Thursday, June 23, 2022

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

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

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

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

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

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

June 23, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, June 08, 2022

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

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

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

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

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

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

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

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

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

June 8, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Tuesday, June 07, 2022

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

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

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

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

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

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

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

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

June 7, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, May 02, 2022

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

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

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

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

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

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

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

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

May 2, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, April 24, 2022

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

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

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

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

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

April 24, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 21, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 21, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

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

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

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

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

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

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

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

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

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

April 21, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, April 19, 2022

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

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

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

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

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

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

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

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

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

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

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

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

April 19, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

Friday, April 15, 2022

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

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

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

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

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

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

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

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

April 15, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

Monday, April 11, 2022

"The Return of the Firing Squad?"

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

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

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

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

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

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

April 11, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

Thursday, March 24, 2022

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

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

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

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

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

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

March 24, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Religion, Sentences Reconsidered, Who Sentences | Permalink | Comments (26)

Saturday, March 19, 2022

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

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

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

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

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

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

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

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

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

March 19, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (17)

Thursday, January 27, 2022

Oklahoma completes first execution of 2022

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

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

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

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

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

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

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

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

January 27, 2022 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (5)

Thursday, December 09, 2021

Oklahoma completes final 2021 scheduled execution in the United States

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 9, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

Monday, November 08, 2021

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

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

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

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

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

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

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

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

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

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

Prior related posts:

November 8, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Friday, October 29, 2021

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts:

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

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

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

October 29, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (5)

Thursday, October 28, 2021

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

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

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

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

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

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

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

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

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

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

October 28, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

Tuesday, October 26, 2021

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

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

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

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

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

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

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

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

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

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

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

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

October 26, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (1)

Sunday, August 08, 2021

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

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

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

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

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

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

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

A few (of many) prior related posts:

August 8, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

Monday, May 24, 2021

Lengthy lament in SCOTUS cert dissent about execution method litigation

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

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

May 24, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Monday, May 17, 2021

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

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

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

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

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

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

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

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

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

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

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

May 17, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (3)

Tuesday, April 27, 2021

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

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

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

April 27, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Wednesday, February 17, 2021

Notable new press report on accounts of recent federal execution particulars

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

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

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

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

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

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

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

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

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

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

February 17, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (0)

Tuesday, January 05, 2021

"Back to the Future with Execution Methods"

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

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

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

January 5, 2021 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (2)

Friday, November 20, 2020

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

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

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

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

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

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

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

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

A few prior recent related posts:

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

Wednesday, November 18, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 12, 2020

"Nondelegating Death"

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

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

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

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

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

Saturday, October 31, 2020

"Courts, Culture, and the Lethal Injection Stalemate"

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

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

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

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

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

Monday, October 05, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Monday, September 21, 2020

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

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

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

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

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

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

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

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

Monday, August 24, 2020

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

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

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

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

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

A few of many recent prior related posts:

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

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

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

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

Tuesday, July 14, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior recent related posts:

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

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

July 14, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, July 13, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

July 13, 2020 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)

Monday, June 29, 2020

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

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

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

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

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

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

Monday, June 15, 2020

Justice Department announces the scheduling of four new federal execution dates

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

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

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

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

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

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

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

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

Prior related posts:

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

Wednesday, April 08, 2020

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

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

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

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

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

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

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

Prior related posts:

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

Tuesday, April 07, 2020

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

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

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

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

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge KATSAS.

Concurring opinion filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge TATEL.

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

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

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

Prior related posts:

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

Friday, February 21, 2020

Tennessee completes yet another execution using the electric chair

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

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

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

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

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

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

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

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

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

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

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

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

A few recent related posts:

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

Thursday, February 20, 2020

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

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

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

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

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

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

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

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

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

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

Friday, February 14, 2020

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

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

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

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

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

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

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

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

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

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

Wednesday, January 15, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Thursday, January 02, 2020

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

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

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

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

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

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

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

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

Thursday, December 19, 2019

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

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

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

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

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

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

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

Tuesday, December 17, 2019

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

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

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

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

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

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

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

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

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

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

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

Friday, December 06, 2019

Tennessee completes execution of blind murderer via electrocution

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

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

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

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

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

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

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

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

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

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

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

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

Monday, December 02, 2019

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Sunday, November 24, 2019

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

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

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

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

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

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

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

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

In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs. Barr said in July that the Obama-era review had been completed, clearing the way for executions to resume.

He approved a new procedure for lethal injections that replaces the three-drug combination previously used in federal executions with one drug, pentobarbital. This is similar to the procedure used in several states, including Georgia, Missouri and Texas, but not all.

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

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

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

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

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

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

Prior related posts:

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

Thursday, November 21, 2019

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

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

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

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

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

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

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

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

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

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

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

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

Friday, October 25, 2019

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

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

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

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

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

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

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

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

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

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

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

A few (of many) prior recent related posts:

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