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Toobin on America's Ambivalence Toward the Death Penalty

Jeffrey Toobin, writing in The New Yorker, used the current scramble among states to procure the drugs for lethal injections as a paradigm of the much longer effort to make the death penalty palatable to the American public. "The story of the death penalty in this country," he wrote, "illustrates a characteristically American faith in a technological solution to any problem." However, Toobin concluded, technology can not cover up the broader problems of capital punishment: "The oxymoronic quest for humane executions only accentuates the absurdity of allowing the death penalty in a civilized society." He ended highlighting the declining public support for the death penalty, as well as the drop in executions and death sentences across the country.


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NEW VOICES: A Doctor Challenges the Medical Model of U.S. Executions

As an anesthesiologist, Dr. Joel Zivot applied some of the same drugs in operating rooms as are used in executions in the U.S. He admired their life-saving qualities for patients, but bridled at their use in taking lives. Writing recently in USA Today, he cautioned against this "poisonous" use of medicines, saying, "States may choose to execute their citizens, but when they employ lethal injection, they are not practicing medicine. They are usurping the tools and arts of the medical trade and propagating a fiction." Dr. Zivot is a professor of anesthesiology at Emory University School of Medicine. In his op-ed, he called for a halt to all use of anesthetics in executions: "From an ethical perspective, I cannot make the case that a medicine in short supply should preferentially be used to kill rather than to heal."  Read the op-ed below.


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Lethal Injection Challenges Delay Executions in Florida, Missouri, Georgia

Legal challenges to new lethal injection procedures have delayed executions in Florida and Missouri this week. Similar challenges halted executions in Georgia in July. On November 18, the Florida Supreme Court ordered a hearing on the state's new execution protocol and stayed the execution of Askari Muhammad, who had been scheduled for execution on December 3. The hearing will examine "the efficacy of midazolam hydrochloride as an anesthetic in the amount prescribed by Florida's protocol." Florida is the first state to use midazolam in executions, having carried out two executions using this drug in combination with 2 other drugs. In Missouri, a federal judge stayed the execution of Joseph Franklin on November 19, calling the state's execution protocol, "a frustratingly moving target." She said that the Department of Corrections "has not provided any information about the certification, inspection history, infraction history, or other aspects of the compounding pharmacy or of the person compounding the drug." The stay was lifted hours later by a higher court, and Franklin was executed on November 20, though other challenges to the execution process continue. Earlier this year, a Georgia Superior Court judge stayed the execution of Warren Hill, questioning the constitutionality of the law that classified information on execution drugs as "confidential state secrets." 


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Missouri's New Execution Protocol Hides Source of Drugs

After concerns were raised that Missouri's proposed use of the anesthetic propofol in executions could endanger the supply of that drug for use in surgeries, Governor Jay Nixon ordered the Department of Corrections to revise the state's lethal injection protocol. Experts say that the new protocol, which hides the source of the pentobarbital that will now be used in executions, could result in substandard drugs being used to execute prisoners. The state plans to use a compounding pharmacy to produce the drug, but and inspection of compounding pharmacies by the Missouri Board of Pharmacy found about 1 in 5 drugs did not meet their standards. Randy Juhl, the former dean of the University of Pittsburgh's School of Pharmacy, questioned whether the statute that regulates compounding pharmacies even allows them to legally provide drugs for an execution, since it requires that a prescription be "issued for a legitimate medical purpose." John Simon, a constitutional lawyer representing death row inmate Joseph Paul Franklin, said he is concerned that the drug could cause Franklin "a lengthy, excruciating death." "Criminal penalties aren’t intended to drag us down to the level of the worst offenders," Simon said. Franklin is scheduled to be executed on November 20.


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LETHAL INJECTION: States Resorting to Secrecy and Backup Procedures to Execute Inmates

As states try to secure the drugs for carrying out lethal injections, they are increasingly resorting "to secrecy and backup execution protocols necessitated by drug shortages instead of treating those condemned to death with the dignity appropriate to any human life," according to a recent article in the Crime Report by Richard Dieter, Executive Director of the Death Penalty Information Center. The article described a number of desperate measures taken by states, such as secretly obtaining drugs from questionable sources overseas, designating a pharmacy as part of the "execution team" to hide its identity, and trying drugs never used before in executions. The article traces the history of lethal injections, culminating in the refusal of many drug companies to allow their products to be used in executions. On November 12, Florida will employ a risky 3-drug procedure, including a critical sedative only used once before in an execution. On November 14, Ohio intends to use a new injection process never tried before in U.S. executions.


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LETHAL INJECTION: New Execution Practices Raising Medical Concerns

Medical experts are concerned that untried lethal injection procedures in some states could cause prolonged, painful deaths. Ohio will try a procedure never used before in an execution on November 14 when it plans to inject a combination of the sedative midazolam and the painkiller hydromorphone. According to Dr. Jonathan Groner, a professor of clinical surgery at Ohio State University College of Medicine, a hydromorphone overdose can cause painful side effects, including an extreme burning sensation, seizures, hallucination, panic attacks, vomiting, and muscle pain. He said, "You're basically relying on the toxic side effects to kill people while guessing at what levels that occurs." Groner added, if the hydromorphone IV is set poorly, "it would be absorbed under the skin, subcutaneously, very slowly, and that death could be extremely prolonged…It may be painful, and it may take forever." Doctors also raised concerns about Missouri's planned use of pentobarbital from a compounding pharmacy. Compounding pharmacies are not regulated by the Food and Drug Administration, and drugs from one such pharmacy caused a deadly outbreak of fungal meningitis in 2012. David Waisel, an associate professor of anesthesiology at Harvard Medical School, said that contaminated pentobarbital could cause a sensation similar to rubbing an open wound with sandpaper. Florida was the first state to use midazolam, although it employed different secondary drugs than Ohio. In an October 15 execution, the inmate appeared to remain conscious longer than usual and made movements after losing consciousness.


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Federal Court to Review Florida's Unique Execution Procedure

A federal court in Florida will review challenges to the state's new lethal injection procedure, which the state plans to use in an upcoming execution on November 12. Florida is the only state in the country to use this new protocol, which begins with the sedative midazolam, followed by a paralytic drug and potassium chloride. Attorneys for Florida death row inmates allege the process could result in severe pain in violation of the 8th Amendment. Megan McCracken, an attorney at the death penalty clinic at the University of California Berkeley School of Law, said, “If [potassium chloride is] given to a conscious person who has been inadequately anesthetized, it causes incredible pain because it activates nerve endings. It will feel like burning through the circulatory system until it reaches the heart, which it stops.” Florida switched to midazolam due to a shortage of pentobarbital, an anesthetic used in almost all executions over the past 2 years. Texas, which also has an execution scheduled for November 12, has obtained pentobarbital from a compounding pharmacy. It employs only 1 drug in its executions. Ohio recently announced it will use a new protocol involving midazolam and hydromorphone in its execution scheduled for November 14. That procedure is also under review in federal court.


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LETHAL INJECTION: Many States Changing Lethal Injection Process

On October 4, Ohio announced it will be obtaining its execution drug, pentobarbital, from a compounding pharmacy if it is not available from the manufacturer. Texas made a similar announcement a few days earler. In the past, some compounding pharmacies have been implicated in providing contaminated drugs with fatal side effects. These local companies are not regulated by the Food and Drug Administration. Florida announced it will be using a new drug, midazolam, in its October 15 execution. The drug will be part of a 3-drug process and has never been used before in executions. The 3-drug process can be extremely painful if the first drug is not completely effective. Missouri intends to be the first state in the country to use the drug propofol in its October 23 execution, despite the fact that the drug company that delivered the drug has asked for its return. If Missouri goes ahead with the execution, European countries may impose restrictions on the exportation of this drug, thereby affecting other uses for vital surgeries in the U.S.  Finally, Tennessee will now use only a single drug, pentobarbital, in its executions, though it did not say where it hoped to obtain the drug.


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LETHAL INJECTION: The Ongoing Controversy Over How People Are Executed

One of the nation's leading academic experts on the death penalty has written a new article describing how the controversy surrounding lethal injections has greatly intensified since the Supreme Court's ruling on the subject in 2008 (Baze v. Rees). Deborah Denno, a law professor at Fordham University, analyzed over 300 court decisions in the last five years citing Baze. She found there have been more changes in lethal injection protocols in that time than in the last 30 years, some of which have made matters worse. "The resulting protocols," she wrote, "differ from state to state, and even from one execution to the next within the same state," scarcely resembling those evaluated by the Supreme Court. As a result, "[T]this continuous tinkering often affects already troubled aspects of states’ lethal injection procedures, such as the paltry qualifications of executioners, the absence of medical experts, and the failure to account for difficulties injecting inmates whose drug-using histories diminish the availability of usable veins." She also addressed states' attempts to handle drug shortages, including changing drugs and turning to compounding pharmacies, whose recent record of contamination and resultant deaths have led to calls for greater regulatory oversight. She concluded, "Until death penalty states are willing to focus more on solutions than secrecy, lethal injection as a method of execution will remain mired in an endless cycle of difficulty and disorder."


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EDITORIALS: Ohio Paper Calls for Transparency and Caution in Selecting Execution Process

As Ohio prepares to change its execution process in October, the Toledo Blade called on the state to stop the secrecy surrounding the selection of an alternative to current lethal injection drugs. The editors wrote, “No state should proceed with scheduled executions until the drug, or multidrug cocktail, it plans to use has been proven to be humane and efficient. The process of changing how people are executed in Ohio should unfold with far more transparency than the state Department of Rehabilitation and Correction has shown so far.” The editorial cautioned against decisions based on convenience or the availability of a drug, without proper research: “Other states are turning to untested methods such as propofol, without knowing how much pain it causes or even what dose should be administered. Expediency has trumped morality, as the process has become more haphazard.” Read the editorial below.


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