Executions

BOOKS: "Grave Injustice: Unearthing Wrongful Executions"

Grave Injustice, a new book by Richard Stack, presents a critical examination of the death penalty through profiles of individuals who were executed but may have been innocent. Their stories are used to illustrate flaws in the death penalty, including faulty eyewitness identification, government misconduct, and ineffective representation. In examining these problems, Stack writes that the possible end of the death penalty "will not be based on its immorality...but on its poor track record... and its overwhelming lack of cost-effectiveness." In the second half of the book, the author profiles prominent individuals involved in this issue, including Sr. Helen Prejean and Martina Davis-Correia, the sister of Troy Davis, who was executed in 2011. Reviewer Mary Kelly Tate, Director of the Institute for Actual Innocence, said, "Stack uses his reportorial skills to distill the complex subject of the American death penalty into a digestible form, yet he never cuts corners with the human dimension."

LETHAL INJECTION: The Ongoing Controversy Over How People Are Executed

One of the nation's leading academic experts on the death penalty has written a new article describing how the controversy surrounding lethal injections has greatly intensified since the Supreme Court's ruling on the subject in 2008 (Baze v. Rees). Deborah Denno, a law professor at Fordham University, analyzed over 300 court decisions in the last five years citing Baze. She found there have been more changes in lethal injection protocols in that time than in the last 30 years, some of which have made matters worse. "The resulting protocols," she wrote, "differ from state to state, and even from one execution to the next within the same state," scarcely resembling those evaluated by the Supreme Court. As a result, "[T]this continuous tinkering often affects already troubled aspects of states’ lethal injection procedures, such as the paltry qualifications of executioners, the absence of medical experts, and the failure to account for difficulties injecting inmates whose drug-using histories diminish the availability of usable veins." She also addressed states' attempts to handle drug shortages, including changing drugs and turning to compounding pharmacies, whose recent record of contamination and resultant deaths have led to calls for greater regulatory oversight. She concluded, "Until death penalty states are willing to focus more on solutions than secrecy, lethal injection as a method of execution will remain mired in an endless cycle of difficulty and disorder."

LETHAL INJECTION: Many States Are Searching for New Execution Drugs

Many states are seeking alternative ways to carry out executions by lethal injection. Missouri announced it intends to use the anesthetic propofol, though no other state has used this drug and the drug's manufacturer has strongly objected to such use. Officials in Texas and Ohio announced they will be changing their execution protocols in the near future because their current execution drug (pentobarbital) is expiring and is no longer available for this use. In June, officials in California announced it would abandon its three-drug execution method and develop a new process. Georgia apparently obtained drugs outside the state, but has passed a law making all information about executions a "state secret."  Deborah Denno, a professor at Fordham Law School and an expert on methods of execution, noted the problems states face, “The bottom line is no matter what drugs they come up with, despite every avenue these states have pursued, every drug they have investigated has met a dead end. This affects every single execution in the country. It just stalls everything, stalls the process.”

Repeated Execution Dates Called Psychological Torture

According to some experts, the process of repeatedly submitting a person to imminent execution is a form of psychological torture that should be banned. The Center for Constitutional Rights has said that “the intense strain of repeatedly coming within hours or days of execution” is torture. Citing the case of Troy Davis, who was executed in Georgia in 2011 after repeated execution dates and stays, the Center remarked, “Is there any significant difference between mock executions, long recognized as torture by the international community, and Mr. Davis’s last-minute brush with death ...?” Stuart Grassian, a psychiatrist and former Harvard Medical School professor, said that the terror of imminent executions is more difficult for someone like Warren Hill, who is mentally retarded and has had a series of execution dates, also in Georgia. Grassian said, “People with mental retardation struggle with the ability to think abstractly. They have very powerful feelings but because they have fewer cognitive strengths they are less able to manage those feelings than others are.” Hill came within hours of execution four times. At one time, he ate his last meal and said his goodbyes before his execution was stayed, ninety minutes before the scheduled time. More recently, Hill was already sedated and strapped to the gurney when his execution was stopped with just minutes to spare.

LETHAL INJECTION: Shortage of Drugs Leaves Texas Unsure About Future Executions

On August 1, the Texas Department of Criminal Justice announced its remaining supply of pentobarbital, used for lethal injections, expires in September, and it is unsure where to obtain more. The drug's manufacturer, Lundbeck, Inc., has barred distribution to states intending to use the drug in executions. DPIC’s Executive Director, Richard Dieter, remarked, “What’s happening is a scramble by Texas and other states to find something to quickly get into the syringe, rather than a reasoned public discussion about, if we’re going to do this, what is the best practice. The problem here is that life-saving drugs used by medical professionals are being used in executions, and the drug companies don’t want to be a part of that.” In recent months, other states have sought alternatives to pentobarbital. Missouri said it intended to use propofol, though its manufacturer also opposed such use. Georgia, Arkansas, Nebraska, California and other states are also reviewing execution procedures in response to problems with earlier protocols.  On August 1, a federal District Court in Florida ordered the state to reveal information about the drugs to be used in the upcoming execution of John Ferguson on August 5. Florida replied that it received doses of pentobarbital manufactured by Hospira, Inc. for Lundbeck, Inc. from Cardinal Health in Ohio. The drugs were received in 2011 and have expiration dates of Sept. 30 and Nov. 30, 2013.

MILITARY DEATH PENALTY: Armed Services Rarely Carry Out Executions

Criminal cases in the U.S. Military are conducted in special courts and under laws that differ from the rest of the country's justice system. Executions in this system are extremely rare. There have been no executions since 1961. "The military is a community of solidarity, a brotherhood and sisterhood, all to its own," said Teresa Norris, a former military defense lawyer who still represents a soldier on death row. "There is a real reluctance to execute fellow soldiers unless it's absolutely the worst kind of case and this is the only way." In 1983, a number of death sentences were commuted to life when a military appeals court found the military death penalty unconstitutional. The law was revised in 1984. One of the most significant concerns about capital punishment in the military is the decentralized nature of its judicial system. Dwight Sullivan, a former Marine prosecutor, said, "Even if you have 2 identical cases, one being prosecuted by one commander at one base and the other being prosecuted by a commander at another base, you may have different outcomes because the commanders may have different philosophies.” There are currently five inmates on the military death row in Fort Leavenworth, Kansas, all of whose cases are under legal review. Three are black, two are white. The trial of Army Maj. Nidal Hasan, a psychiatrist charged with a deadly shooting rampage at Fort Hood, Texas, is scheduled to begin August 6.

UPCOMING EXECUTION: Florida's Narrow Interpretation of Mental Competency Leads to New Date

UPDATE: Ferguson was executed on Aug. 5. Florida has set an August 5 execution date for John Ferguson, a death row inmate who has suffered from severe mental illness for more than four decades. As far back as 1965, Ferguson was found to experience visual hallucinations. He was sent to mental institutions and was diagnosed as paranoid schizophrenic, delusional, and aggressive. In 1975, a mental health doctor described Ferguson as “dangerous and cannot be released under any circumstances.” Nevertheless, he was released less than a year later. Ferguson believes he is the "Prince of God" and is being executed so can save the world. Ferguson's attorneys recently filed a petition with the U.S. Supreme Court, asserting that Florida courts have applied the wrong standard for mental competency, ignoring the current interpretation of this issue by the High Court, which requires that an inmate have a rational understanding of why he is being executed. An earlier editorial in the Tampa Bay Times opposing Ferguson's execution, agreed, “Florida is embracing an interpretation of competency for execution so pinched that it would virtually extinguish limits on executing the severely mentally ill. The state says Ferguson is aware that he is being put to death and that he committed murder, and is therefore competent to be executed.”

LETHAL INJECTION: Appeals Court Rules FDA Violated Its Duties When Permitting Shipment of Unapproved Drugs

On July 23, the U.S. Court of Appeals for the District of Columbia Circuit unanimously affirmed a lower court ruling that the Food and Drug Administration (FDA) failed to fulfill its duties under the Food, Drug, and Cosmetic Act (FDCA) when it permitted without inspection the importation of foreign drugs for use in lethal injections. The Court concluded, "The FDCA imposes mandatory duties upon the agency charged with its enforcement. The FDA acted in derogation of those duties by permitting the importation of thiopental, a concededly misbranded and unapproved new drug, and by declaring that it would not in the future sample and examine foreign shipments of the drug despite knowing they may have been prepared in an unregistered establishment." In 2009, the last U.S. manufacturer of sodium thiopental announced it would cease production of the drug commonly used by states in lethal injections. Some states then turned to international manufacturers and imported drugs which were not approved by the FDA. The ruling rejected the FDA’s claim that it had discretion to allow unapproved drugs into the U.S.  Read full text of the ruling.

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