DPIC News

NEW VOICES: Attorney General Criticizes Secrecy in Lethal Injections

On July 31, U.S. Attorney General Eric Holder spoke about the death penalty review underway at the Department of Justice and the need for greater transparency in lethal injection methods. Holder said he was "greatly troubled" by the recent botched executions, adding that states should provide more information about the drugs they plan to use. He said, "[F]or the state to exercise that greatest of all powers, to end a human life, it seems to me... that transparency would be a good thing, and to share the information about what chemicals are being used, what drugs are being used. And it would seem to me that would be a better way to do this." He added, "[T]here is an obligation, it seems to me, on the part of the executive branch that’s charged with that responsibility to be forthcoming about the mechanisms, the means by which this most serious of executive branch actions can be carried out." On the progress of the death penalty review ordered by President Obama, Holder said, "We have people from our Civil Rights Division, our Criminal Division, various other components within the department looking at our protocol and taking into account what we have seen happen in the states recently, as we try to work our way through how the federal government is going to impose the death penalty."

STUDIES: 'Volunteers' for Execution

A new study by Prof. Meredith Martin Rountree of Northwestern University Law School examined the characteristics of Texas death row inmates who waived all or part of their normal appeals, thus hastening their execution. Referring to these inmates as "volunteers," she compared them with similarly-situated inmates who did not waive their appeals. She found that more volunteers experienced depression or had attempted suicide than non-volunteers. She also examined the role of "self-blame" in prisoners' decisions to move towards execution. Inmates who waived appeals were more likely "to have been previously convicted of a crime, to have been convicted of a crime against another person, to have been incarcerated, to have committed their capital offenses alone, and to have committed the capital offense with a gun." Prof. Rountree criticized the legal changes begun in the mid-1990s that have allowed inmates to waive appeals earlier in the process "when prisoners may be most vulnerable to desires to die." She noted "the State’s interest in fair and constitutional death sentences, something only ensured through adversarial testing of the conviction and sentence," and called for further research in this area.

Alabama Stands Alone in Judges Imposing Death When Juries Say Life

Alabama is the only state that in which judges regularly impose death sentences even after a jury recommends a life sentence. Death row inmate Courtney Lockhart has asked the Alabama Supreme Court to reconsider his sentence imposed as a result of this unique process. Lockhart was convicted of capital murder in 2010. The jury unanimously found that his post-traumatic stress disorder, resulting from his military service in Iraq, was sufficiently mitigating to recommend a sentence of life without parole. However, the presiding judge overrode this recommendation and sentenced Lockhart to death. In Alabama, one-fifth of death row inmates were sentenced to death over a jury's recommendation for life. A study by the Equal Justice Initiative found that "the proportion of death sentences imposed by override often is elevated in election years." Some elected judges touted their death penalty records in campaign ads. The practice of judicial override has contributed to Alabama having one of the highest per-capita death sentencing rates in the country. Bryan Stevenson (pictured), executive director of the Equal Justice Initiative, said he hoped that Lockhart's case will allow the Alabama Supreme Court to "reevaluate the propriety of judicial override." Delaware and Florida technically also allow judicial override, but neither state has had a judge use it in over 15 years.

Leading Medical Experts Contradict Arizona's Description of Execution

Although Arizona officials have claimed that Joseph Wood was "brain dead" during his two-hour execution on July 23, prominent medical experts from around the country strongly disagreed. David Waisel, associate professor of anaesthesia at Harvard medical school, said a person who is brain dead will stop breathing unless kept alive on a ventilator. “There is no way anyone could ever look at someone and make that kind of diagnosis. He was still breathing, so he was not brain dead. This is an example where they threw out a term that has a precise medical definition, but they didn't know what it means.” Dr. Chitra Venkat, clinical associate professor of neurology and neurological sciences at Stanford University, said, “If you are taking breaths, you are not brain dead. Period. That is not compatible with brain death, at all. In fact, it is not compatible with any form of death.” And Dr. Robert D. Stevens (pictured), associate professor at Johns Hopkins University School of Medicine, noted, “Any type of breathing, gasping, whatever it is, immediately indicates that the patient is not brain dead.” Columbia University anesthesiologist Mark Heath called the use of midazolam (part of Arizona's lethal injection regimen) "a failed experiment."

INTERNATIONAL: German Officials Refuse to Cooperate in Possible Death Penalty Case

German officials are withholding significant evidence in a murder case involving U.S. servicemen because of Germany's opposition to the death penalty. Sean Oliver has been charged with the murder of another member of the U.S. military, Dmitry Chepusov, in Germany. The U.S. Air Force has jurisdiction over the case, but Germany is withholding cooperation unless the U.S. military agrees not to seek a death sentence. German police discovered the body and conducted the autopsy, and are now refusing to hand over several pieces of physical evidence. Germany abolished the death penalty in 1949 and authorities are banned by law from cooperating in foreign cases that could result in the death penalty. The victim's family is also opposing capital punishment for Oliver. Dennis Bushmitch, the victim's brother, said, “We are urging the Americans not to pursue the death penalty.” In 1985, the German government successfully fought extradition of a German citizen accused of two murders in Virginia until a decision was made not to seek a death sentence.

Death Penalty on Hold in Most of the Country

Thirty-six states have either abolished the death penalty, have executions on hold, or have not carried out an execution in at least 5 years. Recently, three states, Arizona, Ohio, and Oklahoma, temporarily halted executions as reviews are conducted of botched executions. In six states, Arkansas, California, Kentucky, Louisiana, Montana, and North Carolina, a de facto moratorium on executions is in place because of lethal-injection challenges; most of those states have not had an execution since 2008. Colorado, Oregon, and Washington have formal moratoriums on executions imposed by their governors. Eighteen states and the District of Columbia have abolished the death penalty. In 6 additional states, while no formal hold is in place, no execution has been conducted in at least five years. The U.S. military and federal government also authorize the death penalty, but neither has had an execution in over ten years. Click image at left to see enlarged chart with further details.

Arizona Botches Execution of Joseph Wood

The execution of Joseph Wood III in Arizona on July 23 took nearly two hours, with witnesses reporting that Wood gasped and snorted over 600 times during the procedure. Wood was executed using midazolam and hyrdromorphone, the same drug protocol used in January's botched execution of Dennis McGuire. The U.S. Court of Appeals for the 9th Circuit had stayed Wood's execution and ordered the state to release information about the source of the lethal injection drugs and the training of those who would carry out the execution, but the stay was lifted by the U.S. Supreme Court on July 22, allowing the state to maintain secrecy. Attorneys for Wood tried to file an emergency request to halt the execution because Wood was still awake an hour into the procedure. Dale Baich, one of Wood's attorneys, said, “I’ve witnessed a number of executions before and I’ve never seen anything like this. Nor has an execution that I observed taken this long.” Arizona Governor Jan Brewer ordered a review of the execution, saying she was “concerned by the length of time” that it took. The director of the Department of Corrections said they will conduct a full review and are waiting on results of a toxicology study and autopsy. 

NEW VOICES: "Life in Prison, With the Remote Possibility of Death"

Justin Wolfers, an economist and senior fellow at the Brookings Institution, recently underscored the problems identified in a sweeping ruling holding California's death penalty unconstitutional. "Capital punishment," Wolfers said, "is not only rare, but it’s also an extraordinarily long and drawn-out process." For many offenders, "death row may actually be safer than life on the street." He compared the relatively few executions to the large number of people on death row: "A simple thought experiment makes the point: If a death sentence puts you at the back of the queue of 3,000 prisoners to be executed, and only 50 people are executed each year, then it would take you, on average, 60 years to reach the front of the line. Not surprisingly, many die of natural causes while waiting their turn." He concluded by quoting the federal judge in the California ruling that a death sentence is effectively a sentence of "life in prison, with the remote possibility of death."

NEW VOICES: Retired Judges Support Death Row Inmate's Appeal

In a brief filed with the U.S. Supreme Court, eight retired judges recently asked the Court to review the case of Texas death row inmate Rodney Reed. Reed is scheduled to be executed in January 2015. While the judges, who served on federal and state courts in many jurisdictions around the country, did not take a stance on Reed's innocence claims, they urged the Court to hear his appeal so that new evidence in the case could be examined under the light of cross-examination in a full hearing, rather than just through the review of legal papers. "That is not how our system of justice is designed to operate," the judges said. "When courts have only affidavits without witness testimony, they lack the means of testing the accuracy, reliability, competence, scientific acumen, proper training and judgment of the [person testifying]." Reed is claiming that his trial lawyers did not adequately investigate forensic evidence that experts now say might be unreliable. A three-judge panel of the U.S. Circuit Court of Appeals for the Fifth Circuit rejected Reed's appeal because they found the new testimony unpersuasive as presented in appellate briefs. The eight judges who petitioned the Supreme Court said the evidence should have been heard by a district judge in an evidentiary hearing, rather than by the appeals court. "Trial courts are the appropriate venue for developing a factual record and resolving questions of fact," they said. See list of judges below.

NEW STATEMENTS: The Death Penalty Is Incompatible with Human Dignity

On July 19 Prof. Charles Ogletree of Harvard University Law School wrote in the Washington Post about the future of the death penalty in the U.S. Noting that the U.S. Supreme Court recently affirmed (Hall v. Florida) that executing defendants with intellectual disabilities serves “no legitimate penological purpose,” Prof. Ogletree said this reasoning could be applied to the whole death penalty: "The overwhelming majority of those facing execution today have what the court termed in Hall to be diminished culpability. Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows." He cited a study published in the Hastings Law Journal that found that "the social histories of 100 people executed during 2012 and 2013 showed that the vast majority of executed offenders suffered from one or more significant cognitive and behavioral deficits," such as mental illness, youthful brain development, or abuse during childhood. He concluded that when you examine capital punishment more closely, "what you find is that the practice of the death penalty and the commitment to human dignity are not compatible." Read the op-ed below.

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