Lethal Injection

Ohio Warned Not to Import Execution Drug

A Food and Drug Administration letter to the Ohio Department of Rehabilitation and Correction indicated the state was considering importing sodium thiopental from overseas for use in executions. The letter warned the department that importing the drug would violate federal law: "Please note that there is no FDA approved application for sodium thiopental, and it is illegal to import an unapproved new drug into the United States." A similar letter was sent to Nebraska officials after the state spent over $50,000 in an attempt to obtain lethal injection drugs from a source in India. All executions were put on hold in Ohio after the botched execution of Dennis McGuire in 2014, as the state has pursued a new execution protocol. The potential foreign supplier was not revealed because Ohio, like many other states, keeps the identity of execution-drug suppliers secret.

NEW VOICES: Execution Secrecy "Has No Place in a Democracy"

A recent op-ed by former Texas Governor Mark White (pictured) and former Florida Supreme Court Chief Justice Gerald Kogan criticized a recently passed North Carolina law that imposes secrecy on the source of lethal injection drugs and removes execution procedures from public review and comment. The authors said the new law will only prolong litigation, rather than ending North Carolina's hold on executions, as intended. The op-ed also maintained that the new policy violates democratic principles: "The foundation of our constitutional republic lies in accountability and transparency, enabling American citizens to learn and debate about policy. Yet citizens cannot engage in robust conversations when basic information is hidden." Arguing that both supporters and opponents of the death penalty should oppose secrecy, they said, "Regardless of our views on the death penalty, Americans must maintain a principled approach to its implementation. The standard ought to be the U.S. Constitution, which mandates the government impose no cruel and unusual punishments. As long as states implement the death penalty, we must ensure they follow this constitutional standard."

EDITORIALS: North Carolina Newspapers Critique Execution Secrecy Law

On August 6, North Carolina Governor Pat McCrory signed a law that removed the requirement that a physician be present at executions and shrouded in secrecy many elements of the lethal injection process, including the specific drugs to be used and the suppliers of those drugs. By eliminating the physician-participation requirement, the law attempted to remove a legal hurdle that has halted executions in North Carolina since 2006. Two major state newspapers sharply criticized the new law, calling it, "macabre" and "an ugly spectacle." The Fayetteville Observer said, "We need thoughtful discussion of the issue and whether we're imposing a fair sentence or simply seeking revenge for a terrible crime. What we don't need is a General Assembly slicing away at reasonable public understanding of the state's execution protocols, instead choosing to wrap it all in secrecy." The News & Observer (Raleigh) called the law "a horribly misguided idea," citing the "gruesome outcomes" of experimental lethal injection protocols in other states. The editorial concluded, "Rather than put executions on a fast track, North Carolina should abandon them altogether."

One Year After Botched Execution, Many States Still Haven't Resumed Executions

On July 23, 2014, Arizona's execution of Joseph Wood was botched, taking nearly two hours from the time the state began injecting him with lethal drugs until he was finally pronounced dead. Witnesses reported that Wood gasped more than 640 times during the course of the execution, and an official report later revealed that he was injected with 15 doses of the execution drugs. Michael Kiefer, a reporter for the Arizona Republic, who witnessed Wood's execution, described it, saying, "He gulped like a fish on land. The movement was like a piston: The mouth opened, the chest rose, the stomach convulsed." Arizona used a combination of midazolam, the drug recently reviewed by the Supreme Court in Glossip v. Gross, and hyrdromorphone, a narcotic. Wood's lawyer, Dale Baich, describing the execution, said "The experiement failed." The same drug protocol had been used in Ohio's botched execution of Dennis McGuire earlier in 2014 and witnesses to an October 2014 execution by Florida using midazolam reported that the death took longer than usual. In the year since Wood's execution, Arizona has not carried out any executions as a stay issued by a federal judge remains in place. In that time, Oklahoma and Florida have used midazolam in a total of three executions, with Charles Warner in Oklahoma saying "My body is on fire." Both states temporarily put executions on hold while the Supreme Court review was underway, but indicate they intend to resume executions now that the use of midazolam has been upheld. An Oklahoma federal court has scheduled a trial for 2016 on Oklahoma's use of midazolam. All other executions since Wood's have used a one-drug protocol of pentobarbital, likely obtained from compounding pharmacies, since the primary manufacturer of the drug opposes its use in executions. Ohio delayed all executions until at least 2016 to review executions procedures, and executions in Tennessee are on hold because of legal challenges to its lethal injection protocols. Georgia is conducting an investigation into problems with execution drugs and has not set new execution dates as a result.

Louisiana Executions on Hold Until State Addresses Lethal Injection Issues

A federal judge in Louisiana has delayed five executions until at least July 2016 as state officials struggle to determine how to conduct executions using lethal injection. Christopher Sepulvado, a death row inmate whose execution has been rescheduled several times over the last two years, is challenging the constitutionality of Louisiana's execution method. The Department of Corrections requested that a hearing related to Sepulvado's challenge be put on hold because, "it would be a waste of resources and time to litigate this matter at present," because of ongoing developments relating to the availability of lethal injection drugs. Louisiana does not currently have an execution protocol. Its last protocol, however, was the same as that used in Arizona's botched execution of Joseph Wood: a combination of hydromorphone and midazolam. The state allegedly lied to a hospital in order to obtain one of the drugs in 2014, telling a pharmacist that the drug was needed for "a medical patient," not an execution. The Department of Corrections' last known supply of the execution drugs has now expired.

Supreme Court Narrowly Upholds Use of Lethal Injection Drug

On June 29, the U.S. Supreme Court held (5-4) in Glossip v. Gross that Oklahoma inmates "failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment." Three inmates on Oklahoma's death row had challenged the state's use of midazolam as the first drug in a three-drug protocol, saying that it "fails to render a person insensate to pain." In a narrow decision written by Justice Samuel Alito, the Court deferred to a District Court ruling upholding the use of midazolam. Justice Alito said that, in order to prevail, the inmates would have had to identify a "known and available alternative method" that has a lower risk of pain. The decision will allow states that use midazolam, including Oklahoma, to resume executions, though they can still consider alternatives. In a sweeping dissenting opinion raising deep concerns about the death penalty itself, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution....Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use."

NEW VOICES: American Society of Health-System Pharmacists Opposes Participation in Executions

In a press release on June 9, the American Society of Health-System Pharmacists (ASHP) announced its policy affirming "that pharmacists, as healthcare providers who are dedicated to achieving optimal health outcomes and preserving life, should not participate in capital punishment." ASHP represents 40,000 members, including pharmacists who serve as patient-care providers in acute and ambulatory settings. The organization also includes student pharmacists and pharmacy technicians. The policy was approved by the organization’s chief policy-making body, the House of Delegates, during ASHP’s Summer Meetings this week in Denver. “This policy makes it clear that ASHP opposes pharmacists’ participation in capital punishment,” said ASHP Chief Executive Officer Paul W. Abramowitz, Pharm.D., Sc.D. (Hon.), FASHP. “We are proud that our members as patient care providers who are dedicated to achieving optimal health outcomes have taken this strong, ethical stance.”

Missouri Execution Clouded by Concerns About Mental Illness and Lethal Injection

On June 9, Richard Strong was executed in Missouri, despite the fact that four Justices of the Supreme Court would have granted him a stay and despite evidence that he suffered from severe mental illness. A broad challenge to Missouri's secretive lethal injection process (Zink v. Lombardi) has yet to be resolved, and Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to stay Strong's execution because of that challenge. However, five votes are needed to stay an execution. In addition, Strong's original trial counsel failed to adequately explore his mental illness and the mental problems in his family. After a fuller investigation, Strong was diagnosed with major Axis I illnesses, including: Major Depression, Obsessive-Compulsive Disorder (OCD), Post-Traumatic Stress Disorder (PTSD) and Schizotypal Personality Disorder, and Dissociative Identity Disorder. Strong's counsel asked the Supreme Court to spare his life because society's standards of decency have turned away from executing people with such severe mental problems. Strong was convicted of murdering his wife and two-year-old daughter in a brutal manner. He acknowledged the crime but could not understand why he did it. Another child was left untouched. Now 14 years old, she pleaded for mercy for her father. Gov. Jay Nixon denied clemency.

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