The execution of Tennessee Death Row inmate Edmund Zagorski is scheduled to take place today at seven o’clock this evening.  This morning, his defense team filed a petition with the Supreme Court of the United States to try and halt the proceedings.

Follow that SCOTUS docket here.

 

Florida’ Electric Chair: Constructed in oak by Department of Corrections in 1999.

Zagorski Chose Electric Chair Over Lethal Injection as Method of Execution

Tennessee has two legal methods of execution:  the electric chair and lethal injection.  Zagorski chose to avoid lethal injection because of the fear that he would experience 10-18 minutes of “utter terror and agony” as compared to electrocution, which would kill him in less than a minute.

Legally, Tennessee’s condemned to die before January 1, 1999, have the legal right to choose their execution method; Zagorski was sentenced to death in 1984.

After Zagorski chose electrocution, Tennessee proceeded to prepare for its first electric chair execution since 1960, except for the 2007 electric chair execution of Daryl Holton in 2007.

SCOTUS Petition to Halt Electric Chair Execution Today

Today, Edmund Zagorski is petitioning SCOTUS to stop the electric chair execution, arguing that it is unconstitutional.

He argues for a stay based upon several reasons, including the following (emphasis added):

  1. Mr. Zagorski initially attempted to litigate the unconstitutionality of the electric chair in 2015 and was prevented from doing so by the state’s claim that the issue was not ripe. West v. Schofield, 468 S.W.3d 482, 485 fn. 2 (Tenn. 2015).
  2. He brought this challenge immediately when it became ripe. Nelson v. Campell, 541 U.S. 637 (2004)); Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam)).
  3. Mr. Zagorski has shown a significant possibility of success on the merits. See  Barefoot v. Estelle, 463 U.S. 880, 895–896 (1983). See also Mazurek v. Armstrong, 520 U.S.968, 972 (1997) (per curiam) (preliminary injunction not granted unless the movant, by a clear showing, carries the burden of persuasion).
  4. The threat of irreparable harm weighs heavily in his favor where absent a stay he will be electrocuted – a method that this Court was on the brink of declaring unconstitutional in Bryan before the state of Florida mooted the question. 
  5. The public interest also weighs in favor of a stay as this issue is likely to repeat in light of the growing trend of death row inmates who face death  insurmountable challenges to barbaric methods of execution because of the lower court’s (mis)application of the alternative-method-of-execution pleading requirement of Glossip.
  6. The state’s interest in carrying out this capital sentence against this inmate – who has been a model prisoner for 34 years, who save the life of a prison guard, and who 6 of the original jurors support a sentence of life without parole is — not great….
  7. The state coerced Mr. Zagorski’s election of an unconstitutional method of execution. … Equity demands a stay of execution.

Application for Stay, pp. 14-15. 

Read the complete 17 page application with its briefing here.  

Note:  the Application is presented to Justice Sonia Sotomayor but the SCOTUS docket states that the request for the stay is being heard by Justice Kagan.

Florida Also Has Electric Chair for Electrocution

Along with several other states, like Tennessee, the State of Florida recognizes electrocution as an alternative method for execution other than lethal injection.  For information on Florida’s electric chair, see:

 

 

Last week, the Pew Research Center released research findings in an article written by John Gramlich, entitled “11 states that have the death penalty haven’t used it in more than a decade.”  It’s an interesting read, considering that two states recently geared up their Execution Calendars again:

Until this month, Nebraska had not executed a Death Row Inmate in 21 years.  Tennessee’s August 2018 execution was its first in almost nine years.

Execution Schedule Versus Death Row Sentence

Once someone is sentenced to death, he resides on Death Row in the jurisdiction of his conviction.  Whether or not the death sentence is carried out is a different matter from being sentenced to die.

For instance, the federal government also allows for capital punishment, but no one has been executed under federal law since 2003.  California’s Death Row is notorious for holding a growing population, while no one has been executed in California since 2006.

Consider this Pew Research Center graphic:  those in the darker brown are jurisdictions with Death Rows but no executions carried out for 15 years or more:

 

Most states have the death penalty, but significantly fewer use it regularly

There are several reasons for these growing Death Row populations; we’ve delved into California before, for instance.

However, there appears to be a growing return to active execution schedules in the United States, in what Justice Sotomayor deems a “rush to execute.”  These two August 2018 deaths involved very controversial lethal injection protocols, and there is a concern that using drugs like fentanyl or midazolam is cruel and unusual punishment.

Untested Drugs in Execution Procedures: The “Rush to Execute”

While Tennessee was allowed to proceed, it was not without warning.  Ponder Justice Sotomayor’s dissent in SCOTUS’s denial of a stay of execution for Billy Ray Irick (emphasis added):

As to the prediction that this Court would deem up to 18 minutes of needless torture anything less than cruel, unusual, and unconstitutional, I fervently hope the state courts were mistaken. At a minimum, their conclusion that the Constitution tolerates what the State plans to do to Irick is not compelled by Glossip, which did not categorically determine whether a lethal injection protocol using midazolam is a constitutional method of execution. See Arthur, 580 U. S., at ___ (opinion of SOTOMAYOR, J.) (slip op., at 12). Glossip’s majority concluded only that, based on the evidence presented in that case, there was no clear error in the District Court’s factual finding that midazolam was highly likely to prevent a person from feeling pain. Ibid. (citing Glossip, 576 U. S., at ___ (slip op., at 16)).

As noted, the trial court here came to a different factual conclusion based on a different factual record, as have others. See McGehee, 581 U. S., at ___ (opinion of SOTOMAYOR, J.) (slip op., at 2) (noting a district court’s “well-supported finding that midazolam creates a substantial risk of severe pain”); Otte v. Morgan, 582 U. S. ___ (2017) (SOTOMAYOR, J., dissenting from denial of application for a stay and denial of certiorari) (similar).

If it turns out upon more sober appellate review that this case presents the question, I would grant certiorari to decide the important question whether the Constitution truly tolerates executions carried out by such quite possibly torturous means. 

In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this “rush to execute” without first seeking every assurance that our precedent permits such a result. No. M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 1.

If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent.

The State of Nevada has scheduled the execution of Scott Dozier for July 11, 2018.  The execution method will be lethal injection.  It is the state’s first execution in 12 years.

On Tuesday, the Nevada Department of Corrections announced that the Dozier Execution will involve the use of the following three drugs:

There are many reasons to be concerned about this particular execution cocktail.  Among them:

  1.  Cisatracuriam was enough of a concern that Nevada’s Eighth Judicial District Court blocked Mr. Dozier’s execution last fall because of this drug.  (Read the Nevada Supreme Court’s overturning of that decision in its May 2018 Order, which allows the execution to proceed.)
  2.  Midazolam has been approved for use in executions by the Supreme Court of the United States (see Glossip v. Gross).  However, that does not mean it is not worrisome:  it took two hours for Joseph Wood to die during his execution by the State of Arizona.  (Read the eyewitness account by reporter Michael Kiefer here.) Arizona refuses to use midazolam in any future executions.
  3. Fentanyl has never been used in an execution.

For more, read “Nevada execution plan sedative blamed for troubles elsewhere,” written by Ken Ritter for the Associated Press and published in the Miami Herald on July 5, 2018.

Our past discussions regarding lethal injection drugs include:

This week, the State of Oklahoma announced that it is forgetting all about lethal injections because it has not been able to get the necessary toxic drugs to use for executions.

Gas Chamber in Oklahoma

Oklahoma’s going back to nitrogen.  That’s right.  The gas chamber will be the method of execution in the State of Oklahoma from now on.

Tennesee and Arkansas

Meanwhile, the Tennessee Supreme Court just nixed the Tennessee Attorney General’s request to hurry up and schedule eight men to die before June 1, 2018.  That’s the expiration date of the state’s supply of one of its lethal drugs needed for its lethal injection cocktail. 

Brings to mind Arkansas last year, when it had a problem with its midazolam and tried to execute 8 men in less than two weeks. 

See: Arkansas Plans 8 Executions in 10 Days: Two at a Time

How Much Longer for Lethal Injection Executions?

Which begs the question, how much longer are we going to have lethal injection executions in this country?  How fast are states going to follow Oklahoma’s lead?

See: Firing Squad, Gas Chamber, Electrocution for Executions?

 This week, the Supreme Court of the United States declined to consider the case coming out of Texas, where Death Row inmates petitioned SCOTUS to review their claims that Texas’ use of pentobarbital in lethal injection executions is cruel and unusual punishment.

Seems Texas has a stash of pentobarbital that it got from a compounding pharmacy and Texas isn’t sharing the identity of its drug supplier.  One key factor here:  how old is this stuff, and how far beyond its expiration date.  

Given that the High Court’s action this week, it appears the Lone Star State is free to proceed with lethal injections using its secret drug stash.  Ditto other states with similar Death Row drug pantries.  (At least for now.)

See: Texas Has A Top-Secret Execution Method

Executioner’s Drug Supply

What’s happening here?  For states that approve of capital punishment, there’s a growing crisis because they are finding it harder and harder to get the drugs needed for their execution protocols. The inmate is scheduled to die by lethal injection, but that’s only going to happen if they’ve got the drugs.

Either the big drug companies are refusing to supply executioners with the drugs, or Big Pharma simply stopped manufacturing them.  

See Pfizer Bans Use of Its Products in U.S. Executions

States have tried to find solutions to their supply problem.  Some looked to foreign markets.  Attempts to shop overseas have been thwarted by the Department of Justice. 

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

Others tried to change the lethal drug cocktail recipe.  In order to continue executing under the lethal injection method, there were some who altered the drugs contained in the traditional lethal three-drug cocktail.  Others tossed out the idea of a cocktail and went forward with a single drug protocol as an execution device. 

So, when states can find lethal execution drugs, it’s a big deal.  They place big orders so they have a secure supply for the future.  And they keep their suppliers secret, worried that others will pressure the supplier to stop providing execution drugs or that these suppliers will be snapped up by competing states in need of lethal drugs themselves. 

Consider Missouri. 

Back in 2014, Missouri grabbed a bunch of phenobarbital and held it as its lethal execution inventory.  The supplier’s name was given a code to be used in official documents to keep the identity of the pharmacy secret.

Of course, lawsuits were filed to try and reveal the supplier’s identity.  Many of these suits were filed by Death Row inmates seeking to know who the source of their chemical executioner. 

Recently, BuzzFeed revealed that Missouri’s drug supplier is a pharmacy named Foundation Care.  Seems Foundation Care has a reputation for “hazardous pharmaceutical procedures” – but whether or not it’s still available as a supplier of execution drugs is in doubt. 

The compounding pharmacy was purchased by Centene Corporation, and in the BuzzFeed report Centene insists that “Foundation Care has never supplied, and will never supply any pharmaceutical product to any state for the purpose of effectuating executions.”

Nevermind that BuzzFeed has 2 sources confirming Foundation Care supplied the lethal drugs for 17 Missouri executions.

So, has the source dried up?  Dunno. How much does Missouri have in its execution pantry?  Dunno.

Read the complete BuzzFeed expose, written by Chris McDaniel, entitled "The Secretive Company Behind Missouri’s Lethal Injections." 

What Happens Next?

Something else to consider here:  if the states cannot find lethal drugs, or they cannot use the drugs they have, then will this stop the executions? 

Or will it push states to consider older execution methods, which are still legally available to them like the electric chair, gas chamber, firing squad, or hanging?

See:

 

 

 

 The thing about lethal injection is that it’s an execution method usually built around a combination of drugs.  And those drugs might not be the same.

Indiana 3-Drug Combo Voided by Indiana Court

For example, in Indiana the drug combination protocol established by the Indiana Department of Corrections was: (1) methoexital; (2) pancuronium bromide; and (3) potassium chloride.  The Indiana Court of Appeals nixed the use of this drug cocktail this month.  

For details, read their decision in Ward v. Carter, and the discussion at DeathPenaltyInfo.org

SCOTUS Dissent By Sotomayor Questions Use of Midazolam

This month, Justice Sotomayor voiced her concerns over using midazolam in a lethal injection in her dissenting opinion in Arthur v. Dunn, writing:

"I continue to doubt whether midazolam is capable of rendering prisoners insensate to the excruciating pain of lethal injection and thus whether midazolam may be constitutionally used in lethal injection protocols."

Read the full dissent here. 

So, is this a hint that midazolam’s days are numbered as a method of execution?  And if it’s ruled out, then will states simply find another drug to use in its stead?

For more on this issue, check out:

In Mississippi (and elsewhere), the lethal injection method of execution is so problematic these days that state governments are considering the return to past methods of killing people in capital punishment sentences.

Firing Squad

The Mississippi legislature had been considering the firing squad.  Read, "Mississippi considers firing squad as method of execution," for details.  That got nixed

The firing squad has its proponents.  Among them, Alabama Death Row Inmate Thomas Arthur who fought all the way to the U.S. Supreme Court for the right to die by firing squad instead of lethal injection.  He lost, but not without the support of Justice Sonia Sontomayor.  Read her dissent here.

Of course, most people do not like the idea of firing squad executions.  It’s not a popular alternative to lethal injection.  For more, read "Is The Firing Squad More Humane Than Lethal Injection?" by Amelia Thomson-DeVeaux in FiveThirtyEight.

Electric Chair and Gas Chamber

Mississippi is moving forward with proposed legislation that will allow either electrocution or the gas chamber as execution methods if lethal injection is not possible.  Mississippi has not executed anyone in five years, in large part because of its problems with lethal injection drug issues.

Last Thursday, the Mississippi Senate approved a bill that allows for either alternative and sent the proposal over to the Mississippi House for consideration. 

It’s looking likely that this may get passed and executions will resume in Mississippi.  But what will the public think?

States With Alternative Methods of Execution Already On the Books

Of course, some states already have options in the law to the lethal injection method of execution.  Mississippi’s dilemma is that lethal injection was the only legal execution method for the state. 

States like Florida and Utah?  They have options. 

For a discussion of states who already have legal alternatives to lethal injection, read our post, "Returning Death Penalty to Other Execution Methods On the Books."

 

The State of Missouri is buying its lethal injection drugs from a pharmacy.  The identity of that supplier is a secret.

Does Pharmacy Have Constitutionally Protected Speech Over Products It Sells?

The supplier has provided the drugs used in 16 executions in the State of Missouri.

Mississippi Death Row inmates have a court fight going on over Mississippi’s lethal injection methods, and in that suit they have subpoenaed the Missouri Department of Correction’s drug source information.  It’s a part of their arguments regarding Mississippi, and they are comparing what happens in other states, too.

Here’s the question:  is the drug supplier protected by the First Amendment of the U.S. Constitution? Can its identity be kept secret under an argument that it’s related to political speech?

Whattha? 

Read the analysis of this argument by Harvard Law Professor Noah Feldman as published in Bloomberg News here. 

This week, Pfizer banned the use of its drug products in U.S. executions — or anywhere else for that matter.  Pfizer isn’t setting precedent here, as much as getting in line behind almost two dozen other drug manufacturers that have already announced a company ban on the capital punishment market.

Pfizer Bans Use of Seven Pfizer Products in Lethal Injection Executions

From Pfizer’s news release (emphasis added):

Pfizer’s Position on Use of Our Products in Lethal Injections for Capital Punishment

Pfizer’s mission is to apply science and our global resources to improve health and well-being at every stage of life. We strive to set the standard for quality, safety and value in the discovery, development and manufacturing of medicines.

Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment.

Pfizer’s obligation is to ensure the availability of our products to patients who rely on them for medically necessary purposes. At the same time, we are enforcing a distribution restriction for specific products that have been part of, or considered by some states for their lethal injection protocols.

These products include pancuronium bromide, potassium chloride, propofol, midazolam, hydromorphone, rocuronium bromide and vecuronium bromide.

Pfizer’s distribution restriction limits the sale of these seven products to a select group of wholesalers, distributors, and direct purchasers under the condition that they will not resell these products to correctional institutions for use in lethal injections. Government purchasing entities must certify that products they purchase or otherwise acquire are used only for medically prescribed patient care and not for any penal purposes.

Pfizer further requires that these Government purchasers certify that the product is for “own use” and will not resell or otherwise provide the restricted products to any other party.

Pfizer will consistently monitor the distribution of these seven products, act upon findings that reveal noncompliance, and modify policies when necessary to remain consistent with our stated position against the improper use of our products in lethal injections. Importantly, this distribution system is also designed to ensure that these critical medications will remain immediately available to those patients who rely on them every day.

ABOUT THESE PRODUCTS: Propofol, pancuronium bromide, midazolam, hydromorphone, rocuronium bromide, vecuronium bromide and potassium chloride are FDA-approved, medically necessary drugs administered by licensed medical professionals, thousands of times a day, in efforts to treat illness or save the lives of patients around the world. They are well established within the medical community and continue to serve important needs in surgical procedures and other treatments.

Pfizer offers these products because they save or improve lives, and markets them solely for use as indicated in the product labeling.

 

Here’s the question:  are controversies surrounding the drug or drugs used in lethal injection executions enough to halt capital punishment altogether?  Even though there are other, legal methods of execution on the books? 

Consider the following three examples of executions not going forward because of drug issues:

1.  Missouri Execution Halted Over Pentobarbital Issue In Man With Brain Tumor

Yesterday, the United States Supreme Court ordered the execution of Ernest Lee Johnson by the State of Missouri be stayed while legal issues are resolved in his case.  The stay was none too soon:  Johnson was scheduled to die yesterday. 

The first issue:  if the lethal injection method will be cruel and unusual in his case because of the pentobarbital used by Missouri (source unknown) might interact with his brain tumor and cause painful seizures.  The second issue:  whether or not this man should be executed because he suffers from mental disabilities.  (His IQ has been tested at 63.)

2.  Ohio Delays Executions Until 2017

Ohio can’t find drugs to use in its lethal injection executions.  So all the inmates on Ohio’s Death Row have received a stay of sorts:  now, Ohio’s execution schedule begins in January 2017 and continues through August 2019.  There are 25 executions scheduled during this time period.

From its Department of Rehabilitation and Correction (go here for full release including revised schedule with individual dates and names):

Today the Ohio Department of Rehabilitation and Correction (DRC) announced revised execution dates for twelve inmates.    DRC continues to seek all legal means to obtain the drugs necessary to carry out court ordered executions, but over the past few years it has become exceedingly difficult to secure those drugs because of severe supply and distribution restrictions.  The new dates are designed to provide DRC additional time necessary to secure the required execution drugs.
 

3.  Oklahoma Delays Executions At Request of Attorney General

We all know that Oklahoma has had some serious problems with the lethal injection method of execution.  After all, Glossip v. Gross comes out of Oklahoma — where Richard Glossip, Benjamin Cole, and John Grant, challenged the use of midazolam in the three-drug lethal injection cocktail, arguing that three executions showed that the drug failed to stop pain.  SCOTUS ruled against them back in June.

It was also Oklahoma where Richard Glossip just had his execution stayed at the last minute by the Governor.

Why?  Apparently, they were about to use the wrong drug in the execution, potassium acetate.  The correct and approved drug for lethal injection in Oklahoma is potassium chloride, NOT potassium acetate.    

Even more disturbing:  Oklahoma officials are now acknowledging that the wrong drug, potassium acetate, was used in the January 2015 execution of Charles Warner.

This is the same state that botched the execution of Clayton Lockett, remember.

Now, Oklahoma executioners face a revised execution schedule that delays any executions.  The Attorney General for the State of Oklahoma has asked that all executions be stayed there until they can get this drug problem resolved.