Executions

On Eve of Execution, Oklahoma Courts Can't Agree on Who Has Power to Stay

UPDATE: (4/21). The Oklahoma Supreme Court (5-4) has stayed the executions of Lockett and Warner. Earlier:In a 3-2 decision on April 18, the Oklahoma Court of Criminal Appeals (OCCA) said it could not grant a stay of execution to two death row inmates facing imminent execution because they had not filed a proper motion. Earlier, the Oklahoma Supreme Court said the OCCA should be the court to grant a stay, especially since there were unsettled questions about the constitutionality of the state's execution law. The two inmates, Clayton Lockett (l.) and Charles Warner (r.), have argued that the "veil of secrecy" surrounding Oklahoma's lethal injection protocol is unconstitutional. A lower court ruled in their favor in March. Vice-Presiding Judge Clancey Smith of the OCCA dissented from the 3-2 ruling, saying, "I would grant a stay to avoid irreparable harm as the appellants face imminent execution. I would do so in consideration of the appellants' rights, to avoid the miscarriage of justice, and in comity with the Supreme Court's request for time to resolve the issues pending before it." Attorneys for Lockett and Warner have filed an additonal appeal to the state Supreme Court, stating, "The Oklahoma Court of Criminal Appeals (OCCA) has repeatedly disavowed any authority to stay Appellants’ executions, even in the face of this Court’s direct ruling to the contrary. It simply cannot be that no court in this State has the power to enter a stay of execution in this case. Such a result would close the courts of justice to Appellants, in violation of the Oklahoma Constitution."

New and Timely Resources from DPIC

DPIC recently published a new page that presents execution data for each state and each year since 1976. This allows users to more easily see execution trends in states over time. We have also recently posted updated state data from "Death Row, USA." As of October 1, 2013, there were 3,088 inmates on death row, continuing the decline in death row population since 2000. As developments surrounding lethal injection continue to emerge, users can find current information on our State-by-State Lethal Injection page. Finally, information on legislative action on capital punishment, such as the upcoming vote on repealing the death penalty in New Hampshire, can be found on our Recent Legislation page.

Perils of State Secrecy Surrounding Lethal Injections

In a recent op-ed in the New York Times, attorneys Megan McCracken and Jennifer Moreno argued that the veil of secrecy that many states have placed over their execution process violates defendants' constitutional rights and "deprives the public of informed debate." The authors provided numerous examples where inmates executed with drugs from compounding pharmacies or with novel mixes of new drugs exhibited signs of consciousness and suffering. However, inmates whose executions are rapidly approaching are unable to mount a credible challenge to the drugs that will be used because legislatures or wardens have labeled the sources as state secrets. The attorneys concluded, "The Eighth Amendment requires that the ultimate punishment our society can impose and the means by which it is carried out are subject to the highest level of scrutiny. If prison officials conceal crucial information from judges, lawyers and the public, we have only their word that the drugs will cause death in a manner that complies with the Constitution. Clearly, we can’t leave that to trust."

STUDIES: Amnesty Reports Executions Occurred in Only 11% of Countries Worldwide in 2013

Map
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Amnesty International recently released its annual report on capital punishment around the world, noting, "Developments in the worldwide use of the death penalty in 2013 confirmed that its application is confined to a small minority of countries." As illustrated in the chart at left, over the past decade there has been an increase in the number of countries abolishing the death penalty and a decrease in countries carrying out executions. Because executions in China remain a state secret, Amnesty was not able to determine the number of executions worldwide. Of the known executions, almost 80% occurred in just three countries: Iran, Iraq, and Saudi Arabia. Twenty-two countries recorded executions last year. No executions were carried out in Europe or Central Asia. The United States remained the only country in the Americas to carry out executions and had the fifth most executions of any country in the world. (Information from Syria and Egypt could not be confirmed.)

Oklahoma Judge Finds Execution Secrecy Unconstitutional

On March 26, Oklahoma County District Judge Patricia Parrish held that the state's lethal injection secrecy law violates the constitutional right to due process of inmates slated for execution. "I think that the secrecy statute is a violation of due process because access to the courts has been denied," she said, saying the case was not "even a close call." Death row inmates Clayton Lockett and Charles Warner challenged the law, which bans anyone from disclosing the source of the state's execution drugs, even in court. Attorneys for Lockett and Warner called the decision "an important step towards greater transparency and accountability in Oklahoma's execution system" and expressed hope "that no execution will go forward until the state reveals full information about the source of its execution drugs, particularly in light of the new, controversial protocol it unveiled last week...."

Oklahoma Unable to Obtain Lethal Injection Drugs for Upcoming Executions

(UPDATE: The executions of Clayton Lockett and Charles Warner were stayed until April 22 and 29 respectively.) Oklahoma does not have the necessary drugs to carry out the upcoming executions of Clayton Lockett and Charles Warner, scheduled for March 20 and 26. According to a brief filed on behalf of the Department of Corrections, the department has made a "Herculean effort" to obtain pentobarbital and vecuronium bromide for the lethal injections, but still lacks a supply of either drug. The brief said that a deal to obtain the two drugs from a pharmacy had fallen through, but it did not name the pharmacy. The state's death penalty statute lists two alternative methods of execution, but they can only be used if lethal injection is ruled unconstitutional. Federal public defender Madeline Cohen said, "It's stunning news to us that the state does not have the means to carry out a legal execution right now, and it gives us deep cause for concern that they are coupling that revelation with an insistence on shrouding the process in secrecy." Both Lockett and Warner have argued it is improper for Oklahoma to carry out executions behind a "veil of secrecy," preventing them from obtaining information about the drugs to be used in their executions.

Should State Executions Proceed Under a Veil of Secrecy?

In his Sidebar column in the N.Y. Times, Supreme Court reporter Adam Liptak recently discussed the concerns about states denying death row inmates information about how they will be executed. Liptak highlighted the recent execution of Michael Taylor in Missouri, where the state has made the pharmacy providing the drugs for lethal injection part of its "execution team," thus obscuring any failings the pharmacy may have. This secretive approach drew criticism from a minority of judges on the U.S. Court of Appeals for the Eighth Circuit, and a dissent from three Justices of the U.S. Supreme Court. Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor said they would have granted Taylor a stay of execution to consider his due process rights to information about the state's method for killing him. As Liptak said, "[I]t is hard to see how death row inmates can argue that a given method of execution violates the Eighth Amendment’s prohibition of cruel and unusual punishment if they are barred from knowing what the method is." Though Taylor was executed, other death row inmates are raising similar claims that may come before the Supreme Court.

Excerpts from Dissent Regarding Secrecy of Lethal Injection Drugs

In a dissent from a decision by the U.S. Court of Appeals for the Eighth Circuit allowing Missouri's execution of Michael Taylor on February 26, three judges sharply criticized the secrecy of Missouri's lethal injection protocol as a violation of Taylor's right to due process. The dissenters would have stayed the execution to allow Taylor to obtain information about the source of the execution drugs:

  • "Because Taylor seeks to determine whether the drug to be used in his execution will result in pain or in a lingering death, it bears repeating the importance of the identities of the pharmacists, laboratories, and drug suppliers in determining whether Missouri's execution of death row inmates is constitutional."
  • "[F]rom the absolute dearth of information Missouri has disclosed to this court, the 'pharmacy' on which Missouri relies could be nothing more than a high school chemistry class."
  • "If through lack of experience or lack of time to do adequate testing, the pharmacy has manufactured something which is quite painful, Taylor's constitutional rights would be violated."
  • "Missouri has a storied history of ignoring death row inmates' constitutional rights to federal review of their executions. I once again fear Missouri elevates the ends over the means in its rush to execute Taylor."

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