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.

NEW VOICES: Arkansas Attorney General Says State Death Penalty "Completely Broken"

Arkansas Attorney General Dustin McDaniel recently said the state’s death penalty system was “completely broken” and recommended it be abolished if the state's execution method isn't changed. McDaniel said, “It’s time for the policy makers of Arkansas to say, ‘Do we continue with a broken system and throwing money and resources at essentially pointless litigation, or do we modify the system?’ And there’s only really two modifications that I see available — it’s either abolish the death penalty or change the method of execution.” He added, “Frankly, I don’t think we are telling jurors the truth when we lead them to believe that they are sentencing someone to death when we really don’t have a viable system with which to execute someone.” In speaking to the Sheriffs Associaton, he criticized the state’s lethal injection protocol because there are no execution drugs available and because of the difficulty in getting physicians to participate in executions. Arkansas currently has 38 inmates on death row. The state's last execution was in 2005.

EXECUTIONS: As of Mid-Year 2013, Pace of Executions Continues to Decline

In the first half of 2013, six states carried out 18 executions. In the same period last year, there were 23 executions in 8 states. The annual number of executions has declined significantly from its peak in 1999, when 98 people were put to death. There were 43 executions in 2011 and 2012. Sixteen of this year's executions (89%) have been in the South, with nearly half in Texas (8). Eight of the defendants executed so far this year were black, and ten were white. Seventy-three percent (73%) of the victims in cases resulting in executions this year were white, even though generally whites are victims of murder in less than 50% of the cases. All of the executions in 2013 but one have been by lethal injection. (Robert Gleason chose to be executed by electrocution in Virginia in January.) All of the lethal injections were carried out using pentobarbital, either in a single or multiple-drug protocol.