The Death Penalty Information Center (DPIC) has quite a lot of interesting information regarding executions in the United States so far this year, including how the Coronavirus Pandemic has impacted capital punishment in the first half of 2020.  Consider the following:

  1. There have been ten (10) executions in 2020.
  2. One execution has been by electrocution (Tennessee’s execution of Nicholas Todd Sutton in February 2020).
  3. Pentobarbital still predominates in lethal injection protocols as a single-drug fatal dose execution method.
  4. The State of Florida has not executed anyone in 2020.
  5. The federal government resumed executions in 2020 after a 17 year hiatus.
  6. Within one week’s time in July 2020, the federal government executed three men:  Daniel Lewis Lee (July 14, 2020); Wesley Ira Purkey (July 16, 2020); and Dustin Lee Honken (July 17, 2020).
  7. The federal government’s chosen form of execution is lethal injection using single-drug pentobarbital.
  8.  There has been extensive appellate challenge to the federal execution protocol, including this significant amici curiae brief filed by an impressive list of scholars and judges.
  9.  The federal government has set August 26, 2020 as the execution date for the only Native American on its Death Row, Lezmond Mitchell, despite objections from the Navajo Nation (which include the fact that the killing itself occurred on tribal land); and
  10.  The United States Military has five (5) Death Row inmates, with the last military execution occurring on April 13, 1961, when U.S. Army Private John A. Bennett was hanged (conviction: rape and attempted murder).  (That’s right: 1961.  Not a typo.)

 

History buffs may recall King Henry VIII granted Anne Boleyn’s request for a special French executioner who would decapitate her using a sword, rather than the standard beheading method of an ax (which might take several blows before succeeding in severing the head from the neck).  A swift decapitation was considered to be merciful and painless.

Of course, minimizing pain for the condemned has rarely been a concern for the state; consider the horrific execution methods used in the past, which include:

  • Boiling;
  • Burning;
  • Catherine Wheel (limbs slowly broken, left to die);
  • Crucifixion;
  • Hanging;
  • Head Crushed;
  • Hung, Strung, and Quartered;
  • Impaled on Spear or Pole; and being
  • Sawed in Half.

Today, here in the United States, many believe modern times have changed the state’s attitude.  Even if the death penalty is allowed by the government, many people assume it will be undertaken in a merciful and painless manner.  Isn’t this why we’ve evolved to using drugs today – with lethal injections serving as a peaceful and humane execution protocol?

Pain and Execution Protocols in the United States

Currently, twenty-nine (29) states in the United States provide for capital punishment and all of them have lethal injection as the preferred form of execution.  Statutorily, sixteen (16) states also have alternative execution methods on the books. These alternative execution methods are:

  1. Electrocution (electric chair)
  2. Firing Squad
  3. Hanging
  4. Lethal Gas (gas chamber)
  5. Nitrogen Hypoxia / Asphyxiation.

For more detail, read information provided by the National Conference of State Legislatures in “States and Capital Punishment,” published March 24, 2020, and “Using Nitrogen Gas For Executions Is Untested And Poorly Understood. Three States Plan To Do It Anyway,” written by Lauren Gill and published by The Appeal on October 25, 2019.

Of course, each of these execution methods has been developed in an attempt to be merciful and bring upon the death of the condemned individual as painlessly as possible.  Legislation has been passed to provide for new or alternative execution protocols with mercy as a statutory rationale.

However, pain in executions is a reality.  And more and more, we are learning how those who are being executed with a lethal injection may be suffering extreme pain in this procedure.

How Painful is the Lethal Injection Protocol?  It May be Horrific.

For many years, scientists have been warning that lethal injections are far from painless.  A 2005 study opines that 90% of executed prisoners felt pain during the lethal injection execution and that 40% of these condemned may have been aware and conscious as they were dying.  For more, read Motluk, Alison. “Execution by injection far from painless.” New Scientist 14 (2005).

Medical experts, based upon information discovered during autopsies of the executed by lethal injection, describe how drugs like midazolam result in a very painful death.  Witnesses to some executions have eyewitness testimony of the condemned appearing to suffer during a lethal injection execution.  For details, read “Ohio’s Governor Stopped An Execution Over Fears It Would Feel Like Waterboarding,” written by Liliana Segura and published by the Intercept on February 7, 2019.

Which is why in the past year, concerns over pain during a lethal injection have escalated to the point that alternative execution methods are being sought by several states.  Oklahoma, Mississippi, and Alabama have passed legislation for asphyxiation using Nitrogen Hypoxia, for instance.

SCOTUS: No Guarantee of a Painless Execution in the U.S. Constitution

It may be shocking, therefore, for many to learn that pain alone does not equate to “cruel and unusual punishment” forbidden by the United States Constitution.  Specifically, last year the Supreme Court of the United States (SCOTUS) ruled in Bucklew v. Precythe, 139 S. Ct. 1112, 1117 203 L. Ed. 2d 521, 587 U.S. (2019) that there is no constitutional protection against a painlful execution.

In this case, SCOTUS found that the use of pentobarbital in the lethal injection of a condemned man with a medical condition that might increase his pain during the execution did not violate the Eighth Amendment provision against cruel and unusual punishment.

[Of note:  Justices Gorsuch, Roberts, Thomas, Alito, and Kavanaugh joined in the majority opinion with   Thomas and Kavanaugh filing concurring opinions.  Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented with Sotomayor filing a dissenting opinion.]

From Bucklew v. Precythe, 139 S. Ct. at 1117 (emphasis added):

The Eighth Amendment forbids “cruel and unusual” methods of capital punishment but does not guarantee a prisoner a painless death. See Glossip, 576 U.S., at ___, 135 S.Ct., at 2731-2732.

As originally understood, the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by “superadding” terror, pain, or disgrace. To establish that a State’s chosen method cruelly “superadds” pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason. Baze, 553 U.S. at 52, 128 S.Ct. 1520Glossip, 576 U.S., at ___, 135 S.Ct., at 2732-2738. And Glossip left no doubt that this standard governs “all Eighth Amendment method-of-execution claims.” Id., at ___, 135 S.Ct., at 2731. Baze and Glossip recognized that the Constitution affords a “measure of deference to a State’s choice of execution procedures” and does not authorize courts to serve as “boards of inquiry charged with determining `best practices’ for executions.” Baze, 553 U.S. at 51-52, 128 S.Ct. 1520. Nor do they suggest that traditionally accepted methods of execution are necessarily rendered unconstitutional as soon as an arguably more humane method becomes available.

The following motions have been filed by Terence Lenamon in the death penalty trial of Markeith Loyd and shared in his online library (full text). Click on the links to read the these motions, all dealing with the circumstances surrounding the apprehension of Markeith Loyd in January 2017 and the injuries he sustained as a result (e.g., loss of eye):

These are not the only pending motions filed by the defense regarding this issue.  Other motions filed of record include the following:

  • Motion to Compel Police Radio Communications During the Operation on January 17, 2017 When The Defendant Was Arrested for the Homicide of Sgt Deborah Clayton and to Provide Unredacted Transcripts and Audio Files on Material Previously Provided by FDLE and Prosecutor Stacy Salmons of the Eighteenth Judicial District (47 pages);
  • Motion to Compel the Names of Orlando Police Department Employees who Identified Sgt James Parker; Sgt Anthony Mongelluzzo and Officer Cedrick Hinkles in a Photograph Created from Helicopter Footage Which Occurred on January 17, 2017 and Obtained from the Florida Department of Law Enforcement Provided by Orlando Police Department (7 pages);
  • Motion to Compel the Names of Orange County Sheriff’s Department Employees who Identified Sgt James Parker and Officer Cedrick Hinkles on Transcripts of Radio Transmissions Which Occurred on January 17, 2017 from the Florida Department of Law Enforcement Provided by Orlando Police Department (22 pages);
  • Motion to Compel Material Relating to Markeith Loyd Obtained by Florida Department of Law Enforcement from Orange County Jail (16 pages);
  • Motion to Compel All Helicopter Reports, the Original Helicopter Video Footage (Entirety) and Name of Pilot and Camera Operator from the Orange County Sheriff’s Office Arising from the Arrest of Markeith Loyd on January 17, 2017 (21 pages);
  • Motion to Compel Notes of Florida Department of Law Enforcement Digital Experts Regarding Analysis of Orange County Sheriff Office Helicopter Footage and Complete Video File Which Orlando Police Department Provided to Them (9 pages);
  • Motion to Compel the Entire Internal Affairs File from the Orlando Police Department Investigation of Sgt James Parker, Sgt Anthony Mogelluzzo, Officer Cedrick Hinkles and Officer Johnathon Cute Involving the Deadly Force Used Against Markeith Loyd on January 17, 2017 (18 pages); and
  • Motion to Compel the Arial Photograph Created from Helicopter Footage Which Occurred on January 17, 2017 and Shown by Sgt Bruce Vail to Deputy Broadwell Requesting Self-Identification and Any Other Photograph with Identification of Other Officers and the Names of Those Officers in the Possession of Orange County Sheriff’s Department or Any Other Law Enforcement Agency (9 pages).

All these motions are filed of public record in the case file regarding State of Florida v. Markeith Loyd, Cause Number 2017-CF-826-A, in the Circuit Court of the Ninth Judicial District in and for Orange County, Florida.  They can be viewed online as part of the Orange County Clerk of Court’s Docket.

 

Orlando Police Department Internal Affairs Clears Officers of Wrongdoing in Markeith Loyd Beating

Yesterday, the Orlando Sentinel published an article where it revealed access to the Internal Affairs report compiled by the Orlando Police Department regarding the beating suffered by Markeith Loyd.  The O.P.D. decision: no excessive force.

Read the full article, “Agency clears Orlando officers who beat, kicked accused cop-killer Markeith Loyd during arrest,” written by Tess Sheets, Jeff Weiner, and Monivette Cordeiro and published by the Orlando Sentinel on June 24 2020.

Internal Affairs Conclusion is Not Judicial Ruling

This report is not a judicial determination.  It is a conclusion reached by the Internal Affairs Department within the Orlando Police Department.  According to the O.P.D. website,

“The Orlando Police Department is committed to unbiased policing in all its encounters between police officers and citizens. OPD policy provides guidelines for officers to prevent biased policing and reinforces procedures that maintain public confidence and trust through the provision of services in a fair and equitable fashion.”

Lenamon Motions Regarding Loyd Beating By Orlando Police

Terence Lenamon was interviewed for this Orlando Sentinel piece.  As part of his contributions Terry points out that, as Markeith Loyd’s defense attorney, he has filed motions that are pending before the court regarding this event.  He is asking for access to missing radio transmissions, all the cellphone records for the officers present at the scene, as well as the complete video footage from the night of Loyd’s arrest.

From Terry, as quoted by the Orlando Sentinel:

“There are a number of things that transpired in the [Internal Affairs] investigation that were ignored or overlooked. They’re counting on the fact that society may frown a little on what happened, but the bottom line is he’s accused of killing a cop so we’re going to give a pass to the Orlando Police Department once again so they’re not held accountable.”

 

Watch The Video:  Was There Excessive Force by the Orlando Police in the Arrest of Markeith Loyd?

Orlando TV station WKMG has uploaded the unedited video (length: 16:34) from the helicopter that circled above the apprehension of Markeith Loyd by officers of the Orlando Police Department.  Watch it here and consider for yourself if there was excessive force by a police officer and if there was resisting arrest by the accused:

 

 

Note:  the Markeith Loyd trial has been delayed due to the Coronavirus Pandemic and a new trial date has not been set.

 

 

 

Right now, the Death Penalty movie “Just Mercy” is available to watch for free on Amazon Prime or Google Play

It tells the story of now-famous civil rights defense attorney Bryan Stevenson working to free a wrongly condemned death row prisoner, Walter McMillian.  After graduating Harvard, Stevenson chooses the path less traveled and begins a criminal defense practice in Alabama, defending those who have been wrongfully condemned to face the death penalty and who may have been victim of ineffective assistance of counsel.

The crux of the movie involves attorney Stevenson taking on the post-trial representation of Mr. McMillian, who has been sentenced to death regardless of exculpatory evidence (which supports his innocence) as well as tainted evidence provided by the state (testimony from someone with a reason to lie).

Jaime Foxx plays the Death Row Inmate and Michael B. Jordan, the Capital Defense Attorney working to free him.

For more on the real Bryan Stevenson and his Equal Justice Initiative, go here.

 

Jamie Foxx, Michael B. Jordan, Brie Larson, Karan Kendrick, and O'Shea Jackson Jr. in Just Mercy (2019)

 

From the Vox review:

“Since 1976, for every nine Americans executed by the state, one is exonerated and released from death row — a margin of error that should terrify us all. (And yet, after years of decline, American support for the death penalty ticked up in 2018.)  That’s precisely what Just Mercy, a true story that will set your sense of injustice ablaze, aims to change.  Just Mercy is a story of idealism that becomes tempered by reality and sharpened by injustice.”

 

Amnesty International has released its compilation of global data on the use of capital punishment around the world, from sentencing to execution.  Read the report, entitled “Death Penalty in 2019: Facts and Figures,” here.

Among the findings from Amnesty International are:

  • during 2019, there were 657 executions in 20 countries;
  • last year saw the fewest executions that Amnesty International has recorded in “at least a decade”;
  • the top five countries carrying out executions in 2019 were ranked: China (1st), Iran (2nd), Saudi Arabia (3rd), Iraq (4th) and Egypt (5th); and
  • four countries were responsible for 86% of all reported executions: Iran, Saudi Arabia, Iraq and Egypt.

Of course, China’s figures are not considered reliable, as the country considers its death penalty information to be a state secret.  How many people died last year in China as a result of capital punishment is unknown.

For more on China’s history with the death penalty, read earlier discussions in:

 

Tomorrow, on May 13, 2020, from 2-2:30 pm EST, the Law & Crime network will be discussing the Markeith Loyd trial where the State of Florida is seeking the death penalty, and Terence Lenamon is defending.

Lenamon Joins with Law & Crime Network in Tomorrow’s Markeith Loyd Coverage

Terry Lenamon has accepted an invitation to join L&C tomorrow during its coverage of the Markeith Loyd proceedings.

Anyone interested in the death penalty and particularly this Florida prosecution seeking capital punishment, as well as hearing Mr. Lenamon’s discussion with the L&C commentators, is invited to watch.

The Law & Crime Network’s live coverage is available online here.  Law & Crime  is also available on the following services (go here for details):

 

This week, Terence Lenamon filed the following motion in the death penalty trial of Markeith Loyd and the full text has been made available as a public service in his Online Library:

Defendant’s Motion for Compensation of Jurors at Current Wage or Minimum Wage in Light of Recent Events Involving COVID-19 Which Have a Direct Impact of Whether Jurors Could Afford to Serve in a Lengthy Six Week Trial.

The defense motion asks for the jurors in the Loyd trial to be paid minimum wage, or current wage, in light of the Coronavirus Epidemic.

Read it here:

 

 

Florida Circuit Judge G. Richard Singeltary has denied Rod Ferrell his request for a reduction of his life sentence in a re-sentencing hearing where he was represented by Terence Lenamon.

The request was made in response to a SCOTUS ruling that dealt with juveniles who are found guilty of a criminal act and sentenced to life behind bars.  SCOTUS held that scientific evidence confirms that minors are not fully matured physically, with their brains still developing.  Accordingly, juvenile defendants cannot be automatically sentenced to life.

Rod Ferrell was 16 years old at the time of the murders for which he was convicted.  Terry Lenamon filed a request for a re-sentencing hearing where evidence could be presented to the court in line with the new SCOTUS precedent.

In his ruling, Judge Singeltary found Rod Ferrell “irreparably corrupt” and declined to change his sentencing.

For more details, read the coverage in “No break for ‘Vampire cult’ killer Rod Ferrell, life sentences stand,” written by Stephen Hudak and published by the Orlando Sentinel on April 20, 2020, and “‘Vampire Killer’ keeps his life sentence,” written by Frank Stanfield  and published by the Daily Commercial on April 11, 2020.

Also see: