Ohio Senate Holds Hearing on Lethal Injection Secrecy Bill
On December 4, the Ohio Senate Judiciary Committee held a hearing on HB 663, which would shield the identity of those who produce lethal injection drugs for the state. Previously, critics of the bill had warned that the measure could be unconstitutional because it interferes with the courts and violates the First Amendment right to free speech. Among those testifying at the committee hearing was Kevin Smith of the Society of Professional Journalists, who called the bill, "one of the most over-reaching in terms of secrecy we have encountered." Public defenders and the Ohio ACLU also testified against the bill. The Ohio House has already passed the bill. Additional Senate hearings are scheduled for next week.
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NEW VOICES: Retired Police Captain Says Repealing Death Penalty Is "Smart on Crime"
Jim Davidsaver, a retired police captain with over 25 years experience in the Lincoln (Nebraska) Police Department, recently advocated for repeal of the state's death penalty from a law enforcement perspective. In an op-ed in the Lincoln Journal-Star, Davidsaver said, "[M]y professional experience has shown me that our state’s death penalty doesn’t keep us any safer. Its exorbitant cost actually detracts from programs that would promote the overall health, safety and welfare of our communities." He highlighted the financial tradeoff between the death penalty and other crime prevention measures: "The millions of dollars we’ve spent on the death penalty would have been much better invested in more police officers, additional resources or training for our current officers." He concluded, "The cheaper, more intelligent alternative for our state is life without the possibility of parole. Repealing the death penalty does not mean we are ‘soft’ on crime. It means we are smart on crime."
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Proposed Ohio Lethal Injection Secrecy Bill May Be Unconstitutional
The Ohio legislature is considering a bill that would prevent the public and the courts from knowing the name of compounding pharmacies that produce lethal injection drugs for the state and the identity of medical personnel participating in executions. Critics of the bill say such interference with the courts and the First Amendment right to free speech would be unconstitutional. At a committee hearing, Dennis Hetzel, executive director of the Ohio Newspaper Association, said, "This bill likely will prompt endless litigation – a precise situation you are trying to avoid." Similar secrecy laws in Pennsylvania, Missouri, Arizona, and Oklahoma are being challenged in court by media organizations. The non-partisan Legislative Service Commission also raised constitutional concerns about a provision of the bill that would void any contract if it had a clause prohibiting the sale of lethal injection drugs to the state, saying that could violate state and federal prohibitions against impairing contracts. Ohio State University law professor Doug Berman questioned whether the state should go to such lengths to preserve lethal injection: "If the only way we can preserve this method of execution is by making it more secret, that, to me, is something of a sign that we shouldn't be trying to preserve this method of execution."
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EDITORIALS: Maryland Governor Should Commute Remaining Death Sentences
In a recent editorial, the Washington Post urged Maryland Governor Martin O'Malley to commute the sentences of the four men remaining on the state's death row, saying, "To carry out executions post-repeal would be both cruel, because the legislation underpinning the sentence has been scrapped, and unusual, because doing so would be historically unprecedented." Maryland is one of three states that have repealed the death penalty prospectively but still have inmates on death row. The others are Connecticut and New Mexico. O'Malley, who is leaving office in January, was a supporter of repeal. Maryland Attorney Douglas Gansler, who opposed repeal, recently said that carrying out an execution in Maryland is, "illegal and factually impossible." The editorial concluded, "In signing the abolition of capital punishment into law last year, [O'Malley] was unequivocal: 'It’s wasteful. It’s ineffective. It doesn’t work to reduce violent crime.' Having made the moral case for abolition so eloquently, he should have no trouble making the practical case for commutation to life without parole for the four remaining condemned men. And he should act without further delay." Read the editorial below.
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Nebraska Attorney General Says Death Penalty in Limbo
Nebraska Attorney General Jon Bruning said executions in the state are unlikely to resume for at least another year because of the scarcity of lethal injection drugs. "Death row is sort of in limbo today," he said, adding that efforts to find alternative drugs have been diverted due to other state concerns. Nebraska's last execution was in 1997, by electrocution. The state's execution protocol calls for use of sodium thiopental, which is no longer being manufactured for the U.S. Earlier, the state had obtained sodium thiopental from a distributor in India, but the drug expired this year. The Department of Corrections would have to rewrite its protocol to allow for different drugs. State Sen. Ernie Chambers said he would work to prevent such changes: “I would fight tooth and nail... against what Bruning is talking about.” Bruning, who is leaving office in two months, said it will be up to the new governor and attorney general to decide “if and when” they want to address the state’s death penalty.
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ARTICLES: Excluding Blacks from Death Penalty Juries Violates Rights As Citizens
An article in the most recent issue of the Virginia Quarterly Review examines the practice of excluding African-Americans from jury service, particularly in death penalty cases in North Carolina. In Bias in the Box, Dax-Devlon Ross notes, "Alongside the right to vote, the right to serve on a jury is an enduring pillar of our democracy....Nevertheless, there is perhaps no arena of public life where racial bias has been as broadly overlooked or casually tolerated as jury exclusion." Ross traces the history of civil rights litigation that secured blacks the right to participate in juries, but he also shows the continued use of strategies to remove them from service. In particular, the repeal of North Carolina's Racial Justice Act in 2013 removed an important protection of equality in jury service. Before the act was rescinded, a special court reduced the sentences of four death row inmates because of patterns of racial bias in jury selection. In one case, a prosecutor's notes described potential jurors as "blk wino - drugs" and as living in a "blk, high drug" neighborhood. Ross quotes a number of potential black jurors who wanted to serve in North Carolina but felt they were excluded because of their race.
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Sen. Leahy Cites North Carolina Exonerations in Calling for Legislaton
In a recent speech in the U.S. Senate calling for the reauthorization of the Justice for All Act, Senator Patrick Leahy (D-VT) spoke about the recent exonerations of two men in North Carolina, citing the importance of DNA testing in their release from prison after 30 years: "The dozens of exonerations made possible by the Justice for All Act are testament enough to its value," Leahy said, "Henry Lee McCollum and Leon Brown are just the latest examples. The injustice they survived – and the fact that North Carolina nearly executed an innocent man–should dispel any doubt that this legislation is urgently needed." The Act was first passed in 2004 and has provided important assistance to states and local governments in using DNA evidence to convict the guilty and exonerate the innocent. The reauthorization is sponsored by Leahy and Senator John Cornyn (R-TX). The testing in the North Carolina case was funded by the Kirk Bloodsworth Post-Conviction DNA Testing Grant program, a portion of the Justice for All Act named for the first man exonerated from death row by DNA evidence. Read Leahy's statement below.
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NEW RESOURCES: Podcasts on Individual States
DPIC is beginning a new series of podcasts based on the history of the death penalty in each state. The series will first present the states that have ended the death penalty. Three podcasts, featuring Michigan, Wisconsin, and Maine, are now available. These short audio clips summarize the history surrounding the repeal of the death penalty in those states, including famous cases, issues that spurred legislators to take action, and subsequent attempts at reinstatement of the death penalty. We hope this new series will be an excellent resource for students researching their state's history, and for anyone curious about how historical events shaped our present-day capital punishment system. Our earlier series of podcasts dealt with the many issues surrounding the death penalty. You can listen to these and all of our podcasts on our Podcasts page or by subscribing on iTunes.
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News Organizations Sue Oklahoma to View Entire Execution Process
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.”
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Ohio Had Warnings About Lethal Drugs; State's Expert Witness Withdraws
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."
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