Lethal Injection: If It's Not the Chemicals, It's the Method

Last week, a report was released over in Oklahoma that confirmed that the botched execution of Clayton Derrell Lockett wasn’t the result of any drug or combination of drugs. Nope.

Apparently, the horrific execution of Mr. Lockett was the result of how the IV was inserted into his arm.

You’ll recall that it was only after 45 minutes of obvious pain where the man writhed and struggled against his restraints there on the table that he finally passed away last April.

Now we know that the executioner was not a physician or even a paramedic. In fact, under the current Oklahoma laws, no formal medical training is required for the persons who are responsible for the lethal injection method of execution in that state.

Of course, Oklahoma isn’t alone in horrific executions. Arizona took almost 2 hours to execute Joseph R. Wood III this past July.  

Read the Oklahoma Department of Public Safety Report on the Execution of Clayton D. Lockett here. 

Texas Has A Top-Secret Execution Method

 

 
 
This week, the Associated Press did a nice job of listing the various problems that the lethal injection method of execution has had since it was first used by the State of Texas in 1982.  You can read this reporting here, “Some Lethal Injection Problems in US Executions.”
 
Needless to say, the botched executions that have happened in 2014 are far from the first problems that have resulted while executing a human being by injecting them with chemicals.  It’s an execution method that may be viewed in future years as heinous, cruel, and just plain wrong.  Hints of this include the growing alarm being voiced by medical professionals to lethal injections.  
 
Terry Lenamon has had a longstanding concern about this method of execution — especially when states turned to drugs that vets commonly use to put down pets. See our earlier posts for more on this, including “As These Words Are Being Typed, Ohio Is Killing Ken Biros in an Unvetted Execution Method, Unless You Count Euthanasia of Dogs as Vetting.
 
However, instead of halting executions it appears that capital punishment continues in Texas, Florida, and other states without apparent concern for these lethal injection methods.   Texas has scheduled another execution using lethal injection - the first since April 2014.
 
 
As for what is going to be used for execution?  We don’t know.  
 
 

Is anyone else concerned about this?  

Is anyone else thinking that there’s a constitutional problem with both the secrecy as well as the methodology?
 

 

Lethal Injection as an Execution Method may be Doomed as Tennessee Returns to Electric Chair

 

Back in January, we asked if states would be returning to former methods of execution, specifically the electric chair, and now it appears that Tennessee has decided to do exactly that, at least if the Governor of the State of Tennessee gets his way on things.

Thing is — that electric chair form of execution is not swift or pain-free as discussed in our earlier post (with a link to some pretty graphic examples of Florida’s experience with the electric chair).

Of course, there are other legal options out there to lethal injection: gas chambers and firing squads and hanging.  

Just last year, a New York law professor wrote an op-ed piece for the New York Times offering his opinion that states should return to the firing squad. He got lots of support.

For a list of states with alternative execution methods on the books to lethal injection, go here. ]

What the Tennessee Governor is doing is more than recognizing that the electric chair can be an alternative method of execution; he is seeking to replace lethal injection with the electric chair.

Tennessee was one of the first states to have a big problem with lethal injection executions because of a supply problem, and it was back in February 2011 that Tennessee decided to go ahead with an execution using the same drug that vets use to put down pets, pentobarbital. 

So, will Tennessee executions go forward with electrocution now? Go read our prior post on what an electric chair does and see what you think about what Tennessee is doing.

 

Oklahoma Botched Execution of Clayton Lockett Used Same Drug as Florida Executions: Midazolam

Tuesday was a horror:  Clayton Lockett was seen to writhe, clench his teeth and fight against his gurney restraints as the State of Oklahoma's lethal injection execution took place.  

Oklahoma officials halted the execution after seeing that the untested use of midazolam in the lethal drug cocktail might not be working properly (duh) but this apparently came too late.  Not only was there obviously suffering on the part of Lockett, he died of a heart attack shortly thereafter.

Now, there is growing outrage about what happened during the Lockett execution.  

Thing is, all eyes are on Oklahoma.  But while Oklahoma used midazolam as the first part of cocktail, 100 milligrams, it's not like this drug has never been used in lethal injections before.

 Florida uses it  already -- 500 milligrams of midazolam goes into Florida's lethal injection cocktail.  

See our earlier posts on the lethal cocktail issue, including:  

1.  Thomas Knight Execution Using Midazolam Hydrochloride: Will It Take Place? Florida Supreme Court Hearing Set for December 18.

2.  Florida Executions Continue With Untested Drug Combo as Darius Kimbrough Executed with Midazolam Hydrochloride

3.  Pentobarbital Shortage: Texas Supplier Asks for His Product Back; Florida Will Use New Drug Midazolam Hydrochloride in October 15 Execution

 

Supplier of Lethal Injection Drugs in Texas Execution Protected as US Supreme Court Denies Writ

It's not over, this argument regarding the drugs being used in lethal injection executions in this country -- but it is over for Texas Death Row inmate and convicted serial killer Tommy Lynn Sells who died last night in Huntsville, Texas, as his death penalty was carried out.

The United States Supreme Court denied Sells' petition for writ of certiorari yesterday and Sells was executed shortly thereafter.  (Read the succinct order of denial here.)

As for the arguments involved in Sells' last appellate argument - that the State of Texas should reveal the supplier of the drugs to be used in the execution (and which did get a stay for a period of time), here is the Opinion of the Fifth Circuit Court of Appeals vacating the stay and allowing the privacy of the drug manufacturer to remain secret:

Fifth Circuit Opinion April 2014 Removing Sells' Stay of Execution Re Secret Supplier of Lethal Execut...

Tennessee Executions In Secret? Great Article on Lethal Injection Drug Supply Crisis

 There is a good overview of the current state of lethal injection executions published in The Tennessean (and picked up by USA Today) which goes into detail regarding the current dilemma in this country regarding lethal injection executions.

Different states are approaching their Execution Schedules differently -- Texas and Florida, of course, are going forward with lethal injection executions.  Texas has a new and secret supplier of pentobarbital so its execution schedule shouldn't be thwarted by a lack of supply.

Not so for other states.  

Tennessee has reacted by bringing down the curtain down its executions and there's a lawsuit brought by Death Row inmates seeking to change that -- one question, who is the state's drug supplier?

It's a big question - who is supplying the drugs to the state executioners?  

And do these companies have a legal right to wear a hooded mask of sorts, hiding their identity from the public as manufacturers of a drug that is used to kill people?  

executioner,

Florida Executes Robert Lavern Henry and Texas Executes Ray Jasper While Oklahoma Halts Execution

On Oklahoma's Death Row, two men who were set to die either this week or next week have had their executions extended because the State of Oklahoma has not been able to find the necessary drugs for the lethal injection executions.

Meanwhile, the State of Texas went ahead with its lethal injection execution of Ray Jasper yesterday. Texas also has another execution planned for March 2014 -- and next week's execution will be the last lethal injection execution before Texas starts using a different supplier's pentobarbital product -- a mysterious supplier whose identity remains unknown as state officials have denied media access to the supplier's identity under arguments that doing so would endanger the company or its personnel.

And today, just a few hours ago, the State of Florida executed Robert Lavern Henry by lethal injection at Florida State Prison for murders that happened over 26 years ago. 

Florida's Electric Chair: Will We Return to This?

From the Florida Department of Corrections:

The electric chair is made of oak and was constructed by Corrections Department personnel in 1998. It was installed at Florida State Prison in Starke in 1999, replacing the chair constructed in 1923. It should be noted that the only aspect of the current electric chair that is new is the wooden structure of the chair itself. The apparatus that administers the electric current to the condemned prisoner is the same that has been used in recent years. It is regularly tested to ensure proper functioning.

From the Death Penalty Information Center, some very horrible photos of the last Florida execution in this very electric chair (in 1999), did you know about all the blood that goes with an electrocution?  Remember, it's a cruel and unusual punishment standard ....

 

 

 

Execution Methods: Will We Return to Gas Chambers, Electric Chairs, and Firing Squads?

The United States Supreme Court has stayed the execution of Herbert Smulls by the State of Missouri, but the argument isn't because Missouri is doing some strange new combination of untested drugs in a lethal injection method - no, the argument surrounds whether or not the identity of the supplier of pentobarbital must be revealed.

Obviously, lots of people would like to know who is providing pentobarbital to Missouri, since the lack of supply of this drug for lethal injections in other states has led to Ohio and Florida and other states finding new alternative drug cocktails in order to execute people.

(For more information, read our earlier posts regarding the recent Ohio, Oklahoma, and Florida execution processes.)

Meanwhile, news is that other states are considering other forms of execution as lethal execution methods get so difficult based upon drug supply issues.

This wouldn't be so hard to do as some might think:  many states have valid laws on the books for executions by firing squad, gas chamber, electric chair, and hanging.  See our earlier posts for details. 

Image above:  Gas Chamber used for Executions

Ohio Execution of Dennis McGuire With 2-Drug Combo Results in 10 Minutes of Horror

Dennis McGuire was executed by the State of Ohio using a new two-drug combination that had never been used in an execution in Ohio, or anywhere else for that matter.  Many warned about the possibility that this lethal injection method would be the very cruel and inhuman type of death that the U.S. Constitution prohibits.

Ohio went ahead anyway. 

Now, media reports are quoting witnesses to the execution that Dennis McGuire didn't pass away on that gurney quickly or quietly.  For 10 minutes, witnesses watched as McGuire choked for breath, gasping and straining against the restraints, struggling for air.

Included among those witnesses were his federal public defenders, his daughter, son, and daughter-in-law. 

Watch Columbus Dispatch reporter Alan Johnson's recounting of what he saw here.

Of course, McGuire had been convicted of a violent crime - but comparing the death for which he was convicted with the death he had to endure in his execution is missing the point here.

Constitutional protections exist to prevent inhumane executions by the government and in states like Ohio and Oklahoma (remember Wilson's "I feel my whole body burning" last week"?) where these untried drug combinations are being used in capital punishment - well, it's beyond shocking and no one should be surprised that there are calls now for an immediate moratorium on the death penalty in Ohio now.

As for his children?  They are reportedly suing in federal court for the wrongful death of their father in this execution. Watch the Johnson video above for details here.

Oklahoma Execution of Michael Lee Wilson: "I feel my whole body burning" While Florida Executes Thomas Knight This Week

The State of Oklahoma executed Michael Lee Wilson yesterday by lethal injection.

News media reports are that almost immediately after the injection process began (within 20 seconds), Wilson said, 'I feel my whole body burning'  yet his body didn't react in such a way that any of the witnesses could see his body reacting to the drugs.

According to the State of Oklahoma's site, the drugs used in Oklahoma executions are:  (1) Sodium Thiopental or Pentobarbital - causes unconsciousness; (2) Vecuronium Bromide - stops respiration; and (3) Potassium Chloride - stops heart.

Thomas Knight Executed Using Midazolam Hydrochloride by State of Florida

Just the day before, the State of Florida executed Thomas Knight after he lost his fight against the lethal injection execution method used by Florida executors which involved a new drug, midazolam hydrochloride, because Florida had run out of pentobarbital. 

Knight's lawyers argued that the lethal injection method was unconstitutional because these new drug cocktails have not been medically and scientifically shown not to be cruel and unusual means of executing people. 

Ohio Fight Over 2-Drug Execution Method for Dennis McGuire Lethal Injection

Meanwhile, in Ohio, there's a fight because Ohio wants to use the drug that Florida used in the Knight execution, midazolam hydrochloride, with one other drug -- a TWO drug cocktail -- to execute Dennis McGuire.  Medical experts and attorneys are fighting in federal court on the constitutionality of this new lethal injection method. 

Does any of this bother you? 

Thomas Knight Execution Using Midazolam Hydrochloride: Will It Take Place? Florida Supreme Court Hearing Set for December 18

Last month, the Florida Supreme Court (5-2) ordered that the December 3, 2013, execution of Thomas Knight (aka Askari Abdullah Muhammad) - which had been approved by Florida Governor Rick Scott - be stayed after hearing arguments from defense counsel regarding the proposed use of midazolam hydrochoride as part of the drug cocktail that would be used by the Florida executor in the lethal injection.

The stay was ordered and a hearing was ordered, too.

The Florida Supreme Court ordered that a judge in Bradford County hold an evidentiary hearing on the drug midazolam hydrochloride and whether or not it is safe and effective for use in killing human beings as part of a state execution of capital punishment.

Note that Nathan Knight’s execution would not be the first Florida execution to use this drug; two Florida executions (William Happ; Darius Kimbrough) have already used midazolam hydrochloride in lethal injection executions since October 15, 2013, because the state has run out of pentobarbital - see our earlier posts.

According to the Florida Supreme Court Order, there can be no execution of Thomas Knight until after December 27, 2013 - and after this hearing on the drug has taken place. 

Bradford County Circuit Judge Phyllis Rosier held the hearing as ordered by the Florida Supreme Court.

The hearing took two days, and one expert for each side (prosecution and defense) took the stand to provide opinion evidence regarding whether or not midazolam hydrochloride effectively prevents pain in humans sufficiently for its use in a lethal injection execution. (One of Knight’s arguments: Happ moved in a manner during his lethal injection execution that suggested midazolam hydrochloride might not work to prevent pain.)

Judge Rosier ruled that midazolam hydrochloride in the three drug cocktail used for lethal injection executions by the State of Florida does not constitute cruel and unusual punishment: there was “no credible evidence” to show any suffering would result from the use of this drug if used in sufficient dosage.

What about Happ’s movement? The judge ruled that no evidence was presented to support the argument that the movement was caused by pain or demonstrated suffering on the part of Happ.

What happens now?

The Florida Supreme Court will consider Judge Rosier’s ruling — and will hear arguments in the case next week (on December 18, 2013).  

In the Terry Lenamon Online Library now: 

Florida Supreme Court Stay in Death Row Inmate Thomas Knight's Challenge to Use of Midazolam Hydrochloride...

Florida Executions Continue With Untested Drug Combo as Darius Kimbrough Executed with Midazolam Hydrochloride

Yesterday at six o’clock in the evening, Darius Kimbrough was executed by the State of Florida Department of Corrections after being sentenced to death in 1994 for the 1991 murder of Denise Collins of Orlando. Once again, Florida execution practices were hampered regarding the method of execution involving a lethal injection cocktail because Florida no longer has any pentobarbital in its inventory to use in these capital punishments.

And once again, that dilemma has been resolved by the authorities by using midazolam hydrochloride in the lethal injection procedure. Kimbrough is the second man executed in Florida using this drug.

As we’ve posted about before, this drug is not tested. William Happ was the first man to be executed in a process where the new untested drug, midazolam hydrochloride, is injected first as a sedative with two other drugs then being injected into the body to paralyze the person and then stop the heart from beating.

This three drug process took 18 minutes for Darius Kimbrough to die. Was he sedated or was his paralysis preventing him from evidencing pain? We don’t know.

Kimbrough was not part of the ongoing appeal from several Florida Death Row inmates arguing that the use of midazolam hydrochloride is cruel and unusual punishment in violation of the U.S. Constitution.

He did write a letter to the Florida Supreme Court to voice his concerns about this controversial drug. It didn’t matter.


 

Pentobarbital Shortage: Texas Supplier Asks for His Product Back; Florida Will Use New Drug Midazolam Hydrochloride in October 15 Execution

We’ve been monitoring how it’s getting harder and harder to execute people in this country by lethal injection because the lethal drugs for the lethal injection just aren’t available to the states any longer, or at least not much supply is left.

There’s been chatter about returning to earlier forms of execution (like the firing squad or the electric chair), things are getting so bad for the executioners out there.

That’s a big jump for many, though: returning to those old, historic methods when everyone seems to prefer using a syringe and a gurney. So deals have been made for the stuff.

Texas: “Nevermind” Says Pentobarbital Supplier

Recently, over in Texas, a quiet deal was made between a Texas compounding pharmacy and the State of Texas to provide the needed pentobarbital supply for lethal injections; however, as soon as the identity of the supplier was made public, the company wanted to nix the deal and asked the State of Texas to return the pentobarbital it had purchased.

The letter sent by Jasper Lovoi, owner of The Woodlands Compounding Pharmacy, to the Texas Department of Justice can be read in its entirety online, courtesy of Grits for Breakfast.

Here’s the gist of it, quoting from Lovoi’s letter:

… Now that this information has been made public, I find myself in the middle of a firestorm that I was not advised of and did not bargain for. Had I known that this information would be made public, which the State implied it would not, I never would have agreed to provide the drugs to TDCJ…. I must demand that TDCJ immediately return the vials of compounded pentobarbital in exchange for a refund. ... Otherwise I may have to ask the Court in the prisoners' lawsuit to consider my concerns.

Texas’ response? Too bad, so sad, Mr. Lovoi.

The State of Texas has refused his request to return the pentobarbital - and Mr. Lovoi may be stuck here because, as Grits points out, no matter the implications in his phone conversations with agency representatives, the Texas Public Information Act provides for the disclosure of the drug supplier.

Now, Texas has enough pentobarbital to complete its execution schedule for 2013.

Florida: A Whole Different Ballgame

While Texas is satisfied with a compounding pharmacy’s pentobarbital for its lethal injection executions, the State of Florida is opting for another chemical altogether in this Lethal Drug Shortage. This week, the Florida Department of Corrections will be using a brand-new, never before tried execution method in the execution of William Happ, a 27-year resident of Florida’s Death Row.

The Florida alternative is midazolam hydrochloride, sold under the name “Versed.” Versed is a drug used in hospitals as a sedative before someone has surgery; it has never before been used in any execution.

Unless something happens to halt things, which is unlikely since Mr. Happ has waived any additional legal appeals on his behalf to halt the execution, the State of Florida will use this new execution method, midazolam hydrochloride, on Mr. Happ in an execution scheduled for tomorrow (October 15, 2013).

Image:  William Happ is scheduled to die tomorrow through the use of a lethal drug injection using a drug never before used on humans for this purpose.  

 

 

 

 

Will Firing Squads Be The New Method of Execution in Death Penalty States?

 As executioners are finding it more and more difficult to find drugs to use in lethal injections (see our prior post on this), discussion has begun on an alternative to injection as a way of killing for capital punishment.

Recently, an opinion piece on CNN.com written by Robert Blecker, a law professor at New York Law School, has gained lots of attention.

Grits For Breakfast, a noted criminal justice blog based in Austin, Texas, supports his suggestion that firing squads be the alternative chosen by states for future executions.

Sentencing Law and Policy, another well-respected blog published by Ohio Law Professor Douglas Berman, also points to Blecker's article favorably.  (Comments here are very interesting.)

Firing squads instead of lethal injection?  Guess it would be a lot easier to find enough bullets.  

And, history shows firing squads are fast, cheap, and effective as shown in the photograph below from the National Archives, where  "...German General Anton Dostler's body slumps toward the ground after being executed by a firing squad at Aversa, Italy. The general was convicted and sentenced to death by an American Military Tribunal."

 

German General Anton Dostler's body slumps toward the ground after being executed by a firing squad at Aversa, Italy. The general was convicted and sentenced to death by an American Military Tribunal.

 

 

 

Pentobarbital Shortage in Death Penalty Executions: The Continuing Problem of Finding Drugs for Lethal Injections

Two years has passed since we posted about the shortage of sodium thiopental in Florida and Texas and elsewhere, and how this necessary component of the three-drug "cocktail" used in death penalty executions was causing all sorts of problems with criminal justice officials in different parts of the country.

See:  Pentobarbital in Florida Executions: What's Next and Tennessee is Considering Using Pentobarbital in Its Executions, the Drug Used to Put Down Pets for more details.

Now, pentobarbital is back in the news as media reports in the New York Times, the National Journal, and lots of other national medical sources are reporting that this drug isn't going to be available to executioners here in the United States.  

It's a big problem that still hasn't found a solution for those seeking to enforce capital punishment: having a ready supply of lethal drugs to execute people with lethal drug injections. 

Propofol To Be Used by Missouri

On Monday, the New York Times reported that some states are considering their options, suggesting that states may follow Missouri's lead and substitute propofol for the missing pentobarbital in their lethal drug cocktails.  

Yes, propofol is the drug administered to Michael Jackson, causing his death.

Will States Revert to Gas Chambers, Electric Chairs, Firing Squads, or Hangings?

There are some who are suggesting that lethal injections be halted as an execution method, reverting to other forms of execution which are still legal under many state laws, just not used since injections have been the preferred method for many years.

In Florida, the movement to return to the electric chair of the firing squad has been moving around the Florida Legislature for a couple of years now.  

For a list of alternative execution methods by state, see our post on the five current options for execution:

  • lethal injection
  • electric chair
  • hanging
  • firing squad
  • gas chamber.

And before people consider these archaic methods of execution as alternatives to the lethal injection, perhaps they would be well served to read the dissenting opinion of Florida Supreme Court Justice Leander J. Shaw, Jr. in the 1999 challenge to the use of Old Sparky on constitutional grounds. 

Justice Shaw attached 3 color photographs of the bloody body of Allen Lee Davis taken by a prison official shortly after he was executed by electric chair, as support for his dissenting opinion where he found the method to be unconstitutional insofar as it was cruel and unusual.   Justice Shaw's attachments caused a worldwide clamor against this form of execution and are still used today by those fighting against capital punishment.  

Warning: don't hit that link and go to the dissenting opinion if you find graphic images like this disturbing.  

FDA Files Appeal to Overturn Court Ruling Barring Use of Sodium Thiopental in Death Penalty Exections

The Food and Drug Administration has filed an appeal of the judicial opinion entered by U.S. District Judge Richard J. Leon for the District of Columbia that blocks the use of sodium thiopental in executions. 

In the decision, 21 Death Row inmates from a number of states won a fight to stop the use of sodium thiopental.  The drug had been okayed by the FDA as an anesthetic drug to be used before the fatal injection was used in the lethal injection method of execution. 

Judge Leon warned, in his opinion, that the FDA had created a "slippery slope" that would allow the use of untested drugs in executions.  He also had some serious language regarding the actions and intent of the FDA and after characterizing the drug at issue as "misbranded" and "unapproved," he banned its import as well as ordering any states with the drug in its execution drug inventory to forward that stock to the FDA.

State Attorneys General Ask U.S. Attorney General to Appeal Leon's Decision

In response, the attorneys general for over a dozen states wrote the U.S. Attorney General asking that Leon's decision be appealed to the appropriate federal appellate court for review. 

Read the Attorneys General letter to Eric Holder here.

Eric Holder, as the U.S. Attorney General, apparently agreed with these state AGs because now Leon's decision has been taken up for review.  

 

Florida Execution by Firing Squads or Electric Chair - Legislation Seeks to End Lethal Injection Method of Execution

Right now, the Florida House of Representatives has before it a bill that would end lethal injections as a method of execution.  This bill doesn't end the death penalty, though (that's a different bill): this proposed legislation, if it becomes law, will return Florida to its prior methods of carrying out capital punishment.

That's right.  Old Sparky or the Firing Squad would be back as the two ways that executions would be carried out here in the State of Florida.

Who's responsible for this?  Florida State Rep. Brad Drake -- and he's getting lots of news coverage from this, too.  Coast to coast. 

We've already written on the method of killing people in electric chairs; go here if you want to know more about it. 

Pentobarbital in Florida Executions: What's Next?

Mike Thomas of the Orlando Sentinel wrote an editorial earlier this month that gives a good overview on where the State of Florida is (and was) in its methods of executing inmates on Death Row.  In "The death penalty: A dead end in Florida,"  Thomas discusses the various methods that the state has used to kill those deemed worthy of capital punishment and the conundrum that Governor Rick Scott faces now, what with all this controversy over using pentobarbital as part of the lethal injection three drug cocktail. 

Pentobarbital - The Drug Used by Vets to Put Down Pets

As we've discussed here earlier, the use of pentobarbital in killing living things isn't new;  vets use this drug to euthanize beloved pets.   They've done this for years.  The question is whether or not it should be used on humans - especially. as Thomas points out, when a recent pentobarbital execution had the inmate in obvious distress.  (For details on that distress, read about the anesthesiologist's opinion on suffering in Roy Blankenship's execution.) 

Status of Pentobarbital in Florida Executions Now

Earlier this month, Florida CIrcuit Court Judge Jacqueline Hogan Scola found that the usage of the drug pentobarbital in a Florida execution "... does not create an objectively reasonable risk of suffering."   Her determination may lead the way for prosecutors to move forward with another Florida execution (of convicted murderer Manuel Valle, 61).

However, the manufacturer of the drug, a company in Denmark named Lundbeck, is not happy that its product is being used by Americans for executions.  This month, Lundbeck issued a news release that pentobarbital is untested and unsafe for use on human beings in lethal injections, and Lundbeck has stop selling pentobarbital to anyone buying it for resell as a lethal injection component.

Which leaves the Florida executioner in a difficult spot, as Thomas' editorial points out so well.

 

DOJ Halts Arizona's Execution of Donald Beaty On Unsafe Drug Argument, So Arizona Goes Forward with Pentobarbital. That's Apparently Fine.

Now, not only is the U.S. Department of Justice going state-by-state and scooping up any remaining supplies of sodium thiopental (see our earlier post for details), it has informed the State of Arizona that Arizona cannot legally use its sodium thiopental supply because it is the opinion of the Justice Department that Arizona got that drug illegally when it bought some from a British supplier.

Now, this happened within hours of Arizona's scheduled execution of Donald Beaty.  Not that Beaty or his lawyers were surprised at this position -- this is EXACTLY what they were arguing all along.

However, this wasn't akin to a stay by the governor.  The Arizona Supreme Court just held up things for a bit and then the execution was back on schedule -- yesterday, at 7:30 p.m., Donald Beaty died.  

How could they go ahead?  Well, they used the lethal injection method with pentobarbital in the stead of the British-bought sodium thiopental.

That's right.  Arizona cannot legally use sodium thiopental bought in England, but it can use a drug never tested on humans for this purpose and never okayed for executions by the U.S. Supreme Court (or medical researchers). 

Pentobarbital: the drug that vets use to put pets down.  That's assumedly okay with the Justice Department. 

DEA is Grabbing Up All the Sodium Thiopental? No Wonder Pentobarbital Is Popular in Executions

As we discussed before, there has been a challenge to the use of drugs purchased overseas in executions undertaken by various states.  (Specifically, the use of sodium thiopental purchased by Georgia from a questionable British supplier.)

However, news this week has it that in response, the federal government has been going around and grabbing up all the sodium thiopental in the country.  Apparently, the DEA is going state to state and confiscating any sodium thiopental in their inventories.  Wow.

According to Fox News, this has been going on for the past 60 days or so - and it's leaving states with the option of putting a hold on executions or opting for alternative drugs.  Like pentobarbital, which we've discussed before is the same drug used by vets to euthanize pets.

Fox New reports that the DEA began in Georgia, in March.  Next up: Tennessee and Kentucky.  The Wall Street Journal reveals that Alabama turned theirs over to the DEA in the last week of April. 

Now, the DEA (Drug Enforcement Agency) is part of the U.S. Department of Justice, helmed by Attorney General Eric Holder.  The number one prosecutor for the federal government. 

So, a prosecutor is pulling sodium thiopental from execution facilities and leaving the executioners to their own devices - find other ways to carry out the death sentence or freeze the execution schedule. 

It gets even more bizarre. 

As Human Events points out, the DEA is going around grabbing up a drug approved by the FDA to be used in a procedure sanctioned by the U.S. Supreme Court. 

Here's a question:  When is someone in the federal government going to do something about the growing use of pentobarbital in executions? 

Pentobarbital, which hasn't been vetted for use on humans. Pentobarbital, which has been okayed for use on humans by the Supreme Court. 

Lethal Injection Cocktails: Cruel and Unusual Punishment?

Back in 2009, there was a three part series of posts here on the Death Penalty Blog, discussing the lethal injection cocktail as it was commonly used at the time:  in Florida, this meant a combo of first, thiopental sodium ; second, pancuronium bromide; and lastly, potassium chloride. 

From that series (please go to the posts for research details and more info):

  1. Thiopental sodium is the first drug to be administered during an execution by lethal injection in Florida. As a general anesthetic, thiopental sodium poses special risks because it is so short-lasting that for any number of reasons it can cease to operate as sufficient anesthesia long before the other drugs cause the death of the condemned.[1] Think about that. It stops working within minutes.
  2. The second chemical involved in the lethal injection process, pancuronium bromide, or Pavulon, is also constitutionally problematic under existing law. A derivative of curare, it operates to suppress any muscular movement, including breathing, in the condemned, but does not anesthetize him or affect his consciousness in any way.  According to recent scholarship, it is completely unnecessary to causing the condemned's death, and serves only to make the execution seem more palatable to the other participants and witnesses when the other drugs have their effects, which can include spasm, twitching and other movements of the voluntary muscles.
  3. Finally, the use of the third drug -- the actual killing agent potassium chloride -- also raises important constitutional concerns. According to Dr. James J. Ramsey, a certified perfusionist and currently the Program Director in the Program in Cardiovascular Perfusion at Vanderbilt Medical Center, Nashville, Tennessee, the adequacy of the potassium chloride to cause death by stopping the heart is in question.  The inmate actually suffocates: the lethal injection does not just peacefully stop the heart.

Today, with the dwindling supply of drugs available for executions, there seems to be more public awareness of the chemicals used in capital punishment.  This is a good thing, since so many avert their eyes to the realities here.

This Week, The New York Times considers the question.

In a New York Times article published April 9, 2011, entitled "What's in a Lethal Injection 'Cocktail'?" reporter Pam Belluck delves into the issue of what exactly happens in those lethal injection executions, especially now that thiopental sodium isn't being used any longer. 

If only it went into more detail.  The research shows that the lethal injection method is cruel - and with the innovation of a drug, pentobarbital, that has been used or tested so rarely on human beings, it's also becoming highly unusual, too. 

Integrity, Dignity, and Honor

It would nice to think that these injections of drugs into a human being resulted in a merciful death, but research does not support that warm fuzzy.  And this was true before states like Ohio and Texas began executing men just as vets euthanize cats and dogs. 

Sure, there are proponents of the death penalty who will say "who cares? Let them suffer, look what they did."  However, there are the considerations of integrity, dignity, and honor which the state must (or should) maintain. 

Our system of government, to the extent that it deems capital punishment to be acceptable, should never stoop to have its actions compared with those that it has found worthy of death.  We must insure that the method of execution is merciful, as much as we can. 

Right now, with the condoned use of pentobarbital in state executions, it's clear that we are not.

Growing Fight in Texas Against Pentobarbital in Executions: Cleve Foster Stay, ACLU Report

As usual, Texas is in the spotlight regarding capital punishment, as a big victory was had at the United States Supreme Court this week in stopping the execution of Cleve Foster, who was scheduled to make history as the first person to die in Texas under their new lethal injection cocktail.  Texas would be substituting pentobarbital for sodium thiopental in its three drug cocktail in Foster's execution, since Texas has also apparently lost its drug supplier.

Yesterday, with only around eight hours to go before the execution itself, the U.S. Supreme Court issued a stay of execution for Cleve Foster.  Read the Order Staying Cleve Foster's Execution here.  

To follow the Texas execution schedule, go here.  Several men are scheduled to die in the next few months, including Humberto Leal, Foster's co-appellant in state proceedings challenging the new drug cocktail.  Foster's case will not stay Texas' use of pentobarbital in these executions - the High Court isn't intervening today because of a concern over pentobarbital. 

The Fight in Texas Against Pentobarbital - Read the New, Powerful Joint Report

A few weeks ago, counsel for the American Civil Liberties Union (ACLU) of Texas, the American Civil Liberties Union Foundation Capital Punishment Project and Human Rights Program, and the Center for International Human Rights, Northwestern University School of Law issued a bluntly titled report, “Regulating Death in the Lone Star State: Texas Law Protects Lizards From Needless Suffering, But Not Human Beings.” 

It's a powerful and important work, and you can read it here.  From the report:

Texas’ lax attitude regarding the taking of human life contrasts sharply with its enactment of detailed regulations to ensure that animals suffer no pain when they are euthanized. Animal euthanasia laws provide strict certification requirements for euthanasia technicians and regulate acceptable methods of intravenous euthanasia down to the correct dosage per kilogram of an animal’s body weight. By contrast, the Texas legislature has failed to enact any legislation to ensure that the individuals responsible for extinguishing human life are properly trained and qualified, and that the drugs they administer are both effective and humane.

Cleve Foster Stay by US Supreme Court NOT Based on Drug Cocktail Challenge

While Foster's challenge to the use of pentobarbital is strong -- and perhaps, given the ACLU Report, the strongest so far on not executing people like vets euthanize pets -- the stay granted by the High Court was not based upon its need to consider arguments regarding execution methods.

No.  The stay of Cleve Foster's execution was based upon arguments that  he received ineffective legal representation in both his trial and during his appellate process when his lawyers did not challenge the state's blood-spatter evidence which prosecutors argued linked Foster to the rape and murder of Nyaneur Pal in Fort Worth, Texas, back in 2002. Experts disagree on whether that blood-spatter evidence shows the body had been moved (the state's contention) or whether Pal had been killed where her body was discovered (Foster's contention). 

 The State of Texas has thirty (30) days to respond to the arguments addressed in Foster's petition for rehearing.   

Death Penalty Lethal Injection Crisis Continues: New Problems for Georgia

Georgia has halted its execution schedule now that the federal government has swooped in and taken its stash of sodium thiopental.  Seems that the Drug Enforcment Administration (DEA) believes that the State of Georgia violated federal law when it bought sodium thiopental from a British supplier for use in its three-drug lethal injection execution cocktail. 

The DEA, as part of the Department of Justice, is also reportedly looking into other states' purchases of sodium thiopental.  Maybe other states have violated federal law, too.  For one thing, Georgia sold part of its sodium thiopental supply to Kentucky.  Kentucky's gotta be on the DEA's list. 

Of course, this action didn't come in time to stop Georgia from using some of the British-supplied sodium thiopental to execute Emmanuel Hammond back in January.  Importantly, the arguments against using this drug brought by Mr. Hammond's defense counsel didn't carry much weight with the United States Supreme Court. 

As the New York Times points out in its coverage of the DEA's action, the Supreme Court okayed Georgia's execution with the British drug back then. 

Now, is this more of an example of closing the barn door after the horse is out, or the left hand not knowing what the right hand is doing?  Or is it both? 

And before anyone starts arguing that this really isn't a big deal, check out the photograph provided by NPR of the storefront in Great Britain where this stuff originated.  The drug purchased by the State of Georgia came from this dirty, shoddy storefront -- actually, a second rate distributor that did business out of the back of a driving school.

Not a lab.  Not a pharmacy.  Not a drug manufacturing plant.  Nope. 

Look at the photograph.  You have to wonder if someone in Georgia thought it best simply to surf around Craigslist or EBay to buy the drug that the state would use to kill a human being.   

How did this all begin?  One letter from one lawyer. 

According to the Wall Street Journal, seems everyone thought this was just fine over in Georgia.  But things changed when U.S. Attorney General Eric Holder read a letter sent to him byJohn Bentivoglio of Skadden, Arps, Slate, Meagher & Flom LLP, who represents Georgia death row inmate Andrew Grant DeYoung. 

Up there in Washington, D.C., Mr. Bentivoglio wrote to Mr. Holder and explained that his client was facing what defense counsel believed to be an illegal execution by the State of Georgia, since the state had not registered as an importer of a controlled substance when it bought the sodium thiopental from the British supplier.

Interestingly, Mr. Bentivoglio practices in the area of health care regulatory issues, not death qualified criminal defense.  He also has a background with the Justice Department. 

According to his bio, Mr. Bentivoglio served for many years at the U.S. Department of Justice: Associate Deputy Attorney General (1998-2000); Counsel to the Deputy Attorney General & Special Counsel for Health Care Fraud (1997-1998); Trial Attorney, Criminal Division (1996-1997) and he served on the Committee on the Judiciary, U.S. Senate: Professional Staff Member (1988-1992); Legislative Assistant (1986-1988)

Well done, and thank you, Mr. Bentivoglio.

Don't Let News of Illinois Abolishing Death Penalty Overshadow News of Ohio Using New Single Drug Execution Method

Today, there is an understandably large amount of news coverage aboutthe state of Illinois abolishing the death penalty - with the Illinois governor waiting until the eleventh hour to make his decision on whether he would stand on the matter.  It's big news and it should be.

However, in Ohio there is also very big news regarding capital punishment in this country.  Ohio has just set precedent by using 5 grams of pentobarbital to execute Johnnie Baston. 

No three drug cocktail here (like they've done in Oklahoma with pentobarbital).  Here, the single drug was injected, and according to Associated Press reporter Andrew Welsh-Huggins, Baston "gasped" and "grimaced" several minutes after the drug was administered. 

This is the same drug that is used to euthenize animals. 

This is the same procedure used to euthenize pets. 

Oklahoma's John Duty may go down in history as being the first man that was executed with pentobarbital used in the lethal injection.  However, Ohio's Johnnie Baston has just earned his own place in the record books as being the first human being in America to be executed in the exact same way that American vets put beloved pets to sleep. 

In Ohio, executing a man and putting down a dog or cat -- no difference.

Surely someone sees something wrong here????

Tennessee Is Considering Using Pentobarbital in its Executions, the Drug Used to Put Down Pets

Seems Tennessee can't find a supplier for its lethal injection executions using a three drug cocktail that includes sodium thiopental (guess they haven't called Besse Medical), so pentobarbital is apparently being considered as a substitute

According to its state website, Tennessee has a long execution history, with hanging and the electric chair as two prior methods -- electrocution still being a viable alternative that has been used as late as 2007:

Until 1913, all individuals convicted of a capital offense were hanged. There are no official records of the number or names of those executed. From 1913 to 1915, there was no capital punishment in Tennessee. C. Rye was Governor during the first execution by electrocution. From 1916 until 1960, 125 persons were executed by electrocution in Tennessee. In 2000, lethal injection replaced electrocution as the primary method of execution. In September, 2007 the first electrocution in 47 years was carried out.

Oklahoma has decided upon pentobarbital.

Of course, there's already a precedent set for using pentobarbital that Tennessee could follow.   Oklahoma already treated John David Duty, Billy Don Alverson, and Jeffrey David Matthews  just like veterarians treat dogs and cats all over the country, when they used pentobarbital in their executions.  And apparently, Oklahoma is fine with this and plans to continue using pentobarbital, according to its website description of its execution methods.

Meanwhile, Tennessee isn't having such an easy time here. 

According to an article written by Brian Haas in the Tennessean earlier this month, entitled, "Tennessee has few options for execution drugs; Imports, sedative used to put down animals face likely challenges," Tennessee has 86 men on Death Row -- but not nearly enough sodium thiopental to handle the demand.   However, Tennessee isn't having the smooth transition to vet-drugs that Oklahoma did.

Tennessee wouldn't need to enact new law before changing over to the alternative drug, it's an adminstrative decision apparently that can be made rather quickly and without lengthy review in advance.  Still, the state officials aren't rushing to adopt Oklahoma's example (like Ohio appears to be doing).

Maybe Tennesse will consider the warnings of anesthesiologists and others in the medical community that are warning against assuming that pentobarbital will act on humans like it acts on dogs.   

Returning to electrocution vs. using pentobarbital?  Are these really the only options, Tennessee?

FDA Sued By Death Row Inmates: Goal to Stop Import of Sodium Thiopental - Consider The Ramifications Here, They're Not All Good

The Food and Drug Administration (FDA) became the defendant in a civil suit filed this week by six Death Row inmates who face execution in Arizona (3 plaintiffs), California (2 plaintiffs), and Tennessee (1 plaintiff) as they seek a declaratory judgment from the federal judge presiding over the United States District Court for the District of Columbia that it is against federal law for the FDA to allow states to use imported sodium thiopental in their executions -- and that the FDA was wrong to issue its announcement that doing so was okay.  No news to the FDA - there was a public meeting last month where the players met to discuss the issue, clearly without resolution (or maybe, the meeting was just a chance for the opponents to eyeball each other). 

The Wall Street Journal provides a copy of the newly filed complaint here, if you wish to read the entire pleading.

Represented by the Arizona District's Federal Public Defender's Office and the high-powered law firm of Sidley Austin, this looks to be a major courthouse fight over the use of lethal injection drugs purchased outside the U.S. borders - at least, until the F.D.A. approves them as being acceptable under American standards.  Sidley Austin is already instituting its media strategy, getting the word out with a press release this week, and we should all expect to see more new release updates from the plaintiffs as the fight progresses. 

What's This Litigation Really Going to Do?

There are those that are hoping that closing the borders to the importation of this drug will somehow stop executions in this country.  That's not going to happen:  not only do we still have other American suppliers that may step into the gap (and yes, we mean Besse Medical in Ohio), but there are already other execution methods on the books - legal alternatives to the lethal injection method that have been sanctioned as constitutional by the U.S. Supreme Court. 

Utah had its firing squad execution last year, without tremendous public outcry, remember?  An argument can be made that not allowing British companies, for example, to sell sodium thiopental to Arizona, for example, can force us all back to these alternative execution methods - which seem much less merciful, somehow.  

Lethal Injection Drug Sources: Is Texas Source Besse Medical Replacing Hospira or Not?

On Tuesday, we learned the Associated Press had used the power of the press last week to discover that Besse Medical had been the supplier of sodium thiopental to Texas for use in its executions.  Good work, AP. 

The State of Texas fought to keep the identity of its new supplier secret - purportedly to protect the employees of Besse Medical from danger and things like that.  (The irony is not lost that there was a fear that those opposing the death penalty might cause the death of these workers.)

Meanwhile, most of the news stories are still rehashing Hospira's exit from the marketplace.  And the Texas Tribune has an interview with a representative of the Texas Department of Criminal Justice by the name of Michelle Lyons.  Seems that Ms. Lyons told the Texas Tribune that Texas would "...explore some other options." 

Was Ms. Lyons of the Texas Department of Criminal Justice being wily when she answered this question on the same day that the Associated Press released its open records revelation that Besse Medical has been selling sodium thiopental to the State of Texas for awhile now? 

There's been no subsequent press release from the Texas DCJ on this issue.  No news release from Besse Medical, either, as of the date of this post. 

Is Texas going to be supplied in the future by Besse Medical or not? Is Besse Medical going to be supplying other states (recognizing a market need without any competition and an apparent acquiesence in selling a drug that will be used in executions)?

We're wondering about this.  So we're posting this today, and sending a copy of this post to Brandi Grissom of the Texas Tribune, who wrote the article, "TribBlog: Texas Seeking Execution Drug," and quoted Ms. Lyon in her story.  We're also copying Ms. Lyons with this post, and Besse Medical, as well. 

We'd appreciate our confusion here being cleared up. 

And we invite either Ms. Lyon or Ms. Grissom to comment or write a guest post here, as well as a representative of Besse Medical, should they chose to do so.

We'll keep you posted.

Hospira's Web Notice Discontinuing Execution Drug Has Global Implications - But Will Executions Stop? No: Meet Besse Medical of Ohio

On January 21, 2011, via its website, Illinois drug manufacturer Hospira, Inc. fired a shot heard 'round the world as it announced in a short and sweet press release that it would no longer be making sodium thiopental (product name, Pentothal™).  According to Hospira:

Hospira had intended to produce Pentothal at its Italian plant. ... [W]e cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment. Exposing our employees or facilities to liability is not a risk we are prepared to take.

In short, the Italian government was not pleased that the American drug company was going to be making a drug used in executions not on American soil, but on Italian, and said so.  Italy would not allow any sodium thiopental made at a plant within its border to be exported out of the country unless Hospira could guarantee it would not ultimately be used to kill people, and be willing to be liable to the Italian government for any executions that might slip past Hospira's watch.  (What a warranty, right?)

Hospira chose to forego making the product at all.  Hence, the press release last week and the firestorm that has resulted. Because, as we know, this comes on the heels of a major shortage of the drug that has impacted state death rows for over a year now. 

What happens to state executions schedules now?  

When Hospira announced a delay, some states just stayed their execution schedules.  Others tried to move forward with alternatives.  For example: 

  1.  Ohio went for a single-drug lethal injection method. 
  2. Oklahoma substituted pentobarbital in their three-drug cocktail, the same drug that is used to euthanize dogs and cats
  3. Arizona went overseas to buy more product.

Florida, and other states, could follow any one of these three examples.  Or, as the Miami Herald points out, Florida can always return to another form of execution that is still legally viable: the electric chair

Other forms of execution that are still legal alternatives include the firing squad; hanging; and the gas chamber.  (For which states allow which method, please refer to our earlier post.)

Global Response: Try to Use Marketplace to Halt American Death Penalty

Yesterday, Germany announced it will not allow the export of sodium thiopental to the United States.  Since Arizona's supplier was from Great Britian, Germany's announcement does not carry that much power in the market. 

Meanwhile, Texas reveals it has a domestic supplier - Ohio's Besse Medical.

It took the Associated Press using the Open Records Act to gain access to this information, but it has been revealed that Texas has a source of execution drugs here in the United States (although Texas worked hard to keep this information to itself). 

Besse Medical is a domestic supplier of sodium thiopental.  Now. 

So, while Hospira's press release  may be getting lots of attention, it's not the biggest news.  Besse Medical is just stepping into the gap, and apparently has been doing so for awhile now.

Oklahoma Executes Man Just Like Vet Euthanizes Dog: Where Is the Outcry?

Last week, John David Duty was executed by the State of Oklahoma and in doing so, Mr. Duty made the history books - we may all remember his name for many years in the future as the first man to be executed in the same way that vets put down beloved pets.  

Because, while other states are putting their execution schedules on hold due to a lack of drugs needed for the lethal execution method, some states are moving forward with innovative execution procedures.  Which should give us all great concern.  Here's why:

First, there was the switch to a single-drug execution method led by Ohio.

It's been over a year since Ohio changed its method of capital punishment to a single-dose lethal injection method.  Ohio argued that it did so to be merciful after the botched execution of Romell Broom, where witnesses saw Mr. Broom's agony during an attempted three-drug cocktail form of lethal injection.

Some debate was had over this change -- it's easier to kill with one injection rather than three.  Was this constitutional?  Wasn't this getting pretty close to the same methods used to euthanize dogs and cats?

Next, Arizona buys sodium thiopental overseas to circumvent a domestic shortage.

Then came the shortage of chemicals used in these lethal injection procedures.  Arizona opted to buy the drug that was traditionally used but no longer available domestically via an overseas supplier.  Not vetted by the FDA, opting for the British product has been made subject to constitutional scrunity and the U.S. Supreme Court allowed the Arizona execution of Jeffrey Landrigan with foreign-made sodium thiopental. 

Now, Oklahoma takes it one step further: using readily available toxic drug used by vets to execute a human being.

Oklahoma's answer to the shortage of sodium thiopental?  Try pentobarbital as a substitute.  Pentobarbital: the exact same drug that veteriarians all over the country use to put down pets.  After all, they could buy it domestically right?

So, earlier this month, Oklahoma executed John David Duty with a three-drug cocktail that included pentobarbital in lieu of sodium thiopental.  The only difference between Mr. Duty's manner of death and the manner of death implemented by vets all over the country that same day was that Mr. Duty had two additional injections given to him. 

One wonders if Ohio would even grant him that mercy.

And, where is the public outcry to this slippery slope we're sliding down in how executions are being done in this country?

The Huffington Post wrote about the Duty Execution and as of this post, has received almost 800 comments to the story. 

Richard Dieter of the Death Penalty Information Center has been quoted in the news media as predicting other states may follow Oklahoma's lead since it's an easy answer to the drug shortage.

Over at New Scientist, there is a short discussion on the event - with a warning that if not properly administered, pentobarbital will only paralyze and not kill.  Meaning, the man lays on the gurney unable to move but not dead.  Sounds cruel, doesn't it?  Of interest, the single comment to the New Scientist article:

Speaking as a veterinary surgeon, I should point out that pentobarbital is an anaesthetic and causes unconsciousness before anything else - certainly not paralysis!. It kills in overdose, which is how we use it, by depressing respiration and then stopping the heart. If an underdose is given it can cause temporary excitement at the worst.

So, if we as a nation continue to blur the lines between executing men and euthanizing dogs, then let's hope at least that we get the dosage right. 

Will Executions Become The Same as Euthanizing Pets? In Oklahoma, They're Arguing the Answer is Yes.

Okay, we're aware that there is a national shortage of  thiopental sodium, one of the three drugs legally okayed to be used in execution by lethal injection.  The result has been delaying some executions.  In at least one instance, an execution kept to the calendar as the needed drug was purchased from an overseas supplier (not FDA-approved) (Arizona's execution of Jeffrey Landrigan using a British product).

Over in Oklahoma, they're got a different take on things, apparently.  Because in Oklahoma, news is that they are considering substituting pentobarbital for thiopental sodium -- and in case you don't recognize that drug, pentobarbital is the drug that vets have been using for years, to put down beloved family pets.  

So, Oklahoma appears to be answering "no" to the question of whether or not there is any difference between euthanizing animals and executing human beings.  Next question, will Oklahoma ask its vets to oversee the execution process since doctors are prohibited by their ethical oaths from doing so? 

The issue will be brought before federal judge Stephen Friot of the U.S. District Court for the Western District of Oklahoma, in a hearing set in Oklahoma City on November 19, 2010, on whether or not Oklahoma can substitute pentobarbital for thiopental sodium.  Judge Friot has been on this federal bench since 2001, appointed by President George W. Bush to the federal bench after practicing law for almost 30 years. 

Within thirty days of this hearing, on December 16, 2010, John David Duty is scheduled to be executed by the State of Oklahoma. If Oklahoma's request is granted, Mr. Duty may will be the first man executed in this country through the use of pentobarbital. 

Here's a question for the bench and bar's consideration:  with the U.S. Supreme Court's approval of Arizona's overseas supplier, then why isn't Oklahoma following Arizona's precedent?  Can't an argument be made that this is exactly what the U.S. Supreme Court was suggesting be done in view of the drug shortage? 

Arizona Uses Foreign Drug in Execution of Jeffrey Landrigan With U.S. Supreme Court Okay

Two nights ago (on Tuesday), Arizona executed Jeffrey Landrigan by lethal injection after the United States Supreme Court (5-4) okayed going forward, even though there is a national shortage of sodium thiopental, one of the three drugs used in the lethal injection "cocktail" that is used to kill the condemned man. 

Sodium thiopental works as an anesthetic, preventing pain and inducing sleep.  Legally, that's important because the federal constitution prohibits cruel and unusual punishment, right?

Problem is, as we've written about before, there's a shortage of sodium thiopental in this country - and some states are stopping their executions because they don't have the drug to use.  Arizona's answer to the shortage?  Buy overseas.

Jeff Landrigan's lawyers sought relief from the U.S. Supreme Court under the argument that the foreign source meant that the drug might or might not meet American drug standards and therefore, only domestic or federally approved drugs should be used in executions. 

The High Court disagreed, opining that "...[t]here is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe ... speculation cannot substitute for evidence that the use of the drug is 'sure or very likely to cause serious illness and needless suffering.'"  (Read the Order here.)

So, Arizona apparently used a British drug to execute Jeffrey Landrigan on Tuesday.  This would be the first execution on American soil using a foreign drug as a means of execution. 

What happens next?  Texas crosses to a border town for a quick batch of knock-out drugs when it runs out of sodium thiopental in a couple of months?   

Executions Across the Nation Halted Due to Shortage of Sodium Thiopental

Sodium thiopental is a critical component of the three-drug cocktail that makes up the lethal injection procedure for most executions in this country.  It's the drug that makes the person lose consciousness, before the other two drugs first cause paralysis and then stop the heart.  (We've posted about the procedure in detail here.)

Drug Manufacturer Hospira, Inc. is Out of Product

Sodium Thiopental isn't made by many manufacturers -- in fact, there is only one company in the United States that makes the drug, Hospira Inc. of Lake Forest, Illinois.  Hospira doesn't have any more sodium thiopental to provide:  the company is reporting that it cannot ship out any more of its product until January 2011. 

Why?  Hospira can't make the drug until its own suppliers can ship Hospira the materials needed to make it.  That's not going to happen until January at the earliest.  (Sidenote: it's really eerie to know that Hospira makes this drug of death when you check out their friendly, health-oriented web page -- no wonder there's reports that Hospira isn't at all happy that its product is being used in killing people.)

Different States Responding Differently to the Shortage

California has decided that it will reschedule all California executions set after September 30, 2010, because of the sodium thiopental shortage. 

Oklahoma and Kentucky are on hold; Arizona is still trying to find some supply before an execution set to occur next month. 

Texas has enough on hand, and the shortage isn't impacting the Texas Execution Schedule, which has three executions set before the end of the year.  Surprise.

California's Scheduled Execution of Albert Greenwood Brown on Thursday Has Been Stopped

And, California's attempt to use the single-drug method in the execution of Albert Greenwood Brown this Thursday - the first execution to occur in California in five years?  Not happening. 

The Ninth Circuit Court of Appeals has ruled against the State of California, and ordered the Albert Greenwood Brown case returned to the lower court judge for procedural errors.  

The federal appellate court's order came down just after Governor Arnold Schwarzenegger had halted the Brown Execution for one day, apparently to coincide with the state Attorney General of California announcement that the Sodium Thiopental shortage would halt all the state's recently scheduled executions until sometime in 2011. 

When the drug is back on the market, wonder if California will have the money to pay for it?

Electric Chair Executions - Consider This Historical Alternative to Lethal Injection

Over at Criminal Justice University, there's an excellent post discussing the history of the electric chair as a method of execution in this country. 

As Utah faces an execution by firing squad next month, and the media fills with the five recent hangings in Iran as capital punishment, there's more of a focus upon alternative means to state executions other than the standard toxic injection most commonly used these days.

Entitled, "20 Criminals Executed in the Chair," the article not only provides images that bring back the horrors of this method of execution, it also rings the bell of history.  Many famous - or infamous - individuals met their death by electric chair in this country, among them:

Ted Bundy

Sacco & Vanzetti

Bruno Hauptmann (convicted of the Lindberg baby kidnapping)

Julius & Ethel Rosenberg.

If you have time today, check out the Criminal Justice University article.  Of course, maybe it's best not to do so over lunch. 

 

Firing Squad May Execute Utah's Ronnie Lee Gardner in June 2010

Lethal injection is so commonplace in the United States as the preferred method of imposing capital punishment that many assume it's the only option out there.  That's not true.

In Utah, it was only recently that their state legislature nixed the option of a death penalty by firing squad - and when it acted, four men sat on Death Row for whom the new law did not apply.  These four men were "grandfathered" into the prior law, the execution methods that were options when they were sentenced are legally still available to them today.

Ronnie Lee Gardner is one of these men - and he is choosing bullets over a needle

This week, Utah Attorney General Thomas Brunker announced that the State will not contest Gardner's motion to the court that he be killed by a firing squad instead of the standard lethal injection procedure.  Assuming that Mr. Gardner files his motion promptly, the judge could rule and his June 2010 execution may well be the first execution by firing squad that this country has seen in years. 
 

Utah's Methods of Execution and The Options Still Available Today in the U.S.

As horrific as the image of a firing squad may be in the 21st Century, lethal injection has only been an option for execution in Utah since the 1980s .  Up until around 25 years ago, Utah used firing squads as its preferred execution method. 

Utah law originally had beheading on the books as a means of capital punishment, but it was never used.  Hanging was also a means of imposing the death penalty, used until the late 1950s. (For other execution methods used by the various states, read our prior post discussing the forms of capital punishment.) 

Firing Squad Executions in Utah

Assuming that Mr. Gardner gets his wish, his name will be added to 1996's firing squad execution by the State of Utah  of John Taylor, and the infamous Gary Gilmore's death by Utah firing squad in 1977

We can only assume as the procedure continues, and the execution date draws near, that Ronnie Gardner's execution will receive extended media coverage.  For better or worse, it's a good guess that a lot of people will want to rubber-neck the firing squad execution, and lots of media outlets will be only to happy to serve them.

 

Nevada Stays Execution of Robert Lee McConnell for 2d Time

Robert Lee McConnell was set to die on February 1st at the hand of executioners for the state of Nevada, until yesterday when a federal court intervened, granting his motion to stay.  It's the second time that Mr. McConnell has faced that last walk -- he was previously set to be executed back in 2005.  Then, the execution was less than half-hour away when a stay was granted.  In 2005, McConnell had announced to everyone that he was ready to die. 

One wonders what that's like -- sitting on Death Row, being moved to the Carson City prison where Nevada kills its prisoners, setting your affairs in order and spending what you think are your last days on earth, only to find that they're not your last days.  Especially when it's happened to you twice.

Robert Lee McConnell took responsibility for a terrible mistake that he made when he murdered his ex-girlfriend's fiance back in 2002.  He pled guilty to the crime. 

Robert Lee McConnell also represented himself, both at trial and in this latest motion for stay.  In a request that exceeded 160 pages, McConnell asked Federal District Court Judge Robert Jones to halt the execution arguing in part that the death sentence was fundementally unfair.  (McConnell seems to be somewhat a jailhouse lawyer, having had his appeals to the Nevada Supreme Court heard - and rejected - last July, where he challenged the constitutionality of the lethal injection method of execution. )

Judge Jones has granted the stay, and ordered that McConnell have one month to file the appropriate petitions as well as having legal counsel appointed to assist him in that task. 

Of some note, the American Civil Liberties Union (ACLU) was litigating the constitutionality of Nevada's lethal injection method of execution in 2007, and Nevada took the challenge seriously enough to stay the execution of William Castillo, a man who had asked for the death penalty. Nevada was planning on upping the drug cocktail to double the standard amount, as well as giving Castillo a mandatory sedative.  It was only when the ACLU dropped its suit that Nevada started back with capital punishment.  Castillo's case remains on appeal. (By the way, they call these folk "volunteers" when they want to die rather than live any longer in state imprisonment.  Chilling, isn't it?)

What McConnell will argue on his latest appeal will be interesting to follow. 

Not only does he (and his newly appointed counsel) have the recent ACLU challenge to reference, as well as whatever additional appellate points they will address, they also proceed in an environment where more and more people are recognizing that powerful, powerful reality: it is simply cheaper to allow prisoners like Mr. McConnell to remain behind bars than it is to continue with capital punishment.  

Texas is Executing Mentally Retarded Regardless of Atkin v. Virginia

There's a story that's brewing in Texas which is growing in national prominence -- just this week, the Huffington Post published an excerpt from an article entitled "Cracked" from the Texas Observer, an exposé revealing that the state of Texas is continuing to execute mentally retarded individuals despite the constitutional prohibition against doing so. (Grits for Breakfast also helped to spread the word this past weekend.)

Written by Renée Feltz, the Observer’s expose throws the doors open on Texas’ Death Row to reveal that seventeen (17) men have had their IQ scores bumped up to levels that allow them to suffer the penalty of death under state and federal law. Apparently, forensic psychologist Dr. George Denkowski has used several tools of "junk science" to improperly alter the intelligence scores of these convicted men and according to Feltz’s investigation, Dr. Dankowski has done this intentionally.

In a disgraceful disregard of the spirit and intent of Atkins v. Virginia, Dr. Dankowski has testified in 29 death cases since 2002 (at a rate of $250 per hour), providing expert testimony for the prosecution in over two-thirds of the capital cases appealed in Texas from 2002 forward. Now, a federal judge has ruled that Dr. Dankowski has skewed intelligence testing results, and all his findings "must be disregarded due to fatal errors."

According to Atkins, it is unconstitutional to execute someone who scores 70 or less on a standard IQ test and demonstrates "deficits in adaptive behavior" before the age of 18 years. Texas law adds a seven question test in the determination of mental retardation as an attempt to make the label less subjective ("the Briseño standard”).

Where’s the National Media on this Story? Bloggers are taking the lead here.…

Interesting that this story is slow to gain coverage in the national media, with bloggers like those at the Huffington Post and Grits for Breakfast leading in the current search results for this story.

One wonders when the national news media will take the lead on this important and evolving revelation of injustice – and thank God for the tenacity of reporter Renee Feltz and those at the Texas Observer for their efforts to get this message out to the public.

What about Michael Richard and Chief Justice Sharon Keller?

Another thought to ponder: what does this mean for Texas' Chief Justice Sharon Keller, if anything? She awaits the fact findings from her trial this past August (Judge Berchelmann has not issued anything as yet), and Dr. Dankowski was the expert who provided the requisite testimony in the Michael Richard case, allowing Mr. Richard to be executed that fateful afternoon when Justice Keller was too busy to hear his motion for stay (“the clerk’s office closes at five.”) 

More on this story as it unfolds ....

Revisiting the Past: Capital Representation Pre-Gideon

Most Florida criminal defense attorneys who undertake the tremendous responsibility of representing defendants facing the death penalty probably cannot remember what life was like in this country in 1963. Few were practicing law back then. Many were yet to be born.

Nevertheless, the year 1963 is a critical milestone for the Florida capital defense bar because it was in 1963 that the United States Supreme Court brought us Gideon v. Wainwright, 372 U.S. 335 (1963) - and with Gideon, everything changed.

Before we consider the necessary changes that must be made in the representation of indigent defendants facing capital punishment in Florida - and we will -- it is important to look back to the status quo as it existed pre-Gideon.

Gideon did not create the indigent's right to counsel in death penalty cases. Their right to legal representation was created much earlier by the U.S. Supreme Court in Powell v. Alabama, 287 U.S. 45 (1932). It was only a few years later that the High Court expanded this right to legal counsel for indigents facing felony charges in federal courts. Johnson v. Zerbst, 304 U.S. 458 (1938).

What makes Gideon so powerful and worthy of our consideration today is that this single Supreme Court opinion recognized an indigent defendant's legal right to counsel when accused of state felonies. Gideon, 372 U.S. at 342. Suddenly, the Sixth Amendment right to the assistance of counsel was found to be essential to a fair trial; consequently, there was to be no distinction between the duty to provide indigents with legal representation in either state or federal courts. If you were poor and facing a felony charge in this country under either state or federal law, you were legally entitled to a lawyer provided to you by the government since you could not afford to hire your own counsel.

Curious by its absence was any instruction in Gideon on the means or methods by which the individual states were to accomplish this task. Each state was left to its own devices in how Gideon's mandate was to be accomplished, and many looked to Florida - since Gideon v. Wainwright originated in our state.

Background of Gideon v. Wainwright

In 1961, Clarence Earl Gideon was convicted for breaking and entering a Panama City, Florida pool hall (with the intent to commit petty larceny) by a Florida jury and sentenced to five years incarceration in the Florida State Prison. Although Mr. Gideon asked the trial judge to provide him with an attorney, the judge declined, explaining that under Florida law only defendants facing capital offenses were entitled to appointed counsel. Mr. Gideon, therefore, represented himself.

He continued to do so after his conviction. Taking advantage of the prison library, Mr. Gideon handwrote in pencil his petition to the United States Supreme Court, as he sued Louie Wainwright as the Secretary to the Florida Department of Corrections. Gideon argued that his Sixth Amendment right to counsel applied to his situation through the Fourteenth Amendment. His constitutional rights had been violated.

Once his pleas reached the High Court, Mr. Gideon was no longer without counsel. The renowned advocate Abe Fortas, later to take his own place as a United States Supreme Court Justice, undertook the representation of the convicted pool hall burglar.

The Gideon Opinion

After hearing oral argument, an opinion was issued in mid-1963 written by Justice Hugo Black who was joined by Chief Justice Earl Warren as well as Justices Brennan, Stewart, White, and Goldberg. Douglas, Clark, and Harlan concurred. No one dissented.

In Gideon, not only did the Court strengthen its support of the Powell decision, but it overruled Betts v. Brady, a prior decision that found the selective application of the right to counsel was legally acceptable in certain situations. Clark pointed out that there is no Constitutional distinction between capital and non-capital charges. Harlan wrote to point out that merely the charge of a serious crime created the special circumstances that call for legal representation at trial.

Now, the law of the land was that the right to have legal representation was to be considered a fundamental constitutional right and therefore, worthy of the necessary procedural safeguards imposed for due process of law.

The Aftermath for Clarence Gideon

After his case was returned to the Florida Supreme Court, the State of Florida tried Mr. Gideon a second time. In his second trial he was represented by appointed counsel, and summarily acquitted.

The Aftermath for the State of Florida, the Criminal Defense Bar, and Indigents Today

No one in this country was considered to have the legal right to an attorney until the early 1930s, when defendants in federal court facing the death penalty were granted that right by the U.S. Supreme Court. For the next thirty-odd years, no one charged with a serious crime by any state this country was considered to have a right to an attorney provided to him by that state - even if he was facing life imprisonment. Gideon v. Wainwright changed all that.

Today, almost a half century later, the result of Gideon has been a consistent neglect of the needed infrastructure for indigent criminal defense in Florida, and across the country. Efforts to have effective legislation passed or broadly based executive policies instituted have been frustratingly unsuccessful.

Since the 1980s, it has become increasing clear that there is simply an incongruity between the needs of appointed counsel to mount a thorough and satisfactory defense and the limited budgetary revenues of state and local governments. Bottom line, Gideon (and its progeny) has proven to be more expensive directive than the state governments have been willing to accept.

Ohio First State in the Nation to Change Lethal Injection Execution Method to Single Drug - What Are the Consequences?

Last week, the State of Ohio announced that it was changing its method of execution from a lethal injection involving three drugs (sodium thiopental, pancuronium bromide and potassium chloride) to a single injection of the drug sodium thiopental

Ohio changes to a single-drug form of execution after its failed execution of Romell Broom on September 15, 2009

You'll recall the travesty of Mr. Broom's attempted capital punishment -- as we described here, Romell Broom suffered for two and one-half hours on the gurney that day:

Romell Broom was sentenced to die for the rape and murder of Tryna Middleton by the State of Ohio and last Tuesday, Mr. Broom was strapped to a gurney and his execution by lethal injection began. 

The 2+ Hour Failed Execution

Except they couldn't find a vein in which to insert the needle.  They tried his arms.  They tried his legs.  Broom lay there, tied to the table by long leather straps covering the length of his body.  Imagine this being done to you.

Broom lay there for OVER TWO HOURS while lab techs tried to kill him.  They failed.  Broom went back to his Death Row cell, and his execution was "rescheduled."  The Governor of the State of Ohio was contacted about the problem and he ordered a one week "postponement."


According to the New York Times, Broom "sobbed with pain".  And afterwards, not only did Ohio Governor Strickland order that Romell Broom's execution be stopped, but the Ohio federal court issued a stay of his execution after hearing Broom's attorneys argue that a second try at executing Broom would be unconstitutionally cruel and unusual.  

The Consequences of Ohio's New Single Drug Execution Method

Proponents are arguing that this single, massive dose of sodium thiopental is merciful and that it's going to be the NextBigThing for death penalty proponents, since its success will hamper constitutional arguments against execution by lethal injection under the three-drug approach. 

And those are serious and substantive arguments, as we've outlined here in a three-part series of articles.  No one can truly say that a paralyzed person, laying on that gurney, isn't suffering because they are incapable of communicating what they are experiencing.  The "drug cocktail" is simply horrific.

Ohio is so confident in its new execution method -- the same type of killing method that vets use on dogs and cats -- that it's planning on having the new protocol in place by the end of this month, and there's talk that Ohio will want to try out its new One-Drug Injection procedure on Kenneth Biros, who is scheduled for execution on December 8, 2009, subject to a temporary stay. 

What has yet to be determined, however, is how this massive dose of this single drug will truly work on a human being.  What works on dogs and cats might not be as merciful, fast, and painfree on humans.  We simply don't know, and undoubtedly there will be medical testimony with the appropriate medical experts providing their opinions on this procedure before Ken Bios or anyone else is subject to Ohio's new killing option.  Or there should be.

And, what about if the Ohio one drug option doesn't work as swiftly and cleanly as its proponents suggest it will?  Well, they've got a backup -- two more drugs that would then be injected into the condemned, there on the gurney:  the executor will shoot in massive amounts of  hydromorphone and midalzolam.   

None of This Makes a Bit of Difference in the Broom Situation

With Ohio's big announcement, death penalty proponents are gleefully rubbing their hands together at the thought that the remaining 35 states using lethal injection as their primary execution method can now circumvent all number of death penalty appeals based upon the cruel and inhuman nature of the three-drug cocktail, just by adopting the Ohio One Drug method. 

Well, it's not as simple as that.  First, this method needs to be vetted by medical experts before a condemned person is used as a guinea pig here, nevermind those back-up syringes filled with hydromophone and midazolam. 

Second, has no one stopped to think that the answer is more complex than this?  Romell Broom suffered great agony on September 15th not because of the type of drug used upon him, or the number of drugs selected to be injected into his body, but because they could never find a way to successfully insert the needle.

Two Points to Ponder

So, point one, the Ohio One Drug "innovation" doesn't resolve the Romell Broom travesty and it's fascinating to watch Death Penalty proponents distract themselves from the cruelty of that day in their excitement over this new find. 

Point two:  is anyone out there thinking that executing men and women in the same way that that vets euthanize animals (even if they are beloved pets) is just plain wrong?  When did we forget about human dignity?

In Depth Look at the Law: Secrecy in China - Successfully Hiding the Truth About Executions for Profit from the World

Supplying the International Demand for Human Transplant Organs is Big Business in China

The demand for transplantable organs is the main reason why organ procurement is so pervasive in China. [204] It is common knowledge that high-paying customers will receive a prompt organ transplant in China. [205]Former transplant patients have reported that they were expected to hand out "red envelopes" filled with money to every doctor they saw.[206]

The money is shared with both prison and court officials. [207]It has been reported that foreign nationals pay upwards of $200,000 for an organ transplant performed in China, using Chinese donors. [208] Sadly, there is also a reported case where a transplant recipient died because the essential post-operation care and treatment ceased because the patient ran out of money.[209]

Due to the high demand for organs, the large number of death-row prisoners, the improved medical technology, and the huge profits, selling organs from executed prisoners in China will continue. [210] The situation is exacerbated because many of the people who are key participants in the harvesting of the organs are poorly paid prison and hospital administrators.[211]

Executions for Profit Have Extra Benefit -- Intimidation and Control of the Citizenry

China's organ procurement from the bodies of executed prisoners is not only a lucrative money-maker, it is also a method to coerce and intimate the general population into submission of government control.  [212] Actually, since the discovery of the lucrative organ transplant market, the number of crimes punishable by death has increased.[213]

Chinese web bulletins boards have reported information discussing the sale and corruption of the "organ business." [214] Chinese websites advertising organ transplants openly admit to obtaining their organs from executed prisoners. [215] One website specifically targeting foreigners announced on the front page that viscera or soft interior organs including brain, lungs, and heart could be found immediately. [216] This website also thanked the support of the Chinese government, specifically naming the Supreme Demotic Court. [217]

Secrecy in the Chinese government

China has maintained an air of secrecy concerning the sale of organs harvested from executed prisoners, concealing the transfer of profits. [218] China strove to keep the 1984 order on the use of prisoner cadavers confidential in order to avoid international backlash. [219] Even official figures regarding death sentences and executions in China are kept secret from the public and foreigners. [220] Additionally, international human rights organizations are not permitted to visit prisoners in China. [221] Until recently, the Chinese government emphatically denied the legal procurement of organs from Chinese prisoners condemned to death.[222]

The only people that would be present at the scene of an organ harvesting are the victim and the perpetrators. [223] No bystanders would be allowed to witness the event. [224] Afterward, no body would be found, and no autopsy would be conducted. [225] The body would be cremated, and the evidence vanished. [226] The operating room would be left like any other empty operating room. [227] Cremation of the body prevents any evidence from surfacing regarding the harvesting of organs. [228] In addition, any wills created by condemned prisoners are subject to official censorship by the government.[229]

The Supreme People's Court issued a secret regulation concerning a prisoner's last will and testament that states, "Those parts which are slanderous in nature or which make reactionary statements are not to be handed over to the person's family . . . sections complaining about grievances or alleged injustices are not to be passed on to the person's family." [230] When one executed prisoner's brother asked to see the documentation of his brother's consent to donate his organs, the Chinese officials would not give him the information. [231] Furthermore, the government warned the brother that if he did not keep silent, he and his family would face retaliation.[232]

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In Depth Look at the Law: China Death Vans and China's Widespread Corruption - There is No Fairness in China's Criminal Justice System

Corruption of China's Communist Party

It has been reported that there is widespread corruption among Chinese government officials including graft, bribery, use of official position for personal gain, blackmail, misuse of public money, and extortion. [161] One source cites graft and bribery as constituting over 50% of the economic crimes in China.[162]

Under the current Chinese government, the rights of individuals are always subject to the drafting of new legislation that may suspend those rights. [163] Moreover, violations of those rights guaranteed by the Chinese constitution are generally not enforceable against the government because of the lack of checks and balances in the system. [164]

The Communist Party always takes precedent over the independent rule of law. [165] Chinese citizens may only exercise their right to freedom if their behavior does not infringe upon the interests of the society and the state. [166] Research has indicated that Chinese citizens who engage in promoting freedom of expression are arbitrarily arrested, detained, tortured, and convicted. [167]

Many crimes involving expression of ideas or even an association with an idea or movement that differs from the party line are classified as political crimes. [168] The ensuing trials are held in secret, excluding observers and even lawyers, under the excuse of maintaining state secrets.[169]

Economic gain from organ harvesting

China sells organs of executed prisoners on a large scale for profit under the guise of state secrets. [170] China has a system that readily sentences, condemns, and executes human beings so that their organs can be sold by government officials for personal gain. [171]

Arrestees are often denied immediate access to legal representation following their detention. [172]  Chinese police even take extreme steps to limit defense attorneys from assisting their clients. [173]

For example, Chinese police severely limit the length and number of times a defendant is allowed to meet with his attorney, require the attorney to brief police concerning the nature of the conversation prior to the meeting, cancel meetings that are intended to cover topics that are not preapproved, and severely restrict the attorney's access to the prosecution's evidence. [174]

Torture Is An Accepted Practice

Moreover, torture is often used to elicit confessions. [175]  International organizations have documented the widespread abuse and torture of prisoners occurring at all types of detention facilities and legal institutions in China. [176]

One individual reported that he was forced to confess to a crime after undergoing torture perpetrated by the police that included electrical shock applied to the toes, fingers and genitals, beating with heavy chains and sticks, and injection of hot pepper, gasoline, and ginger into his nose. [177] Thus, it is not surprising then that China refuses to accept the Optional Protocol to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which allows for regular international inspection of detention centers.[178]

Injustice is Inherent in China's Criminal Justice System

In addition to the arrest and detention of prisoners, trials are often held before defendants are provided adequate time to prepare a defense. [179] Defendants do not have a guaranteed right to cross-examine witnesses. [180]

In addition, verdicts and subsequent sentences are often determined by private committees prior to a proper trial. [181]Unfortunately, it is quite common for a court to have reached a verdict before the defendant even enters the courtroom. [182]

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In Depth Look at the Law: China Death Vans and Harvesting Prisoner Organs for Profit

Due to reports of the torture and anguish of prisoners and the secrecy surrounding the death penalty's application in China, it is virtually impossible to independently verify that any executed prisoners truly gave consent for the use of their organs.[100]

Chinese prisoners are generally not notified of their impending execution until just hours before it occurs.[101] As a result, donor consent is rarely obtained in spite of it being a lawful requirement. [102]The family members of the condemned prisoners are also rarely informed of the execution.[103]

Even when the family members are notified of the execution, they are rarely informed of the prearranged plans for organ extraction. [104] In the rare instances where the family members are notified, they are offered money in advance to authorize the use of the prisoner's organs. [105] If the family refuses the payment, it is then common for the government to provide the family with a large bill following the execution to recoup losses ranging from food and lodging for the prisoner to the cost of the bullet used to perform the execution.[106]

One death row prisoner was witnessed lying on the floor in solitary confinement with all of his limbs stretched out and shackled to the ground by his wrists, ankles, and even his neck. [107] He was fed one meal a day.[108]  Only after he "consented" to donating his organs was he unshackled from the ground. [109] However, he was still in leg irons and handcuffs.[110]

It has also been reported that prisoners who are healthy and have useful organs are often pushed to the front of the waiting lists for executions.[111] In essence, once a prisoner has been deemed fit for an organ transplant, the prisoner becomes nothing more than a warm object sheltering an organ for some other waiting and paying person.[112]

Chinese ideology

The underlying ideological principles of China's social and political culture justify the use of organs from executed prisoners. [113]Society as a whole is deemed more important than individual rights. [114] Because of the organ deficit for transplantation and the demand from high-paying foreigners, China justifies the use of these prisoners' organs for the overall good of the country. [115] The Chinese government considers the use of death row prisoners for organ transplants charity.[116]

The criminals are considered bad people deserving of their death sentence. [117] In producing the death, the prisoners create waste that can be used to help others continue their lives, hence charity. [118] Even hospital and prison employees deem the system of retrieving organs without consent just a way to pay back the state for the expense of the prisoners' care while incarcerated.[119]

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In Depth Look at the Law: Death Penalty Organ Harvesting is a Government Business in China

Organ harvesting is a government business in China. [77]

At least ninety percent of all organ transplants performed in China come from executed prisoners. [78] Only the government has the power to carry out these executions, and therefore, only the government can control the organ trade.[79]

Without the death penalty in China, the entire system of organ harvesting would be nonexistent. [80] Recently in 2006, both the Vice-Minister of Health in China and senior transplantation specialists finally admitted that the vast majority of organs used for transplants were harvested from executed prisoners.[81]

Different people in the government play an integral role in the organ transplant process.[82]

The judges and other court officials speed up the process from appeals to death sentence, which ensures that prisoners are available for the optimum time to extract organs for waiting patients. [83] Court officials inform doctors when death sentences are handed down, so they can contact the prisons to make matches for waiting patients. [84] Prison guards and other officials allow hospital staff into the wards to test prisoners to determine appropriate donors for waiting transplant patients.[85]

Many times, prisoners are subjected to a large variety of medical screening tests prior to execution to determine the compatibility of their organs for transplantation. [86] In these instances, medical personnel are strictly forbidden from revealing the purpose of these screenings.[87]

The prison guards also set the execution dates and ensure that family members are unaware of the execution until after-the-fact. [88] The guards also allow the doctors to perform the organ extractions immediately after execution directly at the execution site. [89] In fact, medical personnel are routinely informed of the date, time, and location of executions in advance, so they are prepared for the immediate extraction of organs for transplantation.[90]

Deliberately Botched Execution and Harvesting Organs From the Living

There have also been credible reports of deliberately botched executions to postpone brainstem death to aid in the retrieving of the organs while the blood is still circulating through the body.  [91] It has been reported that organs such as kidneys are removed the night before the scheduled execution. [92]

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In Depth Look at the Law: China's Death Penalty - 3: Who are the Falun Gong? Why are they targeted for execution and organ harvesting?

This is third part of our new Friday Legal Memo Series - In Depth Look at the Law, where we're focusing on an international horror that is not getting enough attention. In China, people are being executed inside mobile death vans, vehicles that drive from village to village. First, the victim is killed inside the van. Thereafter, his organs are taken from him almost immediately so they can be sold for a profit. All this, while grieving loved ones may well be just outside the vehicle. This is real. Take notice. Spread the word.

Practitioners of Falen Gong have been targeted for execution and organ harvesting by China. Why?

Falun Gong was founded in 1992 by Li Honghzi in northeastern China. [46] Falun Gong followers practice meditative, slow-motion exercises and adhere to the movement's guiding principles of truthfulness, benevolence, and forbearance taken from Confucianism, Buddhism, and Taoism.[47]

The Chinese government touts protection of certain religious activities, which include Buddhism, Taoism, Islam, Protestantism, and Catholicism. [48]However, all other religious groups, sects, and denominations are illegal and subject to suppression by the Chinese government.[49]

In April 1999, over ten thousand Falun Gong members gathered in Tiananmen Square to peacefully protest the persecution of their practices.[50]

On April 25, 1999, fifteen thousand members of Falun Gong gathered outside of the government's central headquarters in Beijing and demanded official recognition.[51] Following the April 1999 protests, the Chinese government began a campaign to eradicate the Falun Gong. [52]Leaders of the movement were detained, the organization was outlawed, and a massive media campaign was launched aimed at discrediting the organization.[53]

On July 22, 1999, the People's Republic of China's Ministry of Civil Affairs decreed the Falun Gong an illegal organization.[54]

Following the outlaw of Falun Gong, the international news media and academic groups began producing and disseminating documentation of the group's rapid dismantling. [55] In October 2000, the Chinese government increased efforts to destroy the Falun Gong by pronouncing the group as a "reactionary and hostile" organization.[56]

As a result, detention and re-education efforts were increased. [57] The Chinese government undertook a three-pronged approach to quash the Falun Gong movement: 1) re-education of members; 2) violent treatment of members; and 3) distribution of anti-Falun Gong propaganda.[58]

Eight hundred thirty thousand Falun Gong followers had been arrested by the conclusion of April 2001. [59] However, it was reported in April 2006 that each year, more than twice as many Chinese nationals join Falun Gong than the Communist Party, much to the Chinese government's fear and dismay.[60]

In 2001, the Chinese president, Jiang Zemin, stated, "Religion must never be allowed when it opposes the direction of the Party of the socialist system, or destroys national reunification or ethnic identity." [61]

In late 2001, China declared the use of the Internet to organize or coordinate the activities of "evil cults" a criminal offense. [62] In the years following, thousands of Falun Gong followers were detained and charged with violating the anti-cult laws.[63]

President Jiang Zemin actually created the 6-10 office, a special branch of the Chinese government designed specifically to eliminate the Falun Gong movement. [64] The 6-10 office sent thousands of Falun Gong practitioners to prisons and labor camps.[65]

Falun Gong practitioners have been subjected to torture, capricious detention, and re-education to include confinement, forced labor, and psychological treatments. [66] One research group identified over three thousand Falun Gong practitioners who have lost their lives as a result of persecution by the Chinese government.[67]

Organ harvesting of Falun Gong prisoners may have begun a decade ago

Researchers linked the large surge in organ transplants performed in China to the persecution and imprisonment of Falun Gong members in 1999. [68] In many prisons and labor camps, Falun Gong practitioners have been singled out from non-practitioners for blood tests and organ examinations.[69]

Although those practitioners were given medical screenings, presumably to determine compatibility for organ transplants, many diagnosed with illnesses were not provided with any medical treatments.[70]

One study found that Falun Gong practitioners who die in captivity would officially be categorized as suicide by the Chinese government, and their bodies would be immediately cremated. [71] Furthermore, it has been reported that a large number of these deaths were carried out specifically to gather organs for transplants.[72]

Many family members of executed Falun Gong practitioners have reported seeing corpses with surgical incisions and missing body parts. [73] Moreover, the government gave no explanation as to why the corpses were mutilated.[74]

Many Falun Gong practitioners whose organs were harvested following their execution were never identified by their families because these practitioners refused to identify themselves to the authorities when they were captured. [75]Therefore, it is easy to conclude that these unidentified practitioners were the easiest and safest targets for clandestine organ harvesting.

These findings parallel international human rights groups that have widely reported that executions in China are often performed in conjunction with specific transplant requirements, i.e., shooting a prisoner in the head when kidneys are needed or shooting a prisoner in the chest when corneas are needed.[76]

[46]Christopher Chaney, The Despotic State Department in Refugee Law: Creating Legal Fictions to Support Falun Gong Asylum Claims, 6 (No. 1) Asian-Pac. L. & Pol'y J. 130, 142 (Winter 2005).

[47]Leavy, supra note 50, at 756-57.

[48] 48Id. at 757-59.

[49]Chaney, supra note 51, at 142.

[50]Id. at 131.

[51] Leavy, supra note 50, at 761.

[52] Id.

[53]Matas & Kilgour, supra note 46, at 9.

[54]Id. at 10.

[55]Joseph Watson & Alex Jones, Falun Gong Demonstrator Speaks Out on Chinese Government's Ghoulish Organ Harvesting, Prison Planet.com, Apr. 25, 2006, ¶¶ 13-14, http://www.prisonplanet.com/articles/april2006/250406speaksout.htm (last visited July 29, 2008).

[56] Edelman & Richardson, supra note 48, at 254.

[57]Id.

[58]Id.

[59]Matas & Kilgour, supra note 46, at 10.

[60]Id. at 11.

[61]Leavy, supra note 50, at 756.

[62]David Matas & David Kilgour, Bloody Harvest Revised Report into Allegations of Organ Harvesting of Falun Gong Practitioners in China, OrganHarvestInvestigation.Net, Jan. 31, 2007, at 34 [hereinafter Bloody], available at http://organharvestinvestigation.net/report0701/report20070131-eng.pdf (last visited July 29, 2008). Matas and Kilgour continued their research after publishing their first report and published this updated report with additional findings.

[63] Kirk C. Allison, Ph.D., M.S., Assoc. Dir., Univ. of Minn., Program in Human Rights and Health, Address at the University of Hawaii at Manoa: Transplantation and Human Rights in China, slide 89 (Oct. 29, 2007), available at http://organharvestinvestigation.net/events/Kirk_Allison_102907.pdf (last visited July 29, 2008).

[64]Bloody, supra note 67, at 38.

[65]Allison, supra note 68, slide 70.

[66] Matas & Kilgour, supra note 46, at 9.

[67]Fear of Torture or Ill-Treatment/Prisoner of Conscience, Amnesty Int'l (ASA 17/049/2006), Aug. 29, 2006, at 1, available at http://www.amnesty.org/en/library/asset/ASA17/049/2006/en/dom-ASA170492006en.pdf (last visited July 29, 2008).

[68]Bloody, supra note 67, at 45.

[69]Id.

[70]Id. at 35.

[71]Hemphill, supra note 29, at 439-40.

Next Friday: Prisoners as another source for China's organ harvesting business

In Depth Look at the Law: China's Death Penalty -2: Truly Inhumane Killings Are Happening in China Under the Guise of Capital Punishment

This is second part of our new Friday Legal Memo Series - In Depth Look at the Law, where we're focusing on an international horror that is not getting enough attention. In China, people are being executed inside mobile death vans, vehicles that drive from village to village. First, the victim is killed inside the van. Thereafter, his organs are taken from him almost immediately so they can be sold for a profit. All this, while grieving loved ones may well be just outside the vehicle. This is real. Take notice. Spread the word.

How does China officially respond when confronted with these horrors? China doesn't deny the death vans exist. Instead, China claims that the death vans are more humane.

Executions in China are performed by either lethal injection or firing squad. [20] China approved the use of lethal injection in 1997. [21] Although the Chinese government is claiming that lethal injection is a more humane form of execution, there have been reports that the executioners have lowered the dosage amounts to cut costs, which results in a lingering, more agonizing and painful death. [22]

China Prefers Lethal Injection Over the Firing Squad - But Not Because it is a More Humane Manner of Death.

Despite these allegations, the Chinese media and government officials continue to tout that lethal injection is a civilized method for administering the death penalty. [23] The Chinese media often justify the use of lethal injection by citing the use of lethal injection in the United States. [24] The death van designer also claims that switching from gunshots to lethal injections show that China is now promoting human rights. [25]

Critics, however, state that the death vans allow China to carry out executions more quickly and easily. [26] Realistically, the government is not seeking a more enlightened vision of capital punishment but rather a more efficient way to execute a larger number of people. [27] In addition, the vans keep the executions out of the public eye.[28]

Death Vans Are a Profit Machine: They are Used for Organ Transplantation and Lethal Injection is Better for a Fast Harvest

It has been reported that the Chinese government uses mobile execution units to harvest organs from prisoners condemned to death. [29] Human rights activists and death penalty opponents fear that China is using lethal injection more frequently to harvest the organs of executed prisoners to supply China's growing market for organ transplants. [30] Amnesty International is also concerned with China using lethal injection for the purposes of facilitating organ transplants from executed prisoners.[31]

These Silent, Mobile Death Vans are Viewed as Helping the Black Market Human Organ Market to Florish and Grow

The Executive Director of Human Rights in China states that the mobile execution vans help facilitate the black-market trade in organ sales because independent monitoring organizations, like the Red Cross, are denied access to prisons or labor camps. [32] With the secrecy already surrounding executions and organ harvesting in China, the death vans only aid in the business of black-market organ transplants. [33] Critics positively see a link between the silently rolling death vans and the organ trade.[34]

Amnesty International Reports on How Lethal Injection is Preferable in Human Organ Harvesting

According to Amnesty International, the chemicals used for lethal injection, which have neurological and neuromuscular effect, can be flushed through the kidneys without causing permanent damage. [35] The chief concern with damaging organs during execution is depriving the organs of oxygen or harming them physically through trauma. [36] Lethal injection allows the executioner to avoid both of these risks. [37] Although the drugs used for lethal injection in China is not publicly known, even the poisonous mix used in the United States would not damage the vital organs desired for transplants. [38]

With a shot of the anticoagulant, Heparin, beforehand, even a heart could be transplanted if removed quickly. [39] By leaving the body whole via lethal injection, organs can be extracted more quickly and effectively compared to execution by gunshot.[40]

Chinese Doctors Harvesting Human Organs With Grieving Family Members Just Outside the Van

Prior to the death vans, doctors had to hurriedly perform the organ extraction directly at the execution site before they were detected by the common people. [41] During one particular organ extraction inside an ambulance at the execution site, the doctors could hear people outside of the ambulance. [42] Because the doctors feared that those people might have been the prisoner's family, they left the job half finished. [43] The corpse was then hastily thrown in a plastic bag and left on the flatbed of the crematorium truck. [44] As the ambulance drove away, the people outside pelted the vehicle with stones. [45] Therefore, the windowless death vans would provide a much safer venue for the doctors and police officers performing the executions and organ extractions.

[20] Executed, supra note 5, at 44.

[21]Id. at 48.

[22] Charleton, supra note 3, ¶ 5.

[23] Executed, supra note 5, at 48.

[24]Id. at 50.

[25] MacLeod, supra note 12, ¶ 4.

[26] Antoaneta Bezlova, Death Penalty-China: Rapid Death by Roaming, Inter Press Service News Agency (Italy), July 19, 2006, ¶ 2, http://www.ipsnews.net/print.asp?idnews=34023 (last visited July 29, 2008).

[27] Charleton, supra note 3, ¶ 6.

[28] Bezlova, supra note 26, ¶ 2.

[29] Joan E. Hemphill, Comment: China's Practice of Procuring Organs from Executed Prisoners: Human Rights Groups Must Narrowly Taylor Their Criticism and Endorse the Chinese Constitution to End Abuses, 16 Pac. Rim L. & Pol'y 431, 440 (Mar. 2007).

[30] Bezlova, supra note 26, ¶ 16.

[31] People's Republic of China the Olympics Countdown-Failing to Keep Human Rights Promises, Amnesty Int'l (ASA 17/046/2006), Sept. 2006, at 2 [hereinafter Failing], available at http://www.amnesty.org/en/library/asset/ASA17/046/2006/en/dom-ASA170462006en.pdf (last visited July 29, 2008).

[32] Bezlova, supra note 26, ¶¶ 20-21.

[33] Id. ¶¶ 20-22.

[34] Id. ¶ 16; MacLeod, supra note 12, ¶ 7.

[35] Carers, supra note 14, at 16.

[36] Id.

[37] Id.

[38] Craig S. Smith, In Shift, Chinese Carry Out Executions by Lethal Injection, The N.Y. Times, Dec. 28, 2001, ¶ 11, available at http://query.nytimes.com/gst/fullpage.html?res=9900E0D91131F93BA15751C1A9679C8B63 (last visited July 28, 2008).

[39] Id.

[40]MacLeod, supra note 12, ¶ 8.

[41] See Organs, supra note 4, at 59 (statement of Wang Guoqi, former doctor, Chinese PLA Hospital).

[42] Id.

[43] Id.

[44] Id.

[45] Id.
Next Friday: Who are the Falun Gong and How are they involved?

It Can Happen Overnight: Japan Suspends the Death Penalty

Remembering back to a couple of months ago, we posted about three executions taking place in Japan, in just one week. 

Well, here's how fast things can change:  Japan has effectively nixed capital punishment today.  How?  By the appointment of Keiko Chiba as the country's new Justice Minister.  A lifelong opponent of the death penalty, it's highly unlikely that Minister Chiba will sign the necessary execution order for any Japanese inmate to be executed in Japan. 

No signed order, no hanging.

Author of Series on China's Death Penalty: Sin-Ting Mary Liu

The next entry in our Friday series -- Friday's Legal Memo, an In-depth Look at the Law -- educates us on how capital punishment is administered in China. 

Its author is our invaluable legal intern, Sin-Ting Mary Liu, and her qualifications for providing us with this trusted work are:

EDUCATION & TRAINING

JURIS DOCTOR CANDIDATE, Nova Southeastern University, Expected Graduation 2010

GPA - 3.72

Class Rank - 5 (Top 2%)

Honors
• Dean's List
• Fall 2007 Highest Grade Award -Legal research and writing
• Spring 2008 Highest Grade Award -Legal research and writing
• ILSA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, Staff Member - editing, source pulling, and Bluebooking multiple journal articles
• Nova Southeastern University - Shepard Broad Law Center Merit Scholarship Award

Activities
• Phi Alpha Delta (PAD) - Member
• American Bar Association (ABA) - Student Member
• Asian Pacific American Law Students Association (APALSA) - Member

Special Areas of Legal Interest
• Criminal Law
• Employment Law
• Biotechnology
• Family Law

BACHELOR OF SCIENCE IN ADVERTISING, University of Florida, 1994
• Minor in East Asian Languages and Literature

DALE CARNEGIE TRAINING COURSE, 1997 - 1998

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Ohio Set for Second Execution Attempt of Romell Broom Unless His Lawyers Work Fast

Romell Broom was sentenced to die for the rape and murder of Tryna Middleton by the State of Ohio and last Tuesday, Mr. Broom was strapped to a gurney and his execution by lethal injection began. 

The 2+ Hour Failed Execution

Except they couldn't find a vein in which to insert the needle.  They tried his arms.  They tried his legs.  Broom lay there, tied to the table by long leather straps covering the length of his body.  Imagine this being done to you.

Broom lay there for OVER TWO HOURS while lab techs tried to kill him.  They failed.  Broom went back to his Death Row cell, and his execution was "rescheduled."  The Governor of the State of Ohio was contacted about the problem and he ordered a one week "postponement."

Ohio Has Scheduled a Second Execution

Well, now Broom's execution -- again, by lethal injection -- has been put back on the calendar, and a national outcry is joining with the arguments of his lawyers that this amounts to cruel and unusual punishment.   According to his counsel, this event has traumatized inmate Broom.  That's probably an understatement. 

Legal Arguments Based Upon Cruel and Unusual Punishment are Being Advanced in the Face of Willie Francis Precedent

Broom's attorneys -- as well as organizations like the American Civil Liberties Union -- are advancing the argument that Governor Strickland should grant clemency to Broom and commute his sentence to one of life imprisonment because of this botched execution.  Of course, the U.S. Supreme Court has held that a second execution is not, in and of itself, cruel and unusual.  Those in the know with their legal death penalty history will remember the Louisiana case of 16 year old Willie Francis, where an electric chair execution failed and the issue of whether or not a second try at killing Francis would be cruel and unusual.  In Francis v. Resweber, the High Court held second executions were constitutional.

Florida's Contribution -- the Lesson of Angel Diaz

Here in Florida, we remember the case a couple of years back where the execution of Angel Diaz was excruciating, as the executioners pushed the needs through his veins and into muscle tissue -- which meant Mr. Diaz took over half an hour to die, laying there in front of everyone on that gurney.  After that botched business, the State of Florida stopped lethal injection executions for a period of time.  Florida resumed executing inmates in 2008, under purportedly new and better injection procedures. 

Maybe Ohio needs to look at its own procedures instead of cavalierly putting Broom's name back on its death calendar.  Or maybe they should just stop executing people, period....

Inside the Death Chamber - Tours by Death Row Wardens

North Carolina

The video below is a ten minute documentary by Scott Langley, where a North Carolina Warden gives a detailed tour of Death Row, and tells what happens during an execution -- from last phone calls, to the execution itself and its aftermath.




Texas

The Associated Press has placed an interview online -- they're calling it an "interactive" -- where a Texas Warden who oversaw nine executions by lethal injection gives a tour of the Death House and an explanation, step by step, of his job during an execution. 

http://hosted.ap.org/specials/interactives/_national/texas_execution/index.html?SITE=TXSAE

Due to AP's copyright/fair use protections, the actual video cannot be placed here on the site.  Instead, only the link to their site can be shown.  Please take the time to click on the above link, and watch this short video. It is worth your time. 

Warning:  these tours are chilling, and may leave you in a somber mood for the rest of the day.

Technological Advances and the Death Penalty: Evidence Changes Over Time as Science Exonerates Defendants, but Capital Punishment Can Mean Justice Comes Too Late

Our system of justice is built on the belief that it's better to let a guilty man go free than to imprison - or kill - an innocent man for a crime he did not commit.  That's why there are all those procedural hurdles from the beginning of an investigation all the way through that last minute request for stay of execution.

This dedication to protecting the innocent threads through the controversy surrounding Texas Chief Justice Sharon Keller and her infamous "the clerk's office closes at 5:00" phone call.   It's why the DNA revelations of Israel's Dan Frumkin are reverberating around the world.   It's why the Innocence Project exists.  

It would seem self-evident that the continued revelations from our scientific community, particularly the new DNA warning by Frumkin, would obviously balance against any continued use of capital punishment, given the fragility of reliablity of prosecution evidence over time. 

Wouldn't it?  This seems obvious from the defense counsel's perspective.   This seems to be what our system of justice and the parameters of due process require. 

Maybe it takes something that hits home, touches people's hearts for this truth to become self-evident.  Sometimes there is the one case that really hits home with a lawyer -- and in The Huffington Post today, Cy Vance (a veteran criminal lawyer currently running for District Attorney of Manhattan) gives us an eloquent piece on the case of Cameron Todd Willingham.

Willingham may well have been another innocent man executed by the State, whose innocence was revealed after his death due to scientific advances that gave more details to the evidence found at the scene of the crime.  Willingham's case is particularly poignant because he was convicted and killed for the death by fire of his own children.  Now, arson experts are saying that this was never an arson case, the fire was not intentionally set. 

I highly recommend you take the time to read what Cy Vance has voiced about the Cameron Todd Willingham case, as well as the death penalty overall.  It's worth your time.  And it really demonstrates, concretely, that continued technological advances is one of the biggest argument against the death penalty.

AEDPA, the Power of Judicial Dissents, and the Reality of Troy Davis

This week, the New York Times reports that dissents are increasing in federal cases, based in large part upon judicial frustration with the Antiterrorism and Effective Death Penalty Act of 1996.   According to their investigation and research, this single statute has been the basis of 6 -24 dissents per year in federal death penalty appeals. 

What is the Antiterrorism and Effective Death Penalty Act of 1996?

The Antiterrorism and Effective Death Penalty Act of 1996 is a federal law that was passed by Congress in response to concerns that Death Row inmates were taking advantage of loopholes in the appeals process.  What AEDPA does to correct this concern is to put boundaries on what the federal appellate court justices can take into consideration when called upon to review a death penalty appeal.  The federal appellate courts must limit their review in state court cases where the death penalty has been imposed to certain specific areas. 

Specifically, AEDPA allows federal judges to grant relief in a death penalty case only if  the state court decision is found to be:


  1. contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or

  2. based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.


AEDPA does other things as well.  It bars certain habeas corpus petitions.  It cuts off the power of the U.S. Supreme Court from reviewing lower  federal court decisions denying an inmate permission to file a habeas corpus petition in certain circumstances.  It establishes specific review provisions in death penalty cases arising out of states that have set standards for performance (e.g., "death penalty qualified") on attorneys involved in representations at the penalty phase of a death case (the sentencing trial).   These are a few examples of the powerful impact AEDPA imposes upon capital punishment review nationally.

What's the Impact of All These Judicial Dissents?

Dissenting opinions ("Dissents") from justices of the U.S. Supreme Court are commonplace today -- sometimes short, sometimes long, they're always there to give further explanation as to the reasoning of the particular justice.  We've come to expect them, particularly on the big issues. 

Justice William O. Douglas loved dissenting opinions, for example, and wrote 486 of them (he also dissenting in another 309 cases, but didn't bother to write an opinion for them).  And, of particular import here, Justices Thurgood Marshall and William Brennan, Jr. became famous for their dissenting opinions in death penalty cases.   Both were adamently opposed to capital punishment, and used the opportunity offered by the dissenting opinion to offer eloquent and persuasive arguments against its legality.

And it's true that dissents can be used to persuade others.  Marshall and Brennan saw the power in dissenting, and the New York Times article points to the power of the growing number of federal appellate judges who are opposing the AEDPA via the tool of a dissenting opinion.  

Dissents are power, they give judicial voice to perceive injustice and persuade an alternative viewpoint, sometimes offering a solution or optional outcome. 

Bringing the Case Home -- This is Life or Death For Troy Davis

Earlier, we posted about Troy Davis and how Mr. Davis may well be an innocent man executed by the State of Georgia.  Right now, a second habeaspetition sits before the United States Supreme Court -- with an Eleventh Circuit Opinion denying Mr. Davis's requests and amici curaie supporting him growing by the day as well as a swelling public outcry by the likes of Pope Benedict, Georgia Governor Sonny Perdue, Rev. Al Sharpton, and former U.S. President Jimmy Carter.  

Dissent in Davis's case before the 11th Circuit

The Eleventh Circuit voted against Davis 2-1.  The majority opinion is based upon two AEDPA requirements, which were found not to be met by Davis.  Since Davis failed to meet these "gatekeeping requirements," his petition was rejected, preventing Troy Davis from getting that new trial. 

Rosemary Barkett filed a dissent.  In her opinion, Judge Barkett wrote:

 "[t]he majority takes the position that we cannot permit Davis to bring his evidence before the district court because our discretion to do so is constrained by AEDPA.  But AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed."

The U.S. Supreme Court Has Davis's Life and the future of the AEDPA in its hands

How the U.S. Supreme Court decides to handle AEDPA in Mr. Davis's situation will determine whether or not Troy Davis dies.    Surely Judge Rosemary Barkett felt the importance of her words as she wrote her dissenting opinion -- but we don't know yet how persuasive Judge Barkett has been. 

The Supreme Court may well choose form over substance and let Troy Davis die rather than upset the apple cart of the AEDPA.  And, no matter how powerful a dissent from a United States Supreme Court Justice may be, it will be of cold comfort to Davis's family and friends if the High Court fails to grant Davis' request in its majority opinion.

The Death Penalty in Japan - Three Executions This Week

Here in the United States, it depends upon which state you're considering -- some states have the death penalty, some do not. Some are zealous in executing those on Death Row (think Texas), others have inmates living on Death Row for years and years (think Oregon).

However, in Japan, things are different. Japan has the death penalty for treason and murder (usually, multiple murders with aggravating factors). There's only one method of execution: hanging. And the execution is performed within a prison facility, in an execution-designed room.

The Japanese inmate is told that he is going to die on the date of the execution. No advance notice. He or she does get a last meal of their choosing. No one is invited to watch the hanging, and the inmate's family (as well as his lawyers) are told of the death after the execution has taken place.

The Japanese Death Row is different than the United States, too. All Death Row inmates live in solitary confinement. Two exercise periods per week are given with no exercise allowed in the cells, and they can have only three books. No TV. Visits are not often and all visits are supervised. Death Row inmates cannot talk with each other.

This week, Japan executed Three Men

In a press release yesterday, the locals as well as the world learned that three men had been hung by the Japanese Government as punishment for their crimes. This brings the total number of executions in Japan for this year to 7 (Japan executed 4 men this past January). Last year, Japan carried out 15 death sentences.

The three men? All convicted of murder, ranging in age from 25 to 41. Hiroshi Maeue, 40, was convicted of three murders in 2005. Maeue was found guilty of finding victims through the internet, where they had posted on a type of suicide forum. Yukio Yamaji, 25, was convicted of the sexual assault and murder of two sisters, also in 2005. Chen Detong, 41, was convicted of the robbery and murder of three roommates, back in 1999. Two of the hangings took place in the Osaka facility, the third in Tokyo.

Let's Consider the Differences

Japan doesn't take as long to go from conviction to execution. There's no advance warning to the inmate, and there's no comfort to the inmate or his loved ones by any goodbye, or being present at the time of execution. Of course, the victims' families aren't allowed the opportunity of closure by being present at the execution, either. No lawyers are there. And, the method of execution is considered by many to be cruel and unusual punishment - one wonders why Japan doesn't follow the trend of lethal injection. Capital punishment may not happen as often as it does in the United States, but when it does occur it is a secretive event whose speed and absence of review and witness would not be tolerated here.

If there must be capital punishment in this country -- WHILE there is capital punishment in this country -- at least we can take some small measure of comfort in recognizing all the benefits that our due process protections provide us.

It is a horrific thing, to consider that the government kills its own citizens. But at least we get to be present to take comfort in being there for those last moments, and thank God we have procedures in place (like WITNESSES) to make sure those deaths are not cruel and inhumane.

Pending Senate Bill Will Expand Federal Death Penalty

Last week, as an amendment to the Department of Defense fiscal authorization bill to cover 2010 expenses, the U.S. Senate passed the Matthew Shepard Hate Crimes Prevention Act.

This week, the Senate passed an amendment to the Act - and if this becomes law, it will allow capital punishment for those found guilty of hate crimes if certain circumstances are met.

Right now, this Death Penalty Amendment to the Hate Crimes Prevention Act can be killed: in September, the joint House-Senate has to reconcile the two versions of the legislation (House version, Senate version) before it comes to a full Congressional vote. And, assuming it stays put, it still will be a bill awaiting Presidential approval before it becomes law.

Still, this is a scary thing to have happened, and it shows the extent to which the death penalty is considered a worthwhile form of punishment by many in this country today.

What is the Matthew Shepard Hate Crimes Prevention Act? If enacted, it will allow the Justice Department to investigate and prosecute hate crimes based on the victim's actual or perceived sexual orientation, gender, gender identity, or disability - just as the feds are already allowed to do when faced with hate crimes provoked by the victim's race, color, religion, or national origin.

Does the name "Matthew Shepard" sound familiar? It should. This was a notorious case out of Wyoming where a young man was tortured and murdered - targeted because he was gay. The story was made into a TV movie starring Sam Waterston and Stockard Channing.

By the way, neither defendant who was tried and convicted for the murder of Matthew Shepard was sentenced to death. Just something to think about.

U.S. Supreme Court Rules on Bies Case - Ohio Can Have A Second Sentencing Trial to Try and Impose Death Penalty on Mentally Retarded Defendant

Last month, the pending case of Michael Bies was discussed here - Bies, held to have an IQ of 63, had been sentenced to die by the State of Ohio and advocates for Bies took his case to the highest court in the land in protest. Testimony had been provided that Michael Bies was functionally mentally retarded.

We don't execute the mentally retarded in this country; this has been held to violate the Eighth Amendment as being cruel and unusual punishment in Atkins v. Virginia, 536 U.S. 304 (2002).

Supreme Court Rules That Bies' Case Goes Back to Ohio for Further Proceedings

Nevertheless, today the U.S. Supreme Court has announced that the Bies case can return to Ohio for another trial on the appropriate sentence for his crime. (Bies has been found guilty of the kidnap and murder of a 10-year-old boy.) Why? The Court has found that the federal appellate court was too speedy in throwing out capital punishment for Michael Bies because the federal court acted before the 2002 ruling by the U.S. Supreme Court on the subject.

"Mental retardation was not a conclusive or necessary determination in any Ohio court proceeding to date," according to Justice Ruth Bader Ginsburg.

Attorneys for Michael Bies will return to the Ohio courtroom, where another sentencing trial will be had. At that proceeding, they'll argue once more that Bies must be spared the death penalty because of his mental retardation - and the prosecution will once again fight for the death of Michael Bies.

Unique Perspective: Former Warden of San Quentin's View on the Death Penalty

This week, a national group fighting against the Death Penalty gave a special award to Jeanne Woodford in recognition of her courage in speaking out against the death penalty. Why is Jeanne Woodford so special?

Prison Guard to Warden of San Quentin to Head of State Corrections Department

Well, Mrs. Woodford began her career as a prison guard at San Quentin, rose to become the warden of California's famous state prison for several years, and then undertook what she herself calls the "top job in the state -- director of the California Department of Corrections and Rehabilitation."

During her stint as warden, Jeanne Woodford oversaw the execution of four prisoners. Retiring from civil service in 2006, she is now active in her efforts against capital punishment, and it serves us all to read her own words in explanation for her position in an editorial she wrote for the Los Angeles Times in October 2008.

Jeanne Woodford's Position Letter

There, Mrs. Woodford explains what led her, with her unique vantage point on capital punishment as warden of San Quentin and head of California's Corrections Department, to challenge the state's ability to impose death as punishment for a crime.

What Joanne Woodford writes is worth your time to read.

Florida's 30th Anniversary for the Death Penalty

There was a time in the mid-twentieth century when this country had essentially suspended the death penalty. It didn't last long.

First, in 1972, the United States Supreme Court issued its opinion in Furman v. Georgia, opening the doors for capital punishment to be an accepted form of punishment should a state seek to impose it upon a defendant. In Furman, the Supreme Court ruled that it was unconstitutional for the death penalty to be imposed at the same time that a defendant was found guilty. Deciding the penalty of death would have to take place only after a guilty verdict was announced.

Second, in the 1976 case of Gregg v. Georgia, the U.S. Supreme Court issued an opinion that capital punishment, in and of itself, was not in violation of the U.S. Constitution. In other words, it was legal to kill citizens as punishment for certain crimes in this country, should the state choose to do so. They just had to follow the two-prong trial phase of guilt/punishment established in Furman.

Many state statutes were unconstitutional under Furman, and if a state wanted to impose capital punishment as allowed by Gregg, a new law would have to be enacted that comported with Furman's requirements. It fell upon the Great State of Florida to be the first state to act in accordance with the Furman decision, and to reinstitute the death penalty with a newly written statute in August 1972.

Florida's 30 Year Anniversary

And while Florida did commute over 90 cases because of the Furman decision, Florida was also the first state to impose the penalty of death since 1964 - a moratorium of 15 years - when in 1979, John Arthur Spenkelink was executed by electric chair ("Old Sparky") in 1979.

There has been some worthwhile media coverage of this thirty year milestone, and of particular interest is:

1. Coverage by the Associated Press' Ron Wood, where interviews of Richard Dugger, the assistant warden of the Florida State Prison at the time of the Spenkelink Execution, as well as David Kendall, Spenkelink's attorney - and eyewitness to the execution, are provided. There is some worthwhile discussion of death by electrocution, including some graphic details of the botched executions involving Florida's electric chair, known as "Old Smokey."

2. Naples Daily News' Jeff Weiner's article focusing upon the ten Florida Death Row inmates pertaining to Southwest Florida (Lee and Collier County). Note the length of time that these individuals have been facing death, and consider once again what daily life on Death Row is like (see 04/04/09 post, "What it's Really Like on Florida's Death Row.").

In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution? (Part 3)

Today, in the final part of our three part series: the record of errors in Florida's use of lethal injection as a method of execution is discussed. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

Lethal Injection is the Most Commonly Botched Method of Execution

The history of execution by lethal injection in the United States is a miserable one. It has been characterized as the most commonly botched method of execution in the United States. Sims v. State, 754 So. 2d 657, 667, n.19 (Fla. 2000) (quoting the expert testimony of Professor Michael Radelet).[6]

Since 1985, there have been at least twenty-one executions by lethal execution that were botched. Marion J. Borg and Michael Radelet, On Botched Executions in Capital Punishment: Strategies for Abolition 143-168 (Peter Hodgkinson and William Schabas eds., 2001). Lethal injection, meant to be the neat and modern execution method, [has been] plagued with problems, or execution glitches, as they are also referred to in the business. Stephen Trombley, THE EXECUTION PROTOCOL: INSIDE AMERICA'S CAPITAL PUNISHMENT INDUSTRY 14 (1992).

Some of The Horrific Examples of Botched Executions Using Lethal Injection

Texas, Oklahoma, Arkansas, Missouri, and Illinois have reported bungled attempts to dispatch prisoners by lethal injection. These mistakes include blow-outs, improperly inserted catheters (no doubt attributable to the fact that, for ethical reasons, physicians are not involved in the process), and the improper mixture of the lethal solution. Id. A few notable examples follow. [7]

Stephen Morin, in Texas, lay on the gurney for 45 minutes while technicians punctured him repeatedly in an attempt to find a vein suitable for injection. Denno, supra at 111.

In April, 1998, the needle popped out during Joseph Cannon's execution, also in Texas. Seeing this, Cannon lay back, closed his eyes, and exclaimed to the witnesses, It's come undone. Officials then pulled a curtain to block the view of witnesses, reopening it fifteen minutes later when a weeping Cannon made a second final statement and the execution process resumed. Borg & Radelet, supra at 143-168.

In Louisiana, witnesses to the April, 1997, execution of John Ashley Brown saw Brown go into violent convulsions after he was administered the drugs.

In May 1997, Oklahoma inmate Scott Dawn Carpenter shook uncontrollably, emitted guttural sounds and gasped for breath until his body stopped moving. Borg & Radelet, supra at 143- 168.

An attorney who witnessed the June, 2000, execution of Bert Leroy Hunter reported that Hunter had violent convulsions. His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney. His body convulsed back and forth repeatedly. Id.

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In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution? (Part 2)

Today, in part two of our three part series: the three drugs that make up the Florida execution cocktail are discussed in detail. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

1. Thipental Sodium - the First Drug to be Administered

Thiopental sodium is the first drug to be administered during an execution by lethal injection in Florida. As a general anesthetic, thiopental sodium poses special risks because it is so short-lasting that for any number of reasons it can cease to operate as sufficient anesthesia long before the other drugs cause the death of the condemned.[1] Think about that.

It stops working within minutes.

In an affidavit submitted during litigation in Tennessee, Dr. Dennis Geiser, the chairman of the Department of Large Animal Clinical Sciences at the College of Veterinary Medicine at the University of Tennessee, swore under oath that:


the dosage of thiopental sodium must be measured with some degree of precision, and the administration of the proper amount of the dosage will depend on the concentration of the drug and the size and condition of the subject. Additionally, the drug must be administered properly so that the full amount of the dosage will directly enter the subject's blood stream at the proper rate. If the dosage is not correct, or if the drug is not properly administered, then it will not adequately anaesthetize the subject, and the subject may experience the untoward effects of the neuromuscular blocking agent . [Further], under Thiopental Sodium the anesthetic effect is extremely short-lived, and will be effective for surgical restraint and anesthesia for a period of only five to seven minutes.

Affidavit of Dr. Dennis Geiser, in the case of Abu-Ali Abdul Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), cert. granted on other grounds, 535 U.S. 1016, cert dismissed as improvidently granted, 537 U.S. 88 (2002), on remand on other grounds, ___F.3d___, 2004 WL 2847749 (6th Cir. Dec. 13, 2004) (en banc) (emphasis supplied).

It actually heightens sensitivity to pain.

Drug manufacturers warn that without careful medical supervision of dosage and administration, barbiturates like thiopental sodium can cause paradoxical excitement and can actually heighten sensitivity to pain. See Physicians Desk Reference, 50th Ed. 1996 at 438-440. Manufacturers warn against administration by intravenous injection (hereinafter AIV) unless a patient is unconscious or otherwise incapacitated. Id. Thus, there are serious problems with the first drug, the anesthetic, actually operating to anesthetize the person being executed sufficiently or for long enough to prevent suffering caused by the subsequent two drugs. Denno, supra, at 95-98.

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San Francisco Federal Jury Convicts Defendant Dennis Cyrus and Returns Next Week to Decide Death Penalty - Will They Sentence Cyrus to Die and Break a 63 Year Run?

Yesterday, the jury came back in a San Francisco federal courtroom, and found Dennis Cyrus guilty of a number of gang-related acts, including the murders of three men - including Ray Jimmerson, who had informed the cops about the gang's assorted criminal activities.

The Distinction Between State and Federal Prosecutors

It was the first time since 1991 that San Francisco has seen a trial where capital punishment was even on the table - two of its district attorneys had followed an internal determination not to seek the death penalty, even if the law allowed for capital punishment. But they are state officials, and this is a federal proceeding.

Over in the Northern District of California's federal district court, the U.S. Attorney makes the call on whether or not to ask for the death penalty, and this U.S. Attorney has decided to do so in Cyrus' case. It's the first time since 1946 that the federal prosecutors have sought the death penalty in the Northern District. The last time that the U.S. Attorney's Office in this federal district asked for capital punishment in a crime was in the 1946 trial of two men who had escaped from Alcatraz and in the process, had killed two guards and three prisoners.

So why now, 62 years later, is capital punishment being sought? Why now? Why Dennis Cyrus?

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In Depth Look: Filicide is Different - 1

Filicide, the killing of a child by its parent, has unique characteristics making it different from other forms of homicide.[1] Filicide seems particularly horrifying and inexplicable, especially when the parent is the mother.

Remember first that, in the United States, a staggering number of children go missing each year. In 2001, 797,500 children under 18 were reported missing, resulting in an average of 2,185 children being reported missing each day.[2] Unfortunately, of these missing children, nearly 1,300 were victims of homicide.[3] Nearly half of these children were under the age of five, and a parent killed over half of these.[4] Of all the children under age five killed during the period 1976 to 2000, 31% were killed by fathers, 30% by mothers, 23% killed by male acquaintances, 7% by other relatives, and 3% by strangers.[5]

Maternal Filicide - The Profile of Mothers Who Kill Their Children

A general profile of mothers most at risk of committing filicide has developed. Typically, the mother is young, around 21 years of age. She is single and has had multiple unstable relationships with men. Either she is mentally deficient or an apparently normal young woman, forced to put off high school graduation, college, or career because of pregnancy. She is unemployed and has financial difficulties. She may have suffered from serious mental illness in the past, or only manifested undiagnosed personality changes after the birth of her child. Roughly, one fifth of these mothers have been victims of physical or sexual abuse.

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New Mexico Repeals Death Penalty

Effective July 1, 2009, there will be no death penalty in New Mexico. Capital punishment will still apply to any capital crimes committed between now and midnight on June 30th. - and there has been no change in the punishment of death for the two men currently residing on New Mexico's Death Row.

Albuquerque's Sheriff Darren White Leading an Effort to Put It to a State-Wide Vote

Not everyone in New Mexico is pleased with this development. Sheriff Darren White is reportedly investigating the possibility of putting capital punishment to a full state-wide vote, which would enact an amendment to the New Mexico constitution approving of the death penalty for certain types of crimes.

According to Sheriff White, he's undertaking this action because of the large number of phone calls he's received from the citizenry, who are upset about the change. White says that state polls show a majority of New Mexicans are in favor of capital punishment.

Undoubtedly, Sheriff White will be assisted and supported by prosecutors across the state, as well as the New Mexico Sheriffs' and Police Association, as well as other law enforcement organizations that were against the New Mexico repeal efforts.

What About the Two Men on New Mexico's Death Row?

Since 1933, New Mexico has executed nine (9) individuals - all men - using three different methods : one by gas, one by lethal injection, the rest by electric chair. That's not a high death rate.

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Forms of Capital Punishment: the Legal Methods of Executing a Death Penalty Sentence in the U.S. Today

Historically, the variety of methods for imposing capital punishment seems almost endless. In the United States, our federal constitution forbids any form of execution that is cruel and unusual punishment, however, and this has led us to careful consideration about the practicalities the state must address when it kills someone in punishment for a crime that has been committed.

Currently, only five methods of execution have passed constitutional muster:

Firing Squad

Today, Utah still gives the prisoner the option of choosing the firing squad over lethal injection - if they made their choice before Utah law abolished the firing squad as an alternative method of execution. Idaho and Oklahoma also approve of the firing squad as a method of execution.

Electrocution

Nine states execute(d) by electrocution (electric chair). These are Alabama, Arkansas, Florida, Illinois, Kentucky, Oklahoma, South Carolina, Tennessee, and Virginia.

Gas Chamber

Five states allow(ed) execution by gas chamber. These are Arizona, California, Maryland, Missouri, and Wyoming.

Hanging

Two states still approve(d) of execution by hanging. These are New Hampshire and Washington.

Lethal Injection

For thirty-five (35) states, plus the U.S. Military and the federal government, lethal injection is the approved method of execution. For those states listed above that approve different methods of execution, they all allow for lethal injection as an alternative.

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