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On May 13, the pharmaceutical company Pfizer announced that it would impose strict distribution controls to block states from obtaining and using its medicines in executions. In a statement, the company said, "Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment." With Pfizer's announcement, every major pharmaceutical company that produces drugs that have been used in lethal injections has voiced opposition to involvement in executions. The pharmaceutical companies are joined by medical organizations including the American Pharmacists Association, the International Academy of Compounding Pharmacies, and the American Medical Association, which all oppose their members' participation in executions. “It’s very significant that the pharmaceutical industry is speaking with a unified, singular voice,” said Megan McCracken, a lawyer at the Death Penalty Clinic at the University of California Berkeley School of Law. “Saying we don’t want our products used this way and actually taking steps to ensure that they aren’t." Pfizer's announcement will make it more difficult for states to obtain lethal injection drugs on the open market and through drug redistributors. The unavailability of execution drugs from these sources has driven states to seek alternative, and in some cases illegal, sources for these drugs, and has caused legal challenges in numerous states.
Newly Disclosed California Corrections Documents Reveal Questionable Practices, Huge Price Tag for Execution DrugsPosted: May 13, 2016
More than 12,000 pages of California prison documents disclosed by court order on May 7 reveal problematic conduct by state officials and the extraordinarily high price tag the state would have paid for lethal injection drugs if it were carrying out executions. The American Civil Liberties Union of Northern California, which obtained the documents after a six-month legal battle, say they show that the California Department of Correction and Rehabilitation (CDCR) significantly understated drug costs, advocated violating federal law in attempting to acquire execution drugs, considered obtaining execution drugs from questionable sources, and downplayed the seriousness of botched executions in other states and the prospects that botches could occur in California. The ACLU requested the documents under the California Public Records Act, saying they were crucial to informed public comment on California's recently-proposed one-drug execution protocol. Among the information revealed in the records were wildly inconsistent estimates of the cost of obtaining pentobarbital—one of four proposed lethal injection drugs. CDCR initially estimated drug costs at $4,193 per execution. Emails indicate that a compounding pharmacy agreed in May 2014 to provide 200 grams of the drug to the state for an initial cost of $500,000, but only if the company's name was kept secret. A second source quoted a price of $1,109 for 500 milligrams of pentobarbital. The emails state that 324 grams would be required to execute the 18 inmates who have exhausted their appeals, for a total cost of $718,632, plus unspecified fees to cover "service costs." The proposed protocol, however, calls for 60 grams: "Estimated chemical costs are based on a total of 60 grams. This includes the 37.5 grams required by the regulations for carrying out the execution plus 22.5 grams used during training." Based on the price quotes from the emails, 60 grams of pentobarbital would cost between $133,080 and $150,000, bringing the cost of 18 executions to $1.06-$1.20 million.
Texas' Third Court of Appeals heard oral argument on May 11 on the state's appeal of a trial court ruling requiring it to reveal the identity of its lethal injection drug supplier in a pair of April 2014 executions. The suit, initially brought on behalf of the two executed prisoners, now implicates Texas' Public Information Act. The prisoners' attorneys argued that identifying the supplier of pentobarbital, the drug used by Texas in executions, was necessary to verify that the chemicals had been prepared correctly and would not cause an unconstitutionally painful execution. Then-Attorney General (now Texas Governor) Greg Abbott said that releasing the drug supplier's identity would present a threat of physical harm, because a previous drug supplier had received hate mail and threats after being identified. In December 2014, District Judge Darlene Byrne rejected Abbott's argument and ordered Texas to disclose the identity of the compounding pharmacy that had prepared the drug. The state appealed that decision. In Wednesday's hearing, defense lawyers characterized the alleged threats as "vague" and nonspecific and said they were no basis to bar public disclosure of the information. Prosecutors, without identifying the source of any threat, argued that the safety of the pharmacy was at risk because, "There's an identifiable group of people who think lethal injection is wrong—morally, politically and socially—and they are determined to oppose it." Chief Justice Jeff Rose raised concerns about the implications of allowing a broad exemption to the Public Information Act, asking, "Where do we draw the line … without blowing a hole in the (Public Information Act) big enough to drive a truck through anytime the government says, 'Well, gee, this can cause harm?'" Justice Bob Pemberton said, "It seems a potentially boundless exemption." The scope of the decision is likely to be limited, because the Texas legislature passed a law shielding execution drug suppliers, which took effect in September 2015.
UPDATE: The U.S. Court of Appeals for the Eleventh Circuit stayed Madison's execution, ordering oral argument on his competency claim. Previously: Alabama is preparing to execute Vernon Madison (pictured) on May 12, as his lawyers continue to press their claim that the 65-year-old prisoner is incompetent to be executed. Defense lawyers say Madison, whom a trial judge sentenced to death despite the jury's recommendation of a life sentence, suffers from mental illness and has additional cognitive impairments, retrograde amnesia, and dementia as a result of strokes in May 2015 and January 2016. The strokes also have caused a significant drop in Madison's IQ, which now tests at 72, within the range the U.S. Supreme Court has recognized as supporting a diagnosis of intellectual disability. In addition, the strokes have left Madison legally blind. In its 1986 decision in Ford v. Wainwright, the Supreme Court ruled it unconstitutional for states to execute mentally incompetent prisoners, whom it defined as people who do not understand their punishment or why they are to be executed. Madison's lawyers have unsuccessfully argued in Alabama's state and federal courts that, because of his mental impairments, he is unable to understand why the state will execute him. An Alabama trial judge ruled earlier this month that Madison is competent, and the court denied his motion for a stay of execution. On May 6, he presented his competency claim to the federal district court, which denied relief on May 10. Madison's lawyers have appealed that ruling. Madison has been on death row for more than 30 years. His conviction for the murder of a white police officer has been overturned twice, once because prosecutors intentionally excluded black jurors from serving on the case and once because the prosecution presented improper testimony from an expert witness. Last week, the U.S. Supreme Court vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Madison's lawyers have sought review of his case in light of Johnson and are also seeking a stay of execution to permit him to litigate the constitutionality of the state's judicial override provisions.
Miami-Dade Circuit Judge Milton Hirsch (pictured) ruled on May 9 that Florida's new death sentencing law violates the state's constitution. Ruling in the case of Karon Gaiter, who is awaiting a capital trial, Judge Hirsch said new law's requirement that at least 10 jurors agree to the death penalty before a defendant can be sentenced to death violated Florida's constitutional requirement that all jury verdicts must be unanimous. "For the ultimate decisions made within the judicial branch of government—guilty or not guilty, life or death—majority rule is insufficient," Hirsch wrote. "We do ask, indeed we insist, that the decisions of capital juries be, in some sense, perfect; for they are, in some sense, final. We ask, indeed we insist, that they reflect the will of all rather than the will of the few or even of the many.... However outrageous a crime, however controversial a case, as Floridians and Americans we ... cannot accede, we will not accede, we have never acceded, to outcomes as to which no more can be said than that some jurors have spoken." Hirsch wrote that the state's previous death penalty statute, which was struck down by the U.S. Supreme Court in Hurst v. Florida, did not raise this constitutional question because the jury's advisory penalty-phase sentencing recommendation "was, in effect, a straw poll" rather than a verdict. Hirsch's decision comes as the Florida Supreme Court considers how Hurst will affect the nearly 400 death row prisoners sentenced under the previous sentencing scheme. The Miami-Dade state's attorney's office said it would appeal Hirsch's ruling.
Just 27% of Houston-area residents prefer the death penalty over life sentences for those convicted of first-degree murder, according to a new report by the Kinder Institute for Urban Research at Rice University. Harris County, the largest county in the Houston metropolitan area, "earned its reputation as the 'death penalty capital of America,'” the report says, "having executed more people since 1976 ... than any other county in the nation." At its peak, Harris County sentenced 44 people to death during a three-year period (1994-1996). However, declining public support for capital punishment has contributed to a drop in the number of death sentences the county imposes. Over the last three years, five people were sentenced to death in Harris County, with no new death sentences imposed in 2015. Texas is experiencing a similar statewide trend: while the state imposed a high of 48 death sentences in 1999, it imposed only two new death sentences in 2015. The percentage of Houston residents who consider the death penalty the most appropriate punishment for murder has "dropped steadily," the report says, including a decline of 12 percentage points since 2008. It attributes the erosion of support for the death penalty to "recent revelations of discriminatory sentencing, innocent persons being freed from Death Row just before their scheduled executions, and botched lethal injections," along with the comparatively greater costs of seeking the death penalty, rather than life imprisonment, which the report says "have risen dramatically." (Click image to enlarge.)
Thirty years after the U.S. Supreme Court's 1986 decision in Batson v. Kentucky prohibited the intentional exclusion of prospective jurors on the basis of race, discrimination in capital jury selection continues to plague the administration of the death penalty across the country. In articles for The Huffington Post and Slate, Angel S. Harris, assistant counsel at the NAACP Legal Defense and Educational Fund, and Robert Smith, a senior fellow at Harvard Law School's Charles Hamilton Houston Institute for Race and Justice, link the continuing exclusion of black jurors in death penalty cases to the legacy of lynching in America. "While Black men are no longer lynched before all-white crowds gathered on the courthouse lawn," as was one of Harris' relatives in Florida, "Black men are all-too-often condemned to death by all-white juries that are produced by prosecutors’ deliberate exclusion of people of color, particularly Black people, from jury service," she wrote. In his Slate article, Smith describes the persistence of race-based use of discretionary strikes by prosecutors in numerous jurisdictions, and notes that "[t]he mix of prosecutorial impropriety and the exclusion of black jurors has always been a potent combination for injecting racial bias into death penalty cases." He and Harris point to studies in Caddo Parish, Louisiana, and Houston County, Alabama showing systemically discriminatory use of discretionary strikes to remove black jurors from service in death penalty cases, recent cases in which the Nevada Supreme Court found racially discriminatory jury selection in Clark County, as well as race-based jury selection practices in such cities as Dallas and Philadelphia. These practices, Smith says, expose "the inextricable ties between race and the death penalty." The successful exclusion of jurors of color also produces less reliable verdicts, Harris says, pointing to studies showing that because, "compared to diverse juries, all-white juries spend less time deliberating, make more errors, rely on implicit biases and consider fewer alternative perspectives." The U.S. Supreme Court is currently considering Foster v. Chatman (defendant Timothy Foster is pictured), a Georgia death penalty case in which prosecutors struck all the black jurors after highlighting and marking their names on the jury list and ranking them against each other in case "it comes down to having to pick one of the black jurors." Prosecutors then argued to the all-white jury to sentence Foster to death to “deter other people out there in the projects.”
Florida Court to Hear Argument on Impact of U.S. Supreme Court Ruling Declaring Death Penalty Process UnconstitutionalPosted: May 5, 2016
On May 5, the Florida Supreme Court will hear oral argument in the case of Timothy Hurst, whose death sentence was overturned in the U.S. Supreme Court's decision Hurst v. Florida. The state court must determine whether the high court's ruling, which struck down Florida's sentencing scheme, entitles Hurst to a new sentencing hearing, reduces his sentence to life without parole, or requires some other outcome. The case may also decide how the Hurst ruling will affect the nearly 400 people on Florida's death row. Hurst's attorneys say he should have his death sentence reduced because, "persons previously sentenced to death for a capital felony are entitled to have their now-unconstitutional death sentences replaced by sentences of life without parole." That position received support in an amicus brief filed by three former chief justices of the Florida Supreme Court, a former state representative, a former prosecutor, and past presidents of the American Bar Association. The justice and legal experts argue that Hurst "held Florida's death penalty statute unconstitutional," and that in such circumstances Florida law requires all death sentences imposed under the statute to be reduced to life without parole. The state attorney general's office has argued that state law requires blanket imposition of new sentences only if the death penalty itself is declared unconstitutional, and that Hurst only declared Florida's method of imposing the death penalty unconstitutional. Florida has the nation's second-largest death row, with 396 people as of January 1, 2016, before the state legislature rewrote the sentencing procedure to require a unanimous jury finding of at least one aggravating circumstance, and at least a 10-2 vote to impose a death sentence.
This week, two decades-old cases involving men with innocence claims reached final resolution: Louisiana inmate Gary Tyler (pictured) was released after 42 years in prison and Paul Gatling was exonerated in New York more than 50 years after his wrongful conviction. Both men had once faced the death penalty. Tyler was convicted and sentenced to death for the fatal shooting of a 13-year-old white boy in 1974 during a riot over school integration. A white mob had attacked a bus filled with black students, including Tyler. After the shooting, Tyler was arrested on a charge of disturbing the peace for talking back to a sheriff's deputy. The bus and students were searched, but no weapon was found. Police later claimed to have found a gun on the bus during a later search. That gun turned out to have been stolen from a firing range used by the sheriff's department. Tyler was convicted and sentenced to death by an all-white jury when he was 17 years old. His death sentence was overturned after the U.S. Supreme Court ruled Louisiana's mandatory death penalty statute unconstitutional in 1976, and his life sentence was recently overturned after the Supreme Court barred mandatory life sentences for juvenile offenders. Tyler was released on April 29, after the district attorney's office agreed to vacate his murder conviction, allow him to plead guilty to manslaughter, and receive the maximum sentence of 21 years, less than half the time he had already served. Mary Howell, one of Tyler's attorneys, said, "This has been a long and difficult journey for all concerned. I feel confident that Gary will continue the important work he began years ago while in prison, to make a real difference in helping to mentor young people faced with difficult challenges in their lives." On May 2, 81-year-old Paul Gatling was exonerated. Brooklyn prosecutors charged Gatling with capital murder in 1963 despite the fact that he did not fit the description of the killer and no physical evidence linked him to the killing. He pled guilty to second-degree murder after his lawyer told him he would get the death penalty if the case went to trial. Governor Nelson Rockefeller commuted Gatling's sentence in 1974 and he was released from prison, but he continued to seek exoneration, in part, because his conviction prevented him from voting. Brooklyn District Attorney Ken Thompson, whose Conviction Review Unit reinvestigated the case, said, "Paul Gatling repeatedly proclaimed his innocence even as he faced the death penalty back in the 60s. He was pressured to plead guilty and, sadly, did not receive a fair trial.... We're here because Mr. Gatling would not let go of his demand to be deemed innocent."
U.S. Supreme Court Orders Alabama to Reconsider Constitutionality of Its Death Penalty Sentencing ProcedurePosted: May 3, 2016
The U.S. Supreme Court has vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and has directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Johnson, represented by lawyers from the Equal Justice Initiative (EJI), had challenged the constitutionality of his death sentence, which was imposed by a trial judge after a nonunanimous jury vote of 10-2 recommending a death sentence, as violating the Supreme Court's decision earlier this year in Hurst v. Florida. According to Johnson's Supreme Court pleadings, the trial court had instructed the jury that it did not need to unanimously agree to any particular fact that would have made Johnson eligible for the death penalty, nor did it have to identify for the court any specific aggravating factors that it found to be present in the case. Hurst ruled that Florida's capital sentencing procedures, which permitted critical factual findings necessary to impose a death sentence to be made by the trial judge, rather than the jury, violated the Sixth Amendment right to a jury trial. Johnson's lawyers argued that Alabama's sentencing scheme suffers from the same constitutional defect and that, "[i]n Bart Johnson's case, like in Hurst, the judge imposed the death penalty based on finding two aggravating factors that were not clearly found by the jury." Bryan Stevenson, EJI's executive director, said that the Court's ruling could have systemic implications: "This ruling implicates all [capital] cases in Alabama. We have argued that Alabama's statute no longer conforms to current constitutional requirements. The Court's ruling today supports that view." In March, an Alabama Circuit Judge barred the death penalty in four cases on the grounds that Alabama's sentencing scheme was unconstitutional. The Supreme Court's decision to order reconsideration of Johnson's case could also affect a court challenge currently pending in the Delaware Supreme Court over the constitutionality of its death penalty statute, which employs similar sentencing procedures. Likewise, defense lawyers in Nebraska have argued that the death penalty statute in that state — which has been repealed by the legislature pending the outcome of a ballot initiative in November — impermissibly vests key fact-finding authority in the trial judge, rather than the jury.