Secrecy

Tennessee Executes Billy Ray Irick in First Execution Since 2009

Over sharp dissents by justices of the U.S. and Tennessee Supreme Courts and lingering questions about the prisoner's history of mental illness and the efficacy of the state's lethal-injection protocol, Tennessee executed Billy Ray Irick (pictured) on August 9. He was the first person executed by the state since 2009. Justice Sonia Sotomayor described the process as a "rush to execute" and a descent into "barbarism." In the days leading up to the execution, the Tennessee Supreme Court and Tennessee Governor Bill Haslam rejected Irick's request for a stay or clemency. The state Supreme Court ruled on August 6 that Irick had failed to show his challenge to the execution protocol was likely to succeed on appeal, a requirement for the court to allow the lawsuit to proceed. Judge Sharon Lee dissented from the majority decision, writing, "The harm to Mr. Irick of an unconstitutional execution is irreparable. Yet the harm to the State from briefly delaying the execution until after appellate review is minimal, if any." Governor Bill Haslam declined to exercise his clemency power in Irick's case, saying that the judicial review of the case was "extremely thorough." Gene Shiles, Irick's attorney disagreed: "The truth is no facts relating to Billy’s state mind at the time of the offenses — including his hallucinations and talking to 'the devil' were ever considered by a single court on the merits. These facts, the most important to reasoned decisions as to guilt and punishment, were instead 'defaulted' and never weighed because they were determined to be untimely — raised too long after the trial." The U.S. Supreme Court denied a stay, but Justice Sonia Sotomayor strongly dissented from that denial, writing, "In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this 'rush to execute' without first seeking every assurance that our precedent permits such a result. If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism." The Tennessean reported that Irick's execution was "certain to fuel a fierce national debate surrounding the drugs used to kill him, and if they amount to state-sanctioned torture." Federal public defender Kelley Henry said Irick exhibited signs of pulmonary edema during an execution that took more than twenty minutes. Henry said media witnesses had reported that “Mr. Irick ‘gulped for an extended period of time,’ was ‘choking,’ ‘gasping,’ ‘coughing,’ and that ‘his stomach was moving up and down.’ Witnesses described movement, including movement of the head, after the consciousness check. This means that the second and third drugs were administered even though Mr. Irick was not unconscious,” Henry said. Media reports indicated that the second and third drugs, a paralytic agent and potassium chloride, would cause a pain similar to drowning and being burned alive. 

Arizona Lethal Injection Challenge Proceeds As State Refuses to Rule Out Future Use of Controversial Execution Drug

A federal judge has rebuffed an attempt by Arizona to dismiss a lawsuit filed by the state's death row prisoners challenging the state's execution practices. The state argued at a hearing in the case in U.S. District Court on June 29, that the prisoners' lawsuit should be declared moot because Arizona's supply of midazolam—the first drug in one of the state's four execution protocols—had expired and that the state has been unable to obtain a new supply of that drug and other potential execution drugs from pharmaceutical manufacturers. However, defense lawyers argued that the state's announcement last week that it would drop midazolam from its execution protocol did not make the lawsuit moot because Arizona prison officials "could change their minds next week or next month.” And when pressed by Judge Neil Wake as to whether the Arizona Department of Corrections might use midazolam in the future if the drug became available, the state's lawyers said Arizona "will not commit to never using midazolam again.” The prisoners are also challenging Arizona's contention that the Corrections Director has unlimited discretion to make changes to the state's execution protocol. The prisoners argue that the state has abused that discretion to make last-minute changes in the execution protocol, preventing condemned prisoners from learning the details of the execution protocol until after a death warrant has been issued. This, in combination with secrecy provisions that conceal information about the source and quality of the drugs to be used in executions, has artificially limited the court's ability to address the legal challenges to Arizona's execution practices and resulted in what Judge Wake has characterized as "crisis litigation." In the past, Judge Wake had permitted executions to go forward in those circumstances—including the botched two-hour execution of Joseph Wood. However, he said that he would now consider staying future executions if necessary to ensure "prompt and orderly litigation." The state's executions remain on hold as the lawsuit continues.

Oklahoma Grand Jury Issues Report Detailing "Blatant Violations" of the State's Execution Protocol

Following seven months of investigation into the causes of Oklahoma's botched execution of Charles Warner using an unauthorized execution drug and its near-execution of Richard Glossip with the same wrong drug, an Oklahoma grand jury issued a report on May 19 identifying a wide range of what it characterized as "negligent," "careless," and in some instances "reckless" conduct by state officials that deviated from the state's execution protocol. The state's three-drug execution protocol called for the use of potassium chloride as the final drug to stop the prisoner's heart, but instead the state obtained the unauthorized drug, potassium acetate. The grand jury described a litany of errors or improprieties at virtually every stage of the execution process by virtually everyone who participated in the process. It found that Robert Patton, who subsequently retired from his position as Director of the Department of Corrections had "orally modified the execution protocol without authority"; the anonymous pharmacist selected by the state had "ordered the wrong execution drugs"; the DoC's General Counsel "failed to inventory the execution drugs" upon recept from the pharmacist; the agent of the DoC's Office of Inspector General "failed to inspect the execution drugs while transporting them"; Warden Anita Trammell, who oversaw the prison where the executions occurred and also retired in the wake of the execution scandal,"failed to notify anyone in the [DoC] that [the wrong drug] had been received"; other prison administrators and members of the execution IV team "failed to observe the Department had received the wrong drugs"; and that the Governor's former General Counsel, Steve Mullins, "advocated the Department proceed with the Glossip execution using potassium acetate" even though he knew its use was not authorized by the execution protocol. Mullins insisted that the drug was interchangeable with potassium chloride, telling the assistant attorney general to "Google it."  “It is unacceptable for the Governor’s General Counsel to so flippantly and recklessly disregard the written Protocol and the rights of Richard Glossip,” the grand jury wrote. “Given the gravity of the death penalty, as well as the national scrutiny following the [botched Clayton] Lockett execution, the Governor’s Counsel should have been unwilling to take such chances.” The grand jury also found that the judgment of prison officials throughout the process was "clouded" by the "paranoia" of keeping execution information secret, "caus[ing] administrators to blatantly violate their own policies."

NEW VOICES: Head of National Pharmacist's Group Opposes Lethal Injection Secrecy

Leonard Edloe (pictured), President of the American Pharmacists Association Foundation has urged Virginia lawmakers to reject Governor Terry McAuliffe's proposal to conceal the identity of the state's execution drug supplierssaying that the plan "undermines everything our profession stands for, and is actually against the law." In an op-ed in The Virginian-Pilot on the eve of a veto session in which the Virginia state legislature will consider the secrecy proposal, Edloe wrote: "Medicines are made to save lives, not end them. They’re not designed, or tested, to kill people." Edloe says "[k]eeping pharmacies out of the execution process is not just a point of principle. Federal law says drugs must be prescribed to a specific patient for a medicinal purpose. An execution clearly does not qualify." He describes the risks of compounding, pointing to the 2012 outbreak of fungal meningitis caused by badly compounded drugs, which killed 64 people. "In response, the federal government passed laws and regulations to increase the scrutiny of compounding pharmacies to protect the public," he said. "McAuliffe proposes the opposite approach — to give irresponsible compounders insulation from regulation — preventing the state taking action if a compounder supplied bad drugs that led to a botched execution." In 2015 the American Pharmacists Association issued a declaration opposing pharmacist involvement in capital punishment, and Edloe called such involvement "fundamentally contrary to the role of pharmacists as providers of healthcare." The current debate over secrecy, he says, "helps drive home the point that professional pharmacists have no place in the process." UPDATE: The Virginia legislature approved Gov. McAuliffe's amendments on April 20. 

Missouri Judge Orders State to Reveal Source of Lethal Injection Drugs

Cole County, Missouri Circuit Judge Jon Beetem ruled on March 21 that Missouri must release the names of pharmacies that have provided lethal injection drugs for executions. Judge Beetem ruled in favor of the ACLU of Missouri and several media organizations that had filed three separate suits against the state. The media plaintiffs included the Reporters Committee for Freedom of the Press, the St. Louis Post-Dispatch, The Kansas City Star, the Springfield News-Leader, Associated Press, The Guardian, and BuzzFeed reporter Chris McDaniel. Judge Beetem found that Missouri had "knowingly violated the sunshine law by refusing to disclose records that would reveal the suppliers of lethal injection drugs, because its refusal was based on an interpretation of Missouri statutes that was clearly contrary to law." Bernard Rhodes, an attorney for The Guardian, said the information was critical to public oversight: "Without this information, the public is unable to exercise meaningful oversight of the executions carried out in its name. One of the primary purposes of a free and independent press is to perform a watchdog function over government activities, and this lawsuit is a perfect example of that." Because it determined that Missouri had knowingly violated the law, the court also awarded the plaintiffs more than $100,000 in attorneys fees. In a column for the Los Angeles Times, Scott Martelle called the decision, "a win for transparency," and said that companies' reluctance to participate publicly in executions was evidence of society's changing views. "[C]apital punishment has become so contrary to American societal norms that here in the land of the quick buck, even the business world has turned its back on the practice," he wrote. The state of Missouri has indicated that it intends to appeal the decision.

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