Lethal Injection

Tennessee Supreme Court Contemplates Electric Chair Appeal on 25th Anniversary of Botched Florida Electrocution

The week of the 25th anniversary of Florida's gruesome botched electric chair execution of Jesse Tafero (pictured), the Tennessee Supreme Court began hearing a challenge to the administration of a state law that would resurrect the use of that State's electric chair if lethal injection drugs are unavailable. On May 6, 2015, the Tennessee justices heard argument on death-row inmates' right to know which method of execution will be used in their cases.  The Justices voiced concerns about the secrecy that the law allows to shield the execution process and the decision about which method to use. "How are the defendants supposed to know?" Justice Cornelia A. Clark asked, offering a hypothetical situation in which an inmate expects to be executed by lethal injection until he sees the electric chair set up in the execution chamber. Deputy Attorney General Jennifer Smith argued that execution by electric chair is "just not going to happen," but Chief Justice Sharon Lee said that the inmates' evidence regarding the unavailability of execution drugs suggests, "execution (by the electric chair) is very probable."  On May 4, 1990, witnesses to Tafero's execution reported that a problem with Florida's electric chair caused foot-high flames to shoot from Tafero's head. Current had to be applied three times because the first two shocks failed to kill him.

NEW VOICES: Citing Innocence, Misconduct, Creator of Lethal Injection Protocol Calls Death Penalty "Problematic"

Dr. Jay Chapman, the Oklahoma medical examiner who created the three-drug lethal injection protocol that was used from 1982 to 2010, recently told The Guardian that he has doubts about the death penalty.“I am ambivalent about the death penalty – there have been so many incidents of prosecutorial misconduct, or DNA testing that has proved a prisoner’s innocence. It’s problematic," Chapman said. He said he believed lethal injection would be a more humane method of execution, "At that time we put animals to death more humanely than we did human beings – so the idea of using medical drugs seemed a much better alternative.” He found it odd that his name has become so closely associated with lethal injection, saying, “This wasn’t my field, and it wasn’t my purpose in life – I’m a forensic pathologist and my main purpose was to set up a medical examiner’s system for Oklahoma, which is what I did.” Ultimately, concerns about wrongful convictions have given him qualms about capital punishment: “I’ve done autopsies for 50 years and I know what people are capable of doing to others. There are some criminals who have no redeeming features and who will never be rehabilitated – in those cases I would support the death penalty. But I’ve also seen the misconduct that can occur, and the problem is: how do you sort out one from the other?”

Supreme Court Hears Challenge to Oklahoma's Lethal Injection Protocol

On April 29, the U.S. Supreme Court heard oral argument in Glossip v. Gross, a case challenging the use of midazolam in lethal injections. Midazolam was used as the first drug in three botched executions in 2014, including the execution of Clayton Lockett in Oklahoma exactly one year ago. Prisoners on Oklahoma's death row argued that midazolam should not be used in executions because it could not reliably anesthesize the prisoner to prevent him or her from experiencing extreme pain when the second and third drugs in Oklahoma's execution protocol were injected. The Justices questioned both sides intensely, with the more conservative justices generally favoring the state's arguments and the more liberal justices favoring the prisoners' arguments. Justice Elena Kagan compared the effects of potassium chloride, the third execution drug, to being burned alive, saying, "Suppose that we said we’re going to burn you at the stake, but before we do, we’re going to use an anesthetic of completely unknown properties and unknown effects." Conservatives on the Court criticized the case as a veiled attacked on the death penalty itself. The Court is expected to decide the case before the current term ends in June. 

NEW VOICES: Leading Pharmacists Oppose Participation in Lethal Injections

In a recent op-ed in The Hill, three leading pharmacists wrote in support of the resolution by the American Pharmacists Association (APhA), discouraging pharmacist participation in executions. Leonard Edloe, former CEO of Edloe's Professional Pharmacies, William Fassett (pictured), professor emeritus of pharmacology at Washington State University, and Philip Hantsen, professor emeritus at the University of Washington School of Pharmacy, wrote, "The healthcare community is now united in opposition to involvement in lethal injection, a form of execution that masquerades as a medical procedure yet violates core values of all healing professions." They warned that lethal injections without the appropriate drugs, personnel, and procedures, would be "brutal and unpredictable charades that shame this nation." The op-ed emphasized the overwhelming support of APhA members in adopting the resolution: "While APhA was engaged in developing the policy revision, problems associated with using experimental drug protocols became glaringly visible, particularly after the Clayton Lockett execution debacle in Oklahoma. By the time the APhA House of Delegates met in March 2015, there was very little disagreement among APhA member pharmacists that the proposed policy should be adopted, and no House of Delegates member spoke against its passage during final deliberations." Read the op-ed below.

Tennessee Supreme Court Suspends Executions

On April 10, the Tennessee Supreme Court canceled the execution dates for all four Tennessee death-row inmates currently under death warrant, and returned their cases to the lower courts to address the inmates' challenges to the state's lethal injection procedures. The executions had been scheduled for October 2015 through March 2016. Tennessee has not carried out an execution since 2009, but the state announced in 2013 that it would switch from a three-drug lethal injection protocol to a one-drug protocol using pentobarbital. Because of difficulties obtaining lethal injection drugs, Tennessee also passed a law in 2014 permitting the use of the electric chair if lethal injection drugs are not available. A group of inmates are currently challenging the constitutionality of Tennessee's lethal injection protocol as constituting cruel and unusual punishment, and the inmates have also challenged the State's use of the electric chair.  The Tennessee Supreme Court is expected to decide soon if it will review the inmates' challenges to the electric chair.

American Pharmacists Association: Assisting Executions "Fundamentally Contrary to the Role of Pharmacists"

On March 30, the American Pharmacists Association (APhA) adopted a resolution discouraging pharmacist participation in executions. The House of Delegates of the 62,000 member organization passed the policy, which states, "The American Pharmacists Association discourages pharmacist participation in executions on the basis that such activities are fundamentally contrary to the role of pharmacists as providers of health care." William Fassett, professor emeritus of pharmacotherapy at Washington State University, drafted the policy and said that the policy only became necessary in the last few years as major pharmaceutical companies have blocked the use of their products in executions and states have turned to pharmacies to obtain lethal injection drugs. Fassett said, “It’s never been legal in the U.S. to write a prescription to execute a person. The basic federal law is that a prescription is to be used for medical proposes in the context of an established patient-physician relationship." Thomas E. Menighan, Executive Vice President and CEO of the APhA, said, "Pharmacists are health care providers and pharmacist participation in executions conflicts with the profession’s role on the patient health care team. This new policy aligns APhA with the execution policies of other major health care associations including the American Medical Association, the American Nurses Association and the American Board of Anesthesiology." The International Academy of Compounding Pharmacists adopted a similar resolution last week, stating, "While the pharmacy profession recognizes an individual practitioner’s right to determine whether to dispense a medication based upon his or her personal, ethical and religious beliefs, IACP discourages its members from participating in the preparation, dispensing, or distribution of compounded medications for use in legally authorized executions."

Ohio Officials Say Death Penalty System Has Serious Flaws

Legislators in Ohio are seeking to enact death penalty reforms as the state grapples with problems in the application of capital punishment. Sen. Bill Seitz, a Republican, and Sen. Sandra Williams, a Democrat, are working on four bills to address some of the reforms recommended by the Ohio Supreme Court Death Penalty Task Force last year. The bills would prevent the execution of defendants with serious mental impairments, establish a fund for indigent defense, require certification of crime labs and coroners, and prohibit convictions where the only evidence is testimony from a jailhouse informant. Since 2003, Ohio has removed 20 inmates from death row through exonerations, clemency, or sentence reductions because of intellectual disabilities. An additional 5 men who had once been on death row, but had their sentences reduced when capital punishment was struck down in the 1970s, were also exonerated and released. Ohio's executions are currently on hold until at least 2016 because of problems with lethal injection. In recent years, several Ohio officials who once supported capital punishment have spoken out against it. Among them is Paul Pfeifer (pictured), a senior justice on the Ohio Supreme Court and the legislative sponsor of the bill to reinstate Ohio's death penalty in 1981, who now says, "I really think it’s time to shake it up and have life in prison without the possibility of parole, to have that be the ultimate penalty available to juries. It is more of a death lottery instead of something that is evenly applied across the state. The correct thing to do is take it off the books."

Growing Number of Pharmaceutical Companies Object to Use of Drugs in Executions

On March 4, Akorn Pharmaceuticals, a manufacturer of two drugs (midazolam and pentobarbital) that have been used in executions, released a statement announcing measures to block the sale of its products to prisons. Akorn joins at least two other U.S.-based drug companies and several European companies in expressing opposition to the use of their products in lethal injections. In 2014, Par Pharmaceuticals responded to Indiana's proposed use of one of their anesthetics by prohibiting the sale of the drug to prisons. Stephen Mock, a spokesman for Par, said, “It’s not because we take public policy positions on issues like capital punishment. We’re a pharmaceutical company, and we have a mission statement. Par’s mission is to help improve the quality of life. Indiana’s proposed use of our product is contrary to our mission.” Akorn's statement announcing their new restrictions said, “The employees of Akorn are committed to furthering human health and wellness. In the interest of promoting these values, Akorn strongly objects to the use of its products to conduct or support capital punishment through lethal injection or other means.”

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