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Yesterday, the Arkansas Supreme Court issued its opinion that the state law providing for capital punishment in the State of Arkansas is unconstitutional.  Which means that the men setting on Arkansas’ Death Row must be grateful to the 10 men who filed this appeal and drove this issue to the highest court in that state.  

Their winning argument?  It’s up to the state legislature, not the system of prisons, to decide how executions are carried out.  This isn’t a ruling that ends the death penalty in Arkansas; instead, it is halting executions because of the manner in which they are being done (another lethal injection issue). 

Read the opinion in Hobbs v Jones (and the dissents) here.

 

 

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’s Execution Schedule has tomorrow, February 15, 2012, as the day that Robert Brian Waterhouse will die for the murder of Deborah Kammerer back in September 1980.  Yes, if you do the math you’ll find that it has been over 30 years since Waterhouse was convicted of this crime and this latest execution date.

Will Waterhouse be executed by lethal injection this week? 

Right now, as this post is being typed, we can imagine that he is in the process of meeting his fate on that table, after living year after year after year, mostly alone, in a small cell (six by nine) at Starke’s Florida State Prison.

He’s now 65 years old.  Decades, literally, in a room smaller than most of our bathrooms and maybe around the same size as many walk-in closets.  Six by nine isn’t a big space.  So much for all that chatter about the cushy life on a state death row – Florida isn’t California. 

He’s already a footnote in Florida criminal history, since he’s been on Florida’s Death Row longer than anyone else who has been executed by the state (though there are others who have resided on Death Row longer than Waterhouse). 

It’s All Up To Governor Scott and Justice Thomas

Last month, Governor Rick Scott signed the death warrant for Robert Brian Waterhouse, setting the execution in motion.  Now,  a group of Catholic Bishops have written Governor Scott asking for clemency.

It’s Tuesday evening and no clemency so far.  The execution is scheduled for six o’clock on the evening of February 15, 2012. 

Last Friday, Waterhouse’s lawyers filed a last minute request for stay with the United States Supreme Court.   You can watch that docket online, the decision rests with Justice Clarence Thomas.

The prison already has media updates scheduled for tomorrow afternoon, before and after the execution. It’s not looking good. 

So far, only one execution has occurred in 2012 in the United States:  the January 6, 2012, execution of Gary Welch by a three-drug lethal injection (using phenobarbital) by the State of Oklahoma.

2012 US Execution Schedule

The Death Penalty Information Center updated its 2012 Execution Schedule on January 23, 2012, and it’s pretty amazing to see how short that list is, right now:

January

17 PA Ralph Birdsong – Stayed
18 PA Kenneth Hairston – Stayed
18 OH Charles Lorraine – Stayed
19 KY Michael St. Clair – Stayed
20 DE Robert Gattis – Granted Clemency
26 TX Rodrigo Hernandez
31 GA Nicholas Tate – Voluntarily Waived His Rights to Appeal
 

February
1 TX Donald Newbury
15 FL Robert Waterhouse
16 OK Garry Allen
22 OH Michael Webb
28 TX Anthony Bartee
29 TX George Rivas
29 AZ Robert Moormann
 

March
6 NE Michael Ryan
7 TX Keith Thurmond
8 AZ Robert Towery
8 PA Dustin Briggs – (Stay Likely)
15 OK Timothy Stemple
18 SD Briley Piper – (Stay Likely)
28 TX Jesse Hernandez
 

April
18 OH Mark Wiles
26 TX Beunka Adams
 

May
13-19 SD Eric Roberts
 

June
12 OH Abdul Awkal
 

July
26 OH John Eley
 

September
20 OH Donald Palmer
 

November
13 OH Brett Hartmann

 

The Pew Research Center has just released its latest study, and it’s making the media rounds today.  Seems their study finds that a solid majority of Americans – sixty-two percent (62%) — are in favor of the death penalty. 

Read the Pew report online here, entitled "Continued Support for the Death Penalty."

Which makes it interesting to consider the opinion voiced by New York Law Professor Cohen over at TIME Magazine this week, where Professor Cohen argues that there is a growing "de facto" abolishing of capital punishment in this country.  In his article, "Why the Death Penalty is Slowly Dying," Cohen opines that this is due to three reasons:

  • the increase in Death Row exonerations;
  • the cost to take a case from trial to execution – capital cases are expensive; and
  • what he calls the "ick factor," where he posits that citizens are more squeamish about executions than they were historically.

Is Cohen Right?

Out of the three reasons listed above, money sure does seem like a motivating factor in states that are broke, like California (as we have posted about before).  However, there’s a big, big factor in the absence of executions to tally in 2011:  lack of supply for one of the needed drugs in the three-drug lethal injection cocktail that had been pretty much accepted procedure in all U.S. Death Chambers.

In the past year, the inability to buy domestic sodium thiopental has sent execution schedules into chaos – as we’ve been following along in our posts.

One has to ask:  if states had not lost their steady supply of sodium thiopental, would the execution numbers have gone down?

 

Fascinating news out of the Death Penalty Information Center:  in 2011, there were only 43 executions after 2010’s 46 and 78 new death sentences were given to defendants in 2011 after 112 in 2010.  That’s the big news: 112 down to 78 new sentences of death is record-breaking. 

Read the DPIC Report online here (or download the pdf).

Right now, lots of discussion is taking place as to the reasons why this is happening. 

  • It means that capital punishment is not being given to those defendants found guilty of crimes. 
  • It means that there may be less prosecutions seeking the death penalty in their cases, too. 
  • And, hat tip to the defense bar, it may also mean that defense attorneys are doing an excellent job of convincing juries of the mitigating circumstances that exist in cases that should thwart a sentence of death. 

So, what is going on?

The DPIC points out that Gallup Polls have a falling number of Americans that support the death penalty, too.  Gallup shows 61% support the death penalty now; that’s down from 68% in 2001.

A Fordham law professor opines that media coverage plays a factor here: not only are folk more aware of the reality that innocents do get convicted (and sentenced to death) but that capital cases are much more expensive for state budgets. She also explained to USA Today that the U.S.Supreme Court has issued opinions that have narrowed when the death penalty can be used (i.e., limiting it regarding minors or the mentally challenged). 

This is a hot topic and lots of discussion is going to be had on 2011 as the Year We Went Under 100 Death Sentences for a long while.  There’s obviously a number of factors at play. 

One thing that might need to be discussed more: the fact that the states are in a quandary about how to kill, what with all the constitutional issues involved in lethal injection these days and the relunctance to return to old standbys like firing squads or electric chairs. 

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.

 

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. 

Most of the states in this country today are either concerned about how they are going to execute the inmates they already have on Death Row, what with the lack of drugs for their lethal injection process, or they are debating getting rid of capital punishment if for no other reason than cost. 

Then there’s New Hampshire.

New Hampshire has a bill that’s already passed the House and is expected to pass the Senate that not only approves of capital punishment, but extends the application of the death penalty to killings that occur during a home invasion – sometimes called a "burglary killing." 

There are other states that already consider a killing that occurs during the commission of a burglary to be felony murder.  However, burglary must be listed alongside serious crimes like rape, armed robbery, etc. before the homicide can be held at the felony murder standard.  The state legislature must approve that the particular killing is a crime for which the state can seek death as a punishment.

For example, Florida law already provides for killings during home invasions or any other type of burglary to be capital murders, punishable by death.  Florida Statutes 782.04.  

Why is New Hampshire Expanding the Death Penalty?

What New Hampshire is doing is not so strange in that it is adding home invasion killings to its felony murder litany as the fact that it is doing so in a decade where the economy alone is forcing states to reconsider the viability of the death penalty. 

Lawmakers in New Hampshire are promoting this change in the law primarily because of one case: the 2009 machete killing of Kimberly Cates during a home invasion.  Public outcry over this particular crime – and the fact that the defendants would not face the death penalty at trial – has fueled the proposed change in New Hampshire law.

The change is expected to pass and become law.  The defendants in the Cates case are both serving sentences of life without parole, it will not apply to them. 

Of interest:  New Hampshire has not executed anyone since 1939. 

Oregon’s Death Row only has around 35 inmates, a very small number when compared to neighboring California with its Death Row population of 719 people.   We don’t hear much about the death penalty in Oregon — after all Oregon hasn’t executed anyone since 1997. 

Gary Haugen is changing all that.  As an Oregon Death Row inmate, Haugen has been writing letter after letter to court officials, explaining that he wants to waive any remaining appeals that he may have, and go forward with his execution.  

Why?  According to Haugen, he’s doing this to shine a light on a "costly broken system."

Haugen has been writing these letters since 2008; tomorrow, there will be hearing held at the state attorney’s request for a death warrant. 

Gary Haugen could be executed by the State of Oregon this summer.  At the hearing, prosecutors will ask for an execution date of July 28, 2011. 

Will this be granted?  Maybe.  The judge must decide if Haugen is competent to waive his appellate rights.  

And, if the judge grants the state’s request – will the State of Oregon be prepared.  Oh, yes.  The Oregon Department of Corrections has already informed the media that pentobarbital will be replacing sodium thiopental in their three-drug lethal injection cocktail.  They’re ready to go.

Here’s the thing:  will this execution ready accomplish what Haugen is writing is his reason for asking to die now?  Is this going to shed a spotlight on the "broken system" in Oregon or elsewhere?  And, is this a good enough reason for a judge to okay the state to execute someone? 

Is this a man tired of living on Death Row, or is this a man seeking a higher good with his life?  Where is justice here?