This week, the Supreme Court of the United States issued its ruling in Glossip v. Gross .  Many  thought that the possibilities ranged from (1) outlawing the use of the single drug midazolam; (2) outlawing the lethal injection method of execution in all forms; or (3) reconsidering capital punishment entirely. 

 

Few were ready for what resulted here:  Oklahoma won on all points. 

Glossip: Oklahoma Can use Midazolam

Not only is the death penalty alive and well in this country today, so is lethal injection as a form of execution and the use of midazolam in a lethal injection as was used by the State of Oklahoma in the horrific execution of Clayton Lockett last year.

Wow.

Read the opinion and all its dissents here.

Read the past coverage we’ve had here on the blog regarding lethal injections here (list of our 101 posts and counting).

Terry Lenamon: "It’s a Wake Up Call."

And for Terence Lenamon’s take on things, check out his interview here in "Supreme Court Kills Anti-death Penalty Argument – or Does It?" by Zosha Millman on the LexBlog network’s online publication. 

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

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

Doctors and Pharmacists

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

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

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

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

Their press release:

APhA House of Delegates Adopts Policy Discouraging Pharmacist Participation in Execution
 

March 30, 2015

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

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

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

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

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

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

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

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

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

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

1.  Brumfield v. Cain

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

2. Hurst v. Florida

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

3. Glossop v. Gross

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

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

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

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

_______________

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

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

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

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

It’s a good read.

2. Watch this Video

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

https://youtube.com/watch?v=39G5MvgJ5lE%3Frel%3D0%26controls%3D0

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

 

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

Image:  Florida’s Electric Chair

 

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

Alternative Execution Methods

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

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

 

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

Kelly Gissendaner’s Execution Has Been Stayed.

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

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

_______________________

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

Homer Bryson, Commissioner

Director of Public Affairs Joan Heath

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

STATE OF GEORGIA

For Immediate Release

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

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

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

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

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

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

2.  ABA: Florida Should Be Transparent Regarding Lethal Injection Execution Methods  
 
The second resolution passed by the ABA askes for greater transparency in executions, specifically the procedures for lethal injections.  As those who follow the issue of capital punishment, or those who read this blog regularly, are too well aware, the past few years have seen a change in how available certain drugs have become for use by state executioners.  
 
As the scarcity of these chemicals grew, states were forced to make changes in their execution methods, specifically what drugs they used in their lethal injection procedures.  As challenges arose regarding the changes they were making, there was growing secrecy surrounding the various execution methods, officially approved by the powers-that-be.  
 
 
RESOLVED, That the American Bar Association urges federal, state, and territorial legislative bodies and governmental agencies, including departments of corrections, and the military that impose or implement capital punishment, to:
 
(1) promulgate execution protocols in an open and transparent manner and allow public comment prior to final adoption; and,
(2) require disclosure to the public, to condemned prisoners facing execution, and to courts all relevant information regarding execution procedures, including but not limited to:
a. the steps to be followed in preparation for, during, and after an execution,
b. the qualifications and background of execution team members, and
c. details about any drugs to be used, including the names, manufacturers or
suppliers, doses, expiration date(s), and testing results concerning use of the
drugs.
(3) require that an execution process, including the process of setting IVs, be viewable by media and other witnesses from the moment the condemned prisoner enters the execution chamber until the prisoner is declared dead or the execution is called off;
(4) create and maintain contemporaneous records of what transpires during the execution, including but not limited to the drugs administered, the timing of  administration, and any complications, errors or unanticipated events;
 
(5) disclose the entirety of records and logs on the execution process upon order of the court or as otherwise required in discovery or by law upon request of a death-sentenced prisoner, the prisoner’s counsel, or successors; and,
(6) provide an immediate, thorough, and independent review of any execution where the condemned prisoner struggles or appears to suffer, where the execution is otherwise prolonged, or where the execution deviates from the adopted protocols and regulations concerning the execution process.

 

 

 
In what is probably no surprise to anyone, the family of Clayton Lockett, who suffered so horribly during his April 29, 2014 execution by the State of Oklahoma, has filed a civil lawsuit for damages.
 
You can read the full complaint online here (thanks to the Death Penalty Information Center).
 
Lockett Family Complaint Names Dr. Johnny Zellmer – Physician Present at Execution
 
The Lockett family is seeking damages because the  “unsound procedures and inadequately trained personnel” caused the deceased to suffer in no small part because of Dr. Johnny Zellmer who was at Mr. Lockett’s execution, and they allege “… was willing to, and did in fact, conduct the medical experiment engaged in by Defendants to kill Clayton Lockett regardless of the fact that these chemicals had never been approved or tested by any certifying body.”
 
Of interest and perhaps of legal weight in this lawsuit is the fact that after the Lockett execution, the State of Oklahoma not only stayed its pending executions for the remainder of 2014 but also revamped its entire execution process as well as its Death Chamber.  
 
 
 
 

 

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.