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Ronald Smith Heaves and Coughs During Alabama Execution After Tie Vote in Supreme Court Denies Him A Stay

After a divided U.S. Supreme Court twice temporarily halted the execution of Ronald Bert Smith, Jr. (pictured), Alabama put Smith to death on December 8 in a 34-minute execution in which Smith heaved, coughed, clenched his left fist, and opened one eye during one 13-minute period. Smith's jury had recommended by a vote of 7-5 that he be sentenced to life without parole, but, in a practice permitted by no other state, his trial judge overrode that recommendation and sentenced Smith to death. At the time his execution was scheduled to begin, Smith had a stay motion and a petition for certiorari pending in the U.S. Supreme Court arguing that judicial override violated his Sixth Amendment right to a jury trial and was unconstitutionally arbitrary under the Eighth Amendment. After Alabama announced its intention to proceed with the execution despite the pending petition, Justice Thomas granted a temporary stay, a procedure to allow time for the full Court to act. Half the Court—enough to review a case—voted to grant Smith a stay, but five votes are required to halt an execution. Smith's lawyers then filed a motion for reconsideration, criticizing as arbitrary the rule that allows four votes to grant review of a case, but requires five to stay an execution. His motion argued that when four justices vote to hear a case, "all certiorari petitioners, public and private parties in civil and criminal cases of every kind" are entitled to have their cases reviewed except condemned prisoners facing an imminent execution. He asked the Court to reconsider his stay motion "[b]ecause the Court’s inconsistent practices respecting 5-4 stay denials in capital cases clash with the appearance and reality both of equal justice under law and of sound judicial decision-making." Justice Thomas granted another temporary stay so the full Court could consider that motion; after about an hour, the Court denied the request and also rejected a last-minute challenge to the state's lethal injection procedure. Alabama used a three-drug procedure in its execution, beginning with midazolam, a sedative that has contributed to botched executions in several other states and that was the subject of a challenge before the Supreme Court in 2015. Though midazolam is intended to render the inmate unconscious and therefore protect against the pain and suffering that would be experienced from the second and third drugs, witnesses reported that Smith showed signs of consciousness after it was administered.


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Supreme Court Stays Execution of Tommy Arthur in Alabama

The U.S. Supreme Court has stayed the execution of Tommy Arthur, who was scheduled to be executed in Alabama at 6:00 p.m. Central Time on November 3. Around 10:30 p.m. Eastern, the Court first issued a temporary stay of execution through Circuit Justice Clarence Thomas "pending further order" of the Court. Anticipating a second ruling by the Court, Alabama continued preparations for the execution. Then, just before midnight in Washington, the Court issued a full stay to permit it to consider a petition for writ of certiorari Arthur had filed earlier in the day. Arthur's lawyers had filed two stay applications and petitions for writs of certiorari. One petition sought review of the Alabama Supreme Court's summary dismissal of his challenge to the constitutionality of Alabama's death penalty statute under the Supreme Court's January 2016 decision in Hurst v. Florida. Hurst struck down Florida's death penalty statute because it required a judge, rather than a jury, to find critical facts that were a prerequisite to imposing the death penalty, and Arthur had argued that Alabama's statute suffered from the same defect. The other petition sought review of the denial of Arthur's lethal-injection challenge by a divided 2-1 panel of the U.S. Court of Appeals for the Eleventh Circuit. In its opinion, that court had ruled that Arthur had not met the burden imposed by the Supreme Court's 2015 decision in Glossip v. Gross of showing that an alternative method of execution was available to Alabama because the firing squad -- his proposed alternative -- was not "readily available" under Alabama law. The dissent wrote: "By misreading an Alabama statute, the Majority creates a conflict between the claim and state law. The Majority then resolves that faux conflict in favor of state law, taking the unprecedented step of ascribing to states the power to legislatively foreclose constitutional relief. These missteps nullify countless prisoners’ Eighth Amendment right to a humane execution." The Supreme Court granted Mr. Arthur's stay application in the lethal-injection case. Four Justices voted to stay the execution, with Chief Justice Roberts providing the fifth vote "as a courtesy." Justices Thomas and Alito dissented. Without the time constraints imposed by the death warrant, the Justices can now consider whether to grant review in the case. This was the seventh time Mr. Arthur's execution has been stayed.


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Nevada's Search for Execution Drug Suppliers Turns Up Zero Bids

After having "solicited thoroughly for vendors," the Nevada Department of Corrections announced that no pharmaceutical company has offered to sell the state drugs for use in executions. James Dzurenda, director of the Nevada Department of Corrections issued a statement on October 7 saying that the Department had sent 247 requests for proposals to pharmaceutical suppliers on September 2 and, in response, had received no bids to supply the state with lethal injection drugs. In August, Dzurenda informed the state Board of Prison Commissioners that one of the two drugs the state used in executions—midazolam and hydromorphone—had expired and that Pfizer, Inc., which produces both of the drugs, refused to provide the state with new supplies. Pfizer announced restrictions on the distribution of its medicines in May in an effort to prevent states from using them in executions. At the time, 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." Having failed to identify a drug supplier, Dzurenda said the Department "will work closely with the attorney general, the governor and the Legislature to examine our options and decide the best course of action moving forward." The state legislature would have to approve any change to an alternative method of execution. The state's $858,000 new execution chamber is expected to be completed by November 1, but no executions are imminent, and none could be carried out without a supply of drugs. Nevada's last execution was in April 2006. Officials said the space will be used for storage and attorney-client meetings if no executions are scheduled.


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Tennessee Death Row Prisoners Challenge Lethal Injection, Argue Protocol Would Break the Law to Carry Out Executions

Lawyers for 30 Tennessee death row prisoners argued before the state's supreme court on October 6 that Tennessee's lethal injection protocol violates the Eighth Amendment prohibition against cruel and unusual punishment. Tennessee, which has not carried out an execution since 2009, intends to use a one-drug protocol of pentobarbital that it says would be obtained from a compounding pharmacy. The prisoners argue that the Tennessee Department of Correction's lethal-injection protocol creates an unconstitutional risk of lingering death and requires physicians to illegally prescribe controlled substances. Their lawyers argue that states may not break their own laws or federal statutes to carry out executions and that physicians who prescribe pentobarbital for executions would be violating federal drug laws. Assistant Federal Public Defender Michael Passino said, "You cannot perform a lawful act in an unlawful manner. To the extent that TDOC is doing that, the protocol is unconstitutional." Justice Sharon G. Lee raised concerns about the possibility of botched executions like those that have occurred in other states, in which prisoners writhed and gasped during prolonged executions. Associate Solicitor General Jennifer Smith, arguing on behalf of the state of Tennessee, conceded that "there is no guarantee that an execution is not going to have a problem." Justice Lee asked Smith further, "So how do we know our execution would not be botched?" Smith responded, "We don't."


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Missouri Execution Pharmacy Calls Sale of Drugs to State 'Political Speech,' Claims First Amendment Right to Secrecy

A pharmacy that has received more than $125,000 in cash payments from Missouri for providing lethal injection drugs that the state has used in 16 executions has argued in a court filing that its identity should remain secret, claiming that selling execution drugs to the state's Department of Corrections is political speech protected by the First Amendment. The supplier's information was requested in a subpoena by Mississippi death row inmates who are challenging that state's execution protocol, and seeking information about other state practices as part of their lawsuit. The pharmacy, which is identified in court documents as "M7," filed a motion stating that its "decision to provide lethal chemicals to the Department was based on M7’s political views on the death penalty, and not based on economic reasons. ...The fact that M7’s expression of political views involves a commercial transaction does not diminish M7’s First Amendment rights." BuzzFeed News reports that Missouri paid the pharmacy $7,178.88 for two vials of pentobarbital per execution, which it describes as well above market value, amid concerns that the cash payments may have violated federal tax laws. Analyzing M7's claim, Bloomberg News columnist Noah Feldman described the pharmacy's constitutional argument as "deeply flawed." Feldman writes that "there’s an enormous difference between speaking and acting—particularly when that action is a for-profit commercial transaction with the government. ... [I]n a democracy, it’s crucially important for the government to disclose its vendors, both to avoid corruption and to promote transparency." M7 asserted in its filing that releasing its identity could subject the pharmacy to harassment and boycotts, relying on statements from a security consultant, Lawrence Cunningham, whose previous statements about the potential threats to execution drug suppliers have been exposed as unsupported or exaggerated. "The M7 situation helps demonstrate why it’s so dangerous to treat corporations as though they have fundamental constitutional rights while doing business," Feldman writes. "Those basic rights are designed to protect individuals against government power. They aren’t supposed to be used to exempt businesses from regulation or publicity whenever it’s convenient for them."


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Inaction on Execution Protocol Ensures Two-Year Hold on Executions in Oklahoma

For the first time in two decades, Oklahoma will go at least two years without an execution. As part of an agreement in a federal lawsuit brought by the state's death row prisoners, Oklahoma Attorney General Scott Pruitt (pictured) has said the state will not request execution dates for at least five months after the state adopts a new execution protocol. Because of this, when the Oklahoma Board of Corrections met on September 13, 2016, the state already could not have sought to conduct any execution until at least February 2017. When the corrections board adjourned without considering any new execution plan, it ensured that even more time would pass between executions in the state. The last time Oklahoma went at least two years without an execution was from March 13, 1992 to March 20, 1995, between the executions of Olan Robison and Thomas Grasso. The current execution hiatus comes in the wake of three consecutive botched execution attempts in Oklahoma. On April 29, 2014, prison personnel could not locate a usable vein in the arm of Clayton Lockett and used a wrong-sized needle in attempting to insert an IV in a vein in Lockett's groin. After 43 minutes, as the botched procedure was being halted, Lockett died of a heart attack. On January 15, 2015, Oklahoma executed Charles Warner in violation of state procedures when the state's anonymous drug provider supplied the wrong execution drug and no one in the execution process noticed the error. In September 2015, the execution of Richard Glossip was halted at the last moment after state officials discovered that they had again obtained the wrong execution drug. A grand jury investigating the state's botched executions issued a scathing report in May 2016 saying administrative "paranoia" over keeping execution information secret "clouded the judgment" of corrections officials, causing them "to blatantly violate their own policies." Following the Corrections Board meeting, Pruitt issued a statement seeking to assure victims' families that process of reviewing a new execution protocol "will continue to be both deliberate and empirical." Pruitt expressed confidence that the new leadership of the state's corrections department—appointed after the retirement of key corrections officials involved in the execution process—"is taking the appropriate time needed to ensure the execution protocols are fully in place and without error in the most efficient way possible." A DOC spokesman described the protocol as "a work in progress," and said "[t]here currently is no timeline on when anything will be released." Glossip—whose case raises significant questions of innocence that have drawn worldwide attention—and four other Oklahoma death row inmates have exhausted their appeals and face execution dates once the state adopts an execution protocol. 


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FBI Documents Show States' Claims of Threats to Execution Drug Suppliers Were Exaggerated

FBI records show that state claims that execution drug suppliers have been the subject of threats by anti-death penalty activists are largely unsubstantiated and exaggerated, according to an investigation by BuzzFeed NewsBuzzFeed found that "few concrete examples" of the alleged harassment, intimidation, and physical threats states claim have been made against drug suppliers, and that "the states’ marquee example — in which the FBI allegedly investigated a serious bomb threat sent to a drug supplier — is contradicted by internal FBI documents." Instead, BuzzFeed found, "the real danger to drug suppliers appears to be legal and economic risk, not risk of violence." Texas and Ohio have claimed secrecy was necessary to protect the safety of potential drug suppliers, citing an alleged threat against a disgraced and now defunct Tulsa, Oklahoma pharmacy, The Apothecary Shoppe, that had been supplying execution drugs to Missouri. That "threat" appears to have consisted of an email sent by a retired college professor who used his own name and included his own phone number, and which the professor has characterized as a warning to the pharmacy to be cautious. An expert witness for the two states—a former Secret Service officer named Lawrence Cunningham who is now employed by a private security company—testified in litigation over their secrecy policies that the email constituted a "serious threat," as evidenced by the fact that it was investigated by the FBI. However, FBI and Tulsa Police Department records show that neither agency was aware of any threats against the pharmacy until a reporter called the FBI months later to ask about alleged threats. The pharmacy had not filed any complaint about the email and, FBI records show, did not come forward with copies of any threatening emails after having been given an opportunity to do so. Cunningham also testified in the Ohio case that the Texas Department of Public Safety had investigated the email, including interviewing the professor—a claim that is contradicted by Cunningham's own sworn testimony in the Texas case and, BuzzFeed says, by Texas DPS documents, sworn statements of the DPS department head, and FBI internal documents. Indeed, Colonel Steven McCraw of Texas DPS testified in a deposition, “I did not do any investigations. We didn’t look at any people. We didn’t do anything.” Officials in Mississippi, Ohio, and Missouri also exaggerated threats by stating suppliers were "harmed" or "threatened" by facing lawsuits or disparaging comments in the media. 


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Pharmaceutical Companies Reiterate Opposition to Participating in Executions as States Scramble for Execution Drugs

Distribution restrictions put in place by major pharmaceutical companies in the United States against misuse of their medicines and export regulations instituted by the European Union have made it increasingly difficult for states to obtain supplies of drugs for use in executions. However, despite these restrictions, some states have obtained pharmaceutical products manufactured by these companies for use in lethal injections. The Influence reports that the Commonwealth of Virginia obtained lethal injection drugs produced by the pharmaceutical company Mylan--rocuronium bromide, which induces paralysis, and potassium chloride, which stops the heart--from a large North Carolina based drug wholesaler, Cardinal Health. Mylan wrote to the Virginia prisons seeking assurances that use of its medicines in the future would not be diverted to any "purpose inconsistent with their approved labeling and applicable standards of care." Recently, the Associated Press discovered that the supply of vecuronium bromide obtained by the Arkansas Department of Correction was produced by a subsidiary of Pfizer. Pfizer announced in May 2016 that it opposed the use of its products in executions, stating, "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." While state secrecy practices leave it unclear from whom Arkansas obtained the restricted drug, Rachel Hooper, a spokesperson for Pfizer, said, "We have implemented a comprehensive strategy and enhanced restricted distribution protocols for a select group of products to help combat their unauthorized use for capital punishment. Pfizer is currently communicating with states to remind them of our policy." As pharmaceutical companies have made their drugs more difficult for states to use, prisons have turned to alternate sources. The Alabama Department of Corrections contacted about 30 compounding pharmacies in an effort to obtain lethal injection drugs, but all refused. Compounding pharmacist Donnie Calhoun said, "For me, as a healthcare professional, I want to help people live longer. The last thing I want to do is help someone die." A Virginia pharmacist who was contacted by the attorney general's office also refused, saying, "No one will do it." Virginia recently adopted a lethal injection secrecy statute that would conceal the identity of its drug supplier, joining many other death penalty states in shielding key information about executions from public scrutiny.


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Arkansas Court Puts Lethal Injection Ruling on Hold, Blocking Executions Pending U.S. Supreme Court Review

On July 21, a divided Arkansas Supreme Court voted 4-3 to deny a request by state death row prisoners to reconsider its recent decision upholding Arkansas' lethal injection protocol and secrecy law, but in another 4-3 vote, the court issued an order staying the mandate, delaying the decision from taking effect until the U.S. Supreme Court has an opportunity to consider an appeal. The stay order prevents the state from setting new execution dates before the U.S. Supreme Court acts on the prisoners' appeal. The same three Arkansas justices who dissented from the court's initial lethal injection decision in June would have granted the rehearing requested by the death row prisoners. However, Arkansas Chief Justice Howard Brill joined the three dissenting justices in staying the ruling pending action by the U.S. Supreme Court on the lethal injection decision. Eight inmates have completed their standard appeals, and Governor Asa Hutchinson had indicated that he intended to set execution dates for those inmates as soon as possible. Executions were previously in doubt because the state's supply of the drug vecuronium bromide, used as a paralytic agent in the state's three-drug execution protocol, had expired. But Arkansas recently announced that it was able to obtain a new supply of the drug from an unnamed source. The state's supply of potassium chloride, the final drug used in executions to stop the prisoner's heart, expires on January 1, 2017. Because of the timeline for petitioning the U.S. Supreme Court, it is unlikely that Arkansas will be able to resume executions before its supply of that drug expires.   


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40 Years After Key Supreme Court Decision, Constitutional and Practical Problems Plague Death Penalty

The execution of John Conner on July 15 ended a two-month period without executions in the United States, the longest such period in the country since 2007-2008. A range of state-specific issues have contributed to this stoppage, including questions about the constitutionality of state death penalty practices, problems relating to lethal injection drugs and state execution protocols, and the fallout from botched executions. In an article for The American Prospect, Professor Frank Baumgartner outlines research showing that the death penalty, as applied today, remains error-prone, racially biased, and arbitrarily applied. Forty years after the U.S. Supreme Court's decision in Gregg v. Georgia allowed executions to resume, Baumgartner argues, the death penalty continues to fall short of meeting the constitutional requirements set forth by the Court. Baumgartner highlights studies that have found that the approximately one percent of death-eligible homicides that have resulted in executions are not necessarily the worst crimes, but rather, the crimes that happened to occur in jurisdictions that are prone to using the death penalty or that involved a white victim. As Chris Geidner explains in BuzzFeed, only three states - Georgia, Missouri, and Texas - have carried out any executions since January because other states are grappling with legal challenges to their sentencing procedures and lethal injection protocols, inability to obtain lethal injection drugs, or sometimes a combination of several issues. Challenges to the constitutionality of death penalty practices in Florida, Alabama, and Delaware—where non-unanimous jury recommendations for death have accounted for more than 20% of the nation's death sentences—have brought executions to a halt in those states and statutes in Nebraska and Montana may also face constitutional challenges for the role judges play in imposing death sentences in those states. The fallout from botched executions have halted executions in Arizona, Ohio, and Oklahoma. And gubernatorial moratoria and a variety of lethal injection issues have also contributed to the drop in executions. Geidner calls the situation "unprecedented," and predicts that the number of executions in the second half of 2016 will be even lower than the 14 carried out in the first half.


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