Executions

LETHAL INJECTION: Shortage of Drugs Leaves Texas Unsure About Future Executions

On August 1, the Texas Department of Criminal Justice announced its remaining supply of pentobarbital, used for lethal injections, expires in September, and it is unsure where to obtain more. The drug's manufacturer, Lundbeck, Inc., has barred distribution to states intending to use the drug in executions. DPIC’s Executive Director, Richard Dieter, remarked, “What’s happening is a scramble by Texas and other states to find something to quickly get into the syringe, rather than a reasoned public discussion about, if we’re going to do this, what is the best practice. The problem here is that life-saving drugs used by medical professionals are being used in executions, and the drug companies don’t want to be a part of that.” In recent months, other states have sought alternatives to pentobarbital. Missouri said it intended to use propofol, though its manufacturer also opposed such use. Georgia, Arkansas, Nebraska, California and other states are also reviewing execution procedures in response to problems with earlier protocols.  On August 1, a federal District Court in Florida ordered the state to reveal information about the drugs to be used in the upcoming execution of John Ferguson on August 5. Florida replied that it received doses of pentobarbital manufactured by Hospira, Inc. for Lundbeck, Inc. from Cardinal Health in Ohio. The drugs were received in 2011 and have expiration dates of Sept. 30 and Nov. 30, 2013.

MILITARY DEATH PENALTY: Armed Services Rarely Carry Out Executions

Criminal cases in the U.S. Military are conducted in special courts and under laws that differ from the rest of the country's justice system. Executions in this system are extremely rare. There have been no executions since 1961. "The military is a community of solidarity, a brotherhood and sisterhood, all to its own," said Teresa Norris, a former military defense lawyer who still represents a soldier on death row. "There is a real reluctance to execute fellow soldiers unless it's absolutely the worst kind of case and this is the only way." In 1983, a number of death sentences were commuted to life when a military appeals court found the military death penalty unconstitutional. The law was revised in 1984. One of the most significant concerns about capital punishment in the military is the decentralized nature of its judicial system. Dwight Sullivan, a former Marine prosecutor, said, "Even if you have 2 identical cases, one being prosecuted by one commander at one base and the other being prosecuted by a commander at another base, you may have different outcomes because the commanders may have different philosophies.” There are currently five inmates on the military death row in Fort Leavenworth, Kansas, all of whose cases are under legal review. Three are black, two are white. The trial of Army Maj. Nidal Hasan, a psychiatrist charged with a deadly shooting rampage at Fort Hood, Texas, is scheduled to begin August 6.

UPCOMING EXECUTION: Florida's Narrow Interpretation of Mental Competency Leads to New Date

UPDATE: Ferguson was executed on Aug. 5. Florida has set an August 5 execution date for John Ferguson, a death row inmate who has suffered from severe mental illness for more than four decades. As far back as 1965, Ferguson was found to experience visual hallucinations. He was sent to mental institutions and was diagnosed as paranoid schizophrenic, delusional, and aggressive. In 1975, a mental health doctor described Ferguson as “dangerous and cannot be released under any circumstances.” Nevertheless, he was released less than a year later. Ferguson believes he is the "Prince of God" and is being executed so can save the world. Ferguson's attorneys recently filed a petition with the U.S. Supreme Court, asserting that Florida courts have applied the wrong standard for mental competency, ignoring the current interpretation of this issue by the High Court, which requires that an inmate have a rational understanding of why he is being executed. An earlier editorial in the Tampa Bay Times opposing Ferguson's execution, agreed, “Florida is embracing an interpretation of competency for execution so pinched that it would virtually extinguish limits on executing the severely mentally ill. The state says Ferguson is aware that he is being put to death and that he committed murder, and is therefore competent to be executed.”

LETHAL INJECTION: Appeals Court Rules FDA Violated Its Duties When Permitting Shipment of Unapproved Drugs

On July 23, the U.S. Court of Appeals for the District of Columbia Circuit unanimously affirmed a lower court ruling that the Food and Drug Administration (FDA) failed to fulfill its duties under the Food, Drug, and Cosmetic Act (FDCA) when it permitted without inspection the importation of foreign drugs for use in lethal injections. The Court concluded, "The FDCA imposes mandatory duties upon the agency charged with its enforcement. The FDA acted in derogation of those duties by permitting the importation of thiopental, a concededly misbranded and unapproved new drug, and by declaring that it would not in the future sample and examine foreign shipments of the drug despite knowing they may have been prepared in an unregistered establishment." In 2009, the last U.S. manufacturer of sodium thiopental announced it would cease production of the drug commonly used by states in lethal injections. Some states then turned to international manufacturers and imported drugs which were not approved by the FDA. The ruling rejected the FDA’s claim that it had discretion to allow unapproved drugs into the U.S.  Read full text of the ruling.

UPCOMING EXECUTION: Mentally Ill Inmate Asks for Execution in Alabama

Andrew Lackey is scheduled for execution in Alabama on July 25, despite suffering from mental illness his entire life. Lackey asked for an execution date, even though neither his state nor federal appeals have been completed. Despite extensive evidence of serious mental problems, the trial judge refused to order an expert competency evaluation, failed to inquire about medications he is taking and how they affect his mental state, and did not ask state officials about their diagnosis of Lackey’s mental condition. After a failed suicide attempt, Lackey asked the state to carry out his execution. Attorneys at the Equal Justice Initiative, who had represented Andrew Lackey, recently argued that the judge should not have permitted him to waive his appeals until his mental competency was properly evaluated.

Georgia Judge Finds State's Lethal Injection Secrecy Law Interferes With Constitutional Rights

On July 18, a Georgia Superior Court judge ruled that the state’s new law shielding the source of lethal injection drugs interfered with Warren Hill’s right to challenge his method of execution and is therefore probably unconstitutional. According to the law, information pertaining to drugs used in executions is classified as “confidential state secrets” and cannot be disclosed. Judge Gail S. Tusan said the law " "To be executed without being aware of basic information regarding the protocols the State will use to carry out such an execution is surely an irreparable harm." Moreover, she said neither Warren Hill “nor the general public, has sufficient information with which to measure the safety of the drug that would be used to execute [Hill], as there is insufficient information regarding how it was compounded.” Judge Tusan concluded that the law improperly interfered with the court's duty to make a judgment about the planned execution: "[the law] explicitly exempts from judicial review the very information that would be necessary for a court to determine the constitutionality of an inmate’s execution." The court stayed the execution of Hill, who also has a petition before the U.S. Supreme Court regarding his mental retardation.

NEW RESOURCES: Bureau of Justice Statistics Reports Declining Use of Capital Punishment in 2011

The Bureau of Justice Statistics recently released its annual review of the death penalty in the U.S., focusing on 2011. The report noted the continued decline in the use of the death penalty in recent years. In 2011, 80 new inmates were received under sentence of death, the lowest number since 1973, and a 27% decrease from the year before. Executions also declined to 43, compared with 46 in 2010. The average time between sentencing and execution in 2011 was 16.5 years, 20 months longer than for those executed in 2010. The number of people on death row in the U.S. dropped to 3,082, marking the eleventh consecutive year in which the size of death row decreased. Florida, California, Texas, and Arizona accounted for half of all inmates sentenced to death. The report noted that in 2011 Illinois became the latest state to abolish the death penalty.

LETHAL INJECTION: California Abandons Defense of Its Execution Procedures

On June 10, California announced it would no longer try to defend its current lethal injection protocol.  In May, a court ruling invalidated the state’s three-drug lethal injection protocol because state officials failed to follow administrative rules in adopting the protocol. Governor Jerry Brown and other officials will instead proceed with developing a single-drug lethal injection protocol similar to those adopted recently in states like Ohio, Arizona, and Washington. California has the largest death row in the United States with more than 725 inmates. The state has not carried out an execution since 2006 because of legal problems with its three-drug lethal injection protocol. Executions are unlikely to resume immediately since it could take a year or longer to approve the new single-drug protocol. Even if the single-drug method is approved, the state could face the additional challenge of securing supplies of the drugs because manufacturers object to their use in lethal injections.

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