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Georgia has halted its execution schedule now that the federal government has swooped in and taken its stash of sodium thiopental.  Seems that the Drug Enforcment Administration (DEA) believes that the State of Georgia violated federal law when it bought sodium thiopental from a British supplier for use in its three-drug lethal injection execution cocktail. 

The DEA, as part of the Department of Justice, is also reportedly looking into other states’ purchases of sodium thiopental.  Maybe other states have violated federal law, too.  For one thing, Georgia sold part of its sodium thiopental supply to Kentucky.  Kentucky’s gotta be on the DEA’s list. 

Of course, this action didn’t come in time to stop Georgia from using some of the British-supplied sodium thiopental to execute Emmanuel Hammond back in January.  Importantly, the arguments against using this drug brought by Mr. Hammond’s defense counsel didn’t carry much weight with the United States Supreme Court. 

As the New York Times points out in its coverage of the DEA’s action, the Supreme Court okayed Georgia’s execution with the British drug back then. 

Now, is this more of an example of closing the barn door after the horse is out, or the left hand not knowing what the right hand is doing?  Or is it both? 

And before anyone starts arguing that this really isn’t a big deal, check out the photograph provided by NPR of the storefront in Great Britain where this stuff originated.  The drug purchased by the State of Georgia came from this dirty, shoddy storefront — actually, a second rate distributor that did business out of the back of a driving school.

Not a lab.  Not a pharmacy.  Not a drug manufacturing plant.  Nope. 

Look at the photograph.  You have to wonder if someone in Georgia thought it best simply to surf around Craigslist or EBay to buy the drug that the state would use to kill a human being.   

How did this all begin?  One letter from one lawyer. 

According to the Wall Street Journal, seems everyone thought this was just fine over in Georgia.  But things changed when U.S. Attorney General Eric Holder read a letter sent to him byJohn Bentivoglio of Skadden, Arps, Slate, Meagher & Flom LLP, who represents Georgia death row inmate Andrew Grant DeYoung. 

Up there in Washington, D.C., Mr. Bentivoglio wrote to Mr. Holder and explained that his client was facing what defense counsel believed to be an illegal execution by the State of Georgia, since the state had not registered as an importer of a controlled substance when it bought the sodium thiopental from the British supplier.

Interestingly, Mr. Bentivoglio practices in the area of health care regulatory issues, not death qualified criminal defense.  He also has a background with the Justice Department. 

According to his bio, Mr. Bentivoglio served for many years at the U.S. Department of Justice: Associate Deputy Attorney General (1998-2000); Counsel to the Deputy Attorney General & Special Counsel for Health Care Fraud (1997-1998); Trial Attorney, Criminal Division (1996-1997) and he served on the Committee on the Judiciary, U.S. Senate: Professional Staff Member (1988-1992); Legislative Assistant (1986-1988)

Well done, and thank you, Mr. Bentivoglio.

On Tuesday, we learned the Associated Press had used the power of the press last week to discover that Besse Medical had been the supplier of sodium thiopental to Texas for use in its executions.  Good work, AP. 

The State of Texas fought to keep the identity of its new supplier secret – purportedly to protect the employees of Besse Medical from danger and things like that.  (The irony is not lost that there was a fear that those opposing the death penalty might cause the death of these workers.)

Meanwhile, most of the news stories are still rehashing Hospira’s exit from the marketplace.  And the Texas Tribune has an interview with a representative of the Texas Department of Criminal Justice by the name of Michelle Lyons.  Seems that Ms. Lyons told the Texas Tribune that Texas would "…explore some other options." 

Was Ms. Lyons of the Texas Department of Criminal Justice being wily when she answered this question on the same day that the Associated Press released its open records revelation that Besse Medical has been selling sodium thiopental to the State of Texas for awhile now? 

There’s been no subsequent press release from the Texas DCJ on this issue.  No news release from Besse Medical, either, as of the date of this post. 

Is Texas going to be supplied in the future by Besse Medical or not? Is Besse Medical going to be supplying other states (recognizing a market need without any competition and an apparent acquiesence in selling a drug that will be used in executions)?

We’re wondering about this.  So we’re posting this today, and sending a copy of this post to Brandi Grissom of the Texas Tribune, who wrote the article, "TribBlog: Texas Seeking Execution Drug," and quoted Ms. Lyon in her story.  We’re also copying Ms. Lyons with this post, and Besse Medical, as well. 

We’d appreciate our confusion here being cleared up. 

And we invite either Ms. Lyon or Ms. Grissom to comment or write a guest post here, as well as a representative of Besse Medical, should they chose to do so.

We’ll keep you posted.

Much of the American public may believe that the mentally ill are spared capital punishment in this country, because to execute someone suffering from mental illness would be cruel and unusual – and therefore, in violation of our federal constitution. 

And they’re wrong.  Dead wrong.

Washington State plans to execute Cal Coburn Brown tomorrow, a man acknowledged to suffer from bipolar disorder.

The mentally ill are executed in the United States.  In fact, right now defense attorneys are fighting hard to stop the execution scheduled tomorrow by the State of Washington of Cal Coburn Brown.  

The governor has denied a clemency request already, tipping her hat to the jury who had the opportunity to consider mental illness during the sentencing phase of Mr. Brown’s trial. 

This morning, the United States Supreme Court rejected Cal Coburn Brown’s appeal without explanation.  Right now, he has one remaining appeal that is pending, unless the lawyers file something else very, very soon. 

Brown Will Be First in Washington Executed By Single Drug Lethal Injection Method

If Mr. Brown is killed by the State of Washington tomorrow, then he’ll be the first person executed in Washington since 2001.  Cal Brown will also be the first Washington Death Row inmate to die by the single-drug lethal injection method, as Washington has joined with Ohio in implementing this new form of execution (over the three-drug cocktail method). 

If you’ll remember, it was just last December that Ohio used the single-drug execution method in an execution, when Ohio inmate Kenneth Biros was executed on December 8, 2009.  This single-drug execution method, where a massive dose of one drug is injected, is just the same as the methods used by vets across the country in the euthanasia of dogs and cats.  Surely this analogy suggests how wrong this method is for anyone, much less someone suffering from mental illness. 

Cal Coburn Brown is mentally ill: he has been medicated for bipolar disorder for 16 years.

It is not disputed that Mr. Brown suffers from bipolar disorder, nor is it disputed that he confessed to killing Holly Washa in 1991.  Cal Brown was mentally ill then and now.  However, since 1994, Mr. Brown has been on medication for his condition. 

His suffering of bipolar disorder, so far, has not prevented Cal Coburn Brown from being convicted of capital murder and being sentenced to death for his crime.  Unless something happens fast, a mentally ill man will be executed tomorrow by the State of Washington. 

What is bipolar disorder? 

According to the National Association for the Mentally Ill:

Bipolar disorder, or manic depression, is a medical illness that causes extreme shifts in mood, energy, and functioning. These changes may be subtle or dramatic and typically vary greatly over the course of a person’s life as well as among individuals. Over 10 million people in America have bipolar disorder, and the illness affects men and women equally. Bipolar disorder is a chronic and generally life-long condition with recurring episodes of mania and depression that can last from days to months that often begin in adolescence or early adulthood, and occasionally even in children. Most people generally require some sort of lifelong treatment. While medication is one key element in successful treatment of bipolar disorder, psychotherapy, support, and education about the illness are also essential components of the treatment process.

 

Over at Criminal Justice University, there’s an excellent post discussing the history of the electric chair as a method of execution in this country. 

As Utah faces an execution by firing squad next month, and the media fills with the five recent hangings in Iran as capital punishment, there’s more of a focus upon alternative means to state executions other than the standard toxic injection most commonly used these days.

Entitled, "20 Criminals Executed in the Chair," the article not only provides images that bring back the horrors of this method of execution, it also rings the bell of history.  Many famous – or infamous – individuals met their death by electric chair in this country, among them:

Ted Bundy

Sacco & Vanzetti

Bruno Hauptmann (convicted of the Lindberg baby kidnapping)

Julius & Ethel Rosenberg.

If you have time today, check out the Criminal Justice University article.  Of course, maybe it’s best not to do so over lunch. 

 

Last week, the State of Ohio announced that it was changing its method of execution from a lethal injection involving three drugs (sodium thiopental, pancuronium bromide and potassium chloride) to a single injection of the drug sodium thiopental. 

Ohio changes to a single-drug form of execution after its failed execution of Romell Broom on September 15, 2009

You’ll recall the travesty of Mr. Broom’s attempted capital punishment — as we described here, Romell Broom suffered for two and one-half hours on the gurney that day:

Romell Broom was sentenced to die for the rape and murder of Tryna Middleton by the State of Ohio and last Tuesday, Mr. Broom was strapped to a gurney and his execution by lethal injection began. 

The 2+ Hour Failed Execution

Except they couldn’t find a vein in which to insert the needle.  They tried his arms.  They tried his legs.  Broom lay there, tied to the table by long leather straps covering the length of his body.  Imagine this being done to you.

Broom lay there for OVER TWO HOURS while lab techs tried to kill him.  They failed.  Broom went back to his Death Row cell, and his execution was “rescheduled.”  The Governor of the State of Ohio was contacted about the problem and he ordered a one week “postponement.”

According to the New York Times, Broom “sobbed with pain”.  And afterwards, not only did Ohio Governor Strickland order that Romell Broom’s execution be stopped, but the Ohio federal court issued a stay of his execution after hearing Broom’s attorneys argue that a second try at executing Broom would be unconstitutionally cruel and unusual.  

The Consequences of Ohio’s New Single Drug Execution Method

Proponents are arguing that this single, massive dose of sodium thiopental is merciful and that it’s going to be the NextBigThing for death penalty proponents, since its success will hamper constitutional arguments against execution by lethal injection under the three-drug approach. 

And those are serious and substantive arguments, as we’ve outlined here in a three-part series of articles.  No one can truly say that a paralyzed person, laying on that gurney, isn’t suffering because they are incapable of communicating what they are experiencing.  The “drug cocktail” is simply horrific.

Ohio is so confident in its new execution method — the same type of killing method that vets use on dogs and cats — that it’s planning on having the new protocol in place by the end of this month, and there’s talk that Ohio will want to try out its new One-Drug Injection procedure on Kenneth Biros, who is scheduled for execution on December 8, 2009, subject to a temporary stay. 

What has yet to be determined, however, is how this massive dose of this single drug will truly work on a human being.  What works on dogs and cats might not be as merciful, fast, and painfree on humans.  We simply don’t know, and undoubtedly there will be medical testimony with the appropriate medical experts providing their opinions on this procedure before Ken Bios or anyone else is subject to Ohio’s new killing option.  Or there should be.

And, what about if the Ohio one drug option doesn’t work as swiftly and cleanly as its proponents suggest it will?  Well, they’ve got a backup — two more drugs that would then be injected into the condemned, there on the gurney:  the executor will shoot in massive amounts of  hydromorphone and midalzolam.   

None of This Makes a Bit of Difference in the Broom Situation

With Ohio’s big announcement, death penalty proponents are gleefully rubbing their hands together at the thought that the remaining 35 states using lethal injection as their primary execution method can now circumvent all number of death penalty appeals based upon the cruel and inhuman nature of the three-drug cocktail, just by adopting the Ohio One Drug method. 

Well, it’s not as simple as that.  First, this method needs to be vetted by medical experts before a condemned person is used as a guinea pig here, nevermind those back-up syringes filled with hydromophone and midazolam. 

Second, has no one stopped to think that the answer is more complex than this?  Romell Broom suffered great agony on September 15th not because of the type of drug used upon him, or the number of drugs selected to be injected into his body, but because they could never find a way to successfully insert the needle.

Two Points to Ponder

So, point one, the Ohio One Drug “innovation” doesn’t resolve the Romell Broom travesty and it’s fascinating to watch Death Penalty proponents distract themselves from the cruelty of that day in their excitement over this new find. 

Point two:  is anyone out there thinking that executing men and women in the same way that that vets euthanize animals (even if they are beloved pets) is just plain wrong?  When did we forget about human dignity?

Today, in the final part of our three part series: the record of errors in Florida’s use of lethal injection as a method of execution is discussed. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

Lethal Injection is the Most Commonly Botched Method of Execution

The history of execution by lethal injection in the United States is a miserable one. It has been characterized as the most commonly botched method of execution in the United States. Sims v. State, 754 So. 2d 657, 667, n.19 (Fla. 2000) (quoting the expert testimony of Professor Michael Radelet).[6]

Since 1985, there have been at least twenty-one executions by lethal execution that were botched. Marion J. Borg and Michael Radelet, On Botched Executions in Capital Punishment: Strategies for Abolition 143-168 (Peter Hodgkinson and William Schabas eds., 2001). Lethal injection, meant to be the neat and modern execution method, [has been] plagued with problems, or execution glitches, as they are also referred to in the business. Stephen Trombley, THE EXECUTION PROTOCOL: INSIDE AMERICA’S CAPITAL PUNISHMENT INDUSTRY 14 (1992).

Some of The Horrific Examples of Botched Executions Using Lethal Injection

Texas, Oklahoma, Arkansas, Missouri, and Illinois have reported bungled attempts to dispatch prisoners by lethal injection. These mistakes include blow-outs, improperly inserted catheters (no doubt attributable to the fact that, for ethical reasons, physicians are not involved in the process), and the improper mixture of the lethal solution. Id. A few notable examples follow. [7]

Stephen Morin, in Texas, lay on the gurney for 45 minutes while technicians punctured him repeatedly in an attempt to find a vein suitable for injection. Denno, supra at 111.

In April, 1998, the needle popped out during Joseph Cannon’s execution, also in Texas. Seeing this, Cannon lay back, closed his eyes, and exclaimed to the witnesses, It’s come undone. Officials then pulled a curtain to block the view of witnesses, reopening it fifteen minutes later when a weeping Cannon made a second final statement and the execution process resumed. Borg & Radelet, supra at 143-168.

In Louisiana, witnesses to the April, 1997, execution of John Ashley Brown saw Brown go into violent convulsions after he was administered the drugs.

In May 1997, Oklahoma inmate Scott Dawn Carpenter shook uncontrollably, emitted guttural sounds and gasped for breath until his body stopped moving. Borg & Radelet, supra at 143- 168.

An attorney who witnessed the June, 2000, execution of Bert Leroy Hunter reported that Hunter had violent convulsions. His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney. His body convulsed back and forth repeatedly. Id. Continue Reading In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution? (Part 3)

Today, in part two of our three part series: the three drugs that make up the Florida execution cocktail are discussed in detail. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

1. Thipental Sodium – the First Drug to be Administered

Thiopental sodium is the first drug to be administered during an execution by lethal injection in Florida. As a general anesthetic, thiopental sodium poses special risks because it is so short-lasting that for any number of reasons it can cease to operate as sufficient anesthesia long before the other drugs cause the death of the condemned.[1] Think about that.

It stops working within minutes.

In an affidavit submitted during litigation in Tennessee, Dr. Dennis Geiser, the chairman of the Department of Large Animal Clinical Sciences at the College of Veterinary Medicine at the University of Tennessee, swore under oath that:

the dosage of thiopental sodium must be measured with some degree of precision, and the administration of the proper amount of the dosage will depend on the concentration of the drug and the size and condition of the subject. Additionally, the drug must be administered properly so that the full amount of the dosage will directly enter the subject’s blood stream at the proper rate. If the dosage is not correct, or if the drug is not properly administered, then it will not adequately anaesthetize the subject, and the subject may experience the untoward effects of the neuromuscular blocking agent . [Further], under Thiopental Sodium the anesthetic effect is extremely short-lived, and will be effective for surgical restraint and anesthesia for a period of only five to seven minutes.

Affidavit of Dr. Dennis Geiser, in the case of Abu-Ali Abdul Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), cert. granted on other grounds, 535 U.S. 1016, cert dismissed as improvidently granted, 537 U.S. 88 (2002), on remand on other grounds, ___F.3d___, 2004 WL 2847749 (6th Cir. Dec. 13, 2004) (en banc) (emphasis supplied).

It actually heightens sensitivity to pain.

Drug manufacturers warn that without careful medical supervision of dosage and administration, barbiturates like thiopental sodium can cause paradoxical excitement and can actually heighten sensitivity to pain. See Physicians Desk Reference, 50th Ed. 1996 at 438-440. Manufacturers warn against administration by intravenous injection (hereinafter AIV) unless a patient is unconscious or otherwise incapacitated. Id. Thus, there are serious problems with the first drug, the anesthetic, actually operating to anesthetize the person being executed sufficiently or for long enough to prevent suffering caused by the subsequent two drugs. Denno, supra, at 95-98. Continue Reading In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution? (Part 2)

I have real concerns about the constitutionality of the current means of capital punishment here in Florida – and really, in most of the country today. And it’s not just me – many Death Penalty Qualified Defense attorneys here in Florida share the same concern regarding execution by lethal injection.

Why?

There is a strong argument that execution by lethal injection violates both the Florida Constitution and the U.S. Constitution. In the next series of scholarly posts that appear here on the blog every Friday, we’ll be looking at this issue.

The State and Federal Constitutions forbid foreseeable and unnecessary pain in the execution of an individual.

Much of the language that you will be seeing here is language that commonly appears in motions filed by counsel representing defendants who have been sentenced to death by the State of Florida. It’s a solid and sturdy argument against the use of lethal injection, and there are many attorneys, legal scholars, professors, sociologists, and other professionals, who stand on this position:

Both the Florida and the U.S. Constitutions forbid the infliction of unnecessary pain — that is, any pain that could reasonably be avoided — in the execution of a sentence of death. The courts have ruled that the infliction of a severe punishment by the state cannot comport with human dignity when it is unnecessary and nothing more than the pointless infliction of suffering. Furthermore, [p]unishments are held to be cruel when they involve . . . a lingering death. In re Kemmler, 136 U.S. 436, 447 (1890); see also Nelson v. Campbell, 541 U.S. 637, 125 S.Ct. 2117, 2122,158 L.Ed. 2d 924 (2004).

A punishment is particularly constitutionally offensive – and therefore, illegal — if it involves the foreseeable infliction of suffering. Furman v. Georgia, 408 U.S. 238, 273 (1973). Such things as (1) the probable length of time the condemned remains conscious of the process; (2) the physical or psychological pain he or she suffers during this period; and (3) the time it takes for death to occur must all be taken into consideration in determining whether a means of execution violates the constitution. See Fierro v. Gomez, 865 F. Supp. 1387, 1413 (N.D. Cal. 1994), aff’d, 77 F.3d 301, 308 (9th Cir. 1996), vacated on other grounds, 519 U.S. 918 (1996). Continue Reading In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution?

Gary Gilmore was the first person in the United States to be executed since SCOTUS issued its decision in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976),  which reinstated the death penalty in the United States.   It had been almost a decade since anyone had been executed in this country, and the world watched as Gilmore insisted upon death by firing squad in lieu of hanging.

During the current controversy surrounding execution methods in the United States, particularly the issues involved in lethal injection and its drug protocols, some may find it interesting to consider the Gilmore case, where the State of Utah had authorized capital punishment either by hanging or firing squad.  Lethal injection was not an option. The convicted man, under Utah law, had the choice between execution methods.

Norman Mailer wrote his acclaimed non-fiction novel, The Executioner’s Song, based upon the case of Gary Mark Gilmore.  Mailer won the Pulitzer Prize for his efforts.

From a perspective of execution methods,  the later third of this true crime novel focuses upon Gilmore’s fight to avoid continued appeals and move forward to execution.   This is a fact-based read:  Mailer bases his work on case documents and extensive interviews with Gary Gilmore, among others.

Gilmore wanted to die, and fought hard to be executed.  He wanted to die by firing squad.

Mailer’s book is over 1000 pages but it’s a phenomenal read.  For those who may want a shorter read on the subject – or to watch something instead of reading this opus, there is an excellent article written by Lily Rothman and published by Time Magazine on March 12, 2015, entitled “The Strange Story of the Man Who Chose Execution By Firing Squad,” as well as the Biography Channel’s documentary entitled “ Gary Gilmore: Facing the Firing Squad,” available on YouTube.

 

 

Several different issues must be considered insofar as capital punishment in our country.  The Death Penalty today is a multi-faced concern where considerations must be given to the following:

1.  The Cost of Capital Punishment

For those focused upon finances and taxpayer dollars, the reality is that sentencing someone to death, rather that LWOP (life without parole), is very, very expensive.  LWOP costs less, so why not opt for it? Read:

2.  Lethal Injection and Alternative Execution Methods

Over the centuries, the state has used all sorts of methods to end the life of someone deemed worth of death by those in power.  Today, lethal injection is the common method used in our country to execute the condemned.  However, more and more it is being challenged as cruel and unusual punishment.  States do have options on the books that can substitute for lethal injections without any new legislation; among them, firing squads and gas chambers.  What is the most humane way to execute someone?  For more, see:

3.  Mental Illness and Intellectual Capacity

Mental illness must be considered not only at the time of the crime for which the condemned has been sentenced to die, but also at the time the execution is scheduled to take place.  A similar concept, but distinct from psychological issues, is the lack of understanding and comprehension that goes along with intellectual limitations.  Should someone who is mentally ill or intellectually challenged be executed?  Read:

4.  Race and Gender

Studies time and again reveal that the race of those sitting on our country’s Death Rows does not jive with the racial percentages of our population.  Why not?  And what about gender?  Women on Death Row are another controversial issue to be considered.  Read:

5.  Prosecutors and the Death Penalty

The power of prosecutors in death penalty cases cannot be underestimated.  First, it is the prosecutor who makes the decision to seek capital punishment at the trial level.  Second, it is the prosecutor who tries the case and determines what evidence is presented at trial (both guilt and penalty phases).  Finally, it is the prosecutor who has the ability to sway to results through ineptitude or immorality concerning the underlying investigation and discovery process.  See:

6.  Effective Defense Counsel

Finally, the defense lawyer who represents the individual who is being tried in a case where the state is seeking the Death Penalty has an enormous responsibility.  He or she must advocate in both a guilt-or-innocent trial as well as advancing mitigating factors in any subsequent penalty phase.  It is a tremendous burden, professionally and personally.  There is also the added pressure of financing.  Capital cases demand cost expenditures that quickly add up, from expert analysis for factual issues at trial to mitigating considerations at the sentencing hearing.  Read: