Lethal Injection: Who Gives the Shot?

Executions need executioners. One of the challenges to the lethal injection method of execution in the United States involves the drugs used in the process, and we post about those controversies (and the arguments being made in various courts) regularly.

However, another serious concern regarding injecting drugs into a human being in order to carry out a sentence of death involves who acts as executioner.

Doctors and Pharmacists

Doctors take an oath dedicating themselves to saving lives, not ending them. Physicians are vocal about their opposition to participating in executions involving lethal injections.

Which means it has been difficult finding people to do the job, and in some executions pharmacists have been the solution to the problem of finding an execution to inject the drug cocktail (or the single drug) used for capital punishment in that state.

Recently, the national organization that represents pharmacists came out officially against participating in executions involving lethal injections.

It doesn't stop an individual pharmacist from participating, but it sure does discourage it. 

Their press release:

APhA House of Delegates Adopts Policy Discouraging Pharmacist Participation in Execution
 

March 30, 2015


"The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.”

WASHINGTON, DC – The American Pharmacists Association (APhA) House of Delegates today voted to adopt a policy discouraging pharmacist participation in executions. The House of  Delegates met as part of the 2015 APhA Annual Meeting & Exposition, APhA2015, in San Diego.

The policy states: “The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care.”

APhA Executive Vice President and CEO, Thomas E. Menighan, BSPharm, MBA, ScD (Hon), FAPhA, stated, “Pharmacists are health care providers and pharmacist participation in executions conflicts with the profession’s role on the patient health care team. This new policy aligns APhA with the execution policies of other major health care associations including the American Medical Association, the American Nurses Association and the American Board of Anesthesiology.
 

This new policy statement joins two policies previously adopted by the APhA House of Delegates:

Pharmacist Involvement in Execution by Lethal Injection (2004, 1985)

1. APhA opposes the use of the term "drug" for chemicals when used in lethal injections.
2. APhA opposes laws and regulations which mandate or prohibit the participation of pharmacists in the process of execution by lethal injection.

DPIC Launches New Series: "50 Facts About the Death Penalty"

 

For more information, go to the DPIC website.  

Death Penalty and the Supreme Court: What Will SCOTUS Do?

 Right now, the Supreme Court of the United States is considering several cases dealing with capital punishment and how the death penalty is to be carried out in this country.

It's getting to the end of the 2015 Term for the High Court, which means that we may expect some opinions to come down before the Justices leave for their summer vacations.  

The pending death penalty cases on the 2015 SCOTUS calendar include:

1.  Brumfield v. Cain

This is a case dealing with whether or not the means that the State of Louisiana has in place to determine whether or not the person is mentally disabled, and therefore protected by this Eighth Amendment bar, past constitutional muster.

2. Hurst v. Florida

Here, the sole question presented to the High Court for decision is whether or not Florida's death sentencing scheme violates the Sixth Amendment or the  Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U. S. 584 (2002). 

3. Glossop v. Gross

The High Court is considering this case out of Oklahoma and while there are some that suggest this case may result in the entire lethal injection method of execution being held unconstitutional as cruel and unusual, there are others that see the case as being narrowly based, and dealing only with the issue of devation from Baze v. Rees, 553 U.S. 35 (2008) insofar as substituting the drug 

midazolam as its three-drug lethal injection cocktail, a drug not approved by the FDA for use as general anesthesia and never used as the sole anesthetic for painful surgical procedures.

4.  Supreme Court Allowed Two Death Penalty Executions Already This Year

Of note, Texas got the green light to execute Robert Ladd this year and Georgia also went ahead with the execution of Warren Hill in 2015 after SCOTUS declined to grant writ in that case.

_______________

NOTE:  There is in-depth discussion of the lethal injection method of execution which focuses in part upon the botched execution of Clayton Lockett by the State of Oklahoma that was published today in the Atlantic.

(Hat tip to Sydney Simon for sending Terry Lenamon advance notice of the cover story here.)

Entitled, "Cruel and Unusual:The botched execution of Clayton Lockett—and how capital punishment became so surreal," and written by Jeffrey E. Stern, it's a good read for those following what's happening up in Washington right now.  

More on Lethal Injection Executions as Unconstitutional

Two quick things as we await the Supreme Court decision in Glossop:
 
1.  Read this Article
 
Last week, law professor Paul Litton shared an article with Terry Lenamon that he has coauthored with Harvard professor David B.Waisel.  It  discusses last week's SCOTUS arguments and the overall issue of whether or not the current lethal injection method of execution is unconstitutional.
 

It's a good read.

2. Watch this Video

Another good exploration of the issue -- this video from the Death Penalty Information Center:

Is Death Penalty by Lethal Injection Unconstitutional?

Tomorrow morning, the Supreme Court of the United States will hear oral arguments in a case where many believe the entire question of whether or not the lethal injection method of execution is cruel and unusual punishment will be decided.
 
 
Be Ready at 9:45 AM Tomorrow for Lethal Injection Method Arguments
 
SCOTUS blog will begin live blogging tomorrow's oral arguments at 9:45 AM EST.  If you want to be notified by email when the live blogging is about to start, then they'll send you a reminder email upon request.  
 
Glossop v. Gross Background Briefs and More
 
For details on the arguments being made and the background of the case, Glossop v. Gross, read the details provided by the SCOTUS blog.  These include briefs by the parties as well as amicus curaie filings in the case.   
 
Why Follow the Live Blogging?  
 
The Supreme Court provides audio as well as transcripts of each week's oral arguments online on a weekly basis.  So, if you want to follow things as they are happening, the live blogging allows you to do so.  There aren't cameras in the Supreme Court for a live feed (yet).  
 

Boston Marathon Bomber Death Penalty Trial - Penalty Phase

 This week, the Massachusetts trial of Boston Marathon Bomber Dzhokhar Tsarnaev continues in much the same way that a death penalty trial would in Florida or Texas.  

The Two Parts of a Death Penalty Trial

In the Boston Marathon Bomber's case, just like a Florida death penalty trial or a Texas case seeking the execution of the defendant:

  • The jury has decided that the defendant is guilty.  
  • The jury verdict includes a crime for which state law provides the death penalty.  
  • The prosecution has sought capital punishment in the case - something that was noticed and known to both the state's attorneys and the criminal defense team from very early on in the process.
  • Now, the Boston Marathon Bomber's courtroom trial proceeds into the part of the case where Terence Lenamon takes the lead for his defendants: that is, the penalty phase of the capital case.  
  • The prosecution will be arguing for death and citing "aggravating factors" that the jury should consider in its deliberations.
  • The defense will be urging "mitigating factors" that should be balanced against the death penalty in the jury's decision-making.

Federal Law Controls Death Penalty Decision by Jury

This case, however, is controlled by federal law.  Specifically, 18 USC Section 3592, the federal statute for "Mitigating and aggravating factors to be considered in determining whether a sentence of death is justified." 

Here is Terence Lenamon's complete list of federal aggravating factors and the defense's mitigating factors if you want to compare them to what the Boston trial is presenting.

The prosecutors only need to prove ONE aggravating factor to the jury in order to support their demand for the death penalty as a sentence.  Given the death of a small boy at the scene, reportedly near the site where the bomb was placed and within view of the defendant at the time that the bomb was left there, there are facts which may be sufficient on this one circumstance to meet this legal burden under the federal statute.

The defense, looking at mitigating factors, may well point to the young age of the defendant and an argument that he was unduly influenced by his older brother - the other bomber who died during the arrest.  Some may expect to see evidence presented that survivors of the blast are opposed to the death penalty (but the state may argue against its admission).  

Other psychological evidence may be presented, and the defense only has to meet a "preponderance of the evidence" standard (something akin to 51%) to prove the mitigation arguments.  That's a lower burden than the prosecutor must meet.

Will the jury sentence this man to death?  Would you?   

 

Death Row in Florida and the USA: The New Stats

We're getting information now about how the death penalty and capital punishment fared in 2014.   The first quarterly report from the NAACP's Legal Defense Fund has been released.

 

 

image: Cell on Florida's Death Row

U.S. Death Row Populations: Most in California, 43% White

From it, we now have statistical confirmation that there were less people on death row last year.  Across the nation, the death row population decreased by 12%.  There were around 3000 people on Death Row at the end of 2014, around 450 less than the previous year.

The report shows that of these Death Row inmates, 43% are white; 42% are black; and 13% are Latino/Latina.  

Florida continues to have the largest Death Row population in the country, second only to California, with 403 inmates (California has 743).  Texas is third with 276 people living on its Death Row.  

To read the entire report, go here.  

Death Row and Executions

One thing to point out here:  in the top three listed above, both Florida and Texas are high with the number of Death Row inmates and both these states are active in executing people and carrying out capital punishment sentences.  

Not so, California.

One reason that California is number one in Death Row population statistics is that California isn't executing people like Florida, Texas, Georgia, Oklahoma, etc.  Instead, the population on the California Death Row grows.

So much so, in fact, that the state has run out of room.  To keep doing what its doing, California will have to spend cash to expand its Death Row facilities.  See the recent Los Angeles Times story for details, "California's death row, with no executions in sight, runs out of room."

 

Infographic: Executions and Mentally Challenged Statistics

 

Terence Lenamon works to defend all his clients who are facing the possibility of capital punishment, and he works particularly hard for those defendants who have mental capacity issues based upon psychological and/or physical concerns.  

Mitigating factors in these areas should prevent these individuals from being given the death penalty, much less being executed; however, as these statistics show, and as Terry Lenamon discusses regularly, the reality is that people with mental challenges are executed in this country regardless of the constitutional prohibition against it being cruel and unusual punishment.  

SCOTUS hears Brumfield v Cain on Execution of the Mentally Disabled

 This week, the Supreme Court of the United States heard oral argument in the case of Brumfield v. Cain, a death penalty case coming out of Louisiana and filed by Death Row inmate Kevan Brumfield.

 
The crux of the case is how someone is determined to be mentally disabled and therefore, not subject to capital punishment and the death penalty under the federal constitution.  
 
 
Of course, this isn’t the first time that the High Court has considered this issue; it’s a complex legal question that the Supreme Court has considered in earlier, landmark cases like Atkins v. Virginia, where it found that convicted individuals who are “mentally retarded”  cannot be executed because this would violate the Eighth Amendment’s bar against cruel and unusual punishment.  
 
In Brumfield, the question isn’t whether or not someone with severe mental disability can be executed — it’s whether or not the means that the State of Louisiana has in place to determine whether or not the person is mentally disabled, and therefore protected by this Eighth Amendment bar, past constitutional muster.
 
Brumfield Questions Presented
 
 
 
(1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and 
 
(2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.
 
 
 
 
 
 
 
 

Returning Death Penalty to Other Execution Methods On the Books

 

There are several different methods of execution used by the states (as well as the federal government and the U.S. Military) that offer ways to carry out a sentence of death other than the lethal injection method.  

Image:  Florida's Electric Chair

 

Guillotines, for example, are well known execution methods (as sadly are beheadings by other means), but the United States does not recognize this as an acceptable means of carrying out capital punishment.

Alternative Execution Methods

These are already in the law, and have been superseded by lethal injection as the preferred method of carrying out capital punishment.  They have passed constitutional challenge already, these methods just haven't been used in decades.  But they're available, statutorily.  

In these jurisdictions, lethal injection is considered the primary means of carrying out a death sentence, but other execution methods remain as acceptable alternatives in the state law.  
 
As lethal injections come under more and more scrutiny, these statutes are being reconsidered as ways to impose the death penalty and it’s probably going to be in the near future that these older methods may be used again.  
 
It may not take much more than an executive order from the governor (say, in Tennessee where the electric chair was restored by the governor in May 2014) for the state to opt for these alternative methods.  
 
4 Methods of Execution In U.S. Death Penalty Cases Other Than Lethal Injection
 
 
1.  Firing Squad
 
This month, the State of Utah made news by returning to the firing squad as an alternative, acceptable execution method to lethal injection.  However, this may not be a real surprise to those living in Utah; after all, the firing squad has been used as recently as 2010, when Utah law allowed a Death Row inmate to choose the firing squad over lethal injection as the method of execution.
 
 
Other states with firing squad as an approved method of execution:  Idaho and Oklahoma.
 
2.  Electrocution
 
States with electrocution (electric chair) as an execution method in their laws, while lethal injection became the preferred method of execution, are Alabama, Arkansas, Florida, Illinois, Kentucky, Oklahoma, South Carolina, Tennessee, and Virginia.
 
3.Gas Chamber
 
Gas chambers as a means of capital punishment exists in 5 states: Arizona, California, Maryland, Missouri, and Wyoming.  Oklahoma is currently legislating nitrogen in gas chambers as a means of execution, since the lethal injection method used in that state is being reviewed right now by the Supreme Court of the United States. 
 
4. Hanging
 
For New Hampshire and Washington, death sentences can be carried out by hanging as well as lethal injection.  
 
 

 

Jodi Arias and Death Penalty Sentencing

Right now, the Supreme Court of the United States has agreed to review (”granted writ”) the decision by the Florida Supreme Court in a case brought by a Florida Death Row inmate. (For details, check our recent post on this pending appeal.)

This decision by the nation’s High Court may well decide if the State of Florida’s “death penalty scheme” should include an unanimous decision by jurors in deciding on the death penalty in a case.

Right now Florida does NOT require 100% agreement of the jury before capital punishment can be sentenced in a case.

Will this change? Should it?

Well, consider the recent decision in the Jodi Arias matter. After all the time and money spent on not one but TWO juries hearing arguments over whether or not Jodi Arias should be sentenced to death, one single individual held out against the death penalty and the result?

Arias escaped the death penalty even though most of the jurors who reviewed her case were in favor of it.

The public was not happy with this result and there were death threats against that single juror. It was the requirement of an unanimous jury that saved Jodi Arias from the death penalty.

Trial By Media Impact? 

NOTE: as for trial by media, it’s interesting to consider the reasoning of that holdout juror: it’s reported that the Lifetime TV Movie that portrayed the Jodi Arias case through her meeting with murder victim Travis Alexander through her trial and conviction was a great influence on the juror’s stubborn resolve not to vote for death.

SCOTUS Will Hear Another Challenge to Florida's Death Penalty Statute

This week, the United States Supreme Court agreed to hear a case brought by Florida Death Row inmate Timothy L. Hurst that brings another challenge to the constitutionality of the Florida statute allowing for capital punishment and how a jury works in assessing the death penalty.

Read the Supreme Court Order here.  The sole question to be addressed by SCOTUS is this:  

 Whether Florida's death sentencing scheme violates the Sixth Amendment or the  Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U. S. 584 (2002). 

In Hurst's petition to the High Court, his attorneys are arguing that the Florida death penalty statute is unconstitutional because of the way that it allows a jury to decide if a defendant facing capital punishment is intellectually challenged.  

Hurst's lawyers are arguing that he should not be given the penalty of death because it goes against federal constitutional protections of cruel and unusual punishment when the defendant is intellectually disabled.

Interesting how the Supreme Court has combined the two questions presented to it in Hurst’s petition into the single issue above.  

In the Death Row inmate's petition, he asked the High Court to rule on two questions:  

  • first, the role of the Florida jury in cases where a death penalty defendant argues intellectual disability and
  • second, the role of the Florida jury in the overall death sentencing phase -- including the lack of unanimous juries being required under Florida law.  

There is no real argument that Timothy Hurst is mentally challenged.  In the Hurst case, one test shows that Hurst has an IQ of 69.  This and other evidence was provided to the jury during the punishment phase of his criminal trial. His intellectual disability was presented as a mitigating factor. 

(For more on mitigating factors, check out our earlier blog posts discussing mitigation and Terry Lenamon's focus on mitigation and the sentencing phase of death penalty cases.)

Florida Supreme Court Decision Under Review of SCOTUS 

The Florida Supreme Court has heard Hurst's arguments and ruled against him.  The state's highest court has determined that the criminal trial jury did not have do make a decision (a "factual determination" as the factfinder) on Hurst's intellectual disability.  

Now, the U.S. Supreme Court will review that opinion and its rationales against the federal constitutional protections and determine if Florida's current procedure regarding juries and their responsiblities in this aspect of mitigation is unconstitutional.
 
 
 

Georgia Halts Executions Out of Concern for Pentobarbital Quality

Georgia is halting its lethal injection executions for now because of concerns voiced by state officials about the quality of the chemicals available to be used by executioners.

Kelly Gissendaner's Execution Has Been Stayed.

According to the New York Times, lawyers for Kelly Gissendaner have explained that representatives for the State of Georgia stated that the pentobarbital that would have been used in the execution was found to be "cloudy" by a pharmacist expert.  

Note that pentobarbital is NOT a drug being considered by the Supreme Court of the United States in the pending lethal injection cocktail case (read our prior post for details).

_______________________

Here is the full text of the news release issued by the GeorgiGa Department of Corrections:

Homer Bryson, Commissioner

Director of Public Affairs Joan Heath

Contact: Gwendolyn Hogan (478) 992-5247 Hogang00@dcor.state.ga.us

STATE OF GEORGIA

For Immediate Release

Court Ordered Executions Postponed - Kelly Renee Gissendaner and Brian Keith Terrell FORSYTH, Ga. –

The Georgia Department of Corrections (GDC) announced today that, out of an abundance of caution, the scheduled executions of Kelly Renee Gissendaner and Brian Keith Terrell, have been postponed while an analysis is conducted of the drugs planned for use in last night's scheduled execution of inmate Gissendaner.

The sentencing courts will issue new execution orders when the Department is prepared to proceed.

The GDC has one of the largest prison systems in the U.S. and is responsible for supervising nearly 55,000 state prisoners and over 160,000 probationers. It is the largest law enforcement agency in the state with approximately 12,000 employees.

American Bar Association Resolutions Re: Death Penalty

 This month, the American Bar Association (ABA) passed without any dissenting delegate votes not one but two resolutions that impact how capital punishment is sentenced and carried out in the United States, particularly Florida.

Image: State of Florida Execution Chamber No. 3
 
 
1.  ABA:  Florida Should Require 100% Unanimous Jury for Death Penalty
 
The first resolution, Resolution 108a, calls for there to be 100% agreement for a death penalty sentence before a jury can approve capital punishment in a case.  
 
Right now,  unanimous juries in capital sentencing may be assumed to be true by lots of people, but there are several states — including Florida — where it’s not required under state law for there to be unanimity before the sentence of death.
 
 
RESOLVED, That the American Bar Association urges all federal, state, and territorial governments, that impose capital punishment, and the military, to require that:
 
(1) Before a court can impose a sentence of death, a jury must unanimously  recommend or vote to impose that sentence; and

(2) The jury in such cases must also unanimously agree on the existence of any fact that is a prerequisite for eligibility for the death penalty and on the specific aggravating factors that have each been proven beyond a reasonable doubt. 
 

2.  ABA: Florida Should Be Transparent Regarding Lethal Injection Execution Methods  
 
The second resolution passed by the ABA askes for greater transparency in executions, specifically the procedures for lethal injections.  As those who follow the issue of capital punishment, or those who read this blog regularly, are too well aware, the past few years have seen a change in how available certain drugs have become for use by state executioners.  
 
As the scarcity of these chemicals grew, states were forced to make changes in their execution methods, specifically what drugs they used in their lethal injection procedures.  As challenges arose regarding the changes they were making, there was growing secrecy surrounding the various execution methods, officially approved by the powers-that-be.  
 
 
RESOLVED, That the American Bar Association urges federal, state, and territorial legislative bodies and governmental agencies, including departments of corrections, and the military that impose or implement capital punishment, to:
 
(1) promulgate execution protocols in an open and transparent manner and allow public comment prior to final adoption; and,

(2) require disclosure to the public, to condemned prisoners facing execution, and to courts all relevant information regarding execution procedures, including but not limited to:

a. the steps to be followed in preparation for, during, and after an execution,
b. the qualifications and background of execution team members, and
c. details about any drugs to be used, including the names, manufacturers or
suppliers, doses, expiration date(s), and testing results concerning use of the
drugs.

(3) require that an execution process, including the process of setting IVs, be viewable by media and other witnesses from the moment the condemned prisoner enters the execution chamber until the prisoner is declared dead or the execution is called off;

(4) create and maintain contemporaneous records of what transpires during the execution, including but not limited to the drugs administered, the timing of  administration, and any complications, errors or unanticipated events;
 
(5) disclose the entirety of records and logs on the execution process upon order of the court or as otherwise required in discovery or by law upon request of a death-sentenced prisoner, the prisoner’s counsel, or successors; and,

(6) provide an immediate, thorough, and independent review of any execution where the condemned prisoner struggles or appears to suffer, where the execution is otherwise prolonged, or where the execution deviates from the adopted protocols and regulations concerning the execution process.

 

Death Penalty Is Alive and Well in 2015

It's true that there have been two state governors who recently halted executions in their state, pointing to the pending action by the U.S. Supreme Court.  

Both the governor of the State of Ohio and the governor of Pennsylvania have used their executive power to stop any executions from happening in their two states, at least for the time being.  (Of note, Pennsylvania hasn't executed anyone since 1999.)

And, it's true that the State of Oklahoma has had its executions stayed.  This halt is also due to recent activity before SCOTUS.

However, it's important to recognize that this isn't signaling the halt of capital punishment in this country.  

SCOTUS may have undertaken review of lethal injection as a method of capital punishment when a part of that lethal injection cocktail involves using midazolam, but the Supreme Court hasn't gone so far as to stop the death penalty itself in this country.  

Midazolam is one of the drugs used in the Florida lethal injection procedure.  Florida had an execution scheduled for February 26, 2015, but there was a move to stay that execution based upon the pending case before the Supreme Court.

The Florida Supreme Court granted that motion to stay, filed by Jerry William Correll's counsel, earlier today.

Read the Florida Supreme Court's Order Granting Stay here.

SCOTUS Allowed Two Death Penalty Executions Already This Year

Texas got the green light to execute Robert Ladd last month from SCOTUS.  Georgia also went ahead with the execution of Warren Hill after SCOTUS declined to grant writ in that case.  

States Considering Capital Punishment 

Moreover, capital punishment is being considered as a form of punishment in at least one state right now.   Michigan is considering instituting capital punishment.

States Considering Other Forms of Execution

Other states are considering other ways of execution in case lethal injection proves to be too difficult, constitutionally (or practically, given the limited supply of drugs).  

  1. Wyoming is considering the firing squad.
  2. Utah is considering the firing squad, as well.  
  3. Oklahoma is considering the gas chamber.

It's not over and it looks like SCOTUS is making it clear that we shouldn't misread its granting of writ in the Oklahoma case as being a bigger signal than it is.  

 

 
Image:  San Quentin Execution Chamber

 

 
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