this post last month, I noted that the Oklahoma Court of Criminal Appeals had set execution dates for seven persons.  Long-time readers may recall that Oklahoma last decade had two problematic executions, of Clayton Lockett in 2014 and Charles Warner in 2015, and the state has not had an execution for nearly seven years.  A new Oklahoman piece provides details and background regarding the Sooner machinery of death getting restarted under the headline "What we know about Oklahoma resuming executions for the first time since 2015":

Starting Thursday, the state of Oklahoma has scheduled seven execution dates for inmates on death row.  It would be the state's first execution in more than six years.  In 1977, Oklahoma was the first state to adopt lethal injection, through which an inmate is injected with a fatal mixture of drugs as its primary method for carrying out executions....

The case of Julius Jones has attracted nationwide interest in recent years.  No legal defense has disputed the guilt of the other six inmates, but Jones has long maintained his innocence....

The last time Oklahoma executed a death row inmate was Charles Warner in January 2015.  Warner and Clayton Lockett, executed in 2014, both died by what were widely criticized as "botched" lethal injections, in which the inmates were not administered the correct mixture of drugs to bring about a quick and humane death.

After Warner's execution, investigators discovered Warner had not been administered the proper drugs.  The state's supplier of lethal injection drugs had replaced the heart-stopping drug potassium chloride with potassium acetate, the wrong chemical.  Upon this discovery, the state halted all scheduled lethal injections, including that of death row inmate Richard Glossip, who received a stay of his execution from then-Gov. Mary Fallin hours before he was scheduled to die.

The controversy worked its way to the U.S. Supreme Court after Glossip and 20 other death row inmates sued in federal court, arguing against the constitutionality of the sedative midazolam.  A divided Supreme Court ruled that the state's drug mixture for lethal injections did not violate the "cruel and unusual punishment" amendment to the U.S. Constitution.  Glossip, who also has long maintained his innocence for the murder that placed him on death row, has exhausted his appeals but has gained support from bipartisan lawmakers for an independent reinvestigation into his case....

Since the hiatus in 2015, Oklahoma has explored alternative methods of administering the death penalty.  Fallin signed legislation allowing nitrogen gas to be used, if lethal injection is rendered unfeasible.  After struggling for years to design a proper device and protocol for the use of nitrogen gas, Oklahoma abandoned the idea in 2020 and reverted back to lethal injection, once another supplier for the drugs had been reportedly secured.  Oklahoma is one of only three states (the others being Mississippi and Utah) that allow for firing squads to be used as an alternative method, although this has not been done in the state for any of its executions since 1915.

Notably, recent news stories report now on another state gearing up to restarted its execution chamber after nearly a decade.  From the AP, "Mississippi prepares for first execution since 2012, corrections commissioner says":

Mississippi prison employees will conduct once-a-week rehearsals as the state prepares for its first execution since 2012, Corrections Commissioner Burl Cain says.  Cain told The Associated Press on Friday that the rehearsals for a lethal injection are usually done once a month at the Mississippi State Penitentiary at Parchman, following a protocol that's about 20 pages long.

The Mississippi Supreme on Thursday set a Nov. 17 execution date for David Neal Cox, who pleaded guilty in 2012 to killing his wife, Kim, in 2010 in the northern Mississippi town of Shannon.  Cox withdrew his appeals and once filed court papers calling himself "worthy of death.”  Mississippi has not had an execution since 2012, and it had six that year.

Cain confirmed Mississippi has obtained lethal injection drugs, but he declined to say how.  “I’m not supposed to talk about the drugs too much,” Cain said.  Mississippi is still facing a lawsuit filed in 2015 by the Roderick & Solange MacArthur Justice Center on behalf of two inmates.  The suit argues Mississippi’s lethal injection protocol is inhumane.

Might Alabama become the first state to use nitrogen gas for an execution?

The question in the title of this post is prompted by this new AP article headlined "Alabama says it has built method for nitrogen gas execution."  Here are excerpts:

Alabama told a federal judge this week that it has finished construction of a “system” to use nitrogen gas to carry out death sentences, an execution method authorized by state law but never put into use.

The Alabama Department of Corrections indicated in an Aug. 2 court filing that it is waiting to make sure the nitrogen hypoxia system is ready, before writing procedures for how it will be used. The prison system did not describe how the system would work or give an estimate on when the state may try to use the new execution method.

“The ADOC has completed the initial physical build on the nitrogen hypoxia system. A safety expert has made a site visit to evaluate the system. As a result of the visit, the ADOC is considering additional health and safety measures,” a lawyer for the state attorney general’s office wrote in the court filing.

Alabama in 2018 became the third state — along with Oklahoma and Mississippi — to authorize the untested use of nitrogen gas to execute prisoners. Death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving him or her of oxygen. Lawmakers theorized that death by nitrogen hypoxia could be a simpler and more humane execution method. But critics have likened the untested method to human experimentation.

No state has used nitrogen hypoxia to carry out an execution, and no state has developed a protocol for its use, according to the Death Penalty Information Center.... Alabama currently carries out executions by lethal injections unless an inmate requests the electric chair. As lethal injection drugs become difficult to obtain, states have begun looking at alternative ideas for carrying out death sentences including firing squads and gas.

A few (of many) prior related posts:

• Is nitrogen gas the best modern execution alternative to lethal injection?
• A worldly perspective on different execution methods
• Should problems with lethal injection prompt return of other execution methods?
• Effective discussion of nitrogen gas as execution method alternative
• Examining whether nitrogen gas could be a viable new method for executions 
• Making the case against nitrogen as an execution method 
• "Execution by Nitrogen Hypoxia: The Search for Scientific Consensus"

Lengthy lament in SCOTUS cert dissent about execution method litigation

The Supreme Court’s order list this morning has no cert grants and lots and lots of cert denials.  And, at the end, Justice Sotomator penned a lengthy dissent to one such denial concerning a Missouri inmate’s effort to contest the state’s execution methods.  This dissent, in Johnson v. Precythe, No. 20-287, is joined by Justices Breyer and Kagan.

Because I am caught up with some pomp and circumstance today, I will not have a chance to review this opinion closely anytime soon.  (But I do have time to note that there are precious few persons being intentionally executed by states these days while there are still lots and lots of persons dying in prisons and jails due to neglect and other less intentional causes.  I hope these other more frequent kinds of deaths in custody might get more attention from the Supreme Court before too long.)

After embracing new firing squad option, will South Carolina seek to move quickly forward with "old school" executions?

As reported in this new AP piece, "South Carolina Gov. Henry McMaster has signed into law a bill that forces death row inmates for now to choose between the electric chair or a newly formed firing squad in hopes the state can restart executions after an involuntary 10-year pause." Here are more details that prompt the question in the title of this post:

South Carolina had been one of the most prolific states of its size in putting inmates to death. But a lack of lethal injection drugs brought executions to a halt.

McMaster signed the bill Friday with no ceremony or fanfare, according to the state Legislature’s website. It’s the first bill the governor decided to deal with after nearly 50 hit his desk Thursday. “The families and loved ones of victims are owed closure and justice by law. Now, we can provide it,” McMaster said on Twitter on Monday.

Last week state lawmakers gave their final sign offs to the bill, which retains lethal injection as the primary method of execution if the state has the drugs, but requires prison officials to use the electric chair or firing squad if it doesn’t.

Prosecutors said three inmates have exhausted all their normal appeals, but can’t be killed because under the previous law, inmates who don’t choose the state’s 109-year-old electric chair automatically are scheduled to die by lethal injection.  They have all chosen the method that can’t be carried out.

How soon executions can begin is up in the air.  The electric chair is ready to use.  Prison officials have been doing preliminary research into how firing squads carry out executions in other states, but are not sure how long it will take to have one in place in South Carolina.  The other three states that allow a firing squad are Mississippi, Oklahoma and Utah, according to the Death Penalty Information Center.

Three inmates, all in Utah, have been killed by firing squad since the U.S. reinstated the death penalty in 1977.  Nineteen inmates have died in the electric chair this century, and South Carolina is one of eight states that can still electrocute inmates, according to the center.

Lawyers for the men with potentially imminent death dates are considering suing over the new law, saying the state is going backward.  “These are execution methods that previously were replaced by lethal injection, which is considered more humane, and it makes South Carolina the only state going back to the less humane execution methods,” said Lindsey Vann of Justice 360, a nonprofit that represents many of the men on South Carolina’s death row.

From 1996 to 2009, South Carolina executed close to average of three inmates a year.  But a lull in death row inmates reaching the end of their appeals coincided a few years later with pharmaceutical companies refusing to sell states the drugs needed to sedate inmates, relax their muscles and stop their hearts.  South Carolina’s last execution took place in May 2011, and its batch of lethal injection drugs expired in 2013.

I am struck by the report here that South Carolina has a "109-year-old electric chair." It makes me wonder, only half-jokingly, if they might try to find some really old guns for use in a firing squad.  Gallows humor aside, I sincerely wonder how quickly South Carolina will seek to set execution dates for condemned prisoners who has exhausted all their appeals and how quickly the inevitable litigation over this new law will make its way through the court system.

"The Fate of Lethal Injection: Decomposition of the Paradigm and Its Consequences"

The title of this post is the title of this new article by multiple authors now available on SSRN.  Here is its abstract:

This article examines the use of lethal injection from 2010-2020.  That period marks the "decomposition" of the standard three drug protocol and the proliferating use of new drugs or drug combinations in American executions.  That development is associated with an increase in the number and type of mishaps encountered during lethal injections.  This article describes and analyzes those mishaps and the ways death penalty jurisdictions responded, and adapted, to them.  It suggests that the recent history of lethal injection echoes the longer history of the death penalty.  When states encountered problems with their previous methods of execution, they first attempted to address these problems by tinkering with their existing methods.  When tinkering failed, they adopted allegedly more humane execution methods.  When they ran into difficulty with the new methods, state actors scrambled to hide the death penalty from public view.  New drugs and drug combinations may have allowed the machinery of death to keep running.  New procedures may have given the lethal injection process a veneer of legitimacy.  But none of these recent changes has resolved its fate or repaired its vexing problems.

Notable new press report on accounts of recent federal execution particulars

The AP has this notable new story, headlined "Executioners sanitized accounts of deaths in federal cases."  Here is how it gets started:

Executioners who put 13 inmates to death in the last months of the Trump administration likened the process of dying by lethal injection to falling asleep and called gurneys “beds” and final breaths “snores.”  But those tranquil accounts are at odds with reports by The Associated Press and other media witnesses of how prisoners’ stomachs rolled, shook and shuddered as the pentobarbital took effect inside the U.S. penitentiary death chamber in Terre Haute, Indiana. The AP witnessed every execution.

The sworn accounts by executioners, which government filings cited as evidence the lethal injections were going smoothly, raise questions about whether officials misled courts to ensure the executions scheduled from July to mid-January were done before death penalty opponent Joe Biden became president.  Secrecy surrounded all aspects of the executions. Courts relied on those carrying them out to volunteer information about glitches. None of the executioners mentioned any.

Questions about whether inmates’ midsections trembled as media witnesses described were a focus of litigation throughout the run of executions. Inmates’ lawyers argued it proved pentobarbital caused flash pulmonary edema, in which fluid rushes through quickly disintegrating membranes into lungs and airways, causing pain akin to being suffocated or drowned.  The Constitution prohibits execution methods that are “cruel and unusual.”

The discrepancies could increase pressure on Biden to declare his administration won’t execute any of the roughly 50 federal inmates still on death row.  Activists want him to go further by backing a bill abolishing the federal death penalty.  Biden hasn’t spoken about any specific action.

During the Sept. 22 execution of William LeCroy, convicted of killing Georgia nurse Joann Lee Tiesler in 2001, the 50-year-old’s stomach area heaved uncontrollably immediately after the pentobarbital injection.  It lasted about a minute, according to the AP and other reports.

Executioner Eric Williams stood next to LeCroy as he died.  But Williams made only cursory reference to “the rise and fall” of LeCroy’s abdomen in his account.  Shortly after serving in five of the recent executions, Williams was named the interim warden of the high-profile New York City lockup where Jeffrey Epstein died in 2019.  “During the entirety of the execution, LeCroy did not appear to be in any sort of distress, discomfort, or pain,” Williams wrote.  “A short time after he took a deep breath and snored, it appeared to me that LeCroy was in a deep, comfortable sleep.”

The distinctive jerking and jolting was visible in at least half the executions, according to the AP and other media accounts.  Among multiple executioner accounts, none described any such movements.  All employed the same sleep metaphors.

When Donald Trump’s Justice Department announced in 2019 it’d resume executions after a 17-year hiatus, it said it would use pentobarbital alone.  Manufacturers were no longer willing to supply the combination of drugs used in three federal executions from 2001 to 2003, explaining they didn’t want drugs meant to save lives to be used for killing.

One point of contention during the litigation was whether, even if pulmonary edema did occur, inmates could feel it after they appeared to be knocked out.  Experts for the prisoners said the drug paralyzes the body, masking the pain prisoners could feel as they died.  None of those executed appeared to writhe in pain.  But audio from the death chamber to the media viewing room was switched off just prior to the injections, so journalists couldn’t hear if inmates groaned or complained of pain.

"Back to the Future with Execution Methods"

The title of this post is the title of this book chapter authored by Deborah Denno now available via SSRN. Here is its abstract:

Despite three United States Supreme Court decisions upholding lethal injection protocols, inmates continue to challenge the method's constitutionality, and states cling to scientifically ununiformed procedures to generally ensure the death penalty's survival.  Lethal injection, however, is simply the last in a long line of disastrous execution methods.  This chapter explores the future of execution methods in light of states' efforts to repeat or borrow from the past, beginning with current changes to lethal injection and the inclusion of prior methods.  Those previous methods include electrocution, the firing squad, and the recent adoption of nitrogen hypoxia by several states — all as constitutional substitutes for lethal injection.  Older lethal injection drugs are also coming back into play, such as sodium thiopental, despite their current unavailability.

This chapter concludes that states cannot go "back to the future" to re-invent or rebrand the past's problematic execution methods.  While the future of execution methods is impossible to predict, twenty-one states have now abolished the death penalty, and the death penalty's use has remained near record lows.  Quite possibly, current execution methods may follow the same path as hanging, which has been abolished in all fifty states.  Likewise, the abolishment of the death penalty as a whole may come faster than states' abilities to change the ways they execute inmates.

After SCOTUS lifts stay by 6-3 vote, federal government completes it eighth execution of 2020

As reported here via SCOTUSblog, the "Supreme Court on Thursday night allowed the government to proceed with the execution of Orlando Hall, who became the eighth federal inmate to be put to death since the Trump administration resumed federal executions in July."  Here is more:

Hall was sentenced to death for his role in the kidnapping, rape and murder of 16-year-old Lisa René in 1994.  In a one-sentence order, the Supreme Court lifted a district judge’s last-minute injunction that had temporarily blocked Hall’s execution.  Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented and would have left the injunction in place.

The court also rejected three separate emergency requests filed over the past two days in which Hall asked the justices to postpone his execution.  There were no noted dissents to the three brief orders rejecting those requests.  Shortly after the court’s orders, Hall was put to death at the federal prison in Terre Haute, Indiana.  He died at 11:47 p.m., according to local news reports.

Hall’s case reached the Supreme Court after a flurry of litigation in the lower courts over the execution, which the government had scheduled for Thursday at 6 p.m.  On Thursday afternoon, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued an injunction blocking the execution.  The injunction was based on an earlier finding from Chutkan that the government’s method of execution violates the Federal Food, Drug, and Cosmetic Act because the government uses a lethal dose of sodium pentobarbital without obtaining a prescription for that drug.

The government immediately appealed Chutkan’s injunction.  The government argued that the prescription requirement in the FDCA does not apply to lethal-injection drugs.  It also argued that Hall was not entitled to an injunction based solely on the lack of a prescription.

The Supreme Court sided with the government, issuing an order just before 11 p.m. that lifted Chutkan’s injunction. The majority did not explain its reasoning, and none of the three justices who noted their dissent wrote an opinion explaining why.  At the same time, the court denied Hall’s three emergency applications, each of which presented separate legal arguments for a postponement of his execution....

Hall’s case was the first case involving a pending execution in which Justice Amy Coney Barrett participated since she joined the bench in October.  Barrett, a devout Catholic, co-wrote a 1998 article on the moral and legal dilemma that Catholic judges face in capital cases due to the church’s opposition to capital punishment.  That article raised questions in her confirmation hearings about possible recusals from such cases.  Barrett cited her full participation in capital cases as a law clerk for Justice Antonin Scalia and as a judge on the U.S. Court of Appeals for the 7th Circuit.

A few prior recent related posts:

• Pyrrhic victory for federal death row inmates in DC Circuit lethal injection litigation
• Members of Congress urge Attorney General Barr "to suspend all federal executions"
• After Tennessee Gov postpones last scheduled state execution of year, will all three scheduled federal 2020 executions still go forward?

Pyrrhic victory for federal death row inmates in DC Circuit lethal injection litigation

As reported in this Courthouse Legal News piece, headlined "Federal Executions on Track but DC Circuit Flags Legal Errors," two federal defendants scheduled to be executed in coming days and weeks got some cold comfort from the DC Circuit today:

Though it declined to block two federal executions, the first just over 24 hours away, the D.C. Circuit was critical Wednesday that seven lethal injections have been carried out in the last few months without medical prescriptions.

This year alone, President Donald Trump’s Justice Department has carried out more federal executions than the combined total of his predecessors from the last 57 years. That record has sat undisturbed so far against a litany of challenges to the new lethal-injection protocol unveiled last year by Attorney General William Barr after a 17-year hiatus on the death penalty at the federal level.

Inmates suffered their latest defeat Wednesday morning when the D.C. Circuit declined to stay the executions of Orlando Hall set for Thursday and Brandon Bernard on Dec. 10.

In a rare rebuke from the appeals court as to the government’s death-penalty practices, however, the court revived the inmates’ claims that the government must obtain a prescription before using the drug pentobarbital to kill prisoners....

[In] a September ruling ... U.S. District Judge Tanya S. Chutkan found that the Trump administration violated the law by carrying out death sentences with unprescribed pentobarbital, but that Supreme Court decisions foreclosed her from blocking the upcoming executions.

The Supreme Court cleared the way for the first federal execution to proceed this year, overturning a temporary ban that Chutkan had ordered. In her latest ruling, Chutkan concluded that “most of the evidence” brought by attorneys to show flash pulmonary edema grips an inmate while they are still awake was already reviewed by the justices and did not reach the high bar to grant injunctive relief.

But the 2-1 appeals panel ruled Wednesday that Chutkan “should have ordered the 2019 protocol to be set aside to the extent that it permits the use of unprescribed pentobarbital in a manner that violates the FDCA.” Though the court revived the inmates’ Eighth Amendment challenge, it affirmed “denial of a permanent injunction to remedy the FDCA violation.”

Jonathan S. Meltzer, an attorney for Hall, said they would ask the Supreme Court this afternoon to issue a stay. The Justice Department did not respond to whether it plans to bring its own challenge to the Wednesday ruling. Hall has requested to go to the execution chamber at 6 p.m. for his scheduled death on Thursday. He was convicted for the kidnapping, rape and murder of a 16-year-old girl in 1994.

Bernard, set to be executed next month, was sentenced to death for the killing of two youth ministers at Food Hood. One of his five co-defendants, Christopher Vialva, was the most recent federal prisoner to die by lethal injection, executed by the Trump administration in September.

Lisa Montgomery, bringing a separate lawsuit backed by the ACLU, is scheduled to die on Dec. 8 — two days before Bernard — and would be the first woman executed by the U.S. government since 1953.

The full split panel ruling from the D.C. Circuit is available at this link.

"Nondelegating Death"

The title of this post is the title of this notable new paper just posted to SSRN and authored by Alexandra Klein.  Here is its abstract:

Most states’ method-of-execution statutes afford broad discretion to executive agencies to create execution protocols.  Inmates have challenged this discretion, arguing that these statutes unconstitutionally delegate legislative power to executive agencies, violating the state’s non-delegation and separation of powers doctrines.  State courts routinely use the non-delegation doctrine, in contrast to the doctrine’s historic disfavor in federal courts.  Despite its uncertain status, the non-delegation doctrine is a useful analytical tool to examine decision-making in capital punishment.

This Article critically evaluates responsibility for administering capital punishment through the lens of non-delegation.  It analyzes state court decisions upholding broad legislative delegations to agencies and identifies common themes in this jurisprudence.  This Article positions legislative delegation in parallel with historic and modern execution practices that utilize responsibility shifting mechanisms to minimize participant responsibility in carrying out capital sentences and argues that legislative delegation serves a similar function of minimizing accountability in state-authorized killing.

The non-delegation doctrine provides useful perspectives on capital punishment because the doctrine emphasizes accountability, transparency, and perceptions of legitimacy, core themes that permeate historic and modern death penalty practices.  Creating execution protocols carries a high potential for arbitrary action due to limited procedural constraints, secrecy, and broad statutorily enacted discretion.  The decision to authorize capital punishment is a separate policy decision than the decision of how that punishment is carried out.  This Article frames a more robust non-delegation analysis for method-of-execution statutes, and argues that legislators determined to utilize the penalty should carry greater accountability for investigating and selecting methods of execution and should not be allowed to delegate these decisions.

"Courts, Culture, and the Lethal Injection Stalemate"

The title of this post is the title of this new paper authored by Eric Berger now available via SSRN. Here is its abstract:

The Supreme Court’s 2019 decision in Bucklew v. Precythe reiterated the Court’s great deference to states in Eighth Amendment lethal injection cases.  The takeaway is that when it comes to execution protocols, states can do what they want.  Except they can't.  Notwithstanding courts’ deference, executions have ground to a halt in numerous states, often due to lethal injection problems.  State officials and the Court’s conservative Justices have blamed this development on “anti-death penalty activists” waging “guerilla war” on capital punishment.  In reality, though, a variety of mostly uncoordinated actors motivated by a range of distinct norms has contributed to states’ lethal injection woes. These actors, such as doctors, pharmaceutical companies, and institutional investors, follow their own professional incentives, usually unrelated to the morality of capital punishment.

States’ recent execution difficulties raise important questions about the future of the Eighth Amendment and the American death penalty.  As certain lethal injection protocols and executions themselves become less common, future courts might reconsider their deference in this area.  The Eighth Amendment, after all, encompasses “evolving standards of decency,” which courts often measure with reference to changing state practices.  Though constitutional doctrine has played only a bit part in the execution decline, that decline could eventually reshape constitutional doctrine.

This story also complicates long-accepted constitutional theories.  While the traditional view is that federalism maximizes state policy choices so long as courts and Congress do not interfere, the lethal injection stalemate shows how non-governmental actors, even uncoordinated ones, can undermine state policies.  Courts and the political branches in some states stand united in support of capital punishment.  It is, therefore, noteworthy that unorganized actors pursuing their own institutional objectives have obstructed executions and even cast new long-term doubt on previously entrenched penological practices.

Justice Sotomayor issues a couple of notable (and notably solo) statements in lengthy order list kicking off new SCOTUS Term

For the third time in five years, the US Supreme Court has officially started its new Term with only eight sitting Justices.  That fact, and so much other news from other branches, perhaps helps to explain why I sense today's start of a new SCOTUS Term has received a little less fanfare than usual.  In this space, I know I have not yet been moved to give the start of the new Term all that much attention; this is partially because there are only a few notable sentencing cases on the docket right now which won't be argued until November, and partially because no criminal cases were added to the docket via this order list after the Court's long conference last week.  I sense that the Justices are collectively inclined to "lay low" at least until we get through the election and/or an additional Justice is confirmed.

That said, when it comes to the criminal side of the SCOTUS docket, Justice Sotomayor seems disinclined to ever lay low, and so I was not too surprised that she had a few statements about the denial of certiorari at the end of this lengthy new SCOTUS order list.  After a few remains and procedural matters, this order list is consumed with nearly 50 pages of cases in which cert or habeas or rehearing is denied.  But the last nine pages of the list has Justice Sotomayor making two statements respecting the denial of certiorari

In Kaur v. Maryland, No. 19–1045, Justice Sotomayor's 5-page statement begins and ends this way:

Although I join the Court’s decision to deny certiorari, I write separately to address a concerning feature of this petition: The prosecutors who tried this case had extensive knowledge of defense counsel’s confidential communications with the defendant, petitioner Raminder Kaur.  For the reasons stated below, I fear that, in this case, the criminal justice system failed to live up to its highest ideals....

Prosecutors wield an immense amount of power, and they do so in the name of the State itself.  That unique privilege comes with the exceptional responsibility to ensure that the criminal justice system indeed serves the ends of justice.  Prosecutors fall short of this task, and therefore do a grave disservice to the people in whose name they litigate, when they permit themselves to enjoy unfair trial advantages at defendants’ expense.  Here, regardless of the reason for their acquisition of Kaur’s privileged information, and regardless of whatever minimum conduct was required of them by the Sixth Amendment, the prosecutors should have recused themselves from participating in Kaur’s second trial as a matter of professional conscience.  Their failure to do so casts a troubling and unnecessary shadow over Kaur’s conviction and sentence to life imprisonment.

In Henness v. DeWine, No. 20–5243, Justice Sotomayor's 4-page statement concerns Ohio's long-running lethal injection litigation, and includes these statements:

I write to address the Sixth Circuit’s novel and unsupported conclusion that pain is constitutionally tolerable so long as it is no worse than the suffering caused by a botched hanging....  The Sixth Circuit thus appears to have created a categorical rule that a method of execution passes constitutional muster so long as it poses no greater risk of pain than the slow suffocation of a hanging gone wrong....

The Sixth Circuit erred in enshrining hanging as a permanent measure of constitutionally tolerable suffering.  Its decision conflicts with this Court’s recent precedent, which makes clear that the proper inquiry is comparative, not categorical.  See Bucklew, 587 U. S., at ___ (slip op., at 13); Glossip, 576 U. S., at 878.  Since Glossip, this Court has held that a risk of pain raises constitutional problems if it is “‘substantial when compared to a known and available alternative’” that is “feasible and readily implemented.”  Bucklew, 587 U. S., at ___ (slip op., at 13).  If such an alternative exists, and a State nonetheless refuses to adopt it without a legitimate penological reason, then the State’s chosen method “cruelly” (and unconstitutionally) “superadds pain to [a] death sentence.” Ibid....

Bucklew does not provide a categorical safe harbor for methods of execution that, in a court’s estimation, will cause no greater suffering than that caused by certain traditional methods. See ibid. If there were a feasible and readily implemented method of execution that would prevent petitioner from experiencing a sensation akin to drowning as he dies, it would be cruel and unusual for Ohio to refuse to adopt it.

UPDATE: In the original title of this post, I mistakenly called these statements "dissents" when in fact the are each actually styled as a "statement ... respecting the denial of certiorari."  Even so styled, she notably did not get any other Justice to sign on.

Big new NPR investigation showing pulmonary edema in executed inmates suggests a painful process

NPR has this interesting and extended new piece about the medical realities of modern executions under the headline "Gasping For Air: Autopsies Reveal Troubling Effects Of Lethal Injection."  The who piece should be reviewed in full for anyone who follows closely the debates over execution methods, and I am pleased to see that the piece discusses the ground-breaking litigation that has been pioneered by Allen Bohnert, a federal public defender who represents Ohio inmates with upcoming executions who happens to be a former student of mine.  I cannot easily summarize the piece, but here is an excerpt:

[Emory University Hospital doctors] Zivot and Edgar found pulmonary edema occurring in about three-quarters of more than three dozen autopsy reports they gathered.  "The autopsy findings were quite striking and unambiguous," says Zivot.  He had imagined that lethal injection induced a quick death and would leave an inmate's body pristine, or at least close to it. But the autopsies told another story.  "I began to see a picture that was more consistent with a slower death," he says. "A death of organ failure, of a dramatic nature that I recognized would be associated with suffering."...

Zivot and Edgar brought their findings of pulmonary edema to federal courts in Georgia, Arkansas, Missouri, Tennessee and Ohio.  That evidence is now at the forefront of constitutional challenges to the death penalty in the United States.  It has even made its way to the Supreme Court, where lawyers for inmates on federal death row have used autopsies to argue that lethal injection protocols constitute cruel and unusual punishment under the Eighth Amendment.

Now, an NPR investigation has expanded the scope of this evidence of pulmonary edema significantly.  A review of more than 200 autopsies — obtained through public records requests — showed signs of pulmonary edema in 84% of the cases.  The findings were similar across the states and, notably, across the different drug protocols used....

Doctors who spoke with NPR about the findings also raised serious concerns that many inmates are not being properly anesthetized and are therefore feeling the suffocating and drowning sensation brought on by pulmonary edema.  The findings come at a time when death penalty states are already facing scrutiny over drug shortages, untrained execution personnel and a series of high-profile botched executions.

"These autopsy reports show definitively without question that these inmates are developing pulmonary edema," says Allen Bohnert, a federal public defender who represents Ohio inmates with upcoming executions.  "That evidence continues to build and continues to get better every time another execution happens, unfortunately."

Amidst seemingly little attention, federal government seemingly poised to carry out two more executions this week

As partially covered here and here, there was considerable media attention as well as considerable last-minute litigation as the US Justice Department moved forward with plans for, and ultimately completed, three federal executions in a single week in July.  Now another federal capital week looms, as federal officials are scheduled to execute by lethal injection Lezmond Mitchell on Wednesday, August 26 and Keith Dwayne Nelson on Friday, August 28 (and the feds have yet another double-death week planned for September with William LeCroy scheduled for execution on September 22 and Christopher Vialva scheduled for execution on September 24).  But, as the title of this post suggests, I sense this second round of federal executions is getting a lot less attention than even the usual state execution typically does.

Notably, Lezmond Mitchell has some pending claims before the Supreme Court (SCOTUSblog coverage here), and the fact that he is the only Native American on federal death row has generated some media coverage as highlighted by these stories:

• From the Arizona Republic, "Scheduled federal execution of Navajo man raises sovereignty concerns"
• From CNN, "The US plans to execute the only Native American on federal death row against the Navajo Nation's wishes"
• From the Los Angeles Times, "Upcoming execution of Native American man stirs emotion within tribe"

But even with these pieces and some additional critical commentary, it still seems like the planned federal execution of Lezmond Mitchell is getting less attention than I might have expected.  Even more remarkable, I cannot seem to find a single detailed press piece written recently about Keith Dwayne Nelson and his pending federal execution.  I surmise that Nelson does not have any legal appeals pending, but that fact alone would be remarkable (and press-worthy) if anyone were closely paying attention.

It is not hard to understand why these matters are not getting much attention.  An enduring pandemic, an election season, back-to-school challenges, wildfires and hurricanes, protests and so much else all make for much better "copy" for the media.  Moreover, as suggested in this post, there may be less legal drama around these cases after SCOTUS made clear last month that it would be eager to lift lower court stays to enable executions to move forward on the schedule set by Attorney General Barr.  Still, I had to remark on how remarkable it seems to me that this week's executions now seem so likely to go forward with relatively so little attention.

A few of many recent prior related posts:

• Justice Department announces the scheduling of four new federal execution dates
• SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed
• Federal execution déjà vu: after SCOTUS votes 5-4 to vacate injunction, feds complete another morning lethal injection 
• Feds, revving up machinery of death, complete third execution of week
• How many federal death row prisoners does Attorney General William Barr want to see executed in 2020? 
• US Department of Justice sets another execution date for last week of August
• US Department of Justice sets two execution dates for late September 

UPDATE: I failed to see this Friday afternoon press report on noting that Nelson's lawyers have joined in filings about the federal government's executions methods, which is headlined "Lawyers: Autopsy suggests inmate suffered during execution." Here are the basics:

An inmate suffered “extreme pain" as he received a dose of pentobarbital during just the second federal execution following a 17-year lag, according to court filings by lawyers representing one of the inmates scheduled to be executed next.  The claim Wesley Purkey may have felt a sensation akin to drowning while immobilized but conscious is disputed by Department of Justice attorneys. They insist the first three lethal injections since 2003 were carried out without a hitch last month at the federal prison in Terre Haute, Indiana.

This month's filings were part of motions to halt the execution of Keith Nelson, convicted in the 1999 rape and strangulation of 10-year-old Pamela Butler. Prosecutors said he pulled her into his truck as she skated on rollerblades back to her Kansas home after buying herself cookies.  Nelson’s execution is set for Aug. 28.  The execution of Lezmond Mitchell, the only Native American on federal death row, is scheduled for Aug. 26. His lawyers have made similar arguments.

SCOTUS, by 5-4 vote, vacates new injunction that had been blocking scheduled federal executions ... UPDATE: execution of Daniel Lewis Lee now completed

As noted in this post yesterday, a DC District Court in the morning had entered an order blocking yesterday scheduled federal execution as well as the others planned for this week. That ruling stayed in place through a DC Circuit appeal. But at around 2am this morning, the US Supreme Court decided in this per curiam opinion to "vacate the District Court’s preliminary injunction so that the plaintiffs’ executions may proceed as planned." This AP article provides context and more details:

The Trump administration was moving ahead early Tuesday with the execution of the first federal prison inmate in 17 years after a divided Supreme Court reversed lower courts and ruled federal executions could proceed.

Daniel Lewis Lee had been scheduled to receive a lethal dose of the powerful sedative pentobarbital at 4 p.m. EDT Monday.  But a court order issued Monday morning by U.S. District Judge Tanya Chutkan prevented Lee’s execution.  A federal appeals court in Washington refused the administration’s plea to step in, leaving the hold in place, before the Supreme Court acted by a 5-4 vote.  Still, Lee’s lawyers insisted the execution could not go forward after midnight under federal regulations.  With conservatives in the majority, the court said in an unsigned opinion that the prisoners’ “executions may proceed as planned.” The four liberal justices dissented.

Lee’s execution was scheduled for about 4 a.m. EDT Tuesday, according to court papers. There was another delay when the government asked for an emergency ruling related to an old stay that had been issued in the case, but that wasn’t expected to derail the execution. The Bureau of Prisons had continued with preparations even as lower courts paused the proceedings....

Lee was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell. “The government has been trying to plow forward with these executions despite many unanswered questions about the legality of its new execution protocol,” said Shawn Nolan, one of the attorneys for the men facing federal execution.

The decision to move forward during a global health pandemic that has killed more than 135,000 people in the United States and is ravaging prisons nationwide, drew scrutiny from civil rights groups as well as family of Lee’s victims.

Some members of the victims’ family argued they would be put at high risk for the coronavirus if they had to travel to attend, and sought to delay the execution until it was safer to travel. Those claims were at first granted but also eventually overturned by the Supreme Court. [NOTE: It was the Seventh Circuit that overturned these claims, but SCOTUS upheld that decision.]

Critics argue that the government is creating an unnecessary and manufactured urgency for political gain. The developments are also likely to add a new front to the national conversation about criminal justice reform in the lead-up to the 2020 elections.

Two more executions are scheduled this week, though one, Wesley Ira Purkey, was on hold in a separate legal claim. Dustin Lee Honken’s execution was scheduled for on Friday. A fourth man, Keith Dwayne Nelson, is scheduled to be executed in August.

In an interview with The Associated Press last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.

But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf. “For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,’” said relative Monica Veillette....

Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier. In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume.

The Supreme Court's per curiam opinion runs three pages, and separate dissents by Justice Breyer and Justice Sotomayor are of similar lengthy and hit their usual notes of complaint about the death penalty. And Justice Breyer's dissent seemed resigned to a particular outcome, as its first sentence states plainly: "Today, for the first time in 17 years, the Federal Government will execute an inmate, Daniel Lewis Lee."

Notably, though the AP report suggested that the Lee execution was still to go forward in the early hours of this morning, as of this writing (just after 8 am on July 14) there is no report that the execution has been completed.

Prior recent related posts:

• With executions looming, lots of news and notes about the federal death penalty 
• Seventh Circuit panel vacates stay to put federal execution back on schedule for July 13
• DC District Judge issues new stay, based on Eighth Amemdment claims, to block this week's scheduled federal executions

UPDATE: I suppose I should have waited a few minutes to complete this post, as this Fox News piece now has this updated headline: "Daniel Lewis Lee executed for torturing, killing Arkansas family in 1996, first federal execution 17 years." Here is the start of the piece:

A white supremacist who tortured and killed an Arkansas family-- including an 8-year-old girl-- was executed early Tuesday morning in Indiana. Daniel Lewis Lee, 47, was injected with a lethal dose of pentobarbital at 8:07 a.m., just hours after the Supreme Court greenlighted the first federal execution to take place since 2003.

DC District Judge issues new stay, based on Eighth Amendment claims, to block this week's scheduled federal executions

As detailed in this new AP piece, a "district judge on Monday ordered a new delay in federal executions, hours before the first lethal injection was scheduled to be carried out at a federal prison in Indiana. The Trump administration immediately appealed to a higher court, asking that the executions move forward." Here is more:

U.S. District Judge Tanya Chutkan said there are still legal issues to resolve and that “the public is not served by short-circuiting legitimate judicial process.” The executions, pushed by the administration, would be the first carried out at the federal level since 2003. Chutkan said the inmates have presented evidence showing that the government’s plan to use only pentobarbital to carry out the executions “poses an unconstitutionally significant risk of serious pain.”

Chutkan said the inmates produced evidence that, in other executions, prisoners who are given pentobarbital suffered ”flash pulmonary edema,” which she said interferes with breathing and produces sensations of drowning and strangulation. The inmates have identified alternatives, including the use of an opioid or anti-anxiety drug at the start of the procedure or a different method altogether, a firing squad, Chutkan said.

The Justice Department immediately appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The new hold on executions came a day after a federal appeals court lifted a hold on the execution of Daniel Lewis Lee, of Yukon, Oklahoma, which is scheduled for 4 p.m. EDT on Monday at the federal prison in Terre Haute, Indiana. He was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell....

In an interview with The Associated Press last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.

But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf. “For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,’” said relative Monica Veillette....

Barr said he believes the Bureau of Prisons could “carry out these executions without being at risk.” The agency has put a number of additional measures in place, including temperature checks and requiring witnesses to wear masks. On Sunday, the Justice Department disclosed that a staff member involved in preparing for the execution had tested positive for the coronavirus, but said he had not been in the execution chamber and had not come into contact with anyone on the specialized team sent to the prison to handle the execution.

The victim’s family hopes there won’t be an execution, ever. They’ve asked the Justice Department and President Donald Trump not to move forward with the execution and have long asked that he be given a life sentence instead.

The three men scheduled to be executed this week had been scheduled to be put to death when Barr announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain. A fourth man is scheduled to be put to death in August. The Justice Department had scheduled five executions set to begin in December, but some of the inmates challenged the new procedures in court.

Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.

In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume. He approved a new procedure for lethal injections that replaces the three-drug combination previously used in federal executions with one drug, pentobarbital. This is similar to the procedure used in several states, including Georgia, Missouri and Texas, but not all.

US District Judge Chutkan’s 22-page ruling granting this stay can be accessed here. I would be inclined to guess that this stay will be vacated on appeal, but one never knows when it comes to last-minute capital litigation.

SCOTUS denies, by 7-2 vote, cert petition from federal death row defendants challenging federal execution protocol

As reported in this AP article, the "Supreme Court on Monday refused to block the execution of four federal prison inmates who are scheduled to be put to death in July and August."  Here is more:

The justices rejected an appeal from four inmates who were convicted of killing children.  Justices Ruth Bader Ginsburg and Sonia Sotomayor noted that they would have blocked the executions from going forward.

The court's action leaves no obstacles standing in the way of the executions, the first of which is scheduled for July 13. The inmates are separately asking a federal judge in Washington to impose a new delay on their executions over other legal issues that have yet to be resolved.

The activity at the high court came after Attorney General William Barr directed the federal Bureau of Prisons to schedule the executions. Three of the men had been scheduled to be put to death when Barr first announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain....

The federal government’s initial effort was put on hold by a trial judge after the inmates challenged the new execution procedures, and the federal appeals court in Washington and the Supreme Court both declined to step in late last year. But in April, the appeals court threw out the judge’s order. The federal prison in Indiana where the executions would take place, USP Terre Haute, has struggled to combat the coronavirus pandemic behind bars. One inmate there has died from COVID-19.

The inmates scheduled for execution are: Danny Lee, who was convicted in Arkansas of killing a family of three, including an 8-year-old; Wesley Ira Purkey, of Kansas, who raped and murdered a 16-year-old girl and killed an 80-year-old woman; Dustin Lee Honken, who killed five people in Iowa, including two children; and Keith Dwayne Nelson, who kidnapped a 10-year-old girl who was rollerblading in front of her Kansas home and raped her in a forest behind a church before strangling the young girl with a wire.

Three of the executions — for Lee, Purkley and Honken — are scheduled days apart beginning July 13. Nelson’s execution is scheduled for Aug. 28. The Justice Department said additional executions will be set at a later date. Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.

The Supreme Court's decision here does not guarantee that federal executions will go forward in two weeks, but it does guarantee there will be lots and lots of litigation in those two weeks as defense attorneys press other legal claims and federal prosecutors respond. The fact that the cert vote here was 7-2 could be viewed in various ways as a forecast of how the Justices might approach other issues surely to be brought before them by these defendants with pending execution dates. But I have come to assume that there are now five pretty solid SCOTUS votes to allow capital punishment administration to move forward, so there would seem to be a pretty solid chance the federal government will be getting back to executions shortly.

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 
• How quickly could litigation over federal execution procedures get to SCOTUS?
• DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions 
• SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions
• Dispute over legality of new federal execution protocol up for argument in DC Circuit 
• So much for a speedy resolution in the DC Circuit of the injunction currently precluding federal executions
• Split DC Circuit panel (after taking twice as long as Justice Alito urged) vacates preliminary injunction blocking resumption of federal executions 
• Justice Department announces the scheduling of four new federal execution dates