News and Developments 2009: Executions

A recent New York Times editorial commented on the new one-drug lethal injection protocol used in Ohio for the first time on December 8, but concluded that "the execution only reinforced that any form of capital punishment is legally suspect and morally wrong."  The Times agreed with the late Justice Harry Blackmun who called such manipulations “tinker[ing] with the machinery of death.”  The editorial also noted the risks of exeucting the innocent: "It has also become clear — particularly since DNA evidence has become more common — how unreliable the system is. Since 1973, 139 people have been released from death row because of evidence that they were innocent, according to the Death Penalty Information Center."  The editors ended by saying that repealing the death penalty "is the way to eliminate the inevitable problems with executions."  Read the full editorial below.

Justices John Paul Stevens and Clarence Thomas disagreed over whether to grant a stay of execution to Cecil Johnson, Jr., who was was convicted of murder in a 1980 shooting at a convenience store in Tennessee. Johnson had been on death row for nearly three decades. Justice Stevens said this lengthy time between his sentencing and execution could amount to cruel and unusual punishment: "[T]he delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement," especially when most of the delay was caused by the state. Justice Breyer concurred with Stevens.  Both Justices have long urged their colleagues to address the issue of the extensive time inmates spend on death row.

Justice Thomas reacted strongly to Stevens's assertion, claiming that "as long as our system affords capital defendants the procedural safeguards this court has long endorsed, defendants who avail themselves of these procedures will face the delays Justice Stevens laments."

On November 13, Ohio announced that it was adopting a single-drug protocol for lethal injection, making it the first state to embrace this change.  Ohio will inject inmates with a large dose of an anesthetic, thiopental sodium, which is supposed to both render the inmate unconscious and eventually cause death. The state also said it will employ a back-up method of execution involving the injection of two anesthetic drugs into the muscle of the defendant.  In September, Ohio failed in its execution of Romell Broom, halting the process after two hours when guards could not find a suitable vein for the injection. Subsequent executions were placed on hold as state officials sought more effective ways of administering lethal injection. The state had been having a hard time finding medical personnel to consult with about lethal injection procedures because of professional and ethical rules that generally prohibit doctors, nurses and others from being involved in capital punishment. Read the Associated Press article about this development below.

Retired Federal Appeals Court Judge H. Lee Sarokin recently offered a harsh critique of the death penalty, especially challenging the botched execution attempt of Romell Broom in Ohio in September. Citing morality, arbitrariness, and the dim prospects of closure for the murder victims’ families, Judge Sarokin called the imposition of the death penalty an erratic and flawed process that should not be permitted to continue. “The system is too fraught with variables to survive. Whether or not one receives the death penalty depends upon the discretion of the prosecutor who initiates the proceeding, the competence of counsel who represents the defendant, the race of the victim, the race of the defendant, the make-up of the jury, the attitude of the judge, and the attitude and make-up of the appellate courts that review the verdict.“

Regarding Ohio's lethal injection process, Judge Sarokin said it would be unconstitutional to subject the defendant to a second execution attempt: “It is impossible to imagine what it must be like to know that you are going to be put to death, have numerous efforts fail, and then have to face the prospect again at a later date! If that isn't cruel and unusual punishment, I do not know what is!“ He continued, “Double jeopardy prohibits a person from being tried twice for the same crime. Should it not protect a person from being subjected to execution twice for the same crime?“ Read the entire article below.