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????

Move over, habeas corpus.  The United States Supreme Court has ruled (read the full opinion here) that Texas Death Row inmate Hank Skinner can indeed pursue a civil lawsuit brought under federal civil rights law as he tries to get certain evidence tested for DNA now, long after his criminal trial where he was found guilty and sentenced to death.

For details on Hank Skinner’s underlying criminal conviction, please read our prior post giving the details as well as checking out the post where Skinner is on video, discussing his situation. 

The State of Texas as well as many others in the criminal law community, were arguing that Skinner could not advance a claim in civil courts because the law surrounding habeas corpus prevented him from doing so.  In sum, they said, Skinner was seeking his freedom and accordingly, he had to file a petition for writ of habeas corpus.  The civil rights arguments, in a civil courtroom and not a criminal one, were not available to him, or anyone else.

Wrong, the Supreme Court said today.

The opinion today makes it the law of the land that a Death Row inmate who is seeking to test evidence for DNA that "… may prove exculpatory, inculpatory or inconclusive." will be allowed to do so because this is within his civil rights.

Already, the next question is being asked: who else can this opinion help?  Death Row inmates and their lawyers must now consider the possibility that the Skinner decision will help them, as well. 

This is a major victory for those interested in justice, and particularly for those who understand the weaknesses of the indigent defense death penalty trials in this country.  Our sincerest congratulations to attorney Law Professor Robert Owen of the University of Texas’ Capital Punishment Center who represented Hank Skinner before the High Court. 

The Reverend Carroll Pickett served as the death house chaplain for the State of Texas for many years,  and he holds the international record for witnessing the most government executions (95). 

Today, Reverend Pickett tours the country on a speaking circuit, voicing his oppostion to the death penalty. (For details, go to the Texas Coalition Against the Death Penalty Speakers’ Bureau.)  He has also written a book about his experiences and his opinion on capital punishment, available at Amazon, Within These Walls: Memoirs of a Death House Chaplain.  The book has received rave reviews from critics and readers alike.

This week, Reverend Pickett was interviewed by the Texas Tribune, and you can watch part of the interview as a video on their site.  It’s an interesting read – not only because it comes from a man who switched his stance from pro-death penalty to being against it, but for the way he brings us all behind the scenes into the realities of Death Row and what occurs as humans work  toward killing another human as part of their job description.  

Of particular interest, his description of his role in "seducing" the inmate’s emotions; restorative justice; and what that last day is like for the man sentenced to die.  

Read the interview here.   

Last month, two death row inmates had their sentences changed to life without parole after authorities confirmed each suffers from severe mental illness.  In Oregon, Robert James Acremant had his sentence changed after state experts confirmed his diagnosis of paranoid schizophrenia.  (He still faces a death sentence in California on another charge.) 

In North Carolina, Isaac Stroud no longer faces capital punishment after being held to suffer from a severe mental disability that the court found made him incapable of assisting with his own defense. (No specific psychological diagnosis was provided.)

This is not the same as being mentally challenged ("mentally retarded" is the term used in the Supreme Court precedent) – here, we are considering mental illness.  But what does it mean to be "mentally ill" in regards to the death penalty? And do mentally ill Death Row inmates still get executed in America today?

It is Unconstitutional to Execute Someone Who Is Mentally Ill – Sometimes.

In 1986, the U.S. Supreme Court held in Ford v. Wainwright, 477 U.S. 399 (1986), a case coming out of Florida, that it would be unconstitutional to execute someone who is mentally incompetent – even if they were sane enough at the time the sentence was imposed.  It is considered cruel and unusual punishment. 

However, as recently as 2008, the Florida Supreme Court has held that a convicted inmate, acknowledged to suffer severe mental illness, could be executed.  In Power v. State of Florida, 992 So.2d 218 (Fla. 2008)(read the opinion here), the highest court in the state held that having mental illness doesn’t automatically bring with it an Eighth Amendment shield from capital punishment.

Robert Beeler Power failed in his claim to federal constitutional protection from execution before the Florida Supreme Court as they relied upon their previous holding in Diaz v. State, 945 So.2d 1136 (Fla. 2006)(read the opinion here), opining that the United States Supreme Court has not recognized a complete bar to execution based upon mental illness and referencing language from their Diaz opinion where "mental illness" was found to be merely a mitigating factor – as either a mitigating factor under the formal statute or one allowed to be considered by the court when imposing sentence. Power, 992 So.2d at 222.

Robert Beeler Power died on December 10, 2010, while awaiting execution on Florida’s Death Row.

The Most Common Types of Mental Illness Involved in Death Penalty Cases

The following are the psychological diagnoses most often seen on Death Rows around the country; however, as science advances it is assumed that others will be added to this list as other disorders or conditions are recognized by the psychiatric and psychological communities.  For details on what these mental illnesses involve, click on the links which will take you to the National Alliance on Mental Illness (NIMI) website: 

  1. Bipolar Disorder
  2. Borderline Personality Disorder
  3. Depression
  4. Post-Traumatic Stress Disorder
  5. Schizophrenia

Next post: Those Who Have Been Executed Despite Being Diagnosed With These Conditions

The pressure is building over in Illinois …. Governor Pat Quinn still has not made his decision on whether or not Illinois will abolish the death penalty.  Not that he isn’t busy enough with massive blizzards, and a budget that’s broke, among other things. 

Maybe he’s distracted, right?  Maybe that is why in yesterday’s Chicago Sun Times, the state prosecutors have brought their arguments to keep the death penalty on the books to the media. 

If Governor Quinn reads the article,"Death penalty a bargaining chip prosecutors aim to keep," he’ll find some of the same arguments that state attorneys across the country routinely argue to advance capital punishment, i.e.:

1.  the death penalty gives prosecutions a big "bargaining chip" in plea negotiations; with death on the table, they argue that they are able to urge suspects to plead out and take a life sentence rather than risk it.   So, without capital punishment, state attorneys are going to have to try more cases.

2.  without the Illinois death penalty, Illinois loses the ability to get money from the Capital Litigation Trust Fund which is a fund providing monetary support for trials where death is being sought.  End capital punishment, and that fund will not there to pay for expenses in trials – which is a big deal to Illinois, which is broke.  (All the fund’s money reportedly would be going to helping murder victims and training law enforcement.)

3.  Prosecutors also argue that victims’ families want the death penalty for closure as well as justice.

There’s a lot that criminal defense attorneys can argue in rebuttal to each of these arguments; you probably have your opinion on these points, too.  Gotta wonder what Governor Pat Quinn’s take is on all this ….

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?

There is an amazing amount of news coverage focusing upon capital punishment today – and it’s focus is Iran.  Right now, lawmakers in Iran – their legal representatives — are actually demanding that their political opposition leaders get the death penalty.   

Why?  Because these folk organized a number of anti-government rallies which took place yesterday in various cities throughout Iran, including Tehran. 

What were the rallies about? 

Gaining support for uprisings – like Egypt’s – against undemocratic government.   Specifically, the Iranian rallies yesterday were 10,000s of Iranians in the streets (Slate magazine is reporting 100,000s), protesting for the Iranian Supreme Leader Ayatollah Ali Khamenei to step down.   It’s still happening, apparently, and fatality reports are beginning to come in (two dead so far).

Specifically, there are lawmakers in this country that are demanding that two men, Mir Hossein Mousavi and Mehdi Karroubi, face the death penalty in a trial for sedition.  (What’s sedition? Stirring up rebellion against the government. )

And, get this:  the media is reporting that over 220 Iranian lawmakers have signed this demand and if you watch the news, you can see them yelling "Death to Mousavi! Death to Karroubi!" 

Meanwhile, under the American system of government….

Consider by comparision that another ongoing death penalty news story this week is whether or Governor Pat Quinn of Illinois will veto abolishing the death penalty in that state.  The governmental process in action, in our country. 

We’re in a bad recession here, some call it a depression.  We’ve got threats inside and out and there are lots of things to fight about here in the United States.  True, we may have sent innocent men to their deaths before DNA testing arrived, and if we aren’t careful, we still may.

But today, as the death penalty gets tossed around cavalierly in the Iranian political arena, it’s a good time to set back and appreciate the system of justice we do have.  It’s not perfect, but go set in any death penalty criminal trial, guilt phase or penalty phase, and it’s clear that our nation does respect the finality of a death sentence, and we do appreciate mercy, in a very worthy way. 

Scheduling executions for various states in this country continues to be in flux, primarily due to this continuing problem of having Hospira exit the marketplace as the supplier of sodium thiopental, a necessary component to the three-drug lethal injection method of execution. 

However, the Death Penalty Information Center is doing a fine job of keeping track of things, and not only can you learn the execution schedules for each state during 2011, the DPIC site also provides details behind the varous stays of execution that are popping up everywhere.To check out their latest information, just jump over to the DPIC Execution Schedule webpage.

Six executions have been stayed so far this year — and we’re only six weeks into 2011. 

We should expect more delays, of course.  Again, not just for the usual appellate reasons (challenges to procedure, proof, constitutional violations and the like), but because there remains the problem of how these states are going to kill these folk if they can’t follow their usual lethal injection protocol.

Decisions, Decisions – How to Execute When Facing a Drug Shortage

Sure, they all have alternative methods on the books – but most states are delaying things until the drug issues resolve themselves.  On Death Row, lives are being given more time because states are facing tremendous political and fiscal pressure as each must decide:

And we must all remember that stays of execution are not commuting these death sentences.  No one is getting moved off Death Row.  They are justing getting more time to live.  And, that is something important, isn’t it?

As the Florida Capital Resource Center grows, stories like this will become more commonplace – but today, it’s a major victory we’re celebrating since the First District Court of Appeals has ruled in favor of allowing additional mitigation expertise in a pending prosecution where the death penalty is being sought.

As Terry puts it, "Our first Amicus filed on behalf of those working courageously to represent death qualified defendants in Florida!  Congrats to Rick Sichta (defendant’s trial counsel)!"  (As the founder of FCRC, Terry is understandably proud and excited about this result.)

For those interested in reading the full opinion, we’ve included it as a site download.  Meanwhile, here’s the gist of things, from the court itself:

Criminal Specialist Investigations, Inc., Petitioner, seeks a writ of certiorari quashing the trial court’s order denying a motion for additional mitigation coordinator fees in a capital case. Petitioner argues that the trial court failed to undertake the appropriate consideration of the reasonableness and necessity of the costs at issue with respect to this particular case. We agree. Accordingly, we grant the petition, quash the order under review, and remand this case for further proceedings.

The trial court appointed Rosalie Bolin as the mitigation coordinator in the case of Tajuane Dubose, who was charged with first-degree murder and shooting or throwing deadly missiles. Dubose was eligible for the death penalty, and his private court-appointed counsel hired Bolin to assist in the preparation for the penalty phase of his case, which the trial judge found was one of the most unusual and extraordinary cases he had presided over. Over the course of the case, the trial court approved several motions for mitigation coordinator fees. After the penalty phase was complete, and Dubose had been sentenced to life imprisonment, defense counsel filed an Amended Fourth and Final Ex-Parte Motion for Authorization to Incur Additional Mitigation Coordinator Fees. In the amended motion, defense counsel opined that the favorable verdict of life imprisonment was due largely to Bolin’s work on the case. He described Bolin’s role as “instrumental” and provided some detail about her work. Additionally, an itemized bill was attached to the motion, and counsel alleged that the Justice Administrative Commission (“JAC”) had no objection to the payment of the fees requested.

At a hearing where the motion was discussed, the trial judge opined that Florida law did not recognize any such position as that of a mitigation coordinator. The judge also opined that Bolin had already been paid too much and that the overpayment of mitigation coordinators was becoming a trend in capital cases.

To read and/or download the February 7, 2011, opinion of the First District Court of Appeals, go here.

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.