Friday, November 20, 2020

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:

November 20, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Wednesday, November 18, 2020

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.

November 18, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Thursday, November 12, 2020

"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.

November 12, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Saturday, October 31, 2020

"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.

October 31, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Monday, October 05, 2020

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.

October 5, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, September 21, 2020

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."

September 21, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

Monday, August 24, 2020

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:

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:

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.

August 24, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, July 14, 2020

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:

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.

July 14, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, July 13, 2020

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.

July 13, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Monday, June 29, 2020

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:

June 29, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sixth Circuit panel rejects Romell Broom's constitutional arguments that Ohio cannot try again to execute him after botched first attempt

I somehow missed that last week a Sixth Circuit panel handed down a notable unanimous ruling on a novel (and disconcerting) issues of capital punishment administration . Even long-time readers may have forgotten about the case of Romell Broon, but the start of the Sixth Circuit ruling in Broom v. Shoop, No. 19-3356 (6th Cir. June 23, 2020) (available here), provides the still-remarkable essentials:

In an infamous September 2009 incident, the state of Ohio tried to execute death-row inmate Rommel Broom, and failed.  More specifically, the state tried to execute Broom by way of lethal injection, but was forced to abandon the effort when the execution team concluded — two hours into the process — that it could not maintain a viable IV connection to Broom’s veins.  The state then returned Broom to his cell, to await a second execution attempt on another day.  That second execution attempt has not yet happened, however, because the parties have spent the last eleven years litigating whether the U.S. Constitution bars Ohio from ever trying to execute Broom again — Broom relies on both the Eighth Amendment’s prohibition on “cruel and unusual” punishment and the Fifth Amendment’s prohibition on “double jeopardy.”  The state courts, including the Ohio Supreme Court, have rejected Broom’s contentions on the merits, as did the district court below on habeas review.  Broom’s case now comes before us.

We in no way condone Ohio’s treatment of Broom; that it took two hours of stabbing and prodding for the state to realize that it could not maintain a viable IV connection to Broom’s veins is disturbing, to say the least.  But because the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) permits us to reverse state court merits decisions in only a narrow set of circumstances, and because the Ohio Supreme Court’s decision rejecting Broom’s constitutional claims on the merits does not fall within that set of circumstances here, we AFFIRM the district court’s judgment denying Broom habeas relief.

Ohio has not executed anyone in two years due in part to litigation and uncertainty over execution protocols, and Broom recently had his 2020 execution date pushed back to March 2022.  I could discuss at great length not only why this case is so jurisprudentially interesting, but I continue to fear that SCOTUS will not be inclined to take up this case.  And for those interested in more coverage of all the facts and law, here are posts on the case going back more than a decade now:

June 29, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, June 15, 2020

Justice Department announces the scheduling of four new federal execution dates

As detailed in this DOJ press release, titled "Executions Scheduled for Four Federal Inmates Convicted of Murdering Children," new federal executions dates have been set for four murderers.  Here are the details:

Attorney General William P. Barr today directed the Federal Bureau of Prisons (BOP) to schedule the executions of four federal death-row inmates who were convicted of murdering children in violation of federal law and who, in two cases, raped the children they murdered. 

In July 2019, Attorney General Barr directed the BOP to revise the Federal Execution Protocol to provide for the use of a single-drug, pentobarbital — similar to protocols used in hundreds of state executions and repeatedly upheld by federal courts, including the Supreme Court, as consistent with the Eighth Amendment.  A district court’s preliminary injunction prevented BOP from carrying out executions under the revised protocol, but the U.S. Court of Appeals for the D.C. Circuit vacated that injunction — clearing the way for the federal government to resume capital punishment after a nearly two-decade hiatus....

In accordance with 28 C.F.R. Part 26, the BOP has scheduled executions for the following death-sentenced inmates:

  • Daniel Lewis Lee, a member of a white supremacist group, murdered a family of three, including an eight-year-old girl.  After robbing and shooting the victims with a stun gun, Lee covered their heads with plastic bags, sealed the bags with duct tape, weighed down each victim with rocks, and threw the family of three into the Illinois bayou.  On May 4, 1999, a jury in the U.S. District Court for the Eastern District of Arkansas found Lee guilty of numerous offenses, including three counts of murder in aid of racketeering, and he was sentenced to death.  Lee’s execution is scheduled to occur on July 13, 2020.
  • Wesley Ira Purkey violently raped and murdered a 16-year-old girl, and then dismembered, burned, and dumped the young girl’s body in a septic pond. He also was convicted in state court for using a claw hammer to bludgeon to death an 80-year-old woman who suffered from polio and walked with a cane.  On November 5, 2003, a jury in the U.S. District Court for the Western District of Missouri found Purkey guilty of kidnapping a child resulting in the child’s death, and he was sentenced to death.  Purkey’s execution is scheduled to occur on July 15, 2020.
  • Dustin Lee Honken shot and killed five people — two men who planned to testify against him, and a single, working mother and her ten-year-old and six-year-old daughters. On October 14, 2004, a jury in the U.S. District Court for the Northern District of Iowa found Honken guilty of numerous offenses, including five counts of murder during the course of a continuing criminal enterprise, and he was sentenced to death.  Honken’s execution is scheduled to occur on July 17, 2020.
  • Keith Dwayne Nelson kidnapped a 10-year-old girl rollerblading in front of her home, and in a forest behind a church, raped her and strangled her to death with a wire. On October 25, 2001, Nelson pled guilty in the U.S. District Court for the Western District of Missouri to the kidnapping and unlawful interstate transportation of a child for the purpose of sexual abuse which resulted in death, and he was sentenced to death.  Nelson’s execution is scheduled to occur on August 28, 2020.

Each of these inmates has exhausted appellate and post-conviction remedies, and no legal impediments prevent their executions, which will take place at U.S. Penitentiary Terre Haute, Indiana.  Additional executions will be scheduled at a later date.

Notably, defendants Lee, Purkey and Honken were on the list of the initial five persons slated to be executed back in July 2019 (details here).  I assume that partially explains why their execution dates are all set for the same week a month from now while the new addition, Nelson, gets an extra month before his execution date.

Of course, there is on-going litigation before the Supreme Court about the lawfulness of the DOJ's execution method (basics here).  I figure that part of the point of these new execution dates is to ensure this litigation moves forward expeditiously.  I speculated in this post that the SCOTUS litigation could delay federal executions until 2022, but the Barr Justice Department is clearly eager for a quicker timeline. 

Prior related posts:

June 15, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Wednesday, April 08, 2020

Does splintered nature of DC Circuit panel ruling suggest federal executions are now unlikely until at least 2022?

As reported in this post yesterday, a divided DC Circuit panel lifted an injunction on federal executions via this 88-page opinion in In Re: Federal Bureau Of Prisons’ Execution Protocol Cases, No. 19-5322 (DC Cir. April 7, 2020).  Over at Crime & Consequences, Kent Scheidegger here provides an effective summary of the three opinions from the three judges on the panel while noting that the "division on the panel clearly requires further review, and the court on its own motion stayed the issuance of its mandate to allow it."  In other words, the defendants subject to possible execution now have time and every good reason to ask the full DC Circuit and also SCOTUS to address just how federal executions must be conducted under existing statutory authority.

I cannot imagine any reason why defendants would not first seek en banc DC Circuit review.  I am not an expert in en banc procedures, but I do know just the process of just seeking such review and having it rejected can itself often take at least a few months.   In this case, given the issue and the split among the panel judges, I would guess the odds of a grant of en banc review are much higher than usual.  If such review is granted, I would be surprised to see a full opinion from the full DC Circuit until sometime in (early?) 2021.

Whatever the DC Circuit does and whenever it does it, an appeal to the US Supreme Court is a near certainty.  If the full DC Circuit takes up this case and provides a clear script for federal executions to go forward, I suppose it is possible that SCOTUS would not grant review.  But I think it quite likely, no matter what the DC Circuit does, that this matter will be considered on the merits by SCOTUS.  And, roughly speaking, it can often take up to 18 months or 2 years between a lower court's ruling and a disposition on the merits by the Supreme Court.  (The Fourth Amendment case of Kansas v. Glover decided by SCOTUS this week, for example, had been decided by the Kansas Supreme Court 21 months ago in July 2018.)

Of course, the Justice Department could urge for this matter to be litigated more quickly, and maybe could even ask immediately for SCOTUS review by claiming it could not operate an execution protocol effectively on the terms set out in the DC Circuit panel decision.  But, of course, the Justice Department has a lot on its plate these days; it hardly clear, practically or politically, that DOJ will want to press forward with any suggestion that this case involves priority matters at this time.  

Future litigation realities aside, there are other political/legal possibilities that might change this federal capital landscape and timeline.  Congress could alter the text of the statute that is the focal point of this legal battle.  But that seems unlikely when Congress is itself busy with more pressing matters, and a legislative change would itself likely engender just another type of litigation.  Perhaps more likely, as we are now less than seven months to a scheduled election, is a change in administration.  For the first time since 1988, it appears that the Democratic nominee for president will campaign as an opponent of capital punishment.  If a Democrat is in charge come 2021, it is possible (though not a certainty) that the Justice Department will not continue to seek conduct federal executions).

Long story short: though the death-row defendants lost a battle yesterday, the always lengthy capital litigation war is still a long way from final resolution.

Prior related posts:

April 8, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 07, 2020

Split DC Circuit panel (after taking twice as long as Justice Alito urged) vacates preliminary injunction blocking resumption of federal executions

As regular readers may recall, Attorney General William Barr last July announced a new Federal Execution Protocol in order to enable the federal government to resume capital punishment after a nearly two decade lapse.  AG Barr set execution dates for five (mysteriously selected) federal murders starting in December 2019, which of course got lots of federal capital litigation going.

In late November 2019, as noted here, a federal district judge enjoined the scheduled federal executions based on the view that the planned execution protocol "exceeds statutory authority."  In short order, the DC Circuit and then SCOTUS refused to vacate that injunction, but SCOTUS on December 6 urged the DC Court of Appeals to render a full decision on the matter "with appropriate dispatch."  Justice Alito issued a statement, joined by Justices Gorsuch and Kavanaugh, said her could "see no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days." 

We are now 123 days from when these matters were addressed by the Supreme Court on December 6, 2019, and we have also now experienced a global pandemic.  But the federal capital punishment train is still on the tracks, it seems, as today a divided DC Circuit panel handed down an 88-page opinion in In Re: Federal Bureau Of Prisons’ Execution Protocol Cases, No. 19-5322 (DC Cir. April 7, 2020) (available here).  Here is how the opinion gets going:

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge KATSAS.

Concurring opinion filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge TATEL.

PER CURIAM: The Federal Death Penalty Act of 1994 (FDPA) requires federal executions to be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.” 18 U.S.C. § 3596(a). It is common ground that this provision requires the federal government to adhere at least to a State’s choice among execution methods such as hanging, electrocution, or lethal injection. The district court held that the FDPA also requires the federal government to follow all the subsidiary details set forth in state execution protocols—such as, in the case of lethal injection, the method of inserting an intravenous catheter. On that basis, the court preliminarily enjoined four federal executions.

Each member of the panel takes a different view of what the FDPA requires. Because two of us believe that the district court misconstrued the FDPA, we vacate the preliminary injunction.

I presume the federal death row defendants in this case will now seek en banc and/or SCOTUS review, so more litigation is much more certain than more executions in the federal system.

Prior related posts:

April 7, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, February 21, 2020

Tennessee completes yet another execution using the electric chair

As reported in this AP piece, a "convicted murderer was put to death in Tennessee's electric chair Thursday, becoming the state's fifth prisoner over 16 months to choose electrocution over the state's preferred method of lethal injection."  Here are the basics:

Nicholas Sutton, 58, was pronounced dead at 7:26 p.m. at the Riverbend Maximum Security Institution in Nashville.

Asked if he had any last words, Sutton looked directly into the witness room and spoke clearly. “I would like to thank my wife for being such a good witness to the Lord, and my family and many friends who loved and supported me and tried so very hard to save my life,” Sutton said. He also spoke of his Christian faith, saying that Jesus Christ had “fixed him.” He added, “I'm just grateful to be a servant of God, and I'm looking forward to being in his presence."

Sutton was sentenced to death in 1986 for killing fellow inmate Carl Estep in a conflict over a drug deal while both were incarcerated in an East Tennessee prison, where Sutton had been serving time for the killings of his grandmother and two others when he was 18....

Sutton's supporters, including several family members of his victims and prison workers, had recently asked Gov. Bill Lee to commute the sentence, saying Sutton had rehabilitated himself in prison and was not the same person who first entered prison 40 years ago. His supporters included two prison workers who credited Sutton with saving their lives.

Retired Correction Lt. Tony Eden had stated in an affidavit included with Sutton's clemency petition that Sutton confronted a group of armed inmates during a prison riot in 1985 and helped get Eden to safety “If Nick Sutton was released tomorrow, I would welcome him into my home and invite him to be my neighbor,” Eden wrote.

But Lee said Wednesday that he would not intervene to stop the execution. And two last-ditch appeals to the U.S. Supreme Court were denied Thursday evening. The justices, in an emailed statement, gave no explanation for their decision.

Sutton had not indicated why he chose electrocution — an option for inmates whose crimes were committed before the state adopted lethal injection as its preferred execution method — but other inmates have said they thought the electric chair would be quicker and less painful.

In the death chamber after Sutton's last words, officers placed a large wet sponge on his head and a cap over it. They then attached to the cap a black shroud that covered Sutton's face. At 7:18 p.m. two jolts of electricity, with a pause in between, were delivered to his body, which stiffened and partially lifted out of the chair as his hands balled up. It was over in just under a minute....

Inmates' attorneys have argued without success that both lethal injection and electrocution violate the Constitution's ban on cruel and unusual punishment. The electric chair fell out of favor in the 1990s following several gruesomely botched executions, including a Florida execution in which smoke and flames shot from the head of the condemned inmate. Only one other state, Virginia, has used electrocution in recent years, and it has not done so since 2013.

During Tennessee's last electrocution in December, witnesses said they saw smoke or steam coming from the side of inmate Lee Hall's head. But witnesses on Thursday said they saw nothing unusual.

Over the last decade of litigation surrounding lethal injections as a means of execution (which contributed to states' struggling to secure lethal drugs), I have presumed that many legislatures and state prison officials have been disinclined to look to the electric chair as an alternative for fear of engendering even more litigation and controversy over execution methods.  But, it seems Tennessee has been able to move forward with this older execution method without too much litigation or other problems getting in their way.  And yet, interestingly, it still does not seem that other states struggling with lethal injection difficulties are inclined to follow the Tennessee path.

A few recent related posts:

February 21, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (4)

Thursday, February 20, 2020

Noting that condemned Tennessee inmates are opting for electrocution over lethal injection

This New York Times piece, headlined "Afraid of Lethal Injection, Inmates Are Choosing the Electric Chair," reviews execution trends nationwide just before Tennessee is scheduled to conduct another state killing through the use of the electric chair. Here are excerpts:

Nicholas Sutton, like other death row inmates in Tennessee, has a choice in how the state will end his life.  The default, as set by state law, would be a series of injections, one to sedate him, followed by others that would paralyze him and stop his heart.  Yet Mr. Sutton, like four other inmates executed before him in Tennessee since 2018, has chosen the state’s other option: Two cycles of 1,750 volts of electricity.

Nationally, the electric chair is a method of the past; no other state has used it since 2013.  But inmate advocates and lawyers say the condemned men in Tennessee are choosing electrocution because they fear being frozen in place and feeling intense discomfort while drugs work to kill them.

In Ohio, a federal judge recently wrote that part of the state’s lethal injection protocol is akin to waterboarding, and botched procedures in other states have left men writhing in agony....

Tennessee joined other states more than two decades ago in turning to lethal injection as the primary method for executions, with lawmakers viewing it as a visibly calmer and less violent alternative to electrocution. But that view has been challenged in recent years, as errors and problematic executions, including one in Oklahoma in 2014 in which an inmate regained consciousness, have gained widespread notice.  Many pharmaceutical companies have also made it more difficult for states to acquire the proper drugs, not wanting them associated with ending lives.

The death penalty, in general, has been on the decline in the United States, with seven states carrying out 22 executions in 2019, the second-lowest number since 1991.  Last year, New Hampshire became the 21st state, and the last in New England, to abandon capital punishment....

But other states have doubled down.  Last week, state officials in Oklahoma announced that lethal injection deaths would resume after a five-year hiatus and a series of botched executions....

With his execution scheduled for Thursday night, Mr. Sutton was moved on Tuesday into death watch at the Riverbend Maximum Security Institution, a facility in Nashville situated in a crook of the Cumberland River that houses Tennessee’s death row for men.

February 20, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Friday, February 14, 2020

Five years after problematic executions led to halt, Oklahoma plans to restart its machinery of death

As reported in this press piece, headlined "Oklahoma to resume injection executions, 5 years after drug mix-ups, national ridicule," the Sooner State is talking about getting back to carrying out death sentences. Here are the basics:

Oklahoma will resume executions by the lethal injection method, officials said Thursday.  The surprise announcement came at a news conference by Gov. Kevin Stitt, Attorney General Mike Hunter and Corrections Department Director Scott Crow.

Efforts will continue to develop a way to carry out the punishment with nitrogen gas, officials said.  However, the law allowing the state to develop a method using nitrogen gas only allows nitrogen to be used if the drugs for lethal injection are unavailable.

It has been more than five years since the last execution in the state.  The death penalty still has widespread support in Oklahoma despite the national ridicule that followed an injection mistake in 2014 and drug mix-ups in 2015.

"It is important that the state is implementing our death penalty law with a procedure that is humane and swift for those convicted of the most heinous of crimes," Gov. Stitt said. "Director Crow and Attorney General Mike Hunter have worked diligently and thoroughly to create a path forward to resume the death penalty in Oklahoma, and the time has come to deliver accountability and justice to the victims who have suffered unthinkable loss and pain."

More than 40 murderers are awaiting execution in the state.  Almost 30 have exhausted their appeals and are eligible to have execution dates set.  The last scheduled execution, on Sept. 30, 2015, was called off after a doctor discovered the wrong deadly drug had been supplied.  Executions have been on hold in Oklahoma because of that mix-up. Officials acknowledged afterward that the same mistake had been made in the execution carried out in January 2015....

The three drugs used for executions will continue to be midazolam, vecuronium bromide and potassium chloride. Two years ago, officials announced Oklahoma would switch to using nitrogen gas because of the problems associated with the lethal injection method.  The Corrections Department director at the time complained that it was increasingly difficult to find a reliable supplier of the drugs.  "I was calling all around the world, to the back streets of the Indian subcontinent, to procure drugs," Director Joe Allbaugh said.

Since that announcement, officials have been working on a way to carry out executions with nitrogen gas, a method never used in the United States for the death penalty. Allbaugh said a year ago he had yet to find a manufacturer of a gas delivery device willing to sell it for use in executions.  Officials have discussed building a device on their own.

February 14, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Wednesday, January 15, 2020

Dispute over legality of new federal execution protocol up for argument in DC Circuit

As noted in this post, roughly six weeks ago the US Supreme Court refused the Justice Department's request to vacate a district court stay of scheduled federal executions.  That stay, as reported here, was based on the district court's conclusion that DOJ's new execution protocol "exceeds statutory authority."  Notably, the short SCOTUS order upholding the stay indicated that the Court expected the Court of Appeals to review the merits of the stay "with appropriate dispatch."  The DC Circuit's dispatch, as reported in this Bloomberg Law article, has led to oral argument today in front of a three-judge panel.  Here are the details:

The Trump administration’s quest to resume federal executions faces its latest hurdle on Wednesday when an appellate panel hears arguments in a case that was at the U.S. Supreme Court previously and soon may be headed back there.

Though the broader political themes that accompany capital punishment lurk in the background of the dispute, the three judge panel at the U.S. Court of Appeals for the District of Columbia Circuit is tasked with looking at a narrower issue: essentially whether any difference between the words “method” and “manner” is enough to derail several executions for now....

Judges hearing the case are Bill Clinton appointee David Tatel and Trump appointees Gregory Katsas and Neomi Rao. Rao replaced Supreme Court Justice Brett Kavanaugh on the D.C. Circuit.

They’re reviewing the Nov. 20 ruling from Washington district judge Tanya S. Chutkan, who granted a preliminary injunction to federal death row prisoners Alfred Bourgeois, Daniel Lewis Lee, Wesley Ira Purkey, and Dustin Lee Honken. The uniform lethal injection protocol announced by the Department of Justice last year to carry out all federal executions likely violates the Federal Death Penalty Act, Chutkan found....

The death penalty act says that the U.S. marshal “shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed.” The act “provides no exceptions to this rule and does not contemplate the establishment of a separate federal execution procedure,” Chutkan said in effectively blocking the executions.

The statute’s use of the word “manner” includes not just execution method but also execution procedure, she said. The judge rejected the government’s argument that the law only gave the states the authority to decide the “method” of execution, like whether to use lethal injection or an alternative. But “manner” in the context of the federal act means “the method of execution,” the Justice Department said in a brief filed Jan. 13.

What’s more, the government says, Chutkan’s and the prisoners’ reading of the act leads to absurd results, like potentially causing the federal government to use less humane methods of execution than those used in some states, and giving states the power to “make it impossible to implement some federal death sentences.”

After Chutkan’s November injunction, the Justice Department appealed quickly to the D.C. Circuit, which declined to overturn it. The government then appealed that denial to the Supreme Court, which upheld the D.C. Circuit on Dec. 6 but sent the case back down for further review.

If the case is appealed back to the Supreme Court by whichever side loses in the D.C. Circuit this time, at least three of the nine justices are poised to side with the government. Samuel Alito, Neil Gorsuch, and Kavanaugh issued a statement accompanying last month’s order, saying that the government “has shown that it is very likely to prevail when this question is ultimately decided.”

The D.C. Circuit’s decision could come relatively quickly after Wednesday’s argument. The high court said in its order that it expects the appeals court to “render its decision with appropriate dispatch,” and the separate statement from Alito, Gorsuch, and Kavanaugh said there’s no reason the appeals court can’t rule within the next 60 days, which is less than a month from now.

Prior related posts:

January 15, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, January 02, 2020

Two jurisdictions to watch closely in 2020 for the future of the US death penalty

Though I am surely biased by my proximity, I do not think I am wrong to have long viewed Ohio as an especially interesting and important state with respect to the modern administration of the death penalty.  And this recent Columbus Dispatch column, headlined "Will the new year bring an end to Ohio’s elusive death penalty?," suggest reasons why the Buckeye State might be an especially interesting potential capital punishment bellwether this year.  Here is how the piece starts and ends:

Among the new year's possibilities, 2020 may see Ohio end its death penalty.  Reason One is that the state has run out of places to buy the substances specified for administering lethal injections.  Reason Two is the colossal cost to taxpayers of defending in the appeals courts virtually every death sentence that Ohio metes out (with some of those costs for compensating public defenders representing, as is only right, death row inmates).

As to practicality and cost, two of Ohio's most powerful leaders, Republican Gov. Mike DeWine and Ohio House Speaker Larry Householder, a Republican from Perry County's Glenford, have expressed serious concerns.  The unavailability of execution drugs means, in practice, that Ohio is facing a de facto moratorium on executions.

Meanwhile, Householder said this in mid-December, as The Dispatch reported: "We may have a law in place that allows for a death penalty that we can't carry out. And the question is: Are the costs that are associated with that and retrials and all these things, at the end of the day, is it worth that?"...

In courtroom after courtroom, what an Ohio death sentence might really mean is imprisonment for life — if you can call that a life — without any possibility of liberty. The question is whether Ohio should admit the reality of its death penalty, or, at a cost of millions of taxpayer dollars in legal fees, keep denying the obvious.

During most of the past 15 years when Ohio death penalty stories have been very dynamic, the federal death penalty was largely dormant. But the Trump Administration took efforts to gear up the federal federal machinery of death in summer 2019. Executions were temporarily block by court order right before the end of this year, but this long Intercept article, headlined "In The Shadow Of The Federal Death Chamber, Executions Are On Hold — For Now," highlights how the possible return of federal executions in 2020 may impact folks near the site of the federal execution chamber and in lots of other places.

January 2, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Thursday, December 19, 2019

Might execution woes really lead Ohio's (deep red) General Assembly to repeal the death penalty?

The question in the title of this post is prompted by this remarkable new brief story in the Columbus Dispatch headlined "Householder says legislature may dump Ohio’s death penalty law." Here are the details:

House Republicans have started talking about whether the state should keep a death penalty law on its books if Ohio can’t buy the cocktail of drugs needed to carry out those sentences. “We don’t know that there is an option right now,” Ohio House Speaker Larry Householder told reporters Thursday. “We may have a law in place that allows for a death penalty that we can’t carry out. And the question is: Are the costs that are associated with that and retrials and all these things, at the end of the day, is it worth that?”

Ohio didn’t execute anyone in 2019, but the Buckeye State ranks seventh in the nation for number of people on death row. Republican Gov. Mike DeWine pushed back six execution dates this year, in part because of the problems Ohio has had with drug companies that are increasingly adamant that their drugs not be used in executions.

“We have been talking about, you know, is there support today to get rid of the death penalty or not,” Householder said. “We’ve been having those discussions.” But the speaker made clear that as of yet there’s been no resolution on the best way forward.

Though Ohio is still a bellwether state and though I still think of it as a purple state, its General Assembly is very red as Republicans outnumber Democrats in the Ohio Senate 24 to 9 and in the Ohio House of Representatives 61 to 38.  Consequently, it is a big story and a sign of the times that such a GOP-dominated legislature is even talking openly about possibly repealing the death penalty.  I doubt repeal will really move forward anytime soon, but it is still very telling and significant that GOP state leaders seem more interested in talking about repeal than in talking about possible alternative execution methods.

December 19, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Tuesday, December 17, 2019

DPIC releases year-end report asserting that "capital punishment continued to wither across the United States in 2019"

2019SentenceTrendsThis new press release from the Death Penalty Information Center, titled "Death Penalty Erodes Further in 2019 as New Hampshire Abolishes and California Imposes Moratorium," provides a summary of the DPIC's on-line 2019 year-end report on the administration of the death penalty in the United States.  Here are excerpts from the report's introduction:

Capital punishment continued to wither across the United States in 2019, disappearing completely in some regions and significantly eroding in others.  New Hampshire became the 21st state to abolish the death penalty and California became the fourth state with a moratorium on executions.  With those actions, half of all U.S. states have abolished the death penalty or now prohibit executions, and no state in New England authorizes capital punishment at all.

The use of the death penalty remained near historic lows, as states conducted fewer than 30 executions and imposed fewer than 50 new death sentences for the fifth year in a row.  Seven states executed a total of 22 prisoners in 2019.  With several penalty-phase outcomes still undetermined, DPIC projects that between 35 and 37 new death sentences will be imposed in 2019.

In the Midwest, Ohio suspended executions in the wake of a court decision comparing its execution process to waterboarding, suffocation, and being chemically burned alive.  On December 11, Indiana marked the ten-year point without an execution.  Death sentences in the American West set a record low, Oregon substantially limited the breadth of its death-penalty statute, and — also for the fifth straight year — no state west of Texas carried out any executions.  32 U.S. states have now either abolished the death penalty or have not carried out an execution in more than a decade.

Public opinion continued to reflect a death penalty in retreat.  Support for capital punishment remained near a 47-year low and 60% of Americans — a new record — told Gallup they preferred life imprisonment over the death penalty as the better approach to punishing murder.

While most of the nation saw near-historic lows in death sentences and executions, a few jurisdictions bucked the national trend. Death sentences spiked in Cuyahoga County (Cleveland), Ohio to three in 2019 and five in the last two years, more than in any other county in the country.  The U.S. government attempted to restart federal executions after a 16-year hiatus, using an execution protocol that had not been submitted to the public for comment or the courts for review.  However, its plan to carry out five executions in a five-week period fizzled when the U.S. Supreme Court declined to disturb a lower court injunction temporarily halting the executions....

Executions continued to be geographically isolated, with 91% of all executions taking place in the South, and 41% in Texas alone.  Scott Dozier, a mentally ill death-row prisoner who gave up his appeals and unsuccessfully attempted to force Nevada to execute him, committed suicide on death row....

In an unusually rancorous Supreme Court year, the Justices sparred over the circumstances in which stays of execution should be granted.  The Court ruled that potentially torturous executions were not unconstitutional unless they involved “superadded pain” and the prisoner — even if impeded by state secrecy practices — proved that an established and less painful alternative method to execute him was available to the state.  There were few decisions on the substance of death penalty law and the term was more notable for significant allegations of discriminatory practices that the Court chose not to review.

I have reprinted here the DPIC graphic on number of death sentences imposed, as the steep decline in the number of death sentences strikes me as the most telling and consequential aspect of the decline of the modern use of the death penalty. But there is a lot of other notable data in the DPIC report that ought to hearten those who disfavor capital punishment.

December 17, 2019 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (1)

Friday, December 06, 2019

Tennessee completes execution of blind murderer via electrocution

As reported in this local piece, "Tennessee executed death row inmate Lee Hall in the electric chair Thursday night, marking the fourth time the state has used the method since 2018."  Here is more:

Hall, 53, was pronounced dead at 7:26 p.m. CST, according to the Tennessee Department of Correction. Media witnesses described what appeared to be a faint trail of white smoke rising from Hall's headeach time the lethal current coursed through his body. One witness described seeing what appeared to be a drop of blood on Hall's white shirt as the second current was applied.

Hall, also known as Leroy Hall Jr., was sentenced to death for killing his ex-girlfriend Traci Crozier in 1991. He was found guilty of first-degree murder and aggravated arson by a Hamilton County jury in 1992.

Hall was the 138th person put to death in Tennessee since 1916, and the sixth inmate executed since the state resumed capital punishment in August 2018. Hall also is believed to be only the second legally blind death row inmate executed since the U.S. reinstated the death penalty in 1976.

Tennessee was originally set to execute Hall in April 1998, and again in 2016. Legal delays blocked those dates, but the courts and Gov. Bill Lee refused to intervene this time.

Executions have become a grim routine in Tennessee since the state resumed them in 2018. Much of Hall's execution matched others that preceded his, according to the six media witnesses. But the smoke they described was unusual. Federal public defender Kelley Henry said it was evidence of torture.

Henry represents many death row inmates and has witnessed an electrocution in Tennessee. She said the smoke could be a sign that the execution team did not douse Hall with enough saline solution, which is used to conduct electricity, or that the sponge strapped to his head had melted.

Department of Correction spokesperson Dorinda Carter, who witnessed Hall's execution, said the vapor was "a small amount of steam, not smoke, which is a natural function of the combination of solution and heat." In an emailed statement, Carter said the execution "went as designed without any complications."

Tennessee has used the electric chair to execute four death row inmates, including Hall, since 2018. None of the witnesses at the other three executions reported seeing smoke or steam....

After the execution, Crozier's sister Staci Wooten said 28 years of pain had ended for her family. “Our family’s peace can begin, but another family’s hell has to begin,” she said, reading from a prepared statement. “We all fought this battle for you, Traci, and today we won.”

Hall released his own statement apologizing to Crozier's family. His attorney John Spragens shared it after the execution. “I’m sorry for the pain I caused," Hall's statement read. “I ask for your forgiveness, and I hope and pray that someday you can find it in your heart to forgive me." Hall also apologized to his family, including his brother David who attended the execution. "I hope this brings peace," Hall's statement read. "I don't want them to worry about me anymore."

December 6, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Monday, December 02, 2019

DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions

As noted in this post from 10 days ago, a federal district judge last month blocked the scheduled executions of four condemned federal prisoners via this 15-page order based on the contention that the Justice Department's planned execution protocol "exceeds statutory authority."  Not surprisingly, the Justice Department sought review in the DC Circuit, and today via this three-sentence order a panel of judges denied the motion to stay or vacate the lower court's preliminary injunction.  This Reuters article reports on the ruling and its context:

A U.S. appeals court on Monday dealt another setback to plans by President Donald Trump’s administration to resume the death penalty at the federal level after a 16-year hiatus, denying a Justice Department bid to pave the way for four scheduled executions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit denied the department’s request to overturn a judge’s decision that at least temporarily stalled plans for executing four convicted murderers. The first was scheduled to die on Dec. 9.

U.S. District Judge Tanya Chutkan last month issued a stay putting on hold the planned executions until a long-running legal challenge to the department’s lethal injection protocol can be resolved. The appeals court found that the administration had “not satisfied the stringent requirements” to block Chutkan’s ruling....

The last federal execution took place in 2003. Since then, protracted litigation over the drugs historically used in lethal injection executions prevented the government from continuing the practice.

Shawn Nolan, a lawyer for the men facing federal execution, welcomed the court’s ruling. “The courts have made clear that the government cannot rush executions in order to avoid judicial review of the legality and constitutionality of its new execution procedure,” Nolan said....

Under Trump’s Democratic predecessor Barack Obama, the Justice Department abandoned its previous three-drug protocol due to a shortage of one of them, an anesthetic called sodium thiopental. The legal fight fell dormant during Obama’s tenure but was revived in July. Barr scheduled the executions of five inmates for December and January and unveiled a new protocol that involved using a single drug, pentobarbital, for lethal injections.

Four of the five inmates have joined the 2005 lawsuit. They have argued that a U.S. law called the Federal Death Penalty Act requires the federal government to follow the “manner” of execution prescribed in the state where an inmate was convicted. The law, as a result, prevents the federal government from creating a single nationwide execution protocol, they argued. Chutkan ruled that the condemned inmates were likely to succeed on their claims that the protocol violates the Federal Death Penalty Act, and found that Barr likely had overreached his authority.

Daniel Lewis Lee, a white supremacist convicted in Arkansas for murdering a family of three, was scheduled to be the first of the inmates to be executed, at a federal prison in Indiana on Dec. 9. A fifth inmate who Barr had ordered executed, Lezmond Mitchell, won a stay of execution from another federal appeals court in October.

The panel of the DC Circuit ruling her was made up of Circuit Judges Rogers, Griffith, and Rao.  Given the composition of this panel (which includes a recent appointee of Prez Trump), I suspect the Justice Department will not bother with seeking en banc review and instead will press its case to SCOTUS (as Attorney General Barr promised to do, if needed).  Assuming the Justice Department gets its papers to SCOTUS before the end of this week, the Justices should be able to rule on the matter in some manner before the first scheduled execution on Dec. 9.  Interesting times.

Prior related posts:

December 2, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Sunday, November 24, 2019

How quickly could litigation over federal execution procedures get to SCOTUS?

The question in the title of this post is prompted by this AP article serving as follow-up to this past week's news, noted in this post, that a federal district court has halted pending scheduled federal executions based claim that planned execution protocol "exceeds statutory authority."  The AP piece is headlined "DOJ would take halted executions to high court" and here are excerpts:

Attorney General William Barr told The Associated Press on Thursday that he would take the Trump administration’s bid to restart federal executions after a 16-year hiatus to the Supreme Court if necessary. Barr’s comments came hours after a district court judge temporarily blocked the administration’s plans to start executions next month. The administration is appealing the decision, and Barr said he would take the case to the high court if Thursday’s ruling stands.

He said the five inmates set to be executed are a small portion of 62 death row inmates. “There are people who would say these kinds of delays are not fair to the victims, so we can move forward with our first group,” Barr said aboard a government plane to Montana, after he met with local and federal law enforcement officials in Cleveland.

The attorney general unexpectedly announced in July that the government would resume executions next month, ending an informal moratorium on federal capital punishment as the issue receded from the public domain. Some of the chosen inmates challenged the new procedures in court, arguing that the government was circumventing proper methods in order to wrongly execute inmates quickly.

U.S. District Judge Tanya S. Chutkan put the cases on ice while the challenge plays out. She said in a Wednesday evening ruling that the public is not served by “short-circuiting” legitimate judicial process. “It is greatly served by attempting to ensure that the most serious punishment is imposed lawfully,” she wrote.

Her ruling temporarily postpones four of the five scheduled executions beginning next month; the fifth had already been halted. It’s possible the government could win an appeal in time to begin executions Dec. 9, but that would be an unusually fast turnaround.

“This decision prevents the government from evading accountability and making an end-run around the courts by attempting to execute prisoners under a protocol that has never been authorized by Congress,” said the inmates’ attorney, Shawn Nolan. “The court has made clear that no execution should go forward while there are still so many unanswered questions about the government’s newly announced execution method.”...

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. Barr said in 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.

Chutkan said in her opinion that the inmates’ legal challenge to the procedure was likely to succeed because the Federal Death Penalty Act requires that federal executions employ procedures used by the states in which they are carried out.

On Thursday, Barr defended the protocols, saying the Bureau of Prisons has been testing and conducting practice drills ahead of the first execution. He would not say where the cocktail of drugs would come from. “I was kept advised and reports were given to me, scientific tests, the drills they are running through,” Barr said.

Those chosen were among inmates who had exhausted their appeals, and the cases were forwarded to senior Justice Department officials who reviewed the cases and made recommendations to him, Barr said....

The death penalty remains legal in 30 states, but only a handful regularly conduct executions. Texas has executed 108 prisoners since 2010, far more than any other state. Though there hasn’t been a federal execution since 2003, the Justice Department has continued to approve death penalty prosecutions, and federal courts have sentenced defendants to death.

I was certain that DOJ would be inclined to appeal this ruling to the DC Circuit and even to SCOTUS as needed in order to try to move forward with executions.  But I am quite uncertain about just how quickly this litigation (and other litigation surrounding these capital cases) would move forward.  It is not uncommon for capital litigation to move though federal courts quickly on the eve of a scheduled state execution, but that often comes after an array of issues have first been reviewed by state court and often come with a deferential standard of review under applicable law.  It has been a very long time since any federal courts have had to consider any modern claims for relief on the eve of a scheduled federal execution. I have no idea if DOJ is going to press for an expedited appeal schedule or if the DC Circuit or SCOTUS will be inclined to fast-track these matters.

Though I am not following all of the relevant litigation, I assume that objections to the federal execution protocol is just one of a number of claims being brought by the death row prisoner with executions dates. As flagged in this post from July, I am especially interested to know how these particular defendants were put in the front of the execution queue and whether this selection process was constitutionally sound. And I suspect the lawyers representing those of federal death row have a lot of other question they are bringing to court in this process.

Prior related posts:

November 24, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, November 21, 2019

Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority"

As explained in this Politico article, a federal district "judge has blocked the scheduled executions of four federal death row inmates, effectively freezing the Trump administration’s effort to resume imposing the death penalty in a federal system that saw its last execution more than a decade and a half ago."  Here is a link to the ruling and a summary from this press account: The order issued Wednesday night by U.S. District Court Judge Tanya Chutkan halts four executions that U.S. officials planned to carry out starting next month.

The order issued Wednesday night by U.S. District Court Judge Tanya Chutkan halts four executions that U.S. officials planned to carry out starting next month. The only other execution that officials had put on the calendar, also for December, was blocked last month by the 9th Circuit U.S. Court of Appeals.

In July, Attorney General William Barr announced plans to resume executions at the federal penitentiary in Terre Haute, Ind. He suggested the practice had been allowed to languish for too long and said it would deliver justice in cases involving what he called the “worst criminals.” Barr announced a new federal death penalty protocol that would use a single drug, pentobarbital, in lieu of a three-drug “cocktail” employed in the most recent federal executions.

In the wake of Barr’s announcement, a series of death row prisoners joined a long-dormant legal challenge to that previous method and asked Chutkan to block their execution under the new protocol until their legal challenges to it were fully adjudicated.

In her ruling Wednesday, Chutkan said the death row inmates appeared likely to prevail on their arguments that the new protocol violates longstanding federal law because the procedures to be used vary from state law. A 1994 federal statute says federal executions shall be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.”

Justice Department attorneys argued that the use of lethal injection was sufficiently similar regardless of the drugs used or other details of the execution protocol, but Chutkan ruled that the law likely requires federal authorities to adopt the same drugs or drugs and a similar process.

“Requiring the federal government to follow more than just the state’s method of execution is consistent with other sections of the statute and with historical practices. For all these reasons, this court finds that the FDPA [Federal Death Penalty Act] does not authorize the creation of a single implementation procedure for federal executions,” wrote the judge, an appointee of President Barack Obama. “There is no statute that gives the [Bureau of Prisons] or DOJ the authority to establish a single implementation procedure for all federal executions,” Chutkan added.

In granting the injunction, Chutkan noted the obvious fact that permitting the executions would deprive the inmates of their ability to pursue their legal challenges. She also turned aside the Justice Department’s claim that time was of the essence, noting that revisions to the federal death penalty protocol languished for years after shortages developed of at least one drug used in the earlier cocktail.

The earliest of the five executions that federal officials planned to carry out in the coming weeks was scheduled for Dec. 9. “While the government does have a legitimate interest in the finality of criminal proceedings, the eight years that it waited to establish a new protocol undermines its arguments regarding the urgency and weight of that interest,” the judge wrote.

When AG Barr announced the planned resumption of executions back in July and set five execution dates, I fully expected that some or all of the executions would be delayed by litigation. This particular basis for delay strike me as especially interesting because it will force the Justice Department to debate whether to appeal this ruling or to just try to adjust its protocols in light of the concerns expressed in this ruling. Either way, I am now inclined to confidently predict that we will not see a federal execution in 2019 and probably not in 2020.

November 21, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, October 25, 2019

Despite Sixth Circuit approval of existing execution protocol, Ohio Gov Mike DeWine signals his plans to delay another scheduled execution

Despite having many execution dates scheduled, Ohio has not completed an execution in more than a year because of concerning about lethal injection problem that prompted outgoing Gov John Kasich and new Gov Mike DeWine to keep pushing back executions dates. But after a Sixth Circuit ruling blessed the state's reliance on the drug midazolam in its execution protocol (details here), I had thought the Buckeye state might seek to restart its machinery of death. But this new local article, headlined "Gov. Mike DeWine says Ohio’s next scheduled execution will ‘probably’ be delayed," suggests the state will not likely go forward with an execution planned for December. Here are the details:

Gov. Mike DeWine indicated Friday that he will delay yet another upcoming Ohio execution, citing — as he has with past postponements — problems with finding lethal-injection drugs.  DeWine told reporters Friday that it’s “highly unlikely” that the execution of murderer James Galen Hanna will proceed as planned on Dec. 11. “That’s probably not going to happen,” the Greene County Republican said.

DeWine noted the state’s ongoing issues with finding a pharmaceutical company willing to sell drugs for use in executions. The governor repeated his concern that if companies find that Ohio used its drugs to put people to death, they will refuse to sell any of its drugs (not just the ones used in executions) to the state.  That would endanger the ability of thousands of Ohioans — such as Medicaid recipients, state troopers, and prison inmates — to get drugs through state programs. “We are in a very difficult situation,” DeWine said Friday.

The governor didn’t say how long he might delay the execution date for Hanna, a Warren County resident who fatally stabbed a cellmate with a paintbrush handle in 1997.  If Hanna’s execution date is pushed back, the next death-row inmate set to die is Kareem M. Jackson on Jan. 16, 2020.  Jackson was initially scheduled to be put to death in July, but earlier this year DeWine moved back the execution dates for Jackson and two other condemned inmates.

Late last month, the governor moved back the execution date of murderer Cleveland Jackson from Nov. 13 to Jan. 13, 2021 after the Ohio Supreme Court’s disciplinary arm filed a complaint alleging that his lawyers abandoned him.

Since taking office in January, DeWine has moved back a number of scheduled executions amid a years-long struggle by Ohio officials to find new lethal-injection drugs as European pharmaceutical companies have cut off further sales of previously used drugs on moral and legal grounds.

After the controversial execution of killer Dennis McGuire in January 2014, Ohio imposed a three-year moratorium on executions as it worked to find a new lethal-injection protocol — and suppliers willing to sell the state the drugs.

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

However, last January, federal magistrate Judge Michael Merz ruled that the three drugs Ohio has used since last year for executions — midazolam (as a sedative), a paralytic drug, and potassium chloride (to stop the heart) — likely violate the U.S. Constitution’s Eighth Amendment guarantee against “cruel and unusual punishment.”  While an appeals court later overruled Merz’s conclusion, the ruling led DeWine to order state prisons officials to look at other lethal-injection drugs.  The governor has even suggested that state lawmakers consider abandoning the lethal-injection process altogether and pick another method of execution.

This story has me thinking of the old phrase "Where there's a will, there's a way." In this context, though, the parallel force seems to be in play. I sense many Ohio official really do not have much of a will to move forward with executions, and thus it seems they keep struggling to find a way to do so.

A few (of many) prior recent related posts:

October 25, 2019 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, October 01, 2019

Missouri Gov denies clemency request to Russell Bucklew hours before his potentially "gruesome" execution... which went forward seemingly without difficulty

As reported in this CNN article, headlined "A man set to be executed tonight could suffer a 'gruesome' death because of his rare disease, activists say," the last person in Missouri who could have readily stopped a high-profile execution has decided to allow it to go forward tonight.  Here are the details:

Missouri's governor has refused to stop what activists say would be "one of the most gruesome" executions in US history.

Russell Bucklew, 51, is scheduled to die by lethal injection at 6 p.m. (7 p.m. ET) Tuesday. He was convicted of first-degree murder, kidnapping and first-degree burglary in 1997.

Gov. Mike Parson turned down a clemency request, said his press office, without providing additional detail.

Bucklew suffers from a rare blood vessel disorder called cavernous hemangioma.  The disease can cause tumors in the head and regular bleeding from the mouth, nose, eyes and ears.  An execution by lethal injection could cause prolonged suffocation and excruciating pain, Bucklew's attorneys have said.  Bucklew argued the state should consider death by lethal gas as an alternative.

In April, the Supreme Court ruled against Bucklew in a 5-4 decision, which means plans for the lethal injection can proceed.  Justice Neil Gorsuch said the Eighth Amendment "does not demand the avoidance of all risk of pain" in carrying out executions....

But the American Civil Liberties Union said executing Bucklew would violate the Constitution's prohibition against cruel and unusual punishment.  "What makes (Bucklew's) execution different is that he has a medical condition that would make it one of the most gruesome in U.S. history," the ACLU wrote.  It said Bucklew's tumors "will likely rupture during the lethal injection process, causing him to hemorrhage, choke, and suffocate in his own blood."...

Bucklew was convicted of fatally shooting his ex-girlfriend's presumed new boyfriend, Michael Sanders, and firing at Sanders' son before kidnapping Stephanie Ray Pruitt.  After raping his ex-girlfriend, court documents state, Bucklew was involved in a gunfight in which he and a Missouri state trooper were injured.

UPDATE: This AP article reports that the execution of Russell Bucklew went forward in the state of Missouri this evening and seemingly was not gruesome at all:

A Missouri man was executed Tuesday for killing a man during a violent 1996 crime spree, despite concerns the inmate's rare medical condition would cause a gruesome lethal injection. Russell Bucklew was executed at the state prison in Bonne Terre. It was Missouri's first execution since January 2017....

Bucklew looked around and twitched his feet beneath the sheet as he lay on the gurney just before the lethal injection. He suddenly took a deep breath and all movement stopped. He showed no outward signs of distress.

Cheryl Pilate, one of Bucklew's attorney's, said several steps were taken to try to ensure that he didn't suffer, including sedating him prior to the execution and elevating the gurney to help prevent him from choking. "We believe the significant efforts that went into making this a less horrible process were beneficial," Pilate said.

October 1, 2019 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Sunday, September 15, 2019

Federal officials reportedly considered using fentanyl for executions when restating machinery of death

As reported in this post from July, federal officials have scheduled as series of executions starting in December of this year and have announced the creation of a new "Federal Execution Protocol Addendum, which ... replaces the three-drug procedure previously used in federal executions with a single drug — pentobarbital."  But according to this new Reuters report, another notable drug was considered by federal officials as they worked to restart the federal machinery of death:

The U.S. Department of Justice examined using fentanyl in lethal injections as it prepared last year to resume executing condemned prisoners, a then untested use of the powerful, addictive opioid that has helped fuel a national crisis of overdose deaths.

The department revealed it had contemplated using the drug in a court filing last month, which has not been previously reported. In the end, it decided against adopting the drug for executions.  Attorney General William Barr announced in July his department instead would use pentobarbital, a barbiturate, when it resumes federal executions later this year, ending a de facto moratorium on the punishment put in place by the administration of U.S. President Barack Obama.

But the special consideration given to the possibilities of fentanyl, even as federal agents were focused on seizing illegal imports of the synthetic opioid, show how much has changed since the federal government last carried out an execution nearly 20 years ago.  Many pharmaceutical companies have since put tight controls on their distribution channels to stop their drugs being used in executions.

As old supply chains vanished, many states, and the federal government in turn, have been forced to tinker with their lethal recipes.  They have experimented with different drugs, in some cases leading to grisly “botched” executions in which the condemned prisoners have visibly suffered prolonged, excruciating deaths, viewed by some as a breach of the constitutional ban on “cruel and unusual” punishments.

In 2017, Nebraska and Nevada announced they would use fentanyl, which is 100 times more powerful than morphine, in new multi-drug execution protocols.

By 2018, the U.S. Justice Department was also examining the “use of fentanyl as part of a lethal injection protocol,” according to a three-page internal memorandum from March 2018 by the director of the department’s Bureau of Prisons.

The Justice Department revealed the memo’s existence in an August court filing after a federal judge ordered it to produce a complete “administrative record” showing how it arrived at the new pentobarbital execution protocol announced in July.

The full contents of the memo are not public. It is not known why the department decided to examine fentanyl, what supply channels were considered or why it ultimately rejected fentanyl as a protocol.  The government’s court filing shows the only other named drug examined as the subject of a department memo was pentobarbital, the drug it now says it wants to use in December and January to kill five of the 61 prisoners awaiting execution on federal death row....

Doctors can prescribe fentanyl for treating severe pain.  In recent years, illegal fentanyl has become a common additive in bootleg pain pills and other street drugs, contributing to the tens of thousands of opioid overdose deaths in the country each year.  Even tiny quantities can slow or stop a person’s breathing.

Earlier this year, an Ohio lawmaker proposed using some of the illegal fentanyl seized from drug traffickers to execute condemned inmates....

In August 2018, Carey Dean Moore became the first person in the United States to be executed using a protocol that included fentanyl.  Nebraska prison officials injected him with fentanyl and three other drugs. Moore took 23 minutes to die. Witnesses said that before succumbing, Moore breathed heavily and coughed and that his face turned red, then purple.

Prior recent related posts:

September 15, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, September 11, 2019

After Sixth Circuit panel approves (resoundingly) Ohio's execution protocol, will state now seek to restart its machinery of death?

As reported in this post from February, Ohio Gov Mike DeWine put a long list of scheduled executions on hold after a lower court had ruled that "it is certain or very likely" that the state's reliance on the drug midazolam in its eceuction protocol "cannot reduce consciousness to the level at which a condemned inmate will not experience the severe pain associated with injection of the paralytic drug or potassium chloride."  Ironically, the Ohio death row defendant, Warren Keith Henness, appealed the district court's decision because it ultimately denied his request for a stay of execution. 

That appeal has not been resolved by  a Sixth Circuit panel in In re Ohio Execution Protocol Litigation, No. 19-3064 (6th Cir. Sept 11, 2019) (available here), and the panel opinion seem almost to be urging Ohio to get it machinery of death up and running again.  Here are extended excepts providing context for, and content from, this short ruling:

In Glossip, the Supreme Court held that, to demonstrate a likelihood of success on the merits of an Eighth Amendment challenge to a state’s method of execution, the plaintiff must: (1) show that the intended method of execution is “sure or very likely to cause serious illness and needless suffering,” and (2) “identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.” Id. at 2737 (citations, brackets, internal quotations, and original emphasis omitted).

Applying this framework, the district court found that Henness met his burden on Glossip’s first prong but failed to propose a viable alternative method of execution as required by the second. We review each prong separately....

We disagree [with the district court's conclusion on the first Glossip prong].  As an initial matter, neither pulmonary edema nor the symptoms associated with it qualify as the type of serious pain prohibited by the Eighth Amendment.  Consider: midazolam may cause Henness to suffocate.  But the Eighth Amendment only prohibits forms of punishment that seek to intensify an inmate’s death by “superadd[ing]” feelings of “terror, pain, or disgrace.”  Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019) (citations and internal quotation marks omitted). Consistent with this understanding, the Supreme Court recently reasoned that the fact that an inmate sentenced to death by hanging might slowly suffocate to death is not constitutionally problematic.  Id.  Because suffocation does not qualify as “severe pain and needless suffering,” it follows that Ohio’s use of midazolam — which could cause pulmonary edema, i.e., suffocation — is not constitutionally inappropriate.  The district court therefore clearly erred in concluding to the contrary.

Further, the district court erred in finding that Henness met his burden of proving that midazolam is incapable of suppressing his consciousness enough to prevent him from experiencing — at a constitutionally problematic level — the pain caused by the combination of the paralytic agent and potassium chloride.  Indeed, though we have concluded that the combination of those two substances “would cause severe pain to a person who is fully conscious,” we have also recognized that midazolam is capable of altering an inmate’s ability to subjectively experience pain.  See Fears, 860 F.3d at 886, 888 (noting that “experts . . . agree[] that midazolam is sometimes used alone for intubation”). That said, the relevant inquiry is whether an inmate injected with 500 milligrams of midazolam would subjectively experience unconstitutionally severe pain — an inquiry that Henness has failed to prove should be answered in his favor.  To be sure, the bulk of Henness’s evidence focuses on the fact that midazolam is incapable of rendering an inmate insensate to pain.  But “the Eighth Amendment does not guarantee a prisoner a painless death,” so it is immaterial whether the inmate will experience some pain — as noted, the question is whether the level of pain the inmate subjectively experiences is constitutionally excessive.  See Bucklew, 139 S. Ct. at 1124.  And the fact that midazolam may not prevent an inmate from experiencing pain is irrelevant to whether the pain the inmate might experience is unconstitutional. Without evidence showing that a person deeply sedated by a 500 milligram dose of midazolam is still “sure or very likely” to experience an unconstitutionally high level of pain, Henness has not met his burden on this prong, and the district court clearly erred in concluding otherwise....

But even if we were to agree with Henness that Ohio’s method of execution is very likely to cause either of the types of severe pain identified by Henness and the district court, we would still find that Henness has failed to carry his burden under Glossip’s second prong.  This is because Henness’s proposed alternative method — death by secobarbital — is not a viable alternative.  As an initial matter, the record demonstrates that death by secobarbital is not “feasible” because secobarbital can, in some instances, take days to cause death and Henness has failed to propose any procedures detailing how an execution team might deal with such a prolonged execution.  Setting that deficiency aside, Henness’s proposal still fails.  As the Supreme Court recently explained, a state may decline to utilize an alternative method of execution — even if it is otherwise feasible and capable of being readily implemented — so long as the state has a legitimate reason for doing so, and “choosing not to be the first [state] to experiment with a new method of execution is a legitimate reason to reject it.” Bucklew, 139 S. Ct. at 1128-30 (internal quotation marks omitted).  It follows that, because no other state uses secobarbital to carry out an execution, Ohio may decline to implement it.

As a final point, we note that Henness’s last-minute motion to dismiss on mootness and ripeness grounds is without merit. Contrary to his contentions, Ohio has said that it intends to resume executions with this protocol if we approve. See, e.g., Andrew J. Tobias, Gov. Mike DeWine Freezes All Ohio Executions While New Method Developed, Cleveland.com (February 19, 2019), https://perma.cc/2HUL-HBUG (last accessed August 9, 2019). Thus, his challenge is not moot.  And his challenge is ripe — notwithstanding the fact that his execution has been delayed.

In other words, it seems that the Sixth Circuit panel here clearly credits the death row defendant's contention that Ohio's use of midazolam in its lethal injection protocol "may cause Henness to suffocate" and seems to credit the claim that he "will experience some pain."  But, according to the panel, it is fully constitution circa 2019 for the state to opt to "slowly suffocate to death" a condemned defendant as long as that defendant is not "sure or very likely to experience an unconstitutionally high level of pain."  

I am certain that the defendant here will now appeal this matter to the en banc Sixth Circuit and also the Supreme Court, but I will be surprised if this appeal gets heard in full again.  (I will predict here that at least a few Sixth Circuit judges will dissent if and when the full circuit does not take up the case.)  Consequently, I think the fate of Warren Keith Henness and a long list of condemned with execution dates in Ohio now turns on what whether and when Governor DeWine is prepared to order the state's machinery of death to become operational again.

A few (of many) prior recent related posts:

September 11, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Texas completes execution of murderer less than a decade after deadly crime spree

Texas is in the midst of what might be called an execution surge: last night the state completed its third execution in the last month and it has nine more execution scheduled before the end of this year.  This local piece reports on the latest execution, and here are the basics:

On Tuesday, Texas executed Mark Soliz for the 2010 home robbery and shooting death of a North Texas woman.... Soliz, 37, was convicted and sentenced to death in 2012 for the murder of Nancy Weatherly, 61, and the robbery of her Johnson County home, according to court records.  Prosecutors said the murder was part of an eight-day crime spree during which Soliz and another man, Jose Ramos, robbed random people at gunpoint, and Soliz killed another man.

Soliz and his lawyers had long argued that his life should be spared because he had fetal alcohol spectrum disorder, which they claimed is the “functional equivalent” of an intellectual disability, a condition the U.S. Supreme Court has ruled disqualifies individuals from execution.  Both state and federal courts rejected the claim during Soliz’s relatively short seven years on death row.

Shortly after 6 p.m. Tuesday, Soliz was taken into the execution chamber in Huntsville and placed on a gurney.  Soliz was apologetic in his final words, addressing Weatherly's family members. "I wanted to apologize for the grief and the pain that I caused y’all," Soliz said. "I’ve been considering changing my life.  It took me 27 years to do so.  Man, I want to apologize, I don’t know if me passing will bring y’all comfort for the pain and suffering I caused y’all. I am at peace."

He was then injected with a lethal dose of pentobarbital, the only drug used in Texas executions.  He was pronounced dead at 6:32 p.m.

In June 2010, prosecutors said, Soliz and Ramos terrorized residents in the Fort Worth area for eight days before they were arrested on suspicion of one of several crimes, including multiple robberies, carjackings and shootings, another of which was fatal. When police interrogated Ramos about one stolen car, he began talking about another crime — in which he said the two men forced their way into Weatherly’s house in Godley at gunpoint, and Soliz shot her in the back of the head as they robbed her home....

At his trial and in his appeals to state and federal courts, Soliz repeatedly raised the claim that he should not have been executed because of his disorder.  Several defense experts testified before the jury that he was diagnosed with partial fetal alcohol syndrome, which his lawyers claim caused mental impairments like lack of impulse control, serious adaptive learning deficits and hyper-suggestibility.  But the testimony did not keep the jury from handing down a death sentence, and appellate courts did not interfere, partially because the claim was raised at trial and failed....

Texas’ six executions so far this year make up more than a third of the 15 that have taken place in the country.  Of the 17 executions still scheduled in the country through December — including three federal cases — nine are set to take place in the Texas death chamber in Huntsville, according to the Death Penalty Information Center.  Last year, Texas executed 13 men.

September 11, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Tuesday, August 20, 2019

Could execution troubles help spell the end of Ohio's use of the death penalty?

The question in the title of this post is prompted by this new local Ohio article headlined "House speaker’s support of death penalty is being tested."  Here are excerpts:

Amid Ohio’s difficulty in securing a legal means of execution, House Speaker Larry Householder says he is becoming “less and less supportive” of the death penalty.  The Republican from Glenford addressed the topic on Tuesday morning following a Statehouse press conference when asked if he continues to back capital punishment for some convicted killers.

“I think I am probably like most Ohioans, there was a time that I was extremely supportive of the death penalty,” Householder said in a video of his remarks posted on Twitter by the Statehouse News Bureau. 

“But, as time has gone on, I have become less and less supportive because of the cost, for one,” the speaker said.  “It is extremely expensive to put someone to death in lieu of keeping them in life in prison.  And, also, it’s becoming more and more difficult to do an execution ... we’ve gone from electrocution to lethal injection, now there are issues being raised about lethal injection.  It’s just become more and more difficult to do and it’s more and more expensive,” Householder said.

With a federal judge signaling Ohio’s current lethal injection protocol constitutes cruel and unusual punishment, Republican Gov. Mike DeWine’s administration has been unable to secure different drugs.  Pharmaceutical companies have threatened to cut off their sales of drugs to the state for Medicaid patients, state prisoners and others if their drugs are used in an execution, DeWine said.

DeWine has met with Householder and Senate President Larry Obhof, R-Medina, to discuss the death-penalty stalemate and explore whether the state should adopt an alternate means of execution.  The governor had said he is uncertain whether legislation will emerge this fall when legislators return to adopt another execution method, such as lethal gas.

DeWine has twice delayed the execution of convicted Columbus killer Warren Henness. Ohio’s next two executions are scheduled for Nov. 13 and Dec. 11.  Following only one execution over roughly the past two years, Ohio has killed 56 men since executions resumed in 1999. Death Row currently houses 137 men and one woman.

I have long believed that most support for the death penalty is fairly shallow and that most politicians are inclined to take their lead on this issue from public sentiments. In recent years, public support for the death penalty seems to be growing ever weaker; add administrative headaches and lots of litigation concerning execution methods, and these kinds of comments from state leaders become less surprising.

That all said, I would still be surprised to see serious legislative discussion of death penalty abolition in this (still red) state anytime soon. But maybe these comments will have a snowball effect.

A few (of many) prior recent related posts:

August 20, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Wednesday, August 14, 2019

Amidst persistent difficulties with lethal injection drugs, Ohio legislator to propose use of fentanyl taken from drug busts for executions

As reported in this local article, one "Ohio lawmaker has an innovative solution to the state's problem securing execution drugs: use fentanyl seized by police instead." Here is more:

Rep. Scott Wiggam, R-Wooster, is working on legislation to allow Ohio prison officials to obtain fentanyl from drug busts. That option is far more humane than the electric chair or firing squad – options that states are considering as pharmaceutical companies cut off access to execution drugs.

"This is a much less violent way than the electric chair and the latest lethal injection (Dennis McGuire's 2014 death) that took 26 minutes," Wiggam told The Enquirer. "This is a much more humane way."

Fentanyl is a powerful opioid involved in 3,431 overdose deaths in 2017, according to Ohio Department of Health records. Ohio Highway Patrol seized more than 108 pounds of fentanyl in 2018, according to state records. Wiggam sent out an email requesting support for the proposal from fellow lawmakers, the Columbus Dispatch first reported.

Gov. Mike DeWine has stalled the state's executions while Ohio's prison system seeks an alternative way to execute Death Row inmates. A federal magistrate compared the effects of one of the drugs used, midazolam, to waterboarding....

The state's last execution was Robert Van Hook on July 18, 2018. Van Hook was convicted of killing and disemboweling neighbor David Self in February 1985. Ohio has scheduled 22 executions through 2022. The next execution is set for Nov. 13. Cleveland Jackson was convicted of killing 17-year-old Leneshia Williams and 3-year-old Jayla Grant in Lima in 2002.

Wiggam said he wanted to focus the discussion about Ohio's death penalty around ways to carry out executions currently required by state law rather than abandoning the process because it was too difficult to find drugs. "This is certainly a workaround," he said. "This is something that we know can bring deaths quickly to individuals."

Senate President Larry Obhof has said he's happy to explore other options. "We are all concerned that if you're going to have capital punishment, you should have a process in place that courts are willing to accept and meets constitutional muster," he told The Enquirer earlier this year.

No other state has proposed using seized fentanyl to Wiggam's knowledge. Nebraska was the first state to use fentanyl as part of an execution in August 2018. The drug was obtained by a license pharmacy in the United States, according to a NPR report.

A few (of many) prior recent related posts:

August 14, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Wednesday, July 31, 2019

Ohio Gov DeWine now reportedly prepared to move forward with executions he delayed ... even without new lethal-injection protocol

As reported here six months ago, the Governor of Ohio has imposed something of a de facto moratorium on executions in the state not long after taking office because of concerns over the state's (historically troubled) lethal injection protocol.  But this new local article, headlined "DeWine now OK with ‘pouring fire in vein’ executions," reports on new developments suggesting new executions might go forward with an old execution protocol. Here are the details:

Despite saying in February that “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment,” Gov. Mike DeWine will consider using that same method in an upcoming execution, his spokesman said Tuesday.  The state’s lawyers have argued before a federal appeals court that Ohio’s current three-drug mixture can be used despite the lower court ruling likening it to waterboarding and pouring fire in the prisoner’s veins.

The governor earlier this year delayed four executions and ordered corrections officials to come up with a new death penalty protocol after a federal judge sitting in Dayton raised serious questions about the existing one.  Tuesday’s news comes after U.S. Magistrate Judge Michael Merz took the unusual step last week of ordering lawyers for the state to show DeWine a brief they filed in a death-penalty appeal. The brief appeared to be at odds with DeWine’s public position on Ohio’s controversial death-penalty protocol, Merz said in the order.

Merz is presiding in a lawsuit over whether Ohio’s death-penalty protocol violates constitutional protections against cruel and unusual punishment. He ruled in January that experts had convinced him that Ohio’s condemned were likely to experience severe pain using the protocol.  However, Merz did not stop the execution of Warren Keith Henness because, the judge ruled, Henness didn’t propose a viable alternative method of execution as required by a 2015 U.S. Supreme Court decision.

In response to Merz’s ruling, DeWine in January delayed Henness’s execution, saying the state would devise a new protocol.  Then in March, he delayed three more.  But now Henness’s new execution date is just six weeks away and the governor’s spokesman couldn’t say Monday how close the Ohio Department of Rehabilitation and Correction is to coming up with a new protocol.

A puzzled Judge Merz last week noted that in their appellate briefings the state’s lawyers voiced strong support for the death protocol that Merz — and presumably DeWine — found so problematic.  The state has “vigorously defended the existing protocol and criticized (Merz) for suggesting a stay of this litigation until the governor’s directions (to develop a new one) are carried out, as if it were (Merz’s) personal agenda rather than that of the governor,” Merz wrote, justifying his order that state lawyers show DeWine the appellate brief. “The court merely wishes to ensure that the governor has had an opportunity to see for himself whether he perceives this inconsistency.”...

But lawyers for Ohio said even if the condemned could feel pain after being injected with Midazolam, it still would not amount to constitutionally prohibited cruel and unusual punishment. “If hanging does not produce an unacceptable degree of pain even though it usually results in suffocation, then it follows that Midazolam does not cause ‘severe pain and needless suffering’ even if it is ‘certain or very likely to cause’ suffocation,” they wrote in their brief to the 6th U.S. Circuit Court of Appeals in Cincinnati.

They were quoting from Justice Neil Gorsuch’s opinion in Bucklew v. Precythe, the U.S. Supreme Court’s most recent ruling regarding the death penalty. In discussing hanging, Gorsuch was arguing that at the time the Eighth Amendment was adopted, people didn’t see hanging as intentionally cruel, unlike practices such as disemboweling or burning the condemned while they were still conscious....

Press secretary Dan Tierney said there’s nothing unusual about DeWine delaying executions over concerns about Ohio’s death penalty at the same time the state’s lawyers are in court defending it. “Their job is to defend the laws as valid and constitutional until they’re proven otherwise,” Tierney said. Tierney and the state’s lawyers are holding out the possibility that Henness might be executed using Ohio’s existing three-drug protocol — an issue that Tierney said has “not been fully litigated.”

Asked whether DeWine might restart executions using the current protocol if the state’s lawyers prevail in that litigation, Tierney said in an email, “Understand that these are hypothetical scenarios, but if the court overturns the factual record in the lower court, or the factual record otherwise changes through the legal proceedings, the governor will certainly review that new evidence regarding the protocol and take it under consideration.”

Henness and his lawyers might find that litigation difficult.  The Supreme Court — particularly it’s conservative majority — has since 2008 shown itself to be increasingly skeptical of prisoners’ claims that various methods of lethal injection amount to cruel and unusual punishment.  They’ve voiced suspicions that what prisoners and anti-death-penalty advocates really are aiming for is a backdoor abolition of execution.

A few (of many) prior recent related posts:

UPDATE: This new local article, headlined "Ohio can’t get drugs for a new execution method, DeWine admits," highlights how drug acquisition issues continue to cause problems for the Buckeye state's effort to get its machinery of death operational:

Ohio Gov. Mike DeWine said Wednesday that state prison officials are finding it impossible to find any company to supply drugs an execution alternative to one that essentially has been declared cruel and unusual. He said he would talk to Statehouse leaders about legislation allowing a different execution method.  Some Ohio death row inmates have been asking to be executed by firing squad, while two Tennessee inmates last year opted to be executed in the electric chair. Ohio’s “Old Sparky” has been in storage for years.

DeWine delayed four executions early this year after a federal judge in Dayton said Ohio’s current intravenous protocol came perilously close to violating constitutional protections against cruel and unusual punishment. One was rescheduled for Sept. 12, but DeWine on Wednesday said that was under review....

Ohio had been buying the drugs through its Department of Mental Health and Addiction Services and then driving them down to the death house at the Southern Ohio Correctional Facility without telling drug makers what the substances would be used for.  However, DeWine said the drug makers have told the state that if they suspect that any of their products would be used in executions, they would stop selling to the state altogether, potentially depriving tens of thousands of Ohioans of important medicine. “We are in a very difficult situation,” DeWine said.

July 31, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, July 30, 2019

Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death

Unsurprisingly, Attorney General William Barr announcement of a change in the federal execution protocol and scheduling of five federal executions (basics here) has prompted lost of reactions from the commentariat.  Here is just a sampling of some notable reactions and discussions I have seen: 

From The Atlantic, "Barr Doesn't See What's Wrong With the Death Penalty"

From Fox News, "Robert Blecker: AG Barr is right to resume death penalty for vicious killers"

From Fox News, "Hannah Cox: AG Barr is wrong to resume executions -- Death penalty goes against conservative principles"

From The Hill, "The death penalty is racially biased, fiscally irresponsible and very inaccurate"

From The Intercept, "With Federal Executions Looming, the Democrats' Death Penalty Legacy Is Coming Back to Haunt Us"

From New York magazine, "The Death Penalty Is Already a Farce. William Barr’s Plan Might Make It Torturous."

From Slate, "Trump’s Death Penalty Obsession Won’t Stem the Tide Against Executions"

From Spectator USA, "The death penalty is red tape threaded into a noose: On conservative grounds it is no longer defensible"

From Time, "Why the Justice Department's Plan to Use a Single Drug for Lethal Injections Is Controversial"

From The Washington Examiner, "Former death penalty proponent Biden flip-flops as federal cases advance"

 

Prior recent related posts:

July 30, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Thursday, July 25, 2019

"Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"

The title of this post is the title of this quite notable and possibly quite consequential news release from the Department of Justice this morning.  Here is the main text:

Attorney General William P. Barr has directed the Federal Bureau of Prisons (BOP) to adopt a proposed Addendum to the Federal Execution Protocol—clearing the way for the federal government to resume capital punishment after a nearly two decade lapse, and bringing justice to victims of the most horrific crimes. The Attorney General has further directed the Acting Director of the BOP, Hugh Hurwitz, to schedule the executions of five death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society—children and the elderly.

“Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the President,” Attorney General Barr said. “Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding. The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

The Federal Execution Protocol Addendum, which closely mirrors protocols utilized by several states, including currently Georgia, Missouri, and Texas, replaces the three-drug procedure previously used in federal executions with a single drug—pentobarbital. Since 2010, 14 states have used pentobarbital in over 200 executions, and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment.

Upon the Attorney General’s direction, Acting Director Hurwitz adopted the Addendum to the Federal Execution Protocol and, in accordance with 28 C.F.R. Part 26, scheduled executions for the following individuals:

  • Daniel Lewis Lee, a member of a white supremacist group, murdered a family of three, including an eight-year-old girl. After robbing and shooting the victims with a stun gun, Lee covered their heads with plastic bags, sealed the bags with duct tape, weighed down each victim with rocks, and threw the family of three into the Illinois bayou. On May 4, 1999, a jury in the U.S. District Court for the Eastern District of Arkansas found Lee guilty of numerous offenses, including three counts of murder in aid of racketeering, and he was sentenced to death. Lee’s execution is scheduled to occur on Dec. 9, 2019.

  • Lezmond Mitchell stabbed to death a 63-year-old grandmother and forced her nine-year-old granddaughter to sit beside her lifeless body for a 30 to 40-mile drive. Mitchell then slit the girl’s throat twice, crushed her head with 20-pound rocks, and severed and buried both victims’ heads and hands. On May 8, 2003, a jury in the U.S. District Court for the District of Arizona found Mitchell guilty of numerous offenses, including first degree murder, felony murder, and carjacking resulting in murder, and he was sentenced to death. Mitchell’s execution is scheduled to occur on Dec. 11, 2019.

  • Wesley Ira Purkey violently raped and murdered a 16-year-old girl, and then dismembered, burned, and dumped the young girl’s body in a septic pond. He also was convicted in state court for using a claw hammer to bludgeon to death an 80-year-old woman who suffered from polio and walked with a cane. On Nov. 5, 2003, a jury in the U.S. District Court for the Western District of Missouri found Purkey guilty of kidnapping a child resulting in the child’s death, and he was sentenced to death. Purkey’s execution is scheduled to occur on Dec. 13, 2019.

  • Alfred Bourgeois physically and emotionally tortured, sexually molested, and then beat to death his two-and-a-half-year-old daughter. On March 16, 2004, a jury in the U.S. District Court for the Southern District of Texas found Bourgeois guilty of multiple offenses, including murder, and he was sentenced to death. Bourgeois’ execution is scheduled to occur on Jan. 13, 2020.

  • Dustin Lee Honken shot and killed five people—two men who planned to testify against him and a single, working mother and her ten-year-old and six-year-old daughters. On Oct. 14, 2004, a jury in the U.S. District Court for the Northern District of Iowa found Honken guilty of numerous offenses, including five counts of murder during the course of a continuing criminal enterprise, and he was sentenced to death. Honken’s execution is scheduled to occur on Jan. 15, 2020.

Each of these inmates has exhausted their appellate and post-conviction remedies, and currently no legal impediments prevent their executions, which will take place at U.S. Penitentiary Terre Haute, Indiana. Additional executions will be scheduled at a later date.

As with so much Trump Administration activity, this news and activity is sure to generate litigation and lots of commentary. I expect I will myself have much to say in coming posts.

July 25, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (5)

Thursday, June 27, 2019

"Somewhere Between Death Row and Death Watch: How Courts Have Precluded Capital Defendants From Raising Execution-Related Claims"

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

Most discussion on capital punishment focus on the merits of the death penalty generally.  While those arguments are surely important, for as long as capital punishment remains in the United States, safeguarding defendants’ rights throughout the capital sentencing process — including through execution — is crucial.  As part of that effort, this Article identifies a portion of the often-overlooked capital appellate process that effectively divests defendants of significant claims.

This issue is illustrated by the U.S. Supreme Court’s recent decisions in Bucklew v. Precythe and Dunn v. Price, which provided insight in a lot of contexts.  Contributing to the conversation on the Court’s recent decisions, this Article explains how Bucklew and Dunn provided insight into not-so-obvious aspects of capital punishment with which defendants often struggle.  Specifically, Bucklew and Dunn illustrate the procedural predicament defendants face in raising execution- and warrant-related claims.  On one hand, courts determine that execution-related claims are not ripe, or premature, when raised before a defendant is under an active death warrant.  On the other, as in Bucklew and Dunn, when the defendant is under an active death warrant, courts determine the claims are brought too late, suspecting a game of delay.  Thus, as this Article explains, the proper time for defendants to raise execution-related claims is caught somewhere between death row and death watch, and courts have essentially precluded defendants from properly raising and being heard on these issues.

Addressing this concern, this Article canvasses potential solutions.  Ultimately, this Article concludes that the best solution is for states to enact and courts to enforce uniform warrant procedures, an example of which is outlined here. 

June 27, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, June 06, 2019

"Recording the Pain of Others: Lethal Injection's Visibility Problem"

The title of this post is the title of this new piece authored by Christen Hammock and now available via SSRN, Here is its abstract:

In July 2011, Georgia executed Andrew DeYoung for murdering his parents and sister.  Pursuant to a motion to preserve evidence brought by counsel for Gregory Walker, another man on Georgia’s Death Row, DeYoung’s execution produced the only existing video of a lethal injection in the United States, which remains under seal in a Georgia courthouse.  This effort to record an execution reverses the historical trend of making executions less visible by bringing them inside prison walls and limiting eyewitnesses.  Unlike similar cases, the successful motion to preserve DeYoung’s execution and autopsy on video did not litigate the public’s right to see executions, but instead argued that visual evidence of a botched execution was necessary to support another condemned man’s Eighth Amendment claim.

This project evaluates this strategy’s assumption that video representation is less mediated and thus more effective and accurate as evidence than traditional eyewitness and expert testimony.  This evaluation proceeds by examining the rhetorical strategies used in death penalty abolition litigation and judicial opinions that have, in turn, upheld and struck down methods of capital punishment.  Part I examines lethal injection’s “invisibility problem” and argues that this problem stems from secrecy surrounding state execution protocols and the overwhelming metaphor of healing that lethal injection’s “weapons” project.  Part II explores a potential solution to this problem — creating visual records of lethal injections — using the litigation surrounding DeYoung’s execution as an example.

June 6, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (0)

Thursday, May 30, 2019

Alabama completes execution of Christopher Price seven weeks after delay based on dispute over execution methods

As reported in this prior post, Alabama was planning to execute Christopher Price seven weeks ago as punishment for his 1991 killing of a minister.  But the execution was called off that day because his death warrant expired before the Supreme Court vacated a lower court stay.  Tonight, as reported in this AP article, the execution was completed.  Here are the basics:

A man convicted of using a sword and knife to kill a country preacher during a 1991 robbery was put to death by lethal injection in Alabama on Thursday, weeks after he was initially scheduled to die. Christopher Lee Price, 46, became the second inmate put to death in Alabama in two weeks. The execution was carried out at Holman prison and he was pronounced dead at 7:31 p.m.

Price, who was nearly put to death in April before an execution warrant expired, sought a stay from the U.S. Supreme Court based on a challenge to the state's method of using three drugs during lethal injections. The nation's high court, by a 5-4 vote, refused to halt the execution Thursday night. The conservative majority did not give a reason for denying the stay.

Price had asked to instead die by nitrogen hypoxia, an execution method Alabama has legally authorized but not developed. His lawyers argued the method, which kills by depleting the body of oxygen, would be less painful than lethal injection.

Price sued the state over Alabama's current practices, and the inmate's attorneys contend the state is rushing to execute him two weeks before the trial date.... In a dissent Thursday, Justice Stephen Breyer wrote that the court should have delayed the execution until the trial could take place.

Justice Breyer's dissent from the denial of an execution stay, which was joined in full by Justice Ginsburg and in part by Justices Sotomayor and Kagan, is available at this link.

May 30, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Tuesday, May 28, 2019

Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death

It has been a full quarter century since Justice Harry Blackmun famously stated in Callins v. Collins, 510 U.S. 1141 (1994), that he would "no longer tinker with the machinery of death."  But in the last 25 years, a whole lot of states have done a whole lot of tinkering with death machinery, and I have been especially well-positioned to observe Ohio's unique machinations.  And this new local article about the latest Buckeye tinkering, headlined "DeWine, prisons have no documents on Ohio’s new execution protocol," has me yet again amazed at what law, policy and practice looks like in this space.  Here are the details:

The Ohio Department of Rehabilitation and Correction has been working for months on Gov. Mike DeWine’s order to revamp Ohio’s execution protocol. But the department says it hasn’t generated a single email or other written communication related to the work.

The governor’s office suggests the lack of such documentation is intentional.  And that has critics accusing the administration of trying to avoid transparency in an endeavor that in the past has been riddled with problems carrying out the death penalty and obtaining the drugs to perform executions. “The execution process across the United States has been plagued by secrecy and a lack of transparency,” said Robert Dunham of the Death Penalty Information Center, a national group that gathers information about how capital punishment is practiced.

In Ohio, problems go at least as far back as 2014, when Dennis McGuire choked and gasped for about 10 minutes before dying after being administered a new, two-drug protocol. That prompted a three-year moratorium as prison officials came up with a three-drug protocol that still used midazolam — which has been used in botched executions in at least four states — as the first in the procedure.

Since 2017, Ohio has conducted four more executions and abandoned a fifth when prison workers couldn’t inject drugs into a man’s veins.  Then, earlier this year, U.S. Magistrate Judge Michael Merz issued a ruling that likened the Ohio protocol to “waterboarding” and said it “would feel as though fire was being poured” into a prisoner’s veins.

In response, DeWine postponed one execution and then three more as he ordered the corrections department to devise a new lethal injection protocol.  But as corrections officials did, they had to contend with accusations that the state was using subterfuge to obtain earlier execution drugs from manufacturers who were adamantly opposed to their use in carrying out the death penalty.

Seeking to get an idea of what drugs the state is thinking of using and how it plans to get them, The Dispatch filed an open records request in April with the corrections department for all of its internal and external communication regarding DeWine’s order and the development of the new protocol.  Hearing nothing, the paper last week asked about the status of the request.  It received a response the same day. “After investigation and review of our agency records, we have determined that we have no responsive records. Thank you for your patience,” spokeswoman Sara French said in an email.

While it might seem implausible that such a weighty matter as devising a new death-penalty protocol could be undertaken by a state agency without a single email or memo being generated, DeWine spokesman Dan Tierney seemed to say that was by design.  “Gov. DeWine agrees that execution protocol is a very sensitive issue, and that sensitivity may not be appropriate for general email or common written correspondence,” Tierney said in an email.  “The governor speaks with Director (Annette) Chambers-Smith regularly, and he will be receiving a full briefing on this issue soon. ″(The Department of Rehabilitation and Correction) remains focused on researching a new protocol using drugs that the state of Ohio can actually obtain.”...

Monica Nieporte, president and executive director of the Ohio News Media Association, said the state should not try to devise something as important as a new lethal injection protocol in secret. “Since it appears that the work done on this issue has largely been done through verbal conversation and, according to DRC, there is no supporting documentation that is public record, it makes it very difficult for journalists or citizens to determine what progress has been made on this topic,” she said in an email. “Hopefully as their research winds down and they are at the point of making recommendations, they will be providing some detailed explanations, including documentation about how they made their conclusions.”

At the risk of bad taste, I am tempted to joke based on the lack of any protocol paper trail that perhaps Ohio officials think it is important to avoid killing trees while they try to figure out a better way to kill people.

A few (of many) prior recent related posts:

May 28, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, May 16, 2019

Alabama and Tennessee both complete executions in same night

As reported in this extended AP piece, two states carried out executions this evening.  Here are the details:

A man convicted of killing his wife decades ago at a camping center he managed in Memphis was put to death Thursday in Tennessee.  Separately, a man condemned to die for his role in a quadruple killing that followed a dispute over a pickup truck was put to death Thursday evening in Alabama, declining to make any last-minute appeals in the hours preceding his execution.

Sixty-eight-year-old inmate Don Johnson was executed for the 1984 suffocation of his wife, Connie Johnson.  He was pronounced dead at 7:37 p.m. after a lethal injection at a maximum-security prison in Nashville.  He had initially blamed his wife's slaying on a work-release inmate who confessed to helping dispose of the body and who was granted immunity for testifying against Johnson.

Johnson became the fourth person executed in Tennessee since August.  The last two inmates executed in Tennessee chose the electric chair, saying they believed it offered a quicker and less painful death than the state's default method of lethal injection.

Johnson had spent half his life on death row and seen three execution dates come and go as his appeals played out in court, including challenges to Tennessee's lethal injection protocols.  The state's present default method is a three-drug combination that includes the sedative midazolam, which inmates have claimed causes a prolonged and excruciating death. Three more executions are scheduled for later this year in Tennessee.

Gov. Bill Lee announced Tuesday that he would not intervene, following "prayerful and deliberate consideration" of Johnson's clemency request. Religious leaders, including the president of the worldwide Seventh-day Adventist Church, to which Johnson belongs, had asked Lee to spare Johnson's life.  Supporters of clemency said Johnson had undergone a religious conversion and cited his Christian ministry to fellow inmates. Johnson is an ordained elder of the church in Nashville....

Alabama administered a lethal injection Thursday evening to 41-year-old Michael Brandon Samra.  Samra was pronounced dead at 7:33 p.m. following a three-drug injection at the state prison at Atmore, authorities said.

Samra and a friend, Mark Duke, were convicted of capital murder in the deaths of Duke's father, the father's girlfriend and the woman's two elementary-age daughters in 1997.  The two adults were shot and the children had their throats slit.  Evidence showed that Duke planned the killings because he was angry his father wouldn't let him use his pickup.

In a last statement, Samra made a profession of Christian faith.  "I would like to thank Jesus for everything he has done for me," Samra said as he lay strapped on a gurney with his arms extended. He ended with the word "amen."

After drugs began flowing, Samra went still and his chest heaved three times.  He took a few deep breaths and his head moved slightly. Then an officer checked to see if he was still conscious.  A few moments later, Samra's hands curled inward, his chest moved like he was taking some breaths and his mouth fell slightly agape.  The execution procedure began about an hour after the scheduled 6 p.m. start time, and Prison Commissioner Jeff Dunn said there was no particular reason for the delay. "There were no issues that I was aware of," Dunn said in a statement....

Though Duke and Samra were both originally convicted of capital murder and sentenced to death, Duke's sentence was overturned because he was 16 at the time, and the Supreme Court later banned executing inmates younger than 18 at the time of their crimes.

Samra was 19 at the time and asked the U.S. Supreme Court to delay his execution while the Kentucky Supreme Court considers whether anyone younger than 21 at the time of a crime should be put to death, but the justices refused.

May 16, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Wednesday, May 15, 2019

New opinion memo from DOJ concludes FDA lacks jurisdiction to regulate execution drugs

As long-time readers know, state execution efforts have sometimes been thwarted in recent years because of an inability to access needed drugs for lethal injections. This new Washington Post article, headlined "Justice Department says FDA ‘lacks jurisdiction’ over death-penalty drugs," reports on the possible start to a new chapter in this long-running saga. Here are the details:

The Justice Department says in a new legal opinion that the Food and Drug Administration does not have authority over drugs used in lethal injections, a stance sure to be challenged by death-penalty opponents. The department’s Office of Legal Counsel said that “articles intended for use in capital punishment by a state or the federal government cannot be regulated as ‘drugs’ or ‘devices.’ ”

The legal opinion, issued this month, comes as states have struggled in recent years to obtain drugs for lethal injections, which remain the country’s primary method of execution even as the number of executions has declined.

In 2015, the FDA blocked Texas from importing shipments of an anesthetic from an overseas distributor, finalizing the decision two years later. The agency argued the importation was illegal because the drug, sodium thiopental, was not approved in the United States and was improperly labeled. It also cited a 2012 federal injunction barring the agency from allowing the drug’s importation.

Texas responded to the FDA’s move by suing the agency in early 2017, claiming the agency was interfering with the state’s responsibility to carry out its law enforcement duties. The lawsuit was filed shortly before President Trump took office. Trump has long been a supporter of capital punishment. while his Senate-confirmed attorneys general — Jeff Sessions, who left the post last year, and William P. Barr, who assumed the job this year — have also backed the practice.

The legal opinion from the Justice Department this month sides against the FDA and with Texas. It says that drugs intended for executions are different from any others, noting that “they exclusively inflict harm” and “are not intended to produce any benefit for the end user.” It expressly highlights “the narrowness of our conclusion,” saying that it does not address whether the FDA “has jurisdiction over drugs intended for use in physician-assisted suicide.”

But it also takes a broad view of the issues at hand, arguing that if the FDA had jurisdiction over drugs meant for executions, it would have similar power over other areas — such as firearms — which the agency has not sought to regulate.

The Justice Department’s opinion is unlikely to have any immediate effect, however, because the FDA is still operating under the 2012 injunction. It is not clear whether the Justice Department will seek to have that injunction lifted, a move that could spark a long legal tussle.

The opinion seems aimed at “giving a green light” to corrections officials to look abroad for drugs needed for executions, said Deborah Denno, a law professor at Fordham University and a death-penalty expert. “I think this has very broad ramifications, unfortunately,” Denno said in an interview. “This is intended to allow departments of corrections to access drugs outside the country because they’re having so much difficulty doing so.”

While European companies have objected to their products being used in executions, corrections officials could have more luck turning to countries such as China or India, Denno said. “It has the potential to open the floodgates,” she said....

The FDA, in defending its efforts to block states from importing unapproved sodium thiopental has cited the 2012 injunction relating to the drug. That ruling came after death-row inmates filed a lawsuit against the Obama administration, saying the FDA was acting unlawfully by exercising “enforcement discretion” to allow states to import unapproved sodium thiopental from an unregistered foreign facility.

Despite the 2012 order, however, states continued to order sodium thiopental from overseas. BuzzFeed News found that at least three states — Nebraska, Texas and Arizona — had tried to import drugs from a supplier in India despite getting warnings from the FDA in 2015.

The Texas lawsuit, filed in the waning days of the Obama administration, says the state alerted federal officials in June 2015 that its Department of Criminal Justice — which is responsible for the state’s executions — planned to “import thiopental sodium intended for law enforcement purposes.” The lawsuit said the state’s “foreign distributor” shipped 1,000 vials of the drug to Houston in late July 2015, and not long after, the drugs were impounded. According to the FDA, the agency also impounded a shipment intended for Arizona that same year. Texas officials said they had obtained the drugs legally and referred to the government’s actions as an “unjustified seizure.”

The OLC opinion is titled "Whether the Food and Drug Administration Has Jurisdiction over Articles Intended for Use in Lawful Executions."  The opinion runs 26 pages and is available at this link.  Here is its concluding paragraph:

We conclude that articles intended for use in capital punishment by a State or the federal government cannot be regulated as “drugs” or “devices” under the FDCA. FDA accordingly lacks jurisdiction to regulate such articles for that intended use.

Chris Geidner, who did terrific reporting on these issues when at BuzzFeed News, has this lengthy tweet thread criticizing the substance of the OLC memo and concluding with just the right questions:

FINALLY: I'm not sure I get what the point of this OLC memo is.  To quote Madonna as Evita, "Where do we go from here?"  The injunction still exists.  This is OLC's opinion.  Is someone going to seek to have the injunction vacated?  Does DOJ think they can just ignore it?  What now?

May 15, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, April 17, 2019

Reviewing Ohio's (now-suspended) execution realities

The Cincinnati Enquirer has this lengthy new article headlined "As Ohio struggles to find a painless way to kill death row inmates, is this the end of death penalty?". Here are excerpts:

Jeffrey Wogenstahl was supposed to die Wednesday.... But that didn't happen.  Wogenstahl's case began in 1991 when 10-year-old Amber Garrett went missing and was found dead three days later in Indiana.  A jury found him guilty of beating and stabbing the girl to death. Wogenstahl was 31 at the time.  He's 58 now.

After 27 years of lawsuits and appeals with three cases pending at the county, state and federal level, Wogenstahl was granted an indefinite stay of execution by the Ohio Supreme Court last fall due to open questions about his case.

Since then, Ohio Gov. Mike DeWine has suspended all executions in a continuing struggle for the state to find a painless way to kill death row inmates.  With drug suppliers refusing to allow their products to be used to kill people and botched executions making headlines, Ohio's death penalty is on life support.

Wogenstahl managed to live past the day Ohio first scheduled for his death without the help of Mike DeWine, but he and the 137 other people on death row are likely wondering what the governor and legislature might do next.

DeWine recently ordered the Ohio Department of Rehabilitation and Correction to find a new method for executing death row inmates.  Until that happens, all executions are on hold.  A federal magistrate called Ohio's three-drug death penalty protocol "cruel and unusual punishment" banned by the U.S. Constitution. That carried weight with the governor. "Having that opinion in front of me, I felt that Ohio shouldn't be carrying out an execution while we know those facts," DeWine told The Enquirer.

The main problem: the first drug administered, midazolam.  Midazolam is a sedative used in some surgeries to relax the patient and block the formation of traumatic memories. It's not a painkiller, even at high doses, experts testified before the federal magistrate.

Midazolam can lead to pulmonary edema, a condition where fluid fills the lungs making it difficult to breathe. One doctor compared it to the torture technique of waterboarding. And the amount of midazolam that Ohio uses to execute prisoners would cause "severe burning sensations in the blood vessels," a doctor testified.  An autopsy showed Hamilton County Killer Robert Van Hook suffered from the condition when he was executed in July 2018.  He was the last person put to death before DeWine's suspension.

After the midazolam, Ohio then injects a paralytic and potassium chloride to stop the inmate's heart. Without an analgesic, the inmate would feel the pain of both those drugs even if he were unconscious, according to doctors' testimony. Ohio executed three death row inmates using this three-drug combo.  But the next person executed in Ohio will likely die by another method....

Ohio used a single drug, pentobarbital, until manufacturers refused to sell it to states for executions. So the state switched to an untested, two-drug combination of midazolam and hydromorphone for Dennis McGuire, who was convicted of raping and fatally stabbing a pregnant woman.  McGuire's execution in January 2014 took almost 26 minutes — the longest since Ohio reinstituted the death penalty in 1999.  He struggled, gasped for air and choked for about 10 minutes before eventually dying, according to a Columbus Dispatch witness. The fallout from McGuire's execution stalled Ohio's death penalty for three and a half years.

During that time, the state created its new three-drug protocol and changed policies to obtain the drugs....

State Public Defender Tim Young and his office are leading a lawsuit against the current lethal injection practices. One problem: Ohio keeps changing its methods. "Whenever the Department of Correction changes the protocol, you essentially reset the litigation," Young said.

Though he agrees with the governor's actions, Hamilton County Prosecutor Joe Deters said the debate over what drugs to use is just a charade to obstruct the death penalty in a state where the public supports it.  "The reality is we are killing someone.  It's not pretty.  It's ugly," he said, rattling off alternatives to lethal injection. "We've got a boatload of fentanyl sitting in (storage) right now. Bring back the firing squad. That has been ruled constitutional."

DeWine's political experiences have given him a unique perspective on capital punishment.  He sponsored legislation to reinstitute the death penalty legislation as a state lawmaker, fought against death row inmates' appeals as the state's attorney and now governs a state where the death penalty is legal....  But should Ohio continue the death penalty?  DeWine didn't take a stance when asked by The Enquirer.  "That is a discussion that certainly can take place, but I’m not going to engage in that today," he said....

Twenty states have abolished the death penalty. Some, such as Michigan, have never executed a prisoner.  Others have outlawed it in the past decade, concerned about its constitutionality, racial bias, cost or potential wrongful convictions. But Ohio is unlikely to join that list anytime soon.  The state's GOP-controlled Legislature has little appetite for limiting, much less banning, capital punishment.

In 2011, Ohio Supreme Court Chief Justice Maureen O'Connor, a Republican, led a task force of judges, prosecutors, defense attorneys and academics, who studied ways to improve the state's death penalty.  One recommendation — to ban the death penalty for individuals with a documented serious mental illness — has been proposed repeatedly by a bipartisan group of lawmakers only to die in committee. The main opponent to these limits on the death penalty: the Ohio Prosecuting Attorneys Association....

Democratic lawmakers have repeatedly introduced bills to abolish the death penalty in Ohio to no avail.  Still, Sen. Nickie Antonio, D-Lakewood, said she sees DeWine's call for a new protocol as an opportunity to move the conversation forward.  "Any time there’s difficulty in figuring out how to execute people, that’s a window to discuss whether the death penalty is even appropriate," Antonio said.

But it's possible DeWine's delay could have the opposite effect.  Lethal injection is currently the only execution method on the books in Ohio, but lawmakers could recommend an alternative, such as electrocution, firing squad, gas chamber or hanging. Senate President Larry Obhof has said he's happy to explore other options.  "We are all concerned that if you're going to have capital punishment, you should have a process in place that courts are willing to accept and meets constitutional muster," he told The Enquirer.

April 17, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Friday, April 12, 2019

Via 5-4 vote, SCOTUS reverses lower court stay of Alabama execution ... but does so too late for Alabama to carry out execution

As reported in this local article from Alabama, headlined "Execution called off for Christopher Price; SCOTUS decision allowing it came too late," five members of the Supreme Court tried again to enable a state to go forward with a scheduled execution, but its decision was later than it needed to be to allow the execution to go forward last night.  Here is the story:

Christopher Price was set to be executed at 6 p.m. Thursday for the 1991 killing of a minister in Fayette County, but the execution was called off about half an hour before Price’s death warrant expired at midnight.  An order from the U.S. Supreme Court that says the execution could go forward was issued shortly before 2 a.m. Friday, but it was too late for the state to carry it out because of the expired death warrant.  The state will now have to set a new execution date.

In a 5-4 decision the U.S. Supreme Court denied Price’s request for a review of his appeal and for the stay of execution.  Justice Stephen Breyer wrote a dissent, joined by three other justices, objecting to the overruling of decisions by a federal judge and the 11th U.S. Circuit Court of Appeals to stay the execution.

The order came after several appeals Thursday, beginning with Price’s attorneys filing an emergency motion for a preliminary injunction to a federal judge in Mobile asking her to halt the execution around 1 p.m.  Just before 4 p.m. Thursday U.S. Southern District Court Judge Kristi DuBose stayed the execution for 60 days.  She wrote the state had until May 10 to submit evidence in contradiction to Price’s contention that the three-drug execution protocol will cause or is likely to cause him severe pain and that execution by the new method — nitrogen hypoxia — will significantly reduce the substantial risk of severe pain.

The AG’s Office appealed to the U.S. 11th Circuit Court of Appeals, which affirmed DuBose’s ruling and kept the stay in place.  The Attorney General’s Office on Thursday night then appealed to the U.S. Supreme Court, saying in part that Price had not met a deadline for signing up for the new execution method.

The U.S. Supreme Court agreed with the Alabama Attorney General’s Office in its order issued Friday morning.  The majority opinion stated that Price essentially waited too late. “In June 2018, death-row inmates in Alabama whose convictions were final before June 1, 2018, had 30 days to elect to be executed via nitrogen hypoxia ... Price, whose conviction became final in 1999, did not do so, even though the record indicates that all death-row inmates were provided a written election form, and 48 other death-row inmates elected nitrogen hypoxia.  He then waited until February 2019 to file this action and submitted additional evidence today, a few hours before his scheduled execution time.”

At 11:34 p.m. — when the nation’s highest court had yet to rule — the state called off the execution. A statement from the ADOC said, “As a practical matter, the time remaining before the expiration of the death warrant does not permit sufficient time to accomplish the execution in accordance with established procedures."

Alabama Attorney General Steve Marshall released a statement after the announcement was made.  “Tonight, in the middle of National Crime Victims’ Rights Week, the family of Pastor Bill Lynn was deprived of justice.  They were, in effect, re-victimized by a killer trying to evade his just punishment. This 11th-hour stay for death row inmate Christopher Price will do nothing to serve the ends of justice.  Indeed, it has inflicted the opposite — injustice, in the form of justice delayed."...

Samantha Banks, an ADOC spokesperson, said Price’s last request was to be married to his fiancée.  He was married Wednesday in the visitation yard at Holman.  Price was visited by his wife, an aunt, and an uncle on Thursday. Wednesday, he made four phone calls to attorneys, one to his wife, and one to an aunt....

Lynn, a minister at Natural Springs Church of Christ, was fatally stabbed with a knife and sword outside his home in the Bazemore community three days before Christmas in 1991. Court records state Lynn was putting together Christmas presents for his grandchildren, when the power went out.  He walked outside to check the power box when he was attacked. Records state Lynn suffered 38 cuts, lacerations, and stab wounds, and one of his arms was almost severed.  He died en route to a local hospital.  His wife, Bessie Lynn, was wounded in the attack but survived her injuries.

Price, of Winfield, was 19 at the time and was arrested in Tennessee several days after the slaying. He was convicted in 1993.

The short order from the Supreme Court and the lengthy dissenting opinion authored by Justice Breyer and joined by three other justices is available at this link.  Because the key line of the Court's order is reprinted above, I will quote here the last paragraph of Justice Breyer's six-page dissent:

Alabama will soon subject Price to a death that he alleges will cause him severe pain and needless suffering.  It can do so not because Price failed to prove the likelihood of severe pain and not because he failed to identify a known and readily implemented alternative, as this Court has recently required inmates to do.  Instead, Alabama can subject him to that death due to a minor oversight (the submission of a “preliminary” version of a final report) and a significant mistake of law by the Court of Appeals (the suggestion that a report marked “preliminary” carries no evidentiary value).  These mistakes could be easily remedied by simply allowing the lower courts to consider the final version of the report.  Yet instead of allowing the lower courts to do just that, the Court steps in and vacates the stays that both courts have exercised their discretion to enter.  To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system.  To proceed in this matter in the middle of the night without giving all Members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate.

April 12, 2019 in Baze and Glossip lethal injection cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, April 08, 2019

Notable new (though incomplete) accounts of the state of death penalty politics

A couple of major news outlets had a couple of recent lengthy stories about modern death penalty politics.  Here are headlines, links, a small snippet and a follow-up comments:

From NBC News, "Death penalty repeal sweeping across states as both parties get on board":

Hannah Cox, the national manager of Conservatives Concerned About the Death Penalty, said that while the issue of repealing the death penalty was once a partisan one, that's changing.  It "was virtually unheard of in 2012 for a Republican lawmaker to sponsor repeal," Cox said.  This year, ten states have had Republican-sponsored legislation aimed at doing away with capital punishment, according to her grassroots advocacy group.  That includes Georgia, where the bipartisan House Bill 702 was introduced on March 28 backed by the Ways and Means committee chairman and boasting two other GOP co-sponsors.

From the New York Times, "Democrats Rethink the Death Penalty, and Its Politics":

In 2016, for the first time, the Democratic Party platform called for the abolition of the death penalty.  But Hillary Clinton, the party’s nominee for president, supported capital punishment. President Barack Obama never called for its end, either.  Al Gore was a supporter, and so was Bill Clinton.  Some fear it could still be a losing issue in a general election against President Trump, who has talked about expanding those eligible for execution to include convicted drug dealers and could use the issue to rally his base and portray Democrats as weak on crime.  In a Twitter post about Mr. Newsom’s moratorium, Mr. Trump wrote, “friends and families of the always forgotten VICTIMS are not thrilled, and neither am I!”

Because the story of modern capital politics is so interesting and dynamic, I cannot fault these press stories for failing to cover it fully.  These pieces, in my view, especially miss the important stories surrounding the apparent disinterest that even Republican supporters of the death penalty now have for taking steps to enhance the number and pace of executions.  As regular readers know, here in Ohio, former GOP Gov (and once and perhaps future Prez candidate) John Kasich commuted or delayed a large number of executions and his replacement, Gov. Mike DeWine, recently imposed a de facto moratorium on executions because of lethal injection concerns.  Similarly, a number of deep red states with sizable death rows, states like Mississippi, North Carolina, Oklahoma and South Carolina, have not had an execution in a number of years, and I do not recall any GOP leaders complaining (or campaigning) that this is a major problem.

Indeed, though Prez Trump was quick to criticize California Gov. Newsom's announcement of a formal execution moratorium, Prez Trump himself has seemingly done nothing over two+ years in the Oval Office to end the long-running de facto moratorium on federal executions.  Notably, California had its last execution in 2006, whereas the last federal execution took place way back  in 2003.  There are currently more than 60 people on federal death row, and some of have been there for more than 25 years.  Ultimately, it seems that Prez Trump is really like many GOP leaders these days: he is supportive of the death penalty in theory, but he is not really all that interested in doing the work needed to make the death penalty much more functional. And this political reality arguably accounts for the modern state of capital punishment more than any other factor.

April 8, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, April 02, 2019

Unsurprisingly divided reactions to Supreme Court's latest divided ruling on lethal injection methods

The Supreme Court yesterday split 5-4 in favor of the state of Missouri in yesterday's execution protocol case, Bucklew v. Precythe, No. 17-8151 (S. Ct. April 1, 2019) (available here, basics here).  Capital cases have a way of not only revealing deep splits among the Justices, but also revealing how differently commentators for and against the death penalty view the Court's work.  Unsurprisingly, supporters of the death penalty have notable praise for the Court's work in Bucklew (with modest titles for their commentary):

From Paul Cassell, "The Supreme Court Recognizes Victims' Rights in Death Penalty Cases"

From Kent Scheidegger, "The Opinion of the Court in the Bucklew Case"

In contrast, opponents of the death penalty have notable criticism of the Court's work in Bucklew (with more extreme titles for their commentary):

From Scott Lemieux, "The Supreme Court ruled that 'cruel and unusual punishment' no longer preclude unusually cruel punishments"

From Ian Millhiser,"Gorsuch just handed down the most bloodthirsty and cruel death penalty opinion of the modern era"

From Elie Mystal, "Supreme Court Draws, Quarters The Eighth Amendment"

From Mark Joseph Sterm, "The Supreme Court’s Conservatives Just Legalized Torture"

I understand why abolitionists are troubled by Bucklew because it reveals that there are now five Justices who are eager to prevent lower court judges from heavily supervising and persistently tinkering with how state wish to operate their machineries of death.  But, practically speaking, it remains to be seen if Bucklew proves to be a big deal.  Impressively, despite the fact that the Supreme Court has never found any method of execution unconstitutional, and despite seemingly "big" wins for states in both Baze and Glossip, energized and effective defense counsel have kept litigating hard and kept succeeding in gets lots and lots of scheduled executions halted (Ohio provided the latest example of this on-the-ground reality this year).

Though I am always sympathetic to commentary that urges the Supreme Court to give more force to the Eighth Amendment's limit on punishment, I sincerely wish folks so troubled by Bucklew would spend a bit more time focused on all-too-common extreme prison sentences over ever-rarer death sentences and executions.  A few weeks ago, as noted in this post, the Supreme Court denied cert in an Eighth Amendment case involving a federal sentence of over 150 years for a first offender lured into a drug deal by government agents. The entire First Circuit issued a remarkable opinion urging the Justices to take up the case, but not a single Justice was even move to say a work about a seemingly toothless Eighth Amendment jurisprudence in an era of mass incarceration.  As I noted in my prior post, the legal press and criminal justice commentators have entirely ignored this case, confirming my fears that one needs to be a murderer on death row to have your case garner attention.  Sigh.

UPDATE: John Stinneford, whose article The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation was cited in the Court's opinion, has this lengthy discussion of the ruling at The Volokh Conspiracy under the heading "What Bucklew Doesn’t Say." Here is a small snippet:

The majority opinion is explicitly originalist in its approach to the Cruel and Unusual Punishments Clause, a rare (if not unprecedented) phenomenon in the modern history of the Court.  But in contrast to some prior originalist concurrences or dissents by Justices Scalia and Thomas, the Bucklew Court does not rush to make any comprehensive claims about the original meaning of the Clause.  Rather, it skirts around the edges of the Clause's original meaning, deciding only enough about that meaning to demonstrate (to its own satisfaction, anyway) that Missouri's lethal injection protocol is constitutional.  In this regard, Bucklew is an admirably modest opinion.

April 2, 2019 in Baze and Glossip lethal injection cases, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Monday, April 01, 2019

Splitting 5-4 along traditional ideological lines, SCOTUS rejects Missouri inmate's challenge to lethal injection protocol

The Supreme Court this morning handed down its opinion in an execution protocol case, Bucklew v. Precythe, No. 17-8151 (S. Ct. April 1, 2019) (available here).  The Court split 5-4 in favor of the state of Missouri, and here is how Justice Gorsuch's opinion for the Court gets started:

Russell Bucklew concedes that the State of Missouri lawfully convicted him of murder and a variety of other crimes.  He acknowledges that the U.S. Constitution permits a sentence of execution for his crimes.  He accepts, too, that the State’s lethal injection protocol is constitutional in most applications.  But because of his unusual medical condition, he contends the protocol is unconstitutional as applied to him.  Mr. Bucklew raised this claim for the first time less than two weeks before his scheduled execution.  He received a stay of execution and five years to pursue the argument, but in the end neither the district court nor the Eighth Circuit found it supported by the law or evidence. Now, Mr. Bucklew asks us to overturn those judgments.  We can discern no lawful basis for doing so.

Justice Breyer penned the lead dissent, and it gets started this way:

The Court’s decision in this case raises three questions.  The first is primarily a factual question, namely, whether Bucklew has established genuine issues of material fact concerning whether executing him by lethal injection would cause him excessive suffering.  The second is primarily a legal question, namely, whether a prisoner like Bucklew with a rare medical condition must identify an alternative method by which the State may execute him.  And the third is a more general question, namely, how to minimize delays in executing offenders who have been condemned to death.

I disagree with the majority’s answers to all three questions. Bucklew cites evidence that executing him by lethal injection will cause the tumors that grow in his throat to rupture during his execution, causing him to sputter, choke, and suffocate on his own blood for up to several minutes before he dies.  That evidence establishes at this stage of the proceedings that executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering.  The majority holds that the State may execute him anyway.  In my view, that holding violates the clear command of the Eighth Amendment.

The decision includes short concurring opinions from Justices Thomas and Kavanaugh, and also a added dissenting opinion by Justice Sotomayor. I fear a busy day means I will not be able to analyze all that is being said in this case until late tonight.  But I suspect, as is always true with capital cases, lots of other folks will have lots to say about what various Justices are saying here.

April 1, 2019 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, March 07, 2019

Ohio Governor officially postpones three more scheduled executions

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

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

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

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

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

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

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

A few (of many) prior recent related posts:

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

Wednesday, February 20, 2019

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

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

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

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

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

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

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

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

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

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

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

A few (of many) prior recent related posts:

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

Saturday, February 09, 2019

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

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

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

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

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

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

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

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

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

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

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

A few (of many) prior recent related posts:

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

Friday, January 25, 2019

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

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

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

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

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

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

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

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

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

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

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

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