Update on Lethal Injection Issue

In a clear national trend, seven states (Alabama, Arizona, Mississippi, Ohio, Oklahoma, Texas, and South Carolina) have used pentobarbital instead of sodium thiopental in their executions in 2011. The most recent such execution was that of Donald Beaty in Arizona on May 25, following a temporary stay as the state made a sudden switch to the new drug.  Ohio is the only one of the seven states to use pentobarbital as the sole drug in its lethal-injection process.  At least five states (Alabama, Georgia, Kentucky, Tennessee, and South Carolina) that acquired sodium thiopental through an overseas source have had the drug seized by the U.S. Drug Enforcement Administration.  In addition, Arizona was instructed by the DEA not to use its foreign sodium thiopental just prior to the May 25 execution. Arkansas and California also have supplies of sodium thiopental originally obtained from a supplier in Great Britain.  In Nebraska, questions about its supply of sodium thiopental--obtained from a company in India--has postponed the execution of Carey Dean Moore.  South Dakota's sodium thiopental was also reportedly obtained from India.  Other states like Georgia, Louisiana, and Virginia have indicated they intend to switch to pentobarbital in future executions.

Sole Provider of New Drug for U.S. Executions Faces Ethical Dilemma

Lundbeck Inc., a Danish pharmaceutical company that is the sole manufacturer of pentobarbital for sale in the U.S., is facing an ethical dilemma regarding the use of its drug in executions. Pentobarbital is increasingly being used in the U.S. in place of sodium thiopental for lethal injections.  Pentobarbital was most recently used in executions in Texas, South Carolina, and Mississippi. Andrew Schroll, a spokesman for Lundbeck, said that the company has prided itself on making products that improve people’s lives. Denmark and the entire European Union, as well as Lundbeck, are officially opposed to the death penalty and disagree with how this product is being used. Schroll said, “This is a misuse of our product. We are in an ethical dilemma where we are opposed to the use of our medication for capital punishment while at the same time we want to make sure that patients who benefit from our medication get access to it." Lundbeck has sent letters to prisons in 11 states demanding that they stop using pentobarbital in their lethal injection protocols. No prison has responded, and even more states are intending to use the drug, including Virginia, which recently announced their switch.

The New Yorker Looks at the Decline in Texas Death Sentences

In the May 9 issue of The New Yorker, Jeffrey Toobin examines the drop in death sentences in Texas and focuses particularly on the mitigation work being done by the Gulf Region Advocacy Center (GRACE) in Houston, headed by Danalynn Recer.  Toobin cites a number of possible reasons for the drop in death sentences in Texas, including "the increasing use of mitigation, a strategy that aims to tell the defendant’s life story." The article provides a number of examples where Recer's organization presented evidence from a defendant's background, such as childhood abuse or brain damage, and convinced a jury to choose a life sentence over the death penalty, even for the murder of a police officer. Recer summed up her work, "The idea was to improve the way capital trials were done in Texas, to start an office that would bring the best practices from other places and put them to work here....It is possible to persuade a jury to value someone's life."

NEW RESOURCES: Most Recent DEATH ROW USA Report Now Available

The latest edition of the NAACP Legal Defense Fund's "Death Row USA" shows that the number of people on the death row in the United States is continuing to slowly decline, falling to 3,260 as of April 1, 2010. In 2000, there were 3,682 inmates on death row.  Nationally, the racial composition of those on death row is 44% white, 41% black, and 12% Latino/Latina. California continues to have the largest death row population (702), followed by Florida (398) and Texas (333). Pennsylvania (222) and Alabama (204) complete the list of the states with the five largest death rows in the country. Of those jurisdictions with more than 10 inmates on death row, Louisiana, Pennsylvania, and Texas have the largest percentage of minorities on death row--each has 69%.

STUDIES: Texas Forensic Science Panel Calls for Changes but Says Nothing About Possible Wrongful Execution

On April 15, the Texas Forensic Science Commission recommended more education and training for fire investigators following its review of the controversial case of Cameron Todd Willingham (pictured), who was executed in 2004 for setting the fire that killed his three daughters.  The Commission made 16 recommendations for investigators, lawyers and lawmakers. It did not, however, decide whether arson investigators in Willingham’s case were negligent or guilty of professional misconduct, and was not empowered to decide whether Willingham was likely innocent of the crime. The panel recommended establishing a code of ethics for investigators and procedures for involving the state fire marshal's office in fatal home fires. Another recommendation urged the fire marshal to adhere to standards established by the National Fire Protection Association and to become a model for local fire investigators in Texas.  Willingham maintained his innocence until his execution, claiming that the fire could have been accidentally started by his two-year-old daughter who died in the fire. Since the original 1991 investigation, several arson experts have reviewed the evidence in the case and concluded that the fire was of undetermined cause or accidental, but likely not arson. 

Texas Psychologist Who Approved Defendants for Execution Barred from Future Work

The Texas State Board of Examiners of Psychologists recently reprimanded and fined Dr. George Denkowski, a psychologist who examined many death row inmates for intellectual disabilities, including two who were subsequently executed.  Despite using unscientific methods that have been sharply criticized by other psychologists, Dr. Denkowski found 16 inmates qualified for execution.  As part of a settlement, Dr. Denkowski agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500.  Marc J. Tassé, director of the Ohio State University Nisonger Center and an expert in developmental disabilities, said, "What Denkowski has been doing is a pretty radical departure. There’s absolutely no scientific basis to his procedure.”

STUDIES: New Report--Animals Put to Death with Greater Care Than Humans in Texas

As Texas prepares to execute Cleve Foster on April 5, a new report released by the ACLU of Texas and Northwestern University's Center for International Human Rights reveals that procedures for euthanizing animals in the state are more carefully regulated than the protocol for executing death row inmates. In March, Texas announced that it will continue to use a risky three-drug protocol for executions, and will replace the critical first drug, which is in short supply, with a new drug, pentobarbital--all without an opportunity for public review.  According to the ACLU’s report, "Texas’ lax attitude regarding the taking of human life contrasts sharply with its enactment of detailed regulations to ensure that animals suffer no pain when they are euthanized. Animal euthanasia laws provide strict certification requirements for euthanasia technicians and regulate acceptable methods of intravenous euthanasia down to the correct dosage per kilogram of an animal’s body weight. By contrast, the Texas legislature has failed to enact any legislation to ensure that the individuals responsible for extinguishing human life are properly trained and qualified, and that the drugs they administer are both effective and humane.”

NEW VOICES: Prominent Texans Support Death Penalty Moratorium Legislation

Former Gov. Mark WhiteThe Texas Criminal Jurisprudence Committee of the House of Representatives heard testimony on March 29 regarding HB 1641, a bill that would put a hold on executions while the death penalty was being studied.  Charles Terrell, former Chairman of the state's Department of Criminal Justice, supported the moratorium in a statement to the committee, expressing concerns about: "fairness to those convicted on the limited testimony of witnesses, racial fairness in some areas of our state, the absence of DNA testing where it was possible to do so, and my belief that a sentence of life without the possibility of parole is far worse than a death sentence for young offenders."  Former Texas Gov. Mark White (pictured) also wrote a statement to the Committee in favor of the bill, stating that "there are more safeguards beyond careful gubernatorial review that the State of Texas should put in place to decrease the likelihood of executing an innocent individual and to increase fundamental fairness in our capital punishment system."   White also wrote that "regardless of our views on the death penalty itself, we all have profound concerns that the administration of capital punishment is deeply flawed and believe that all persons facing the death penalty are entitled to the fundamental rights guaranteed by the Constitution."