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)

Tuesday, December 11, 2018

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

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

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

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

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

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

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

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

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

Wednesday, December 05, 2018

Texas completes execution for escapee involved in killing during crime spree

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 20, 2018

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

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

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

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

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

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

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

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

Thursday, November 15, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 07, 2018

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

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

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

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

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

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

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

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

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

The SCOTUSblg argument review includes these observations:

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

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

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

Prior related post:

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

Monday, November 05, 2018

Reviewing some previews of Bucklew v. Precythe

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

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

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

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

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

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

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

Thursday, November 01, 2018

Tennessee completes execution using electric chair

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, October 30, 2018

South Dakota completes execution of prison guard murderer who relinquished appeals

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, October 11, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, October 09, 2018

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

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

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

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

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

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

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

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

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

Saturday, October 06, 2018

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

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

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

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

Tuesday, September 18, 2018

Previewing the two capital punishment administration cases before SCOTUS this fall

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

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

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

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

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

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

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

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

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

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

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

Monday, September 10, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, August 15, 2018

"The American Execution Queue"

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

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

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

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

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

Tuesday, August 14, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, August 12, 2018

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

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

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

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

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

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