Virginia Executes Inmate with Appeal Still Pending Before Supreme Court

On October 1, Virginia executed Alfredo Prieto (pictured) before the U.S. Supreme Court had decided whether to grant a stay on his challenge to Virginia's use of an execution drug obtained from Texas Department of Criminal Justice. Robert Lee, Prieto's attorney, said, "The Justices of the Supreme Court of the United States were considering Mr. Prieto’s request for a stay of execution but the Virginia Department of Corrections went ahead with the execution without waiting for a decision from the Justices." Earlier in the day, U.S. District Court Judge Henry Hudson held a hearing on a challenge to Virginia's lethal injection procedure. Virginia used compounded pentobarbital obtained from Texas, without any inquiry into the manufacture, purity, or storage of the drug. Prieto's lawyers raised questions about the safety and efficacy of the drug. Hudson denied the appeal and lifted a preliminary injunction that had put the execution on hold. The U.S. Court of Appeals for the 4th Circuit denied Prieto's appeal of this issue. Prieto's lawyers then filed a petition for review with the U.S. Supreme Court, but Virginia carried out the execution before the Court could issue a decision. The last time a state executed an inmate with appeals still pending was January 29, 2014, when Missouri executed Herbert Smulls.

One Year After Botched Execution, Many States Still Haven't Resumed Executions

On July 23, 2014, Arizona's execution of Joseph Wood was botched, taking nearly two hours from the time the state began injecting him with lethal drugs until he was finally pronounced dead. Witnesses reported that Wood gasped more than 640 times during the course of the execution, and an official report later revealed that he was injected with 15 doses of the execution drugs. Michael Kiefer, a reporter for the Arizona Republic, who witnessed Wood's execution, described it, saying, "He gulped like a fish on land. The movement was like a piston: The mouth opened, the chest rose, the stomach convulsed." Arizona used a combination of midazolam, the drug recently reviewed by the Supreme Court in Glossip v. Gross, and hyrdromorphone, a narcotic. Wood's lawyer, Dale Baich, describing the execution, said "The experiement failed." The same drug protocol had been used in Ohio's botched execution of Dennis McGuire earlier in 2014 and witnesses to an October 2014 execution by Florida using midazolam reported that the death took longer than usual. In the year since Wood's execution, Arizona has not carried out any executions as a stay issued by a federal judge remains in place. In that time, Oklahoma and Florida have used midazolam in a total of three executions, with Charles Warner in Oklahoma saying "My body is on fire." Both states temporarily put executions on hold while the Supreme Court review was underway, but indicate they intend to resume executions now that the use of midazolam has been upheld. An Oklahoma federal court has scheduled a trial for 2016 on Oklahoma's use of midazolam. All other executions since Wood's have used a one-drug protocol of pentobarbital, likely obtained from compounding pharmacies, since the primary manufacturer of the drug opposes its use in executions. Ohio delayed all executions until at least 2016 to review executions procedures, and executions in Tennessee are on hold because of legal challenges to its lethal injection protocols. Georgia is conducting an investigation into problems with execution drugs and has not set new execution dates as a result.

Missouri Execution Clouded by Concerns About Mental Illness and Lethal Injection

On June 9, Richard Strong was executed in Missouri, despite the fact that four Justices of the Supreme Court would have granted him a stay and despite evidence that he suffered from severe mental illness. A broad challenge to Missouri's secretive lethal injection process (Zink v. Lombardi) has yet to be resolved, and Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to stay Strong's execution because of that challenge. However, five votes are needed to stay an execution. In addition, Strong's original trial counsel failed to adequately explore his mental illness and the mental problems in his family. After a fuller investigation, Strong was diagnosed with major Axis I illnesses, including: Major Depression, Obsessive-Compulsive Disorder (OCD), Post-Traumatic Stress Disorder (PTSD) and Schizotypal Personality Disorder, and Dissociative Identity Disorder. Strong's counsel asked the Supreme Court to spare his life because society's standards of decency have turned away from executing people with such severe mental problems. Strong was convicted of murdering his wife and two-year-old daughter in a brutal manner. He acknowledged the crime but could not understand why he did it. Another child was left untouched. Now 14 years old, she pleaded for mercy for her father. Gov. Jay Nixon denied clemency.

Florida's Troubled History With the Death Penalty

A recent retrospective in the Fort Myers Florida Weekly on the state's death penalty traced some of the problems that have arisen since Florida resumed executions in 1979. During the execution of Jesse Tafero in 1990, six-inch flames shot from the prisoner’s head, and three separate jolts of electricity were required to kill him. Prison officials attributed it to “inadvertent human error.” In the execution of Pedro Medina in 1997, flames and smoke again spewed out from under the head gear. Ron McAndrew, the warden at the time, recently remarked, “For the next 11 minutes, instead of electrocuting this man, we burned him to death. We literally burned him to death.” Florida Supreme Court Justice Leander Shaw called such executions “barbaric spectacles” and said they were “acts more befitting a violent murderer than a civilized state.” Florida also has more exonerations (24) from death row than any other state. It is the only state that allows a jury to recommend a death sentence by a simple majority; most states require unanimity. The state's recent passage of the Timely Justice Act, designed to speed up executions, has raised concerns that it will reduce death row inmates' opportunities to prove their innocence.

Lawsuit Following Botched Oklahoma Execution Names Participating Doctor

On October 14 a lawsuit was filed by the family of Clayton Lockett (l.) against the state of Oklahoma for damages related to his botched execution in April. The suit alleges “unsound procedures and inadequately trained personnel” and claims that Dr. Johnny Zellmer was the physician present at Lockett's execution. The family asserts that Zellmer, “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.” Oklahoma law makes the names of its execution team, including participating doctors, secret. In Lockett's execution, most of the execution team was out of view of witnesses, but the doctor who pronounced death was visible. Oklahoma has delayed all executions for the remainder of 2014 in order to allow time to obtain lethal injection drugs and prepare personnel. The state revised its execution protocol and remodeled its execution chamber after Lockett's execution, but retained the controversial drug midazolam and secrecy surrounding the sources of drugs and personnel.

Botched Execution Results in $100,000 Renovation and Fewer Media Witnesses

The Oklahoma Department of Corrections recently gave the media a tour (see video here) of its newly renovated execution chamber. The state spent over $100,000 updating the rooms in response to the botched execution of Clayton Lockett in April. Among the changes are a new gurney (an "electric bed"), a new intercom, and an atomic clock. Previously, communications included colored sticks pushed through a wall, with a red stick indicating something had gone wrong. Correctional officials were secretive about the participation of medical personnel, citing ongoing litigation. The state has said it will reduce the number of media witnesses from twelve to five. The ACLU and two media outlets have asked a judge to stop the state from reducing the number of media witnesses. "They took a process already corrupted by secrecy that had already led to at least one botched execution, and managed somehow to make it even more difficult for the people of Oklahoma and their representatives in the media to know anything about that process," said Ryan Kiesel, executive director of the American Civil Liberties Union of Oklahoma. (Image: The Guardian, link to video in text above).

Missouri Inmates Were Given Controversial Drug Before Executions

An investigation by St. Louis Public Radio has revealed that Missouri has been administering Midazolam to inmates prior to their execution since November 2013. Midazolam is a sedative that was used in all three of this year's most seriously botched executions in Ohio, Oklahoma, and Arizona. Missouri officials had testified earlier that the state had not used Midazolam in executions and did not plan to use it. New documents, however, show that the drug was given to inmates as a sedative before the execution began, without the presence of witnesses. George Lombardi, director of the Missouri Department of Corrections, said the sedative could be given before an execution at the request of the inmate, the state, or the execution team. In two cases, inmates were given both Midazolam and valium in quantities that one medical expert, Dr. Karen Sibert, said would make it difficult to arouse the prisoner, and would tend to cause someone, "to be so deeply asleep that your airway might obstruct." Cheryl Pilate, an attorney who has represented several death row inmates in Missouri, said, "It’s very disturbing that Midazolam hasn’t been disclosed. State law requires drugs in protocol to be disclosed. There may be a serious violation of state law going on." Noting that in at least one instance Midazolam was administered about 10 minutes before the execution witnesses were ushered in, she added, "The public is denied the opportunity to witness an execution through the press."

Oklahoma's Own Investigation Points to Only Minor Problems in Botched Execution

On September 4, Oklahoma released a report from its investigation into the botched execution of Clayton Lockett. The review, which was conducted by investigators from the Oklahoma Highway Patrol, found several problems that may have contributed to the prolonged execution attempt on April 29. The execution was stopped by the warden, curtains were drawn in the chamber, but the inmate died afterwards, reportedly from the residues of the lethal drugs in his system. The state report found insufficient training of corrections officials, communication difficulties between those inside and outside the execution chamber, and a lack of contingency planning in case problems arose. The direct cause of the botched execution, according to the report, was the improper insertion of the IV, combined with the fact that the IV site was hidden from view and was not monitored throughout the execution process. The report offered eleven recommendations for future lethal injections, including observation of the IV insertion point, ongoing training for the execution team, established contingency plans and backup execution supplies in case of problems, and improved communications. Dale Baich, an attorney for Lockett, said, "The state’s internal investigation raises more questions than it answers. The report does not address accountability. It protects the chain of command. Once the execution was clearly going wrong, it should have been stopped, but it wasn’t. Whoever allowed the execution to continue needs to be held accountable."