Secrecy

Three Controversial Executions Turn Into A Commutation, An Execution, and an Execution Failure

Three states—Alabama, Florida, and Texas—prepared to carry out controversial executions on Thursday, February 22, all scheduled for 7 PM Eastern time, but by the end of the night, two had been halted. Less than an hour before his scheduled execution, and after having said a final good-bye to his anguished father, Texas death-row prisoner Thomas "Bart" Whitaker (pictured, left) learned that Governor Greg Abbott had commuted his death sentence to life in prison. Minutes later, Florida executed Eric Branch (pictured, center), despite undisputed evidence that he had been unconstitutionally sentenced to death. He was pronounced dead at 7:05 p.m. And nearing midnight Central time, two-and-one-half hours after a divided U.S. Supreme Court had given Alabama the go-ahead to execute terminally ill Doyle Hamm (pictured, right) corrections commissioner Jeff Dunn called off the execution saying prison personnel did not have "sufficient time" to find a suitable vein in which to place the intravenous execution line before the death warrant expired. For Texas, it was the first time in more than a decade and only the third time since the death penalty was reinstated in 1976, that any governor had granted clemency to a condemned prisoner. The Texas commutation came after a unanimous recommendation by the parole board, support from the only living victim, Whitaker's father, and various state lawmakers. In explaining his grant of clemency—the first time Gov. Abbott had commuted any death sentence—the Governor cited the fact that Whitaker's codefendant, the triggerperson, did not get the death penalty, the victim "passionately opposed the execution," and Whitaker had waived any possibility of parole and would spend the remainder of his life in prison. The final-hour commutation was relayed to Whitaker in the holding cell next to the death chamber, as he was preparing to be executed. Florida executed Eric Branch despite the fact that a judge sentenced him death after two of his jurors had voted for life and the jury had been told not to record the findings that would make Branch eligible for the death penalty. Both of those practices have now been found unconstitutional. In Hurst v. Florida, decided in 2016, the U.S. Supreme Court reiterated that a capital defendant's right to a jury trial includes the right to have a jury find all facts necessary for the state to impose the death penalty, and later that year, the Florida Supreme Court declared that the Sixth Amendment and the Florida constitution require jury sentencing verdicts to be unanimous. Alabama had been warned that, because of his terminal cancer and prior history of drug use, Doyle Hamm's veins were not accessible and therefore an attempt to execute him via intravenous injection would be cruel and unusual. After the U.S. Supreme Court issued a temporary stay at 6:00pm CT, followed by a full denial of a stay with dissents from Justices Breyer, Ginsburg, and Sotomayor around 9:00pm CT, Alabama started preparing to carry out Hamm's execution. After more than two-and-a-half hours, the state called it off. At a news conference immediately thereafter, Commissioner Dunn repeatedly asserted the state had followed its execution protocol, and said "I wouldn’t characterize what we had tonight as a problem.” Dunn was unable to describe what the state had been doing during the time that Hamm was being prepared for the lethal injection and dismissed questions about failed attempts to set the IV lines saying he was not qualified to answer medical questions. He said he could not tell reporters how long the medical personnel had attempted to establish IV access because "I am not back there with the staff." Alabama keeps its protocol secret, making it impossible to verify the state's assertions. Hamm's attorney Bernard Harcourt, who—like all witnesses—was not permitted to view the IV insertion portion of the execution, speculated that prison personnel could not find a vein and called the process "[s]imply unconscionable." On the morning of February 23, Harcourt filed an emergency motion saying that Hamm had "endured over two-and-a-half hours of attempted venous access" and seeking a hearing to "establish exactly what happened" during that time frame. The federal district court scheduled a hearing on the issue for Monday, February 26.

Missouri Executed 17 Prisoners With Drugs Secretly Obtained From 'High-Risk' Pharmacy Cited for Hazardous Practices

BuzzFeed News investigation has disclosed that Missouri carried out seventeen executions between 2014 and 2017 using supplies of the drug pentobarbital it secretly obtained from a pharmacy the Food and Drug Administration had classified as “high risk” because of repeated serious health violations. The February 20 exposé describes a complex system of clandestine meetings, code names, and undocumented cash payments that Missouri employed to conceal the identity of Foundation Care, a suburban St. Louis compounding pharmacy that reporter Chris McDaniel discovered “has been repeatedly found to engage in hazardous pharmaceutical procedures.” Foundation Care—which was reportedly paid more than $135,000 for execution drugs—is alleged to have engaged in illegal practices, medicare fraud, and numerous manufacturing improprieties and, McDaniel reports, its cofounder has been accused of "regularly ordering prescription medications for himself without a doctor’s prescription.” Two former senior employees of the company—including the head of pharmacy operations—have alleged in a lawsuit that Foundation Care violated government regulations by reselling drugs returned by patients, intentionally omitting the names of ingredients in drugs it prepared, and failing to notify other states about a $300,000 settlement with Kansas over allegations of Medicaid fraud. Another suit by a former employee alleges that she was fired after complaining to her supervisors and the Missouri Board of Pharmacy about “serious operational violations.” Missouri switched to Foundation Care after reporters discovered the identifty of the state's prior secret supplier of execution drugs—an Oklahoma compounding pharmacy called The Apothecary Shoppe. Reporters learned that The Apothecary Shoppe was not licensed to sell drugs in Missouri and had admitted to nearly 2,000 health and safety violations. Foundation Care first came to the attention of FDA investigators after a doctor complained to the agency that a patient he was treating had developed “a 'life threatening' illness” after taking a drug that had been prepared by the pharmacy. At that time, the investigators found that the pharmacy had shipped drugs to patients without conducting tests for sterility and bacteria, and a lab sample revealed drugs that had been contaminated with bacteria. In 2013, the FDA designated Foundation Care as a "high-risk" compounding pharmacy, and cited it as an example as to why greater federal oversight of compounders was necessary. A second inspection of the company that year found “multiple examples” of practices that could lead to contamination, and that Foundation Care had failed to “assure that drug products conform to appropriate standards of identity, strength, quality and purity.” In a February 2014 letter to the Missouri Board of Pharmacy, the FDA warned that the pharmacy’s practices “could lead to contamination of drugs, potentially putting patients at risk.” The possibility of drug contamination is one of the centerpieces of prisoner challenges to Missouri's execution process, and experts in the case have indicated that contamination could create a “substantial risk of pain and suffering.” However, in a deposition in the Missouri prisoners' legal challenge, state officials refused to say whether they were aware of any problems with their drug manufacturer, and lawyers for the state have affirmatively used Missouri's secrecy provisions to deny prisoners' access to information about its drug supplier and the company's safety record, while at the same time arguing the prisoners have not proven that the execution may be unconstitutionally cruel. Foundation Care was acquired by AcariaHealth, a subsidiary of health-care giant Centene Corporation, in October 2017. After McDaniel's report was published, the company issued a statement that, “[u]nder Centene’s ownership, Foundation Care has never supplied, and will never supply any pharmaceutical product to any state for the purpose of effectuating executions.”

Senior U.N. Official Assails Death-Penalty Secrecy As Obstruction of Human Rights

A senior United Nations human rights official has criticized the secrecy with which countries carry out the death penalty and called for greater transparency by countries that still employ capital punishment. "There is far too much secrecy," United Nations Assistant Secretary-General for Human Rights Andrew Gilmour (pictured) said in an interview released November 21 by the U.N. News Centre, "and it’s quite indicative the fact that although many countries are giving up the practice, those that retain it nevertheless feel that they have something to hide." 170 nations have either abolished the death penalty—which U.N. Secretary-General António Guterres has described as a “barbaric practice” that “has no place in the 21st century”—or have not carried out an execution in more than a decade. Many of the governments that continue to execute prisoners have shrouded their death-penalty practices in secrecy, hiding who is on death row and why, how executions are carried out, and—in some countries—how the government has disposed of the executed prisoner's body. Guterres said the practice manifests “a lack of respect” for the human rights of those sentenced to death and "obstructs efforts to safeguard the right to life.” In December 2016, the General Assembly added an anti-secrecy provision to its regular resolution calling for a moratorium on executions, saying that transparency was essential to assess whether countries were administering their death penalty laws in compliance with international human rights standards. In September 2017, the death-penalty moratorium resolution adopted by the U.N. Committee on Human Rights again emphasized the link between transparency and respect for human rights. At an October 2017 event at U.N. Headquarters in New York commemorating World Day Against the Death Penalty, the Secretary-General said "[f]ull and accurate data is vital to policy-makers, civil society and the general public. It is fundamental to the debate around the death penalty and its impact.” Execution secrecy, he said, "undermines that debate." Secrecy has been implicated in recent execution botches and questionable execution practices across the United States, In May 2016, an Oklahoma grand jury found that “paranoia” on the part of prison officials about keeping execution information secret had “caused administrators to blatantly violate their own policies,” contributing to the botched execution of Clayton Lockett, the execution of Charles Warner with an unauthorized execution drug, and the aborted attempt to execute Richard Glossip. In Missouri, prosecutors affirmatively used the state's secrecy provisions to prevent prisoners from obtaining evidence that the out-of-state compounding pharmacy from which the state was illegally obtaining drugs had committed 1,892 violations of pharmacy health and safety regulations. Gilmour singled out for criticism Arkansas’s rush to execute eight prisoners in an eleven-day span in April before its supply of the drug midazolam expired. “I’ve heard various arguments, absurd arguments for executing and some rather obscene arguments for executing,” Gilmour said, “but I don’t really think I’ve heard many more obscene ones or absurd ones than the fact that the drugs for executing had reached their sell-by date.” As part of an international human rights efforts to end the secret trade in lethal-injection drugs, the U.N. Office of the High Commissioner for Human Rights has supported a multi-national initiative called the Alliance for Torture-Free Trade. "I think it’d be a step forward in civilization to block this trade, and luckily there are some major drug companies who are refusing to allow their drugs to be used in instances of execution,” Gilmour said.

Arkansas Supreme Court Orders Partial Disclosure of Information on State's Lethal-Injection Drugs

The Arkansas Supreme Court has ruled that the state's Freedom of Information Act requires the Arkansas Department of Correction (ADC) to release copies of the pharmaceutical drug and packaging labels for the supply of the drug midazolam that it intends to use in upcoming executions, but that the secrecy provisions of the state's Methods of Execution Act permit the department to redact the batch and lot numbers that appear on the labels. The high court's November 2 decision reverses part of an earlier ruling by a Pulaski County Circuit Court that had directed the ADC to disclose the entire packaging labels. The appeals court ruling effectively permits the public and the pharmaceutical industry to identify the company that manufactured the midazolam that Arkansas purchased for the execution of Jack Greene on November 9, but the redaction prevents disclosure of information that could allow the public and the manufacturer to learn the identity of the company or companies that supplied and sold those drugs to the state. The identities of both the manufacturers and suppliers of the drugs used to execute prisoners have been at the center of a continuing controversy in Arkansas, as both drug manufacturers and their distributors have alleged that the state improperly obtained the drugs by misrepresenting the purposes for which they would be used or by breaching contracts between manufacturers and suppliers that prohibit the sale of medicines to state prisons for use in executions. The Arkansas Department of Correction had argued in the litigation that the Methods of Execution Act required that materials that could reveal the identities of the drug manufacturers be kept secret because "[a]bsent such an interpretation, drug manufacturers will continue to be publicly identified in published news reports and will continue to interject themselves into litigation in an effort to halt the State’s use of their drugs for capital punishment." The state supreme court disagreed, saying that when the legislature wrote the MEA, it included specific provisions relating to manufacturers, could have included manufacturers among those identities covered by secrecy provisions, and did not do so. The court said that, instead, the legislature required the ADC to conduct executions with "drugs that are made by an FDA-approved manufacturer," and that withholding the identity of the manufacturer would make it impossible for the public to "verify whether the ADC is complying with that requirement." 

USS Cole Lawyers Resign From Guantánamo Death-Penalty Defense, Say Government Spied on Client Communications

The U.S. Supreme Court has denied review of a petition filed by lawyers on behalf of Abd al Rahim al Nashiri—accused of orchestrating al-Qaida’s October 12, 2000 suicide bombing of the USS Cole warship off the coast of Yemen—challenging the legality of his death penalty trial before a Guantánamo Bay military commission. But in what has been described as "a stunning setback" to what would have been the first death-penalty trial held before the special military tribunals established in the wake of the 9/11 attacks, the entire civilian legal team has resigned from the case amid allegations that the government was illicitly listening in on their legal meetings. The Miami Herald reported on October 13, just three days before the Supreme Court decision, that the Chief Defense Counsel for the Military Commissions Defense Organization, Brigadier General John Baker (pictured) had “found good cause” to permit Nashiri's defense team to withdraw from the case as a result of ethical concerns created by alleged government spying on privileged attorney-client meetings. In June 2017, Gen. Baker advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo, saying that he was “not confident that the prohibition on improper monitoring of attorney-client meetings” at the detention center was being followed. Attorney Rick Kammen, who has defended Nashiri since 2008, alleges in the Supreme Court petition that his team discovered classified information contradicting government assurances that the facilities in which they met with Nashiri were not being improperly surveiled. In the past, the spying has included, among other things, "microphones hidden in smoke detectors." Because the information relating to the violation of the right to counsel is classified, the defense lawyers have been ordered by the judge in the case, Air Force Colonel Vance Spath, not to share the information with the public or their client. Although Brig. Gen. Baker has released Kammen from representing Nashiri, the case cannot proceed until another experienced death-penalty defender is brought onboard. Two other civilian defense attorneys who are Pentagon employees—Rosa Eliades and Mary Spears—also quit the case with permission from Baker but remain on his staff. The only member of Nashiri's defense team who remains on the case is Lieutenant Alaric Piette—a former Navy SEAL who has never tried a murder case. “I am certainly not qualified as learned [death-penalty] counsel,” Lt. Piette told the Miami Herald, which he says Nashiri “is entitled to and should have ... since the government is trying to kill him.” Kammen says the defense team is "angry about being placed in an ethically untenable position, disappointed in not being able to see the case through, and devastated to leave Mr. Nashiri, whom we genuinely like and who deserves a real chance for justice.” The pretrial proceedings at the Guantánamo Bay that were scheduled to begin on October 30th are expected to be delayed for months, until learned death-penalty counsel who has received Top Secret security clearance to review the evidence in the case is appointed.

U.N. Secretary-General, European Union Ambassador Call for Abolition of “Barbaric” Death Penalty

In separate statements issued in connection with the 15th World and European Day against the Death Penalty on October 10, United Nations Secretary-General António Guterres and European Union U.S. Ambassador David O’Sullivan have called upon all nations to halt scheduled executions and abolish the death penalty. In his first ever statement on capital punishment since becoming Secretary-General on January 1, 2017, Guterres described capital punishment as a “barbaric practice” that, he said, “has no place in the 21st century.” He said the death penalty does little to deter crimes or serve victims and asked those countries that still have the death penalty to “[p]lease stop the executions.” In an article published on the internet site Medium, Ambassador O’Sullivan—echoing the language of an October 9 Joint Declaration by the EU High Representative for Foreign Affairs and Security Policy and the Secretary General of the Council of Europe—wrote that the death penalty “is inhuman and degrading, does not have a proven deterrent effect, and allows judicial errors to become fatal.” He said the EU “care[s] about the plight of American death row inmates” because “[a]s Europeans we believe fundamentally that the death penalty is incompatible with human dignity.” Guterres’s remarks came at a U.N. event on Transparency and the Death Penalty. “Some governments conceal executions and enforce an elaborate system of secrecy to hide who is on death row, and why,” the Secretary-General said. The lack of transparency, he said, shows disrespect for human rights norms and damages the fair administration of justice. A resolution adopted by the U.N. Committee on Human Rights September 29 also emphasized that a “lack of transparency in the use of the death penalty has direct consequences for the human rights of the persons sentenced to death,” and called upon countries “that have not yet abolished the death penalty to make available relevant information,” including “information on any scheduled execution.” Execution secrecy has been an ongoing issue in recent executions across the United States, and an Oklahoma grand jury found that “paranoia” on the part of prison officials about keeping execution information secret had “caused administrators to blatantly violate their own policies.”

Arkansas, Nevada Obtain New Supplies of Drugs, Plan to Carry Out Two Questionable Executions

The states of Arkansas and Nevada have announced that they have obtained new supplies of execution drugs that will permit them to carry out two executions in what critics have called questionable circumstances. On August 4, Arkansas obtained a supply of midazolam—the controversial drug used in botched executions in at least four states—paying $250 in cash to an undisclosed supplier for 40 vials of the drug. Then, on August 17, Attorney General Leslie Rutledge asked Governor Asa Hutchinson to set an execution date for Jack Greene (pictured), described by his lawyers as “a severely mentally ill man [with] well-documented brain damage.” Also on August 17, Nevada—which does not currently have an execution protocol in place—announced that it had obtained drugs to execute Scott Dozier, using a three-drug formula that no state has ever tried before. Dozier—who has waived his appeal rights and volunteered to be executed—is scheduled to die on November 14. In a press statement, Greene’s lawyer, John C. Williams, said “[c]apital punishment should not be used on vulnerable people like the severely mentally ill.” Greene, he said, is mentally incompetent and suffers from delusions that “his spinal cord has been removed and his central nervous system has been destroyed.” Responding to this delusion, Williams said, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain,” often causing himself to bleed. A spokesperson for Hutchinson—who authorized Arkansas’s unprecedented attempt to execute eight prisoners over an eleven-day span in April—has indicated that the governor will set an execution date for Greene. To execute Dozier, Nevada has indicated that it will use an untried combination of diazepam (Valium), fentanyl (an opiod), and cisatracurium (a paralytic). The state has not yet announced how the drugs will be administered. All but one of the prisoners executed in Nevada since 1977 were found to have waived their appeals; Dozier would be the state's 12th death-row prisoner to volunteer to be executed. Nevada recently spent nearly $900,000 on building a new execution chamber.  

Texas Appeals Court Rules State Must Disclose Identity of 2014 Execution Drug Supplier

The Texas 3rd District Court of Appeals has rejected claims made by state corrections officials that disclosure of the identity of its supplier of the execution drug pentobarbital would expose the company to a "substantial threat of physical harm." Finding these claims to be “mere speculation,” the appeals court ruled on May 25, 2017, that Texas must disclose the identity of the compounding pharmacy that supplied execution drugs to the state in 2014. The ruling upholds a Travis County District Court order in a suit that was filed on behalf of two death-row prisoners under the state's Public Information Act. The prisoners' attempt to litigate a challenge to the state's lethal injection practices failed to halt their executions, but the district court later determined that the identity of the drug supplier was "public information" subject to disclosure under the state public records law. The Texas Department of Criminal Justice (TDCJ) had argued that information concerning the identity of the compounding pharmacy that provided execution drugs fell within a safety exemption in the act, which shields release of otherwise public information where disclosure would create a "substantial threat of physical harm." The court found that TDCJ had shown nothing more than the risk of public criticism, which it said was not enough to block the supplier's identity from disclosure. The court recognized that "[t]here are myriad reasons why a private business or professional involved in the [execution] process would not want that fact known publicly—potential adverse marketplace effects, unwanted publicity, critical written or oral communications from members of the public, or protests, to name but a few of the unpleasantries that can accompany one’s association with such a controversial public issue." But under the law, the "sole permissible focus" is the "threat of physical harm from disclosure of the pharmacy’s or pharmacist’s identity—not, in themselves, any threats of harm to privacy or economic interests, threats of media or political 'firestorms,' or even threats of harm to property short of harm to persons." In 2016, a BuzzFeed News review of FBI records found that state claims that execution drug suppliers have been the subject of threats by anti-death penalty activists were largely unsubstantiated and exaggerated. Maurie Levin, one of the defense lawyers who filed the public records lawsuit, praised the court's ruling, saying: "They stuck to the law … and the law affirms that those who are involved in government actions don’t get to be anonymous and might be subject to criticism and protest." And she added, "That’s the nature of the beast. That is how our government works. I think the affirmation of those principles is really important." The decision is limited to the source of the state's execution drugs in 2014, because the state passed a broader secrecy law after the suit was filed. TDCJ has said it will appeal the ruling to the Texas Supreme Court. Texas is also suing the federal Food and Drug Administration over its seizure of execution drugs the FDA has said Texas attempted to illegally import from India. The FDA seized the drugs in October 2015, and issued a final order in April 2017 refusing to release the drugs.

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