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This month, the question is raised once again about what the condemned actually experience when undergoing lethal injection, and whether or not this constitutes cruel and unusual punishment. It appears that the executioners’ perspective on what is taking place and those of the execution witnesses may be far, far different.  Read, “Executioners sanitized accounts of deaths in federal cases,” written by Michael Tarm and published by the Associated Press on February 17, 2021.

Pain and Cruel and Unusual Punishment

Of course, as Mr. Tarm points out and as we have discussed earlier, SCOTUS has made it clear that the U.S. Constitution does not provide for a pain-free execution.  The condemned can experience pain without it being in violation of constitutional protections against cruel and unusual punishment.  Read, Painful Executions are not Cruel and Unusual Punishment under the Eighth Amendment.

It’s also important to point out that different lethal executions use different drugs, alone or in combination.  The federal executions involved pentobarbital.  Used alone.

Pentobarbital has been criticized for use in executions because if it is improperly administered, it will cause pain.  And no one is sure its intensity.  Read, “Why the Justice Department’s Plan to Use a Single Drug for Lethal Injections Is Controversial,” written by Josiah Bates and published by Time Magazine on July 29, 2019.

We’ve discussed pentobarbital before.  You may recognize it as the drug that veterinarians commonly use to euthanize beloved pets.  Read, Pentobarbital Supply and Demand for Execution Drugs; Pentobarbital Shortage in Death Penalty Executions: The Continuing Problem of Finding Drugs for Lethal Injections; and Lethal Injections and Compounding Pharmacies: Why These Are Very Bad Sources of Supply.

How is pentobarbital so painful as to constitute cruel and unusual punishment?

The argument, as described by Justice Sotomayor in her recent dissent in Barr v. Lee, 140 S. Ct. 2590 (2020), is as follows (emphasis added):

In light of this change, respondents alleged that the Government’s planned use of pentobarbital could result in needless pain and suffering in violation of the Eighth Amendment. Among other things, respondents proffered expert evidence that the majority of those injected with pentobarbital suffer flash pulmonary edema, which can lead to a sensation akin to drowning and “`extreme pain, terror, and panic.'” Id., at 10a.

 

“We tracked down a broad array of those connected to the event, to present a three-dimensional account of the first federal execution in 17 years.”

That’s how writers Keri Blakiner and Maurice Chammah describe their efforts, as published on July 24, 2020, by The Marshall Project in partnership with Slate Magazine.   Their entire article is entitled “Witnesses to the Execution, an oral history of the first federal execution under Donald Trump, as told by victims’ relatives, prison staff, and others.“

It’s a powerful piece, beginning with the reality that while the federal government had executed only 3 men in the past 50 years, things changed in July 2020 when 3 federal executions took place within one week’s time.  The first of these July 2020 federal executions was that of convicted murderer Daniel Lewis Lee.  Mr. Lee was convicted for the deaths of William Mueller, Nancy Mueller, and Sarah Powell, the 8-year-old daughter of Nancy Mueller.

He died from lethal injection on Tuesday, July 14, 2020, at 8:07 am.  His co-defendant Chevie Kehoe was sentenced to life behind bars, not the death penalty.

Reporters witnessing the execution, as well as the lengthy events leading up to it, give their side of things.  Events that included protests by groups on both sides of the Death Penalty argument.  Also, delays while last-minute legal filings were being decided, including those at the U.S.  Supreme Court.

Family members of the victims give their take.  Attorneys, too.  Some witnessed the execution, some did not.

Prisoners at the Terre Haute facility explain what happened within the institution as Lee’s execution date approached.  (Consider one prisoner’s description of a prison administrator giving instructions for everyone to prepare for lockdown in advance of “the festivities.“)

The Bureau of Prisons’ emailed statement is included.  So is a statement issued by Attorney General William Barr.

Ribboning through all these perspectives are the impacts of COVID-19 on the entire process as well as the implications of the federal go-ahead on using the lethal injection despite some concerns that they may have done so without proper legal authority, given the procedural / appellate process that was arguably still in play.

It’s a must read.

 

 

The Death Penalty Information Center (DPIC) has quite a lot of interesting information regarding executions in the United States so far this year, including how the Coronavirus Pandemic has impacted capital punishment in the first half of 2020.  Consider the following:

  1. There have been ten (10) executions in 2020.
  2. One execution has been by electrocution (Tennessee’s execution of Nicholas Todd Sutton in February 2020).
  3. Pentobarbital still predominates in lethal injection protocols as a single-drug fatal dose execution method.
  4. The State of Florida has not executed anyone in 2020.
  5. The federal government resumed executions in 2020 after a 17 year hiatus.
  6. Within one week’s time in July 2020, the federal government executed three men:  Daniel Lewis Lee (July 14, 2020); Wesley Ira Purkey (July 16, 2020); and Dustin Lee Honken (July 17, 2020).
  7. The federal government’s chosen form of execution is lethal injection using single-drug pentobarbital.
  8.  There has been extensive appellate challenge to the federal execution protocol, including this significant amici curiae brief filed by an impressive list of scholars and judges.
  9.  The federal government has set August 26, 2020 as the execution date for the only Native American on its Death Row, Lezmond Mitchell, despite objections from the Navajo Nation (which include the fact that the killing itself occurred on tribal land); and
  10.  The United States Military has five (5) Death Row inmates, with the last military execution occurring on April 13, 1961, when U.S. Army Private John A. Bennett was hanged (conviction: rape and attempted murder).  (That’s right: 1961.  Not a typo.)

 

History buffs may recall King Henry VIII granted Anne Boleyn’s request for a special French executioner who would decapitate her using a sword, rather than the standard beheading method of an ax (which might take several blows before succeeding in severing the head from the neck).  A swift decapitation was considered to be merciful and painless.

Of course, minimizing pain for the condemned has rarely been a concern for the state; consider the horrific execution methods used in the past, which include:

  • Boiling;
  • Burning;
  • Catherine Wheel (limbs slowly broken, left to die);
  • Crucifixion;
  • Hanging;
  • Head Crushed;
  • Hung, Strung, and Quartered;
  • Impaled on Spear or Pole; and being
  • Sawed in Half.

Today, here in the United States, many believe modern times have changed the state’s attitude.  Even if the death penalty is allowed by the government, many people assume it will be undertaken in a merciful and painless manner.  Isn’t this why we’ve evolved to using drugs today – with lethal injections serving as a peaceful and humane execution protocol?

Pain and Execution Protocols in the United States

Currently, twenty-nine (29) states in the United States provide for capital punishment and all of them have lethal injection as the preferred form of execution.  Statutorily, sixteen (16) states also have alternative execution methods on the books. These alternative execution methods are:

  1. Electrocution (electric chair)
  2. Firing Squad
  3. Hanging
  4. Lethal Gas (gas chamber)
  5. Nitrogen Hypoxia / Asphyxiation.

For more detail, read information provided by the National Conference of State Legislatures in “States and Capital Punishment,” published March 24, 2020, and “Using Nitrogen Gas For Executions Is Untested And Poorly Understood. Three States Plan To Do It Anyway,” written by Lauren Gill and published by The Appeal on October 25, 2019.

Of course, each of these execution methods has been developed in an attempt to be merciful and bring upon the death of the condemned individual as painlessly as possible.  Legislation has been passed to provide for new or alternative execution protocols with mercy as a statutory rationale.

However, pain in executions is a reality.  And more and more, we are learning how those who are being executed with a lethal injection may be suffering extreme pain in this procedure.

How Painful is the Lethal Injection Protocol?  It May be Horrific.

For many years, scientists have been warning that lethal injections are far from painless.  A 2005 study opines that 90% of executed prisoners felt pain during the lethal injection execution and that 40% of these condemned may have been aware and conscious as they were dying.  For more, read Motluk, Alison. “Execution by injection far from painless.” New Scientist 14 (2005).

Medical experts, based upon information discovered during autopsies of the executed by lethal injection, describe how drugs like midazolam result in a very painful death.  Witnesses to some executions have eyewitness testimony of the condemned appearing to suffer during a lethal injection execution.  For details, read “Ohio’s Governor Stopped An Execution Over Fears It Would Feel Like Waterboarding,” written by Liliana Segura and published by the Intercept on February 7, 2019.

Which is why in the past year, concerns over pain during a lethal injection have escalated to the point that alternative execution methods are being sought by several states.  Oklahoma, Mississippi, and Alabama have passed legislation for asphyxiation using Nitrogen Hypoxia, for instance.

SCOTUS: No Guarantee of a Painless Execution in the U.S. Constitution

It may be shocking, therefore, for many to learn that pain alone does not equate to “cruel and unusual punishment” forbidden by the United States Constitution.  Specifically, last year the Supreme Court of the United States (SCOTUS) ruled in Bucklew v. Precythe, 139 S. Ct. 1112, 1117 203 L. Ed. 2d 521, 587 U.S. (2019) that there is no constitutional protection against a painlful execution.

In this case, SCOTUS found that the use of pentobarbital in the lethal injection of a condemned man with a medical condition that might increase his pain during the execution did not violate the Eighth Amendment provision against cruel and unusual punishment.

[Of note:  Justices Gorsuch, Roberts, Thomas, Alito, and Kavanaugh joined in the majority opinion with   Thomas and Kavanaugh filing concurring opinions.  Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented with Sotomayor filing a dissenting opinion.]

From Bucklew v. Precythe, 139 S. Ct. at 1117 (emphasis added):

The Eighth Amendment forbids “cruel and unusual” methods of capital punishment but does not guarantee a prisoner a painless death. See Glossip, 576 U.S., at ___, 135 S.Ct., at 2731-2732.

As originally understood, the Eighth Amendment tolerated methods of execution, like hanging, that involved a significant risk of pain, while forbidding as cruel only those methods that intensified the death sentence by “superadding” terror, pain, or disgrace. To establish that a State’s chosen method cruelly “superadds” pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason. Baze, 553 U.S. at 52, 128 S.Ct. 1520; Glossip, 576 U.S., at ___, 135 S.Ct., at 2732-2738. And Glossip left no doubt that this standard governs “all Eighth Amendment method-of-execution claims.” Id., at ___, 135 S.Ct., at 2731. Baze and Glossip recognized that the Constitution affords a “measure of deference to a State’s choice of execution procedures” and does not authorize courts to serve as “boards of inquiry charged with determining `best practices’ for executions.” Baze, 553 U.S. at 51-52, 128 S.Ct. 1520. Nor do they suggest that traditionally accepted methods of execution are necessarily rendered unconstitutional as soon as an arguably more humane method becomes available.

Lethal injection is the most common method of execution in the United States, albeit more and more alternative methods are being used as concerns grow over the use of intravenous drugs as a killing tool.

The Coronavirus Pandemic has shed a different kind of light on these lethal injection drugs, particularly the following:  midazolam; vecuronium bromide; rocuronium bromide; fentanyl; cisatracurium besylate; and etomidate.

University of Miami Professor Joins Doctors’ Request for Execution Drugs

On April 6, 2020, a joint letter signed by Kenneth W. Goodman, PhD, FACMI, FACE, University of Miami Institute for Bioethics and Health Policy, and six fellow renowned medical professionals was sent to every state with a lethal injection drug inventory, asking for the release of the drugs for use in the care and treatment of COVID-19 victims.

Dr. Goodman is both (1) founder and director of the University of Miami Miller School of Medicine’s Institute for Bioethics and Health Policy and (2) co-director of the University’s Ethics Programs. The Miller School of Medicine’s Institute for Bioethics and Health Policy is designated one of the ten (10) worldwide World Health Organization (WHO) Collaborating Centers in Ethics and Global Health Policy.

Joining University of Miami Professor Goodman as signatories are:

  • Joel B. Zivot, MD, FRCP(C), MA, Associate Professor of Anesthesiology and Surgery, Emory University, Atlanta, Georgia, USA;
  • Joshua M. Sharfstein, M.D., Professor of the Practice, Johns Hopkins Bloomberg School of Public Health;
  • Prashant Yadav, Ph.D., Lecturer, Harvard Medical School & Fellow, Center for Global Development;
  • Donald F. Downing, Clinical Professor of Pharmacy at the University of Washington;
  • Robert B. Greifinger, MD, Consultant on Public Health in Corrections; and
  • Leonidas George Koniaris, MD, Professor of Surgery, Indiana University School of Medicine.

Letter Urges That Execution Drugs Can Save Coronavirus Victims’ Lives

The full text of their letter can be read online here. Here is an excerpt (footnotes omitted):

“In this pandemic, it is increasingly clear that hundreds of thousands of people in the United States will die. Yet personal experience and medical knowledge demonstrate that patients in the ICU sickened by COVID‐19 are still able to survive this infection with proper medical care. Your stockpile could save the lives of hundreds of people; though this may be a small fraction of the total anticipated deaths, it is a central ethical directive that medicine values every life. Those who might be saved could include a colleague, a loved one, or even you.

“For years, pharmaceutical companies and health experts have warned that states’ pursuit of execution drugs create public health risks and “could result in the denial of medicines from patients who need them most.” In this time of crisis, these risks have never been more acute, and our health system has never more desperately needed the medicines you currently hold for use in executions. Every last vial of medicine could mean the difference between life and death.  

“We urgently ask you to send any execution drug supplies in your storerooms to hospitals where they are needed to treat critically ill COVID‐19 patients. At this crucial moment for our country, we must prioritize the needs and lives of patients above ending the lives of prisoners.”

For more, read “Death Penalty States Urged to Release Stockpiled Drugs for Covid-19 Patients,” written by Ed Pilkington and published by The Guardian on April 13, 2020.

Will the execution drugs be released for use in treating Coronavirus patients?

Each state must make its own decision in response to this request.  Of note, the letter references the Florida Department of Corrections has having rocuronium bromide inventories which the physicians opine could be used to intubate approximately 100 COVID‐19 patients.

For more about lethal injection method of execution, read:

Mannie Ponoc of UK’s Alamo Pictures shared this recent documentary podcast with us where Professor Vivien Miller of the University of Nottingham discusses the history of capital punishment in America, using visuals from the BBC’s “Life and Death Row – The Mass Execution” as she delves into various aspects of the death penalty in our country today.

The British Perspective on US Death Penalty: UK Professor Documentary Podcast

For an idea of what is discussed here,  check out the list of time stamps provided by Alamo Pictures:

00:54 – The topic we are looking at today: capital punishment.
01:25 – Meeting our guest Dr Vivien Miller.
03:21 – The documentary that we are looking at today.
04:08 – Why Vivien chose this film.
05:08 – What the film is about.
07:22 – Our first clip, featuring Jeff Rosenzweig, the lawyer for three of the convicted inmates
10:40 – Why the death penalty is still prevalent in the US.
13:40 – Our second clip, where different people say why they support death penalty
15:58 – The reason some people stay on death row for such a long period of time.
18:37 – The issues with some of the inmates’ original trials.
20:55 – The racial discrimination that’s prevalent in death penalty sentencing.
22:22 – Why the death penalty is so prevalent in the South.
26:52 – The supply problems with some of the lethal injection drugs over the last 10 years.
29:53 – When lethal injections don’t work.
30:45 – The argument that lethal injections are a cruel and unusual punishment.
31:27 – Our final clip, showing the advocacy group for abolition of capital punishment.
35:02 – What the future of capital punishment will look like in the US.
37:55 – Why capital punishment increased so much at the beginning of the 20th century.
40:25 – Why the use of the death penalty decreased after 1940.

Watch the full podcast here:

 

The Nation describes itself as “progressive” while the National Review claims to “define the modern conservative movement” in this country.  In the past few weeks, both have published articles discussing executions and how the death penalty is being carried out in this country.

The two publications do not discuss the same execution.  However, the cornerstone of both articles is the same: something is wrong with the death penalty in the United States today.  Consider the following:

1. Nathaniel Woods Execution: The Nation

On March 10, 2020, The Nation published an article entitled “Take Action Now: End the Death Penalty,” focusing upon the execution of Nathaniel Woods by the State of Alabama for the 2004 killing of three police officers.

Those seeking to prevent this execution included Martin Luther King III and Kim Kardashian West based upon circumstances that suggested his innocence, including the man who killed the officers confirming Woods was “100% innocent.”

The method of execution: lethal injection.

Key here, according to The Nation was a growing challenge to Woods’ execution based not only upon “a case rife with flaws” but Alabama’s system which allows a sentence of death without jury unanimity.

From The Nation:

“As mass incarceration continues to end lives, tear families apart, and tarnish our democracy, now’s the time to take action against this unjust system.”

2.  Nick Sutton Execution: National Review

In an article written by Kathryn Jean Lopez entitled “Stop the Death Penalty,” published by the National Review (“NR”) on February 24, 2020, the execution of Nick Sutton by the State of Tennessee is discussed.

Nick Sutton lived on Tennessee’s Death Row for 34 years before he was executed.   The method of execution:  electric chair.

Since his incarceration Nick Sutton had also been a hero to correction officers, saving lives on more than one occasion.  Three guards’ lives are said to have been saved by the actions taken by inmate Sutton.

Additional details on Nick Sutton’s life include a history of childhood abuse and neglect and resulting “neuropsychological impairments,” according to a noted forensic neuropsychologist.  For details, read his Clemency Application, pages 18-21.

Nevertheless, clemency was denied by the state governor, with the NR positing the denial being influenced not only by the cruelty in the manner of death for Sutton’s grandmother but also for three other killings, including an inmate after Sutton was incarcerated.  It was the stabbing death of the inmate (38 stab wounds) that resulted in Sutton being sentenced to death.

From the National Review piece:

“Mercy is for the guilty. We can’t be callous in these circumstances, or our arguments about the life of the most innocent might not be heard. I understand why the governor did what he did, but the death penalty should prompt more of a cultural examination of conscience. It could bring a lot of people of good will — those “pro-life” and “social justice” groups that seem strangely divided — together.”

Mercy After Judgment: Terry’s Goal in Every Sentencing Trial

Terence Lenamon has built a national reputation defending those who are accused of such serious crimes that the government seeks to take their life. His specific focus at the defense table is more than the adjudication of guilt or innocence; Terry’s acumen is widely known for his work during the sentencing phase of the capital case.

Specifically, he fights for the light of the accused after a guilty verdict has been reached.  He fights for mercy.

Death Penalty Lawyer Terence Lenamon on Capital Punishment

Several years ago, he was asked to give his take on his work and his stance on capital punishment.  We published it here, back in 2016.  It’s worth sharing again, in its entirety.

From Terence Lenamon: My Stance on Capital Punishment

“You cannot make the death penalty more ethical. Look at the data.

“Not only is it disproportionate to minorities, innocent people have been sentenced to death and executed.

“I won’t even touch on my moral opposition to the death penalty, although I will say it’s based in the New Testament. (Surprising how many religious zealots support killing another human being.)

“Bad lawyers, overzealous prosecutors, mistaken witnesses, flawed forensic testing. Anger, hate ……..The list goes on and on in what fuels an imperfect “punishment.”

“If your goal is to find ways to correct flaws within the death penalty you may want to change your paradigm to something like:

      1. Finding ways to protect our children from being abused and growing up exposed to violence.
      2. Finding ways to successfully treat mental illness before violence occurs.
      3. Finding ways to educate our children and protect them from the violence and exposure to drugs in our community.
      4. Finding ways to help parents raise their children in a safe and loving environment.

“The list can go on and on …. I can’t change your belief system but I certainly hope you take a look your goal and redefine in a way that changes things for the better.”

 

 

 

1.  Inequality in Results: Unequal Outcomes in Capital Cases

Recently the Orlando Sentinel Editorial Board changed the paper’s official stance on the death penalty in Florida in an editorial entitled “It’s time for Florida to get rid of the death penalty,” and published on November 22, 2019.

Part of their argument includes a comparison of Terry Lenamon’s defense in the recent Markeith Loyd trial, where the defendant was spared death, with the jury recommendation of death for Everett Miller, convicted of killing two Kissimmee police officers.  The two jury verdicts came down within weeks of each other.

From the Sentinel editorial:

No law should stand if it consistently produces such unequal outcomes, though there are many other reasons Florida should abolish the death penalty.  It does not deter murder. It disproportionately affects the poor and minorities. It drains the state budget.  And its haphazard application has resulted in 29 condemned inmates having their death sentences overturned.

Point to Ponder:  Not every death penalty defendant is represented by defense counsel of Terry Lenamon’s caliber.  What happens when capital punishment does not appear to be evenly applied?  How can justice be served?

For more, read:

 

2.  Risk of Executing the Innocent

Yesterday, the Miami Herald published an opinion piece written by Harry L. Shorstein, former state attorney for the Fourth Judicial District (5 terms) and now in private practice.  Entitled “Don’t let Florida execute James Dailey, Gov. DeSantis. He might be innocent,” Mr. Shorstein argues against the execution of Florida Death Row inmate James Dailey, asking that Governor DeSantis grant clemency.

Shorstein argues against the death penalty in this particular case because Dailey’s conviction was based in large part upon the suspect testimony of a “jailhouse snitch” with a past history as a con artist as well as being a registered child-sex offender.

From the Shorstein piece:

Floridians have differing views about the death penalty. But everyone agrees that if we are to have the death penalty, it must be fair and reliable. The process in Dailey’s case was neither.  I believe that police and prosecutors do their very best and, in the majority of cases, they get it right. But human beings are imperfect. Sometimes the system fails. Since 1973, 166 people in the United States have been exonerated and freed from Death Row. Florida has had the most death-penalty exonerations of any state in the nation, with 29.  The risk of executing an innocent person is real. There is powerful evidence that Dailey is innocent. There was never any eyewitness or forensic evidence implicating him.

Point to Ponder:  Evidentiary hearings at the trial level can make all the difference in a capital case.  Innocent defendants without aggressive advocates can end up facing convictions and death sentences that may fail no matter how zealous the advocacy on appeal.  In most death penalty cases, defense lawyers are being paid by the state because the defendants are indigent.  How do budget constraints impact the death penalty case?

For more, read:

State Execution Methods and Federal Executions

Meanwhile, up in Washington, D.C., the Supreme Court of the United States has denied the federal government’s request for four federal executions to proceed.  The SCOTUS Order in Barr v Roane is short, and unsigned, but it is accompanied by a Statement from Justice Alito, who is joined by Justices Grosuch and Kavanaugh.

SCOTUS returns the case to the U.S. Court of Appeals for the D.C. Circuit, where the appeals court is encouraged to rule quickly.  SCOTUS refused the Justice Department’s request to overturn a lower court decision blocking these four executions and makes it clear that the federal government’s execution method must be resolved within the courts before federal executions can proceed.

Justices Alito, Grosuch, and Kavanaugh explain:

[T]he District Court enjoined the Bureau of Prisons (BOP) from carrying out these executions based on its interpretation of a statute, 18 U. S. C. §3596(a), directing that federal executions be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.” This means, the Government contends, that the mode of execution (i.e., by lethal injection, electrocution, etc.) must be the same as that called for under the law of the State in question, but the District Court held instead that a federal execution must follow all the procedures that would be used in an execution in that State— down to the selection of the way a catheter is inserted.

Point to Ponder:  Another real concern in death penalty cases is how executions are carried out.  State laws vary on the execution methods, from electric chairs to gas chambers to lethal injection.  While lethal injection has predominated executions in recent memory, more and more this method of killing is being questioned and challenged.  Of note: the lack of certain drugs forcing states to change their “cocktail” protocols.  How can an execution ethically and humanely take place?  Are the evolving lethal injection protocols cruel and unusual punishment?

For more, read:

 

California Governor Gavin Newsom Blocks Capital Punishment Throughout the State, Ending Death Penalty in a Single Order

In Florida, Texas, and most other states where prosecutors are given the option of seeking the death penalty (as are federal prosecutors under federal law), the focus is upon the individual case.  Will the state ask for death?  Will it file its Notice of Intent to Seek the Death Penalty?  If so, then the defense team responds.  Both in the guilt phase and the sentencing trial, the capital defense lawyers fight to stop the death penalty from being imposed upon the defendant.

Note: for details on how the state can move back and forth on seeking the death penalty, read Terry Lenamon’s experiences as a defense lawyer in the Casey Anthony case in his memoir, Heinous, Atrocious and Cruel: Casebook of a Death Penalty Attorney. 

This month, the State of California reminds us that the ability to stop the death penalty can and does lie with one person, whose executive decisions are powerful enough to block executions as well as prosecutorial requests for capital punishment.  By one signature, the death penalty is off the table in pending cases (and future ones) and Death Row residents have hope restored.

Here is how that happens; see the Executive Order signed by California Governor Gavin Newsom on March 13, 2019 (full text below).  The Newsom Order does three huge things, as it:

  1. declares a moratorium on executions of California’s 737 inmates on death row;
  2.  orders a withdrawal of California’s lethal injection protocol; and
  3.  calls for the immediate closure of the execution chamber at San Quentin State Prison.

 The only thing we don’t see here is the Governor ordering a Death Row resident to be freed outright, or for the change of any existing Death Row sentence.

This is Not Permanent: The Order Will Expire

Many hail this as a tremendous victory for those who oppose the death penalty.  And it is.

However, we all have to remember that this is not a permanent change.  The Executive Order lives for the term of the current governor’s time in office.  New election with a new person in that office?  Things can change.

Full Text of Governor Newsom’s Order Ending California’s Death Penalty

Here is the full text of the Governor’s Order: 

EXECUTIVE DEPARTMENT STATE OF CALIFORNIA

Executive Order N-09-19

WHEREAS, California’s death penalty system is unfair, unjust, wasteful, protracted and does not make our state safer.

WHEREAS, the state’s bedrock responsibility to ensure equal justice under the law applies to all people no matter their race, mental ability, where they live, or how much money they have.

WHEREAS, death sentences are unevenly and unfairly applied to people of color, people with mental disabilities. and people who cannot afford costly legal representation.

WHEREAS. innocent people have been sentenced to death in California. Moreover, the National Academy of Sciences estimates that as many as one in 25 people sentenced to death in the United States is likely innocent.

WHEREAS, since 1978, California has spent $5 billion on a death penalty system that has executed 13 people.

WHEREAS, no person has been executed since 2006 because California’s execution protocols have not been lawful. Yet today, 25 California death row inmates have exhausted all of their state and federal appeals and could be eligible for an execution date.

WHEREAS, I will not oversee execution of any person while Governor.

NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the Constitution and statutes of the State of California, do hereby issue the following order to become effective immediately:

IT IS HEREBY ORDERED THAT:

1 . An executive moratorium on the death penalty shall be instituted in the form of a reprieve for all people sentenced to death in California. This moratorium does not provide for the release of any person from prison or otherwise alter any current conviction or sentence.

2. California’s lethal injection protocol shall be repealed.

3. The Death Chamber at San Quentin shall be immediately closed in light of the foregoing.

IT IS FURTHER ORDERED that as soon as hereafter possible, this Order shall be filed with the Office of the Secretary of State and that widespread publicity and notice shall be given to this Order.
This Order is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its departments, agencies, or other entities, its officers or employees or any other person.

 

Governor of California

ATTEST:

ALEX PADILLA Secretary of State

 

 

 

 

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: