On July 16, U.S. District Court Judge Cormac Carney (pictured) held that the delays and arbitrariness of California's death penalty system rendered it unconstitutional. Judge Carney vacated the death sentence of Ernest Jones, who has spent nearly 20 years on death row. On August 21, California Attorney General Kamala Harris announced the state will appeal the ruling to the U.S. Court of Appeals for the Ninth Circuit. Below are excerpts from Judge Carney's ruling:
- The Eighth Amendment prohibits the imposition of cruel and unusual punishment by the state. Although reasonable people may debate whether the death penalty offends that proscription, no rational person can question that the execution of an individual carries with it the solemn obligation of the government to ensure that the punishment is not arbitrarily imposed and that it furthers the interests of society.
- Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional.
A lawsuit filed in federal court in Oklahoma on August 25 by various news organizations, including the Oklahoma Observer and the Guardian US, seeks to give media witnesses a more complete view of executions than is currently allowed. The petition alleges that the right to witness the entire execution is protected by the First Amendment, stating, "The ability of the press to witness the particular facts and circumstances of each execution, and to report on the same, promotes the proper functioning of the State’s death penalty system and increases public confidence in the integrity of the justice system." Current practice in Oklahoma only permits witnesses to begin watching once officials start administering the lethal injection drugs. The view of witnesses is blocked while the inmate is strapped to the gurney and intravenous lines are inserted. During Clayton Lockett's botched execution in April, the blinds were closed again when Lockett began to writhe and groan after the drugs should have taken effect. Katie Fretland, a reporter who attended Lockett's execution and is a plaintiff in the lawsuit, said, “At an execution, the press serves as the public’s eyes and ears. The government shouldn’t be allowed to effectively blindfold us when things go wrong. The public has a right to the whole story, not a version edited by government officials.”
After Ohio's two-hour attempted execution of Rommel Broom (pictured) in 2009, it explored alternative methods, including an intramuscular injection of midazolam and hydromorphone. Gregory Trout, an attorney with the state Department of Rehabilitation and Correction expressed concerns to Dr. Mark Dershwitz, the state's expert witness on lethal injections, about whether these drugs would result in “gasping for air in a hyperventilating fashion, with eyes still open,” and whether it “would create the appearance, at least, of suffering, which would upset witnesses and inspire litigation.” Dr. Dershwitz said such reactions were unlikely. However, Dr. Mark Heath, an anesthesiologist at Columbia University, warned the drugs could create “a terrible, arduous, tormenting execution that is also an ugly visual and shameful spectacle.” Ultimately, the drugs were not used intramuscularly but rather injected into the veins of Dennis McGuire in January 2014, resulting in a prolonged execution in which the prisoner struggled and clenched his fists for an extended period. The same drugs were used in the recent two-hour execution of Joseph Wood in Arizona. Dr. Dershwitz, who had served as an expert on lethal injection for 22 states and the federal government, recently withdrew from further involvement as an expert because Ohio had mischaracterized him as a "consultant."
The Republican Liberty Caucus of Kansas has officially announced its opposition to the death penalty. The Caucus chair, Dave Thomas, said, “Any time you give the government a power that can be abused, it will or may be abused in the future. And taking a citizen's life is kind of the ultimate power the government can have.” The Caucus joined several Republcan legislators, such as Sen. Carolyn McGinn and Rep. Steve Becker, in supporting repeal of capital punishment. The Kansas Republican Party chose to omit a death-penalty stance from of its platform this year, leaving it as "a matter of individual conscience." The Kansas Libertarian Party opposes the death penalty. In 2013, a repeal bill sponsored by two Republicans and one Democrat received hearings, but was not passed. Kansas has 10 people on death row but has not had an execution since capital punishment was reinstated in 1994.
Dr. Joel Zivot, an anesthesiologist at Emory University, recently witnessed an execution in Georgia and wrote about the presence of two physicians during the lethal injection he observed. He quoted the Medical Practice Act describing the role of doctors as those "engaged in the diagnosis or treatment of disease, defects, or injuries of human beings." However, he noted, "Life is not a disease, defect, or injury. Nothing in the Medical Practice Act authorizes a physician to cure someone of his life." Dr. Zivot attributed the lack of oversight regarding the doctors' participation to Georgia's secrecy law, which shields the identity of all execution participants: "In Georgia, and in other states that have secrecy laws, medical boards are usurped and the state now authorizes what behavior constitutes acceptable medical practice. This cannot be permitted. If the state prevents the board from regulating certain doctors, public health can be undermined in secret. If the state has the power to immunize physicians from oversight of their peers and colleagues, they have a terrible power to pervert the delivery of healthcare for some bureaucrat's idea of the public good. It is a horrific precedent that can be abused, even with the best of intentions."
In a recent interview, Colorado Governor John Hickenlooper stated his opposition to the death penalty, citing the views of murder victims' family members and the high cost of implementing capital punishment. Hickenlooper said he had supported the death penalty until he learned more about it. “My whole life I was in favor of the death penalty," he said, "But then you get all this information: it costs 10 times, maybe 15 times more money to execute someone than to put someone in prison for life without parole. There’s no deterrence to having capital punishment. And I don’t know about you, but when I get new facts, I’ll change my opinion. I didn’t know all of this stuff." In 2013, he granted an indefinite reprieve to death row inmate Nathan Dunlap, saying, “If the State of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly. Colorado’s system for capital punishment is not flawless.” Because of the general basis for Hickenlooper's grant of a stay, it would appear to put a hold on all executions while he is governor.
In the recent prolonged execution of Joseph Wood in Arizona, the state apparently veered from its execution protocol when it employed 15 doses of lethal injection drugs, rather than just a single dose followed by a second application, if necessary, as stated in its regulations. There have been numerous other instances in which the state appeared to depart from its protocol. The U.S. Court of Appeals for the Ninth Circuit criticized the state in 2012, saying Arizona “has insisted on amending its execution protocol on an ad hoc basis,” and that it had a “rolling protocol that forces us to engage with serious constitutional questions and complicated factual issues in the waning hours before executions.” In another instance, the federal public defender office said the Department of Corrections failed to check the criminal background of execution team members and ignored a lack of qualifications. One employee leading the medical team in four executions could not recall inserting an IV since he was trained as an emergency medical technician years earlier. In a 2011 execution, the medical team leader replaced one execution drug with another after concluding that they were "essentially equivalent," based on reading the drug packaging and information on the Internet, according to a suit brought by a death row inmate. Dale Baich, an attorney who represented Joseph Wood, said, “There’s the protocol that’s in place and there’s what happens, and those aren’t necessarily the same thing. What we’ve learned from this execution is that the Department of Corrections was making it up as it went along.”
Former Texas Governor Mark White and former FBI director William Sessions have petitioned Texas to grant clemency to death row inmate Max Soffar because of the strong chance that a reversal of his conviction will come too late due to his rapidly declining medical condition. Soffar's case has been reversed before, and his latest appeal is pending before a federal court. Soffar's supporters are asking that he be allowed to spend his last days at home before he dies of liver cancer. He has been on death row for over 33 years, consistently maintaining his innocence. "Nothing can save me," said Soffar. "I'm going to die. I've talked to my doctor — maybe five months, maybe four months, maybe three weeks." His lawyers said, "The reality is that the federal court process will likely not be completed before Mr. Soffar dies. The exigency of this situation is the driving force behind what Mr. Soffar admits is an unusual request for clemency at this stage of a capital case."