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

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

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

 

It’s true that there have been two state governors who recently halted executions in their state, pointing to the pending action by the U.S. Supreme Court.  

Both the governor of the State of Ohio and the governor of Pennsylvania have used their executive power to stop any executions from happening in their two states, at least for the time being.  (Of note, Pennsylvania hasn’t executed anyone since 1999.)

And, it’s true that the State of Oklahoma has had its executions stayed.  This halt is also due to recent activity before SCOTUS.

However, it’s important to recognize that this isn’t signaling the halt of capital punishment in this country.  

SCOTUS may have undertaken review of lethal injection as a method of capital punishment when a part of that lethal injection cocktail involves using midazolam, but the Supreme Court hasn’t gone so far as to stop the death penalty itself in this country.  

Midazolam is one of the drugs used in the Florida lethal injection procedure.  Florida had an execution scheduled for February 26, 2015, but there was a move to stay that execution based upon the pending case before the Supreme Court.

The Florida Supreme Court granted that motion to stay, filed by Jerry William Correll’s counsel, earlier today.

Read the Florida Supreme Court’s Order Granting Stay here.

SCOTUS Allowed Two Death Penalty Executions Already This Year

Texas got the green light to execute Robert Ladd last month from SCOTUS.  Georgia also went ahead with the execution of Warren Hill after SCOTUS declined to grant writ in that case.  

States Considering Capital Punishment 

Moreover, capital punishment is being considered as a form of punishment in at least one state right now.   Michigan is considering instituting capital punishment.

States Considering Other Forms of Execution

Other states are considering other ways of execution in case lethal injection proves to be too difficult, constitutionally (or practically, given the limited supply of drugs).  

  1. Wyoming is considering the firing squad.
  2. Utah is considering the firing squad, as well.  
  3. Oklahoma is considering the gas chamber.

It’s not over and it looks like SCOTUS is making it clear that we shouldn’t misread its granting of writ in the Oklahoma case as being a bigger signal than it is.  

 

 
Image:  San Quentin Execution Chamber

 

The State of Georgia executed Warren Hill today, despite arguments that Mr. Hill was intellectually disabled.  Last minute arguments made to the Supreme Court were unsuccessful.  

 

The Supreme Court issued orders today in the Hill case are important to all death penalty defense issues as hints regarding how the High Court will be ruling in future cases involving capital punishment. 

There were only two dissents in the Warren Hill matter. Justices Breyer and Sotomayor would have granted the stay of execution.   

Read the SCOTUS orders here and here. 

Hill’s argument was that the case of Hall v. Florida should apply to his case to find unconstitutional Georgia’s law that there only be proof beyond a reasonable doubt that he is so severely intellectually disabled to be executed.  

Interesting point to consider:  Hill was executed by lethal injection.  The Supreme Court has agreed to hear the case of Glossip v. Gross, where it is argued that lethal injection drug procedures are unconstitutional as cruel and unusual punishment.

 

Up in Tallahassee, there’s a new bill that will be considered in the 2015 session of the Florida House:  if it is passed into law, it will force the State of Florida to reveal the names of those people who act as executioners in Florida death penalty executions.

Right now, no one knows who these people are. This is not traditional, historically.

While there were those black-hooded executioners, the identity of most executioners over time has been known to the public. The man who beheaded Lady Jane Grey, for instance, was not secret (read an eyewitness account of that execution, where her last conversation was with her executioner).

Ditto those who took Marie Antoinette to the French Guillotine (her execution seen in the image below)

 

Florida Bill HB 4003

If HB 4003 is passed, then those who want to do away with capital punishment think that they will be one step closer to ending the death penalty in Florida. Why? Well, for one thing, Florida executes with lethal injection and we would all know the amount of medical training (or lack thereof) of the state executioners.

Remember Oklahoma’s botched lethal injection execution? It’s a big question now in that state — what training or expertise did that executioner have?

Here is the synopsis of the proposed law to reveal the name and identity of Florida executioners (for the full 36 page text of the proposed law go here):

HB 4003 — Death Penalty

Death Penalty: Deletes provisions providing for death penalty for capital felonies; deletes associated provisions, including provisions relating to representation in death penalty cases, capital collateral representation, jurors in capital cases, prohibiting imposition of death sentence on defendant with mental retardation, determination of whether to impose sentence of death or life imprisonment for capital felony or capital drug trafficking felony, issuance of warrant of execution, stay of execution of death sentence, proceedings when person under sentence of death appears to be insane, proceedings when person under sentence of death appears to be pregnant, grounds for death warrant, execution of death sentence, prohibition against reduction of death sentence as result of determination that method of execution is unconstitutional, sentencing orders in capital cases, regulation of execution, transfer to state prison for safekeeping before death warrant issued, return of warrant of execution issued by Governor, sentence of death unexecuted for unjustifiable reasons, & return of warrant of execution issued by Supreme Court.

 

 

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

 

 

 
 
This week, the Associated Press did a nice job of listing the various problems that the lethal injection method of execution has had since it was first used by the State of Texas in 1982.  You can read this reporting here, “Some Lethal Injection Problems in US Executions.”
 
Needless to say, the botched executions that have happened in 2014 are far from the first problems that have resulted while executing a human being by injecting them with chemicals.  It’s an execution method that may be viewed in future years as heinous, cruel, and just plain wrong.  Hints of this include the growing alarm being voiced by medical professionals to lethal injections.  
 
Terry Lenamon has had a longstanding concern about this method of execution — especially when states turned to drugs that vets commonly use to put down pets. See our earlier posts for more on this, including “As These Words Are Being Typed, Ohio Is Killing Ken Biros in an Unvetted Execution Method, Unless You Count Euthanasia of Dogs as Vetting.”
 
However, instead of halting executions it appears that capital punishment continues in Texas, Florida, and other states without apparent concern for these lethal injection methods.   Texas has scheduled another execution using lethal injection – the first since April 2014.
 
 
As for what is going to be used for execution?  We don’t know.  
 
 

Is anyone else concerned about this?  

Is anyone else thinking that there’s a constitutional problem with both the secrecy as well as the methodology?
 

 

Several years ago, Dr. Marc Stern resigned from the Department of Corrections for Washington State, where he worked as its chief medical officer, because he could not jive his professional ethics as a physician with the state’s use of capital punishment.  
 
It’s a big dilemma in the use of lethal injections, particularly, as a means of execution since physicians are committed to health and saving lives, not ending them.  
 
 
 
Image:  States in red have had an execution since 1976.
 
Doctors are against the death penalty, and as Dr. Stern personifies, many also stand against physicians being involved in the supervision of others in any form of execution process (not just lethal injections). 
 
Dr. Stern Explains The Doctor’s Dilemma Regarding the Death Penalty
 
 
You can read about Dr. Stern’s resignation in an 2008 piece written by Adam Wilson for the Seattle Times here.
 
To learn more about Dr. Stern’s position on the Death Penalty, particularly in light of recent botched executions, read his Op-Ed piece published last month in the Guardian, “I was told to approve a lethal injection, but it violates my basic medical ethics.”
 

On June 19, 2014, the State of Florida executed John Ruthell Henry, rounding out a 24 hour period where three different executions took place in the United States — the first executions since that horrible event back in April, where Oklahoma’s lethal execution went terribly wrong.  

The United States Supreme Court declined to act in any last-minute blocking of the June 19th execution, despite concern by many that Henry was not mentally competent to undergo capital punishment.  (See our earlier post, "Will Florida Execute John Ruthell Henry Next Week?".) 

Apparently, lethal injections are still going strong in the United States despite what happened in April — and regardless of the controversy over using these drugs as ways to kill people.

Tuesday was a horror:  Clayton Lockett was seen to writhe, clench his teeth and fight against his gurney restraints as the State of Oklahoma’s lethal injection execution took place.  

Oklahoma officials halted the execution after seeing that the untested use of midazolam in the lethal drug cocktail might not be working properly (duh) but this apparently came too late.  Not only was there obviously suffering on the part of Lockett, he died of a heart attack shortly thereafter.

Now, there is growing outrage about what happened during the Lockett execution.  

Thing is, all eyes are on Oklahoma.  But while Oklahoma used midazolam as the first part of cocktail, 100 milligrams, it’s not like this drug has never been used in lethal injections before.

 Florida uses it  already — 500 milligrams of midazolam goes into Florida’s lethal injection cocktail.  

See our earlier posts on the lethal cocktail issue, including:  

1.  Thomas Knight Execution Using Midazolam Hydrochloride: Will It Take Place? Florida Supreme Court Hearing Set for December 18.

2.  Florida Executions Continue With Untested Drug Combo as Darius Kimbrough Executed with Midazolam Hydrochloride

3.  Pentobarbital Shortage: Texas Supplier Asks for His Product Back; Florida Will Use New Drug Midazolam Hydrochloride in October 15 Execution

 

On Oklahoma’s Death Row, two men who were set to die either this week or next week have had their executions extended because the State of Oklahoma has not been able to find the necessary drugs for the lethal injection executions.

Meanwhile, the State of Texas went ahead with its lethal injection execution of Ray Jasper yesterday. Texas also has another execution planned for March 2014 — and next week’s execution will be the last lethal injection execution before Texas starts using a different supplier’s pentobarbital product –– a mysterious supplier whose identity remains unknown as state officials have denied media access to the supplier’s identity under arguments that doing so would endanger the company or its personnel.

And today, just a few hours ago, the State of Florida executed Robert Lavern Henry by lethal injection at Florida State Prison for murders that happened over 26 years ago.