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Anesthesiologist Says Lethal Injection Creates Moral Dilemma for Physicians

Lethal injection as practiced in U.S. executions "is an impersonation of medicine populated by real doctors who don't acknowledge the deception," Dr. Joel Zivot (pictured), an anesthesiologist and associate professor of anesthesiology at Emory University School of Medicine, writes in an op-ed for CNN. Setting aside the question of the rightness or wrongness of capital punishment itself, he says, "it's time to reject lethal injection" as the method of execution. Dr. Zivot's op-ed describes how the medicalization of executions has created an ethical problem for doctors. He cites as an example the recent Virginia execution of Ricky Gray, which used midazolam and potassium chloride from a compounding pharmacy, along with a paralytic drug. He calls lethal injection, "a trick of chemistry" that "does not cause a cruelty-free death," explaining, "Virginia used a paralytic drug that may obscure the failure of midazolam to create the sort of deep unconsciousness contemplated by lethal injection proponents." He says that, because lethal injection "approximates a medical act," it "fall[s] within the purview of physicians who now find themselves wittingly or unwittingly cast in the role of execution adviser." These physicians must choose between their profession's ethical prohibition against killing—both the American Medical Association and the American Board of Anesthesiology have issued statements condemning physician involvement in executions—and their ethical imperative to reduce suffering, especially in the face of botched executions. "An inmate facing death is not a patient by virtue of being connected to an intravenous device and having a doctor in a lab coat standing by. Physicians can only work with patient consent," Zivot says. He asks, "What is the role of the doctor in the execution chamber? When does the alleviating of suffering become physician-assisted homicide?" Because of these ethical dilemmas, and the failure of lethal injection to offer a cruelty-free execution, Zivot concludes, "If capital punishment continues, it needs another method."

Texas Court Orders Release of Former Death Row Prisoner Who Spent 32 Years in Prison Without a Valid Conviction

A Texas Court of Appeals ruled on January 19, 2017 that all charges against Jerry Hartfield should be dismissed with prejudice after the state had kept the intellectually disabled former death row prisoner in prison for 32 years without retrying him after his conviction had been overturned. Calling the situation a "criminal judicial nightmare," the court ruled that the three-decade delay in trying Hartfield violated his constitutional right to a speedy trial. Hartfield had been convicted and sentenced to death for a 1976 murder, but in 1983, the Texas Court of Criminal Appeals overturned his conviction and death sentence because a juror in his case had been improperly excluded. Hartfield, an illiterate man with an IQ of 51, believed he was awaiting retrial, but prosecutors were working to render the court's ruling moot under Texas law by having the governor commute his sentence to life. However, they failed to do so in the time period prescribed by law, and then-Governor Mark White's order attempting to commute Hartfield's former death sentence to life without parole was without legal effect. Hartfield's attorneys did nothing further because they believed they were done with the case. In 2006, a fellow prisoner helped Hartfield begin filing motions in his case. In 2013, the Texas Court of Criminal Appeals told him his motions were improperly filed because the provision under which he sought review applied only to people who had been convicted. At that point, he refiled his claims saying he was improperly incarcerated without a conviction, and finally got a new trial. Hartfield's new lawyers then asked for the charges to be dismissed because he had not received a speedy trial, but prosecutors successfully persuaded the trial court that Hartfield himself was partly to blame for the delay. In 2015, he was retried, convicted, and sentenced to life in prison. If his sentence were counted from his first trial, his 38 years in prison would have made him eligible for parole. He appealed his conviction, once again arguing that his constitutional right to a speedy trial had been violated, and a Texas Court of Appeals agreed, noting that there was precedent for a delay of as many as eight years, but not 32. Prosecutors may appeal the ruling to the Texas Court of Criminal Appeals. David R. Dow of the University of Houston Law Center, one of the lawyers who represented Mr. Hartfield on appeal, described Hartfield's case as, “the perfect storm of everything that could go wrong with the criminal justice system.”

Isaiah McCoy Exonerated from Delaware Death Row, the 157th Death Row Exoneration Since 1973

Isaiah McCoy (pictured), a former Delaware death row inmate, was exonerated on January 19, 2017, when a judge acquitted him at a retrial. He is the 157th person exonerated from death row in the United States, the first in 2017, and the first in Delaware. McCoy was convicted and sentenced to death in 2012, but the Delaware Supreme Court overturned his conviction in 2015 as a result of prosecutorial misconduct and ordered a new trial. The Court suspended Deputy Attorney General R. David Favata from practice because of his misconduct at McCoy's trial, which included belittling McCoy for choosing to represent himself, making intimidating comments during a break in proceedings, then lying to the judge about making the comments. McCoy waived his right to a jury for his retrial, leaving the decision in the hands of Kent County Superior Court Judge Robert B. Young. In acquitting McCoy, Judge Young noted that there was no physical evidence against him and that two alleged accomplices had given contradictory testimony. One of the accomplices, Deshaun White, received a sentence reduction for testifying against McCoy. Upon his release, McCoy said, "I just want to say to all those out there going through the same thing I'm going through 'keep faith, keep fighting. Two years ago, I was on death row. At 25, I was given a death sentence – and I am today alive and well and kicking and a free man." McCoy was the second former death row prisoner in a year to be released in Delaware after obtaining a new trial for prosecutorial misconduct. In May 2014, Jermaine Wright won a new trial after 21 years on death row when prosecutors and police withheld exculpatory evidence about possible alternate suspects in a case in which no forensic or eyewitness evidence had linked Wright to the crime. Wright was released in September 2016 after pleading no contest to lesser charges and being resentenced to time already served.

Alabama Faith Leaders Hold Panel on Death Penalty, Spotlight 'Rocky' Myers' Case of Possible Innocence

Inspired by the case of Robin "Rocky" Myers (pictured), an intellectually disabled and possibly innocent Alabama death row prisoner whom an elected state judge sentenced to death despite a 9-3 jury recommendation for life, a panel of faith leaders gathered in Montgomery, Alabama to discuss religious views on the death penalty and the intersection of faith and justice. Before the discussion began, the faith leaders and the audience viewed a screening of a new documentary on Myers' case describing why his lawyers believe he is innocent. The documentary explained that no forensic evidence links Myers to the crime and that the prosecution witness who identified him has since recanted his testimony. Myers' case also highlights other problems in the death penalty system. A neuropsychologist who evaluated Myers diagnosed him with intellectual disability, a condition that would make him ineligible for execution, but courts have not granted him relief. His disability hindered Myers' opportunities to have his appeals heard. His attorney abandoned him without notice, and Myers, who cannot read, did not know his appeal deadlines had expired until a fellow inmate read him a notification letter from the state. Finally, Myers' jury voted 9-3 that he should be sentenced to life, but—in a practice no state other than Alabama still allows— the trial judge overrode the jury's recommendation and sentenced Myers to death. After the film presented Myers' story, leaders from a variety of faith traditions led a discussion about justice and capital punishment. The multi-faith panel included representatives of Christianity, Judaism, and Islam and featured Rabbi Elliot Stevens, Sister Gilda Marie Bell, a Catholic nun of the Sisters of the Blessed Sacrament, and Aya Zaied, a youth leader for the East Montgomery Islamic Society. Zaied summarized Islamic views on the issue, saying, "If you claim Islam, … then justice is your responsibility. We try to teach that to our children really young so they understand if (someone is) hurting, then I’m hurting. We’re all in this together."

President Obama Commutes Two Death Sentences

On January 17, 2017, President Barack Obama (pictured) commuted the death sentences of Abelardo Arboleda Ortiz, a federal death row prisoner, and Dwight Loving, a military death row prisoner. The two men were among 209 commutations and 64 pardons announced by the White House on the 17th. Ortiz's lawyers sought clemency from the President on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and he had been denied effective assistance of counsel at trial. Loving's attorneys argued for clemency on the basis of ineffective assistance of counsel, racial and gender bias in the selection of members of his court-martial, and Supreme Court rulings that called into question the constitutionality of the process by which the military imposes the death penalty. In Loving's clemency petition, his lawyers state, "Issues of command influence, racial discrimination, and improper panel voting procedures – which were ignored by the courts based on technical legal evidentiary rules – will forever overshadow Loving’s death sentence. Executing him [will] not promote justice or ensure good order and discipline any more than a sentence of life imprisonment." Ortiz's lawyers said they were "incredibly grateful" to President Obama for the commutation. In a statement, Amy Gershenfeld Donnella said, "Mr. Arboleda Ortiz’s case highlights several of the glaring problems that plague the federal system no less than state systems: dreadful lawyering by defense counsel; disproportionate sentencing even among co-defendants; significant racial, economic and geographic disparities in the choice of those who will be tried capitally; and procedural constraints that make it virtually impossible to correct a conviction or sentence imposed, even in violation of the Constitution, when new evidence comes to light." His case, she said, "epitomizes the broken federal death penalty system." Although federal law and the U.S. Constitution both prohibit using the death penalty against persons who are intellectually disabled, Ortiz's trial lawyer never investigated his intellectual disability, Donnella said. As a result, the jurors made their decision on life or death "in a complete vaccuum" and "an intellectually disabled person of color with an IQ of 54 who was never able to learn to read, write, or do simple arithmetic, and could not even tie his shoes until he was ten years old" was sentenced to die. Both Ortiz and Loving will now serve sentences of life in prison without the possibility of parole.

With Bipartisan Sponsors, Washington Attorney General, Governor Propose Bill to Abolish State's Death Penalty

With the support of a bipartisan group of state officials and legislators, Washington Attorney General Bob Ferguson (pictured) and Governor Jay Inslee have proposed legislation to repeal the state's death penalty and replace it with a sentence of life without parole. At a news conference announcing the bill, Ferguson, a Democrat, was joined by former Attorney General Rob McKenna, a Republican, in calling for abolition. The bill will be sponsored by Republican Senator Mark Miloscia and Democratic Representative Tina Orwall. “Legislatures are acting on this important issue with up-and-down votes,” Ferguson said during the news conference. “And it’s time for Washington, the state Legislature here, to take that vote.” The state's death penalty, he said, "isn’t working anymore. It is time to move on.” Governor Inslee said the evidence about the death penalty "is absolutely clear. ... Death-penalty sentences are unequally applied in the state of Washington, they are frequently overturned and they are always costly.” Inslee, who imposed a moratorium on executions in 2014 and issued a reprieve to Clark Richard Elmore on December 29, 2016, said, “I could not in good conscience allow executions to continue under my watch as governor under these conditions.” Washington juries have imposed few death sentence in recent years, and two high-profile murder cases ended in life sentences. In response, the Washington Association of Prosecuting Attorneys called for a voter referendum on the issue. A 2015 Seattle University study examining the costs of the death penalty in the state found that each death penalty prosecution cost an average of $1 million more than a similar case in which the death penalty was not sought. Despite bipartisan support, the future of the abolition bill is uncertain. A 2015 repeal bill, also sponsored by Miloscia, never received a committee hearing.

MLK Day 2017: The Reverend Dr. Martin Luther King, Jr. on the Death Penalty

On Martin Luther King Day, DPIC looks at the Reverend Dr. Martin Luther King's views on capital punishment. In a November 1957 article in Ebony, Dr. King was asked "Do you think God approves the death penalty for crimes like rape and murder?" He responded, "I do not think that God approves the death penalty for any crime, rape and murder included.... Capital punishment is against the better judgment of modern criminology, and, above all, against the highest expression of love in the nature of God."  Several months later, Alabama executed Jeremiah Reeves, a young black man who was 16 years old when he was charged with raping a white woman. Tried before an all-white jury, Reeves was convicted and sentenced to death. In April 1958, Dr. King stood on the state capitol steps during a prayer pilgrimage protesting what he called "a tragic and unsavory injustice." Dr. King said: "A young man, Jeremiah Reeves, who was little more than a child when he was first arrested, died in the electric chair for the charge of rape. Whether or not he was guilty of this crime is a question that none of us can answer. But the issue before us now is not the innocence or guilt of Jeremiah Reeves. Even if he were guilty, it is the severity and inequality of the penalty that constitutes the injustice. Full grown white men committing comparable crimes against Negro girls are rare ever punished, and are never given the death penalty or even a life sentence. It was the severity of Jeremiah Reeves penalty that aroused the Negro community, not the question of his guilt or innocence." Later, in his sermon "Loving Your Enemies," Dr. King preached a philosophy that had no room for capital retribution: "Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that. Hate multiplies hate, violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction."

Mental Health Professionals, Religious Leaders Join Ricky Gray's Plea for Clemency

Ricky Gray (pictured), who is scheduled to be executed on January 18, is seeking clemency from Virginia Governor Terry McAuliffe, and his clemency petition has been joined by a diverse group of mental health professionals and the Virginia Catholic Conference. A letter signed by more than 50 mental health professionals, including two former commissioners of the Virginia Department of Behavioral Health and Developmental Services, urges McAuliffe to commute Gray's sentence because of Gray's history of "horrific" childhood abuse and his addiction at the time of the crime. Gray's jury never heard evidence that he was raped and sodomized almost daily from the ages of four to eleven, and that he turned to drugs as early as age 12 to numb the resulting trauma. At the time of his crime, he was under the influence of PCP. “In Mr. Gray’s case, his abuse and trauma were left unaddressed and predictably led to profound despair and other serious trauma symptoms, drug addiction, and the drug use that resulted in the tragic crimes he committed with Ray Dandridge,” the letter states. Gray's lawyers seek to have Gray's sentence commuted to life—the same sentence that Dandridge received. Gray's clemency petition includes reports from mental health experts who say that the extreme childhood trauma Gray endured altered his brain development, making him particularly susceptible to the effects of drugs. Gray has apologized for his involvement in the crimes, saying, "Remorse is not a deep enough word for how I feel. I know my words can’t bring anything back, but I continuously feel horrible for the circumstances that I put them through. ...There’s nothing I can do to make up for that. It’s never left my mind, because I understand exactly what I took from the world by looking at my two sisters. I’m reminded each time I talk and see them that this is what I took from the world." Governors in other states have granted clemency in some cases with similar circumstances. In September 2011, Ohio Governor John Kasich commuted the death sentence imposed on Joseph Murphy, citing Murphy's "brutally abusive upbringing." In January 2012, Delaware Governor Jack Markell commuted Robert Gattis' death sentence based on evidence of severe physical, emotional, and sexual abuse by family members. Both are now serving life sentences. Gray is also seeking a stay of execution from the U.S. Court of Appeals for the Fourth Circuit as he challenges the constitutionality of Virginia's proposed lethal injection protocol. UPDATE: The U.S. Court of Appeals for the Fourth Circuit denied Gray's request for a stay on January 13.

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