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

 

New Infographic: Declining Death Penalty in U.S.

 

 

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Note: This infographic comes from Daily Kos using data they found at the Death Penalty Information Center web site.

Is Death Penalty by Lethal Injection Unconstitutional?

The Supreme Court has agreed to consider the case of Glossip v. Gross (coming out of Oklahoma) which is a death penalty case that may have national impact on how capital punishment is handled by Florida, Texas, and the rest of the country.

Image: State of Florida Execution Chamber No. 3

In Glossip, the issues presented to the High Court do not involve all lethal injections, or whether this execution method itself is “cruel and unusual punishment” in violation of the Eight Amendment.

It’s not that broad.

What the U.S. Supreme Court will be deciding is if a lethal injection execution method using midazolam as one of the three drugs involved in a lethal injection execution is “cruel and unusual.”

Still, the fact that the High Court is hearing this issue seems to have a powerful effect: recently, the Governor of Ohio announced that all of Ohio’s executions set for this year (2015) would be stayed given the pending matters before SCOTUS.

Glossip Case

There are three Oklahoma Death Row inmates going before SCOTUS, arguing against the use of midazolam as part of the three-drug lethal injection cocktail used by the State of Oklahoma.

1. You can follow the case on the SCOTUS Docket

2. For a good review of the Glossip case - both its history and the issues being presented to the Justices (oral argument probably in April 2015), check out James Ching’s take on things

3. Here are the Questions Presented to the U.S. Supreme Court in Glossip (writ granted January 23, 2015)(emphasis added):  

In Baze v. Rees, 553 U.S. 35 (2008), the Court held that Kentucky's three­-drug execution protocol was constitutional based on the uncontested fact that "proper administration of the first drug"-which was a "fast-acting barbiturate" that created "a deep, comalike unconsciousness"-will ensure that the prisoner will not experience the known pain of suffering from the administration of the second and third drugs, pancuronium bromide and potassium chloride. Id. at 44.

The Baze plurality established a stay standard to prevent unwarranted last­-minute litigation challenging lethal-injection protocols that were substantially similar to the one reviewed in Baze; a stay would not be granted absent a showing of a "demonstrated risk of severe pain" that was "substantial when compared to the known and available alternatives." Id. at 6l.

In this case, Oklahoma intends to execute Petitioners using a three-drug protocol with the same second and third drugs addressed in Baze.

However, the first drug to be administered (midazolam) is not a fast-acting barbiturate; it is a benzodiazepine that has no pain-relieving properties, and there is a well-established scientific consensus that it cannot maintain a deep, comalike unconsciousness.

For these reasons, it is uncontested that midazolam is not approved by the FDA for use as general anesthesia and is never used as the sole anesthetic for painful surgical procedures.

Although Oklahoma admits that administration of the second or third drug to a conscious prisoner would cause intense and needless pain and suffering, it has selected midazolam because of availability rather than to create a more humane execution.

Oklahoma's intention to use midazolam to execute the Petitioners raises the following questions, left unanswered by this Court in Baze:

Question 1: Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious.

Question 2: Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze?

Question 3: Must a prisoner establish the availability of an alternative drug formula even if the state's lethal-injection protocol, as properly administered, will violate the Eighth Amendment?

 
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