DPIC Releases Year End Report: Historic Declines in Use of Death Penalty in 2015
On December 16, DPIC released its annual report on the latest developments in capital punishment, "The Death Penalty in 2015: Year End Report." The death penalty declined by virtually every measure in 2015. 28 people were executed, the fewest since 1991. Death sentences dropped 33% from last year's historic low, with 49 people being sentenced to death this year. There have now been fewer death sentences imposed in the last decade than in the decade before the U.S. Supreme Court declared existing death penalty laws unconstitutional in 1972. Just six states carried out executions, the fewest since 1988; and three states (Texas, Missouri, and Georgia) accounted for 86% of all executions. For the first time since 1995, the number of people on death row fell below 3,000. Public support for the death penalty also dropped, and the 2015 American Values Survey found that a majority of Americans prefer life without parole to the death penalty as punishment for people convicted of murder. Six people were exonerated from death row this year, bringing the total number of exonerations since 1973 to 156. “The use of the death penalty is becoming increasingly rare and increasingly isolated in the United States. These are not just annual blips in statistics, but reflect a broad change in attitudes about capital punishment across the country,” said Robert Dunham, DPIC's Executive Director. See DPIC's Press Release. View a video summarizing the report. (Click image to enlarge.)
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Arizona Executions to Remain on Hold as Court Challenge to Lethal Injection Secrecy Moves Forward
Arizona officials have agreed not to schedule any executions until a federal court challenge to the state's lethal injection protocol and secrecy policy is resolved. U.S. District Court Judge Neil V. Wake had previously put the lawsuit on hold while Arizona rewrote its execution protocol. He said the execution hold was necessary to prevent what he called "crisis litigation" -- artificially forcing the court to decide issues in the 60 days before an execution was scheduled to occur. Such litigation, he said, did not allow for adequate consideration of the issues. With the state's agreement not to set new execution dates, Judge Wake will now allow the litigation to proceed. Inmates are suing the state to obtain information about the source of the drugs that will be used in executions. In July 2014, Arizona used midazolam and hydromorphone from anonymous sources to execute Joseph Wood. Arizona's secrecy laws prevented Wood from obtaining key details of how the state intended to execute him. Wood's execution took 2 hours, during which witnesses reported that he gasped and snorted more than 600 times. Arizona later attempted to import sodium thiopental to use in a three-drug protocol, but the shipment was halted by the Food and Drug Administration, which said the drug was being imported illegally.
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Court Decisions Reflect Continuing Ambivalence Towards State Lethal Injection Secrecy Laws
Recent court decisions in cases from Georgia and Arkansas reflect continuing judicial uncertainty regarding lethal injection secrecy. On October 12, an Arkansas trial court overturned the state's execution secrecy law and ordered the state Department of Corrections to disclose the drugs that it intends to use in executions and the source of those drugs. In a December 3 opinion requiring disclosure by the following day, Pulaski County Circuit Court Judge Wendell Griffen wrote, "It is common knowledge that capital punishment is not universally popular. That reality is not a legitimate reason to shield the entities that manufacture, supply, distribute, and sell lethal injection drugs from public knowledge." The next day, the state Supreme Court temporarily stayed Griffen's ruling, asking both sides to submit additional written arguments. On December 9, the U.S. Court of Appeals for the 11th Circuit issued a divided ruling in the case of Brian Terrell, denying him a stay of execution but expressing deep concern about execution secrecy. Judges Beverly Martin and Adalberto Jordan said they believed that Georgia's secrecy law created constitutional problems and that the appeals court's earlier rejection of a challenge to secrecy provisions had been wrongly decided. However, they said they were bound by precedent and therefore could not stay Terrell's execution. Judge Martin said, “Of course, I recognize the state’s need to obtain a reliable source for its lethal injection drugs. But there must be a way for Georgia to do this job without depriving Mr. Terrell and other condemned prisoners of any ability to subject the state’s method of execution to meaningful adversarial testing before they are put to death...Indeed, we have no reliable evidence by which to independently evaluate the safety and efficacy of the state of Georgia’s secret drugs. For me, this raises serious due process concerns.” Judge Jordan wrote, "Georgia can certainly choose, as a matter of state law, to keep much of its execution protocol secret, but it cannot hide behind that veil of secrecy once something has gone demonstrably wrong with the compounded pentobarbital it has procured."
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60 Minutes Airs Segment on Arizona's Botched Execution of Joseph Wood
On Sunday, November 29, CBS's 60 Minutes aired a segment on Arizona's 2-hour botched execution of Joseph Wood (pictured). As described by 60 Minutes, Wood's "execution with a new cocktail of drugs was supposed to take 10 minutes. It took almost two hours, the longest execution in U.S. history." On July 23, 2014, Arizona gave Wood 15 consecutive doses of midazolam and hydromorphone, the same drug combination that had been used in the botched execution of Dennis McGuire in Ohio six months earlier. Witnesses to Wood's execution reported that he gasped and snorted more than 600 times during the 2-hour procedure. Prison officials had estimated that the drugs would take about 10 minutes to kill Wood. Prior to the execution, U.S. Court of Appeals for the 9th Circuit had ordered the state to release information about the source of the drugs and the training of those who would carry it out, but the U.S. Supreme Court reversed the decision and allowed the execution to proceed under a veil of secrecy. 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."
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U.S. on Track for Fewest Executions, New Death Sentences in a Generation
Both executions and new death sentences in the United States are on pace for significant declines to their lowest levels in a generation, Reuters reports. With 25 executions conducted so far this year, and only two more scheduled, the United States could have its lowest number of executions since 1991, significantly below the peak of 98 executions in 1999. Only 8 states have carried out executions in the last two years, down from a high of 20, also in 1999. New death sentences, which peaked at 315 in 1996, declined to 73 last year, and that number is expected to drop even further this year. The slowdowns in executions and new death sentences are just two of several indicators that the U.S. is moving away from capital punishment. Reuters reports that these changes come from a combination of factors, including the high cost of death penalty cases, the recent problems surrounding lethal injection, and improved capital representation in high-use states. Texas and Virginia, two of the death penalty states that historically have been the most aggressive in carrying out executions, stand out as examples of the punishment's declining use. Both states have implemented major reforms in indigent defense in recent years, producing dramatic changes in the death penalty landscape. In Texas, which had 48 death sentences in 1999, juries have handed down only three death sentences so far this year. Virginia, which has executed the highest percentage of death row inmates of any state, is on track to have no death sentences for the fourth consecutive year.
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Oklahoma Execution Irregularities Mirror Previous Errors By Arizona Involving Same Corrections Official
Robert Patton (pictured), the director of the Oklahoma Department of Corrections who oversaw the botched execution of Clayton Lockett, the use of the wrong third drug in the execution of Charles Warner, and the failed execution of Richard Glossip, was also involved in a number of Arizona executions that violated that state's execution protocol, a BuzzFeed investigation revealed. Lockett was Oklahoma's first execution under Patton, just two months after he became corrections director. For the previous five years, he was part of the team that planned and oversaw executions in Arizona. A 2011 deposition given by Patton in a federal court challenge to Arizona's execution protocol disclosed similar failures to adhere to state execution protocols. BuzzFeed reports that, 3 years before the Lockett execution, Patton had been involved in several Arizona executions in which corrections personnel could not find an arm vein suitable for execution and instead, as in Lockett's execution, inserted the IV into an artery in the executed prisoner's groin. In direct violation of Arizona's execution protocol, the executioners covered the IV with a sheet, risking that officials would be unable to detect problems with the IV. In investigating the Lockett case, the Oklahoma Department of Public Safety found that the same deviation from Oklahoma's protocol prevented executioners from discovering problems with the IV until Lockett began to move during the execution, at which point prison personnel discovered clear liquid and blood under the sheet and noticed that Lockett had swelling "between the size of a golf ball and tennis ball" at the IV insertion site. Patton then called off the execution, but Lockett died 45 minutes after the execution began. In his 2011 deposition, Patton admitted that he never checked the forms that identified which drugs and what amounts of those drugs were to be used in Arizona executions. In January 2015, using the wrong third drug in its three-drug protocol, Oklahoma executed Charles Warner. An investigation into that execution is ongoing, and state officials have not said who was aware at the time that the wrong drug was being used. The state also halted the execution of Richard Glossip in September when prison officials became aware two hours before the execution that they had obtained the same wrong drug.
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Arizona, Texas Attempted to Import Illegal Lethal Injection Drugs Linked to Indian Supplier with Troubling History
Arizona and Texas attempted to import lethal injection drugs in violation of federal law, but the shipments were halted by U.S. Food and Drug Administration officials in late July, according to reports by The Arizona Republic and Buzzfeed. The Republic reports that the Arizona Department of Corrections paid $27,000 for sodium thiopental for use in executions, but the shipment was halted at the Phoenix airport by U.S. Food and Drug Administration officials. BuzzFeed reports that on the same date, the FDA halted a second shipment of sodium thipoental from the same shipper at the Houston airport. This second shipment was bound for the Texas prisons. Though Arizona had redacted the seller's name and information from the documents obtained by The Republic, the offer of sale is identical to an offer sent to Nebraska from Harris Pharma, a drug supplier in India. Sodium thiopental was widely used as the first drug in executions until the sole U.S. manufacturer halted production in 2011 over concerns about the product's use in executions. Chris Harris, the owner of Harris Pharma, has sold execution drugs to Nebraska, Ohio, and South Dakota, and approached the Idaho Department of Corrections, though that sale fell through. A BuzzFeed investigation found that the office in which Harris claims to manufacture the drugs is not equipped to make drugs, raising the question of where the drugs are actually being produced. Earlier this year, Nebraska paid Harris $54,400 for execution drugs that Federal Express refused to bring into the country because they lacked import approval from the FDA.
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Ohio Postpones Executions Due to Lack of Lethal Injection Drugs
The Ohio Department of Rehabilitation and Correction announced on October 19 that the state was postponing all executions until at least 2017 because it has been unable to obtain the lethal injection drugs necessary to carry them out. Governor John Kasich issued warrants of reprieve rescheduling the executions of 11 death-row prisoners with execution dates in 2016 and a 12th with a January 2017 execution date. Ohio rescheduled the executions for dates in 2017 through 2019. The Department issued a statement explaining that "over the past few years it has become exceedingly difficult to secure [execution] drugs because of severe supply and distribution restrictions." Ohio passed a secrecy law to shield the identity of any lethal injection drug provider. However, the Columbus Dispatch recently reported that the law did not work because Ohio pharmacies, bound by the Hippocratic oath or fearing adverse reactions from their customers, did not want to be involved in executions. Ohio also has been unable to obtain lethal injection drugs from abroad. In June, the U.S. Food & Drug Administration warned the state that importation of execution drugs would violate federal law. The state has sent a letter to the FDA arguing that it should be able to legally import sodium thiopental for executions. Ohio's last execution was the botched execution of Dennis McGuire on January 16, 2014, using an experimental two-drug protocol of midazolam and hydromorphone. Witnesses reported that McGuire gasped, snorted, and struggled throughout the execution, taking 25 minutes to die. After that execution, Ohio announced that it would shift to a one-drug protocol of either pentobarbital or sodium thiopental.
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Amid Unavailability of Lethal Injection Drugs, States Push Legal Limits to Carry Out Executions
"Over time lethal injection has become only more problematic and chaotic,” Deborah W. Denno, a professor at Fordham Law School, told the New York Times, summarizing the ongoing battles that have led states to adopt new drug sources or alternative methods of execution. Several states have obtained or sought drugs using sources that may violate pharmaceutical regulations. For the execution of Alfredo Prieto, Virginia obtained pentobarbital from the Texas Department of Criminal Justice, which purchased it from a compounding pharmacy whose identity is shielded by the state's secrecy law. "Even if the transactions between states do not comply with law, there is no recourse for death-sentenced prisoners," said Megan McCracken, an expert in lethal injection at the Death Penalty Clinic at the University of California, Berkeley, School of Law. Both Nebraska and Ohio received warnings from the Food and Drug Administration that their attempts to purchase sodium thiopental from overseas suppliers violated federal law regarding the importation of drugs. Oklahoma executed Charles Warner in violation of its own execution protocol, substituting an unauthorized chemical, potassium acetate, for the potassium chloride its regulations require. Other states have turned to alternative execution methods: Tennessee reauthorized use of the electric chair, while Oklahoma passed a bill to make nitrogen gas asphyxiation its backup method. Louisiana prison officials also recommended using nitrogen gas, but the state has not taken action on that recommendation. The scramble for lethal injection drugs has delayed executions across the country. A challenge to Mississippi's protocol has halted executions until at least next year. A Montana judge put executions on hold because the state's proposed drug cocktail violated state law, and either the drugs that comply with state law are not produced in the U.S. and may not be imported or the manufacturer refuses to sell the drug for executions. In Oklahoma, the Attorney General requested an indefinite hold in order to review lethal injection procedures after the state obtained the wrong drug for the execution of Richard Glossip.
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Oklahoma Used Wrong Drug, Violated State Protocol, in January Execution of Charles Warner
A report by The Oklahoman has revealed that Oklahoma violated its execution protocol and used the wrong final drug during the execution of Charles Warner on January 15, 2015. Warner, whose final words were "My body is on fire," was executed using potassium acetate, the same drug that was delivered for Richard Glossip's aborted execution on September 30. The drug called for in the protocol is potassium chloride. Glossip's execution was stayed as a result of the mix-up, and Attorney General Scott Pruitt requested an indefinite hold on executions so his office could investigate. "I want to assure the public that our investigation will be full, fair and complete and includes not only actions on Sept. 30, but any and all actions prior, relevant to the use of potassium acetate and potassium chloride,” Pruitt said. Dale Baich, who represented Oklahoma death row inmates in Glossip v. Gross, said, "We cannot trust Oklahoma to get it right or to tell the truth. The State’s disclosure that it used potassium acetate instead of potassium chloride during the execution of Charles Warner yet again raises serious questions about the ability of the Oklahoma Department of Corrections to carry out executions."
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