Executions

States' Secrecy in Lethal Injections Challenged as Interference with Freedoms of Speech and Press

A pending federal lawsuit in Missouri asserts that a state law shrouding the makers of lethal injection drugs in secrecy is a form of prior censorship and an interference with the pulic's right to freedom of speech and freedom of the press under the First Amendment. U.S. District Court Judge Beth Phillips, who has already expressed concern about withholding this information from a death row defendant facing execution, is expected to rule soon on this broader problem. The Georgia Supreme Court is also weighing the constitutionality of a similar ban on releasing information in that state. States do not want to reveal the sources of their drugs because it might embarrass the pharmacists who are preparing the chemicals. Under Missouri's law, anyone who publishes information about the pharmacy making the drug is liable to be sued. In 2006, the St. Louis Post-Dispatch revealed that the doctor who prepared the drugs for Missouri's executions had been publicly disciplined by the state medical board, prompting the legislature to pass the secrecy law. The paper also identified a nurse on the execution team who was on probation for stalking. The editor of the Post-Dispatch later wrote, "We believe the law is unconstitutional, and we also believe it stifles public discussion and hinders governmental accountability."

Louisiana To Change Lethal Injection Procedure One Week Before Execution

Just one week before the scheduled execution of Christopher Sepulvado, Louisiana announced it has been unable to  find pentobarbital for its lethal injections and instead may apply a new procedure used only once before in the U.S. If the state cannot obtain pentobarbital, it will employ the two-drug procedure used by Ohio on January16 to execute Dennis McGuire, an execution that resulted in gasping sounds and movements by the inmate over an extended period of time. That procedure involved midazolam--a sedative--and hydromorphone--a painkiller. Gary Clements, an attorney for Mr. Sepulvado, said Louisiana is violating its own protocol, which requires that lethal injection drugs be obtained at least 30 days before an execution. "Just days before a scheduled execution, the State has significantly changed its execution protocol without independent oversight or public scrutiny," Clements said. "[This] once again demonstrates that the State is not prepared to move forward with Mr. Sepulvado’s scheduled execution in a manner that comports with state and federal laws, and the U.S. Constitution." Sepulvado's attorneys argue his due process rights are being violated by the lack of information about the manner of his execution, and his right to be spared cruel and unusual punishment would be violated by an execution using faulty drugs.

Missouri Execution Drugs Challenged As Violating Federal Law

Attorneys for a Missouri inmate facing imminent execution have asserted that the Department of Corrections has violated state and federal laws in acquiring its lethal injection drugs. Herbert Smulls is scheduled for execution on January 29, but a challenge has been filed in federal court alleging that the state's pentobarbital was obtained from a compounding pharmacy in Oklahoma, which is unlicensed in Missouri. The suit also stated the drug has not been stored properly. A correctional official, who helped find a compounding pharmacy that would sell lethal injection drugs to Missouri, said he did not know if the pharmacy was licensed to sell in the state. Cheryl Pilate, Smulls' attorney, said, "We were very surprised, really, by the lack of attention that was given to vetting the pharmacy -- finding out if it was qualified to do what it did, if it was inspected, if it was properly licensed. It seemed that there was almost no knowledge actually of the capabilities of the compounding pharmacy." In a January 22 letter to the Food and Drug Administration, Pilate alleged Missouri violated several federal laws by obtaining pentobarbital from a compounding pharmacy without a valid prescription.

Problems Arise As Ohio Tries New Execution Procedure

On January 16, Ohio carried out the first lethal injection in the U.S. using a new protocol, resulting in a lengthy and disruptive execution. Ohio employed a back-up procedure to execute Dennis McGuire, using midazolam, a sedative, and hydromorphone, a painkiller. Witnesses to the execution reported that McGuire snorted, gasped, and struggled during the execution, which took longer than usual for death to occur. Deborah Denno, a professor at Fordham Law School and lethal injection expert, said, “Whether there were choking sounds or it was just snorting, the execution didn’t go the way it was supposed to go.” Anesthesiologists had warned that the new cocktail of drugs could cause a condition called "air hunger," in which the inmate would gasp for air but be unable to absorb oxygen. On January 9, Oklahoma executed Michael Wilson using different drugs, and the inmate on the gurney said, “I feel my whole body burning,” as the drugs began to flow.

Federal Court Reviewing Ohio's Untried Lethal Injection Procedure

On January 10, U.S. District Court Judge Gregory Frost will consider a challenge to an execution procedure in Ohio that has never been used before in the country. Dennis McGuire is scheduled for execution on January 16, and his attorneys are arguing the new drugs could cause a very painful death, saying, "McGuire will experience the agony and terror of air hunger as he struggles to breathe for five minutes after [executioners] intravenously inject him with the execution drugs." The new lethal injection procedure will use midazolam, a sedative, and hydromorphone, a painkiller. Judge Frost has heard prior challenges to Ohio's execution procedures and has criticized the state for carrying out haphazard executions and not adequately following its own protocols.

Missouri Obtaining Lethal Injection Drug From Pharmacy Unlicensed in State

An investigation by St. Louis Public Radio and the St. Louis Beacon found that the source of Missouri's lethal injection drug, pentobarbital, is a compounding pharmacy in Oklahoma, not licensed to sell drugs in Missouri. Until very recently, compounding pharmacies have been regulated only by state pharmacy boards, not by the U.S. Food and Drug Administration. Thus, a pharmacy in Oklahoma may be held to different standards than one in Missouri. Ned Milenkovich, a pharmacist and attorney who serves on the Illinois Board of Pharmacy, said, “The purpose of the board is not to protect the pharmacy and the pharmacist but to protect the public of the state and the citizens of Missouri in this case," adding that out-of-state pharmacies are legally required to be registered in the state to which they send drugs. The legality of the Department of Corrections obtaining execution drugs from an out-of-state pharmacy is uncertain. A federal judge described the execution drug source, which the state has fought to keep secret, as a “shadow pharmacy hidden by the hangman’s hood.”

Upcoming Death Penalty Events in 2014

As the new year begins, there are several notable events related to the death penalty likely to occur in the next few months. The first execution of the year is scheduled for January 7 in Florida. The execution of Askari Muhammad had originally been scheduled for December 3, 2013, but was stayed due to a challenge to the state's new execution protocol. The Florida Supreme Court approved the new protocol, and the execution was rescheduled, though legal challenges are continuing in federal court. Ohio has scheduled the execution of Dennis McGuire for January 16, and the state plans to use a lethal injection protocol never tried before in any state. Ohio will use midazolam and hydromorphone, drugs formerly listed in the state's backup procedure. This latest change in Ohio was caused by a shortage of the drug pentobarbital, after restrictions on its use were imposed by its European manufacturer. On January 22, Texas is scheduled to execute Edgar Tamayo, a Mexican citizen who was denied consular access at the time of his arrest, in violation of the Vienna Convention on Consular Relations. Objections to the execution have been raised by U.S. Secretary of State John Kerry and by numerous other governments. On March 3, the U.S. Supreme Court will hear oral arguments in Hall v. Florida, a challenge to Florida's strict procedure for determining intellectual disability in capital cases. The Court previously ruled that intellectually disabled defendants are barred from execution.

FROM DPIC: Extensive News Coverage of Year End Report

National and local media have focused significant attention on DPIC's recent 2013 Year End Report. Coverage has included pieces in the New York Times, Washington Post, USA Today, Los Angeles Times, Wall Street Journal, Time Magazine, CNN, on the wires of the Associated Press and Reuters, and in hundreds of other articles and editorials. Papers highlighted the main theme of the report, which showed a continuing decline in the use of the death penalty around the country. The New York Times quoted DPIC's Executive Director, Richard Dieter, as commenting that “A societal shift is underway.” The Associated Press quoted Dieter saying, "I think the decline begins with the revelations about mistakes in capital cases - that innocent people could get the penalty and almost be executed has shocked the public to the point where death sentences are harder to obtain."

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