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Ohio Execution Stayed at 11th Hour to Consider Inmate Organ Donation

On November 13 Ohio Governor John Kasich stayed the execution of Ronald Phillips less than 24 hours before he was to be die by lethal injection in order to consider Phillips' request to donate a kidney to his mother. Kasich stated, “I realize this is a bit of uncharted territory for Ohio, but if another life can be saved by his willingness to donate his organs and tissues then we should allow for that to happen.” Medical experts will now have time to determine whether Phillips would be a suitable donor for his mother, who is on dialysis, and other implications of the donation can be considered. In 1995, Delaware death-row inmate Steven Shelton was allowed to donate a kidney to his mother. His death sentence was later reversed for other reasons. However, in Florida, Joseph Brown was not allowed to donate a kidney to his brother, who later died. Brown was freed from death row after being exonerated in 1987. Phillips also offered to donate his heart to his sister after he was executed, but donations of vital organs have not been allowed during U.S. executions because of ethical issues. Texas allows general prisoners to donate non-vital organs, but not those on death row.

POSSIBLE INNOCENCE: Florida Supreme Court Overturns Conviction and Death Sentence Based on New Evidence

In a 5-2 decision, the Florida Supreme Court overturned the murder and sexual battery convictions and death sentence of Roy Swafford (pictured), who has been on death row since 1988. The court said in its decision that "No witness, DNA, or fingerprints link Swafford to the victim or the murder weapon. The newly discovered forensic evidence regarding the alleged sexual battery changes the very character of the case and affects the admissibility of evidence that was heard by the jury." Retesting of evidence from the case indicated that, contrary to earlier tests, a chemical found in semen was not present on the victim, suggesting that she was not sexually assaulted before the murder. The prosecution had said the assault motivated the murder, so the new evidence removes the likely motive. The Supreme Court also said that jurors did not hear evidence about another suspect who matched descriptions of the murderer, owned a car that matched the one used in abducting the victim, and owned the same type of gun used in the murder. Swafford's attorney, Terri Backhus, summed up the decision, saying, “Not only did the court say he gets a new trial on the sexual battery and the murder, but the Supreme Court said the trial court should grant a motion for judgment of acquittal on the sexual battery.”

LETHAL INJECTION: New Execution Practices Raising Medical Concerns

Medical experts are concerned that untried lethal injection procedures in some states could cause prolonged, painful deaths. Ohio will try a procedure never used before in an execution on November 14 when it plans to inject a combination of the sedative midazolam and the painkiller hydromorphone. According to Dr. Jonathan Groner, a professor of clinical surgery at Ohio State University College of Medicine, a hydromorphone overdose can cause painful side effects, including an extreme burning sensation, seizures, hallucination, panic attacks, vomiting, and muscle pain. He said, "You're basically relying on the toxic side effects to kill people while guessing at what levels that occurs." Groner added, if the hydromorphone IV is set poorly, "it would be absorbed under the skin, subcutaneously, very slowly, and that death could be extremely prolonged…It may be painful, and it may take forever." Doctors also raised concerns about Missouri's planned use of pentobarbital from a compounding pharmacy. Compounding pharmacies are not regulated by the Food and Drug Administration, and drugs from one such pharmacy caused a deadly outbreak of fungal meningitis in 2012. David Waisel, an associate professor of anesthesiology at Harvard Medical School, said that contaminated pentobarbital could cause a sensation similar to rubbing an open wound with sandpaper. Florida was the first state to use midazolam, although it employed different secondary drugs than Ohio. In an October 15 execution, the inmate appeared to remain conscious longer than usual and made movements after losing consciousness.

Federal Court to Review Florida's Unique Execution Procedure

A federal court in Florida will review challenges to the state's new lethal injection procedure, which the state plans to use in an upcoming execution on November 12. Florida is the only state in the country to use this new protocol, which begins with the sedative midazolam, followed by a paralytic drug and potassium chloride. Attorneys for Florida death row inmates allege the process could result in severe pain in violation of the 8th Amendment. Megan McCracken, an attorney at the death penalty clinic at the University of California Berkeley School of Law, said, “If [potassium chloride is] given to a conscious person who has been inadequately anesthetized, it causes incredible pain because it activates nerve endings. It will feel like burning through the circulatory system until it reaches the heart, which it stops.” Florida switched to midazolam due to a shortage of pentobarbital, an anesthetic used in almost all executions over the past 2 years. Texas, which also has an execution scheduled for November 12, has obtained pentobarbital from a compounding pharmacy. It employs only 1 drug in its executions. Ohio recently announced it will use a new protocol involving midazolam and hydromorphone in its execution scheduled for November 14. That procedure is also under review in federal court.

INTELLECTUAL DISABILITY: Determination of Mental Retardation in Florida and Georgia Under Review

On October 21, the U.S. Supreme Court accepted a new case, Hall v. Florida (No. 12-10882), to determine whether the Florida Supreme Court properly upheld the death sentence of a man whose IQ is just above the state's standard for mental retardation. According to the state's law, defendants with an IQ above 70 cannot be considered intellectually disabled, even though most states use a broader definition and there is a margin of error in such IQ tests. Freddie Lee Hall's scores on three IQ tests ranged from 71 to 80. A state judge had previously found Hall to be mentally disabled, but the ruling took place before the state passed a law setting the IQ limit. The case will be argued later in the Supreme Court's term. In Georgia, a House committee will hold an out-of-session meeting to examine the state's strict standard for determining mental retardation in capital cases. Defendants are required to prove intellectual disability beyond a reasonable doubt, the strictest burden of proof in the nation.

Florida Identifies Over 100 Inmates Nearing Execution

Following the provisions of Florida's recently passed "Timely Justice Act," the clerk of the state's Supreme Court has identified 132 inmates on death row who are "warrant ready," based on their appeals. However, fewer than 20 of those inmates have begun the executive clemency process that must be completed before an execution can take place. Once the governor signals that the clemency process is over for an inmate, a death warrant must be signed in 30 days, but there is no mandatory schedule for the initial review. Over 150 attorneys representing inmates on Florida's death row are challenging the constitutionality of the law, saying it violates the separation of powers, as well as the inmates' rights to due process and equal protection. Stephen Harper, a law professor at Florida International University, said, "This [law] could create an unnecessary constitutional mess between the governor, the Legislature and the Florida Supreme Court as it's being litigated right now." Florida has already executed 5 inmates in 2013, second only to Texas. No one on death row has been granted clemency in Florida in 30 years.

LETHAL INJECTION: Many States Changing Lethal Injection Process

On October 4, Ohio announced it will be obtaining its execution drug, pentobarbital, from a compounding pharmacy if it is not available from the manufacturer. Texas made a similar announcement a few days earler. In the past, some compounding pharmacies have been implicated in providing contaminated drugs with fatal side effects. These local companies are not regulated by the Food and Drug Administration. Florida announced it will be using a new drug, midazolam, in its October 15 execution. The drug will be part of a 3-drug process and has never been used before in executions. The 3-drug process can be extremely painful if the first drug is not completely effective. Missouri intends to be the first state in the country to use the drug propofol in its October 23 execution, despite the fact that the drug company that delivered the drug has asked for its return. If Missouri goes ahead with the execution, European countries may impose restrictions on the exportation of this drug, thereby affecting other uses for vital surgeries in the U.S.  Finally, Tennessee will now use only a single drug, pentobarbital, in its executions, though it did not say where it hoped to obtain the drug.

NEW VOICES: Former Florida Justice Calls for Fundamental Change in Death Penalty

Raoul Cantera (pictured), a former Justice of the Florida Supreme Court, said the state should follow the practice of almost every other death penalty state and require juries to be unanimous when recommending a death sentence. Cantera also said that a a comprehensive review of the state's death penalty is "long overdue" and should begin by considering the recommendations of a 2006 American Bar Association report on the state's death penalty. Mark Schlakman, who was a member of the team that prepared the ABA report, joined Justice Cantera in calling for changes to the state’s system. Florida may have as many as 135 death penalty cases that could be moved close to execution under the state’s new Timely Justice Act. Recently, Florida has imposed more death sentences than any other state, and has had more exonerations than any other state since 1973. 

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