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Drugmaker Sues Nebraska, as 15 Death-Penalty States Oppose Ruling Blocking Use of Drugs in Nevada

Posted: August 9, 2018

Less than a month after a Nevada court halted the execution of Scott Dozier in response to a lawsuit filed by generic-drug manufacturer Alvogen, another drug company has sued Nebraska, seeking to block the use of its medicines in an upcoming execution. The German-based pharmaceutical company Fresenius Kabi filed suit in Nebraska federal court on August 8, 2018 alleging that Nebraska intended to execute Carey Dean Moore on August 14 using drugs manufactured by the company that had been obtained "through improper or illegal means." The lawsuit said the company's distribution contracts with authorized wholesalers and distributors prohibit sales to departments of corrections, and it alleges that Nebraska obtained the drugs "in contradiction and contravention of the distribution contracts," most likely from an unauthorized supplier. Nebraska Attorney General Doug Peterson said the state's execution drugs “were purchased lawfully and pursuant to the State of Nebraska’s duty to carry out lawful capital sentences,” an assertion that cannot be verified because of the state's secrecy practices. The state has refused to identify the source of the drugs it intends to use in Moore's execution, but two of the drugs—the paralytic, cisatracurium, and potassium chloride, the drug used to stop the heart—are manufactured by Fresenius Kabi and only that company makes vials of potassium chloride in the size obtained by the state. 

Nebraska is one of fifteen death-penalty states that have joined in an amicus curiae ("friend of the court") brief in the Nevada Supreme Court on August 6, 2018 urging the court to overturn a restraining order that has prevented Nevada from carrying out executions using supplies of the drug, midazolam, produced by the pharmaceutical company Alvogen. Alvogen's suit alleges that Nevada had obtained the midazolam "by subterfuge" and “intentionally defrauded Alvogen’s distributor” by concealing its intention to use Alvogen’s medicine in Dozier‘s execution. The company's pleadings accused Nevada of “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug and covering up its true intention by having the drug shipped to a state office several hundred miles away from the prison. In addition to issuing the restraining order, the Nevada trial court stayed Dozier's July 2018 execution. Like Fresenius Kabi, Alvogen alleges that the use of its products in executions would damage its corporate reputation and adversely affect investor and customer relations. The amicus brief was filed by 15 of the 30 other states that authorize capital punishment, all with Republican attorneys general—Arkansas, Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas, and Utah. The nine death-penalty states with Democratic attorneys general did not join the pleading, nor did six other states with Republican attorneys general. The pleading claims, without providing any factual support, that Alvogen's lawsuit is the "latest front in the guerilla warfare being waged by anti-death-penalty activists and criminal defense attorneys to stop lawful executions." The state officials warn that, if the Nevada Supreme Court allows Dozier's stay of execution to stand, activists will "flood" the courts in other states with similar "meritless" challenges. In 2017, the drug distributor McKesson sued Arkansas to prevent the state from using a supply of the paralytic drug, vecuronium bromide, in executions, alleging that the state had deliberately misled the company to believe that the drug would be used for legitimate medical purposes. The brief asserts that "Alvogen’s meritless claims mirror those rejected by the Arkansas Supreme Court" in McKesson case. However, court records reflect that the Arkansas Supreme Court actually returned McKesson's case to the trial court for further evidentiary development and the case remained active until the expiration of the state's supply of vecuronium bromide rendered the case moot in the Spring of 2018.

 

In First Post-Ferguson Election for St. Louis County Prosecutor, Death-Penalty Opponent Unseats Long-Time Incumbent

Posted: August 8, 2018

In an election viewed as a referendum on racial justice and criminal justice reform, death-penalty opponent Wesley Bell (pictured, left) soundly defeated seven-term incumbent, Robert McCulloch (pictured, right) for the Democratic nomination for St. Louis County Prosecuting Attorney. With no Republican opposition in the general election, Bell, a Ferguson, Missouri, city council member, is expected to become the county's first African-American chief prosecutor. The election was the first time McCulloch—who had a substantially larger campaign purse and was heavily favored to win—had faced the voters since the Ferguson protests and his failure to indict a white police officer for the murder of unarmed black teenager, Michael Brown. Bell, a former public defender and prosecutor who called for ending cash bail for nonviolent offenses, ending mass incarceration, and eliminating use of the death penalty, was endorsed by numerous activist organizations promoting criminal justice reform, including Democracy for America, The Color of Change, and The Real Justice PAC. Surprising the political establishment, Bell won easily, receiving 57% of the vote. McCullouch—the county's Prosecuting Attorney since 1991—was known as a highly aggressive prosecutor with close ties to the police and who disproportionately sought death sentences. Community activists and civil rights groups were galvanized in opposition to McCulloch after he failed to indict Officer Darren Wilson for Brown's murder, prosecuted Ferguson protesters, and advocated for the execution of death-row prisoner Marcellus Williams despite DNA evidence revealing that another man's DNA—and not Williams'—was on the murder weapon. A July 2015 study found that the county's death-penalty practices contributed significantly to stark racial and geographic disparities in the application of capital punishment in Missouri. The study found that a person convicted of homicide in St. Louis County is three times more likely to be executed than if he or she were convicted elsewhere in the state and 13 times more likely to be executed than a person convicted in neighboring St. Louis City. Courts also have repeatedly found that the county's prosecutors discriminatorily struck African Americans from jury service because of their race. St. Louis County ranks among the 2% of U.S. counties that have produced a majority of all death sentences in the U.S. since the 1970s, and it has executed more prisoners than all but eight other counties in the country during that period. Bell's campaign website says "capital punishment is expensive, ineffective at deterrence, and is also racially biased. ... [D]ecades of data and information determine that Capital Punishment is not a deterrent for violent crime. Exercising his discretion as Prosecuting Attorney, [Bell] will never seek the death sentence."

 

Two Servicemen Suffering From Brain Trauma, PTSD Win Death-Penalty Relief

Posted: August 7, 2018

Two servicemen—one a former airman on the U.S. military death row, another a decorated Vietnam veteran sentenced to death in Pennsylvania—have won relief from their capital convictions or death sentences. On August 1, 2018, the La Crosse Tribune reported that an Air Force court martial jury had imposed a life sentence on senior airman Andrew Witt (pictured, left) following a three-week capital resentencing trial. The verdict in Witt's case came two years after the U.S. Court of Appeals for the Armed Forces—the nation's highest military court—overturned his 2005 death sentence for murdering a fellow airman and his wife. On July 25, 2018, the U.S. District Court for the Eastern District of Pennsylvana granted death-row prisoner Robert Fisher (pictured, right) a new trial and sentencing hearing in the July 1980 murder of his girlfriend. If that case continues to a new capital trial, it will be Fisher's third trial and fourth capital sentencing hearing. Witt's conviction in 2005 marked the first time a U.S. airman had been sentenced to death since 1992. His death sentence was first overturned in August 2013, when the Air Force Court of Criminal Appeals—an intermediate appellate court—ruled that his lawyers had been ineffective in failing to present mitigating evidence that he had suffered a traumatic brain injury four months before the murders. The military appealed that decision, and Witt's death sentence was reinstated by the Air Force Court of Appeals in July 2014. However, the Armed Forces appeals court agreed that Witt's penalty-phase lawyers had been ineffective and remanded the case for a new sentencing hearing. With Witt's resentencing, four prisoners remain on the U.S. military death row. Twelve other servicemen have had their military death sentences reduced to life in prison. In Fisher's case, the federal court granted a new trial after the trial judge misinstructed the jury on the meaning of "reasonable doubt." It reversed Fisher's death sentence because the prosecution had sought the death penalty based on an aggravating circumstance that did not exist at the time of his first trial and because his lawyer failed to investigate and present mitigating evidence related to Fisher's military service in Vietnam, where he received a Purple Heart from President Lyndon Johnson (also pictured). This was not the first time that one of Fisher’s trials was problematic. At his first trial, Fisher’s lawyer had him tell the jury about his military service and his Purple Heart medal but failed to investigate any problems related to Fisher’s military service. Additionally, no mental health expert testified at Fisher’s sentencing to explain his brain damage, the psychological after-effects of intense combat, or his other serious mental health impairments, drug usage, and adjustment difficulties after returning from Vietnam. His defense lawyer also failed to rebut the prosecution’s portrayal of Fisher as simply a bad soldier.

 

Missouri Federal Appeals Court: Journalist's Execution Witness Lawsuit May Proceed

Posted: August 6, 2018

The U.S. Court of Appeals for the Eighth Circuit ruled on July 27, 2018 that Christopher S. McDaniel (pictured), an investigative reporter for BuzzFeed News, may proceed with his lawsuit challenging the Missouri Department of Corrections's policy for selecting execution witnesses. McDaniel, who has written numerous articles exposing irregularities in Missouri's execution procedures, applied to the Director of the Department of Corrections in 2014 to witness executions in Missouri, stating in his witness application that he wanted to observe executions "[t]o ensure that this solemn task is carried out constitutionally." The Department has never responded to McDaniel's application and he has not been permitted to witness any of the 17 executions carried out in the state since then. The lawsuit, filed on McDaniel's behalf by the American Civil Liberties Union of Missouri, alleges that neither McDaniel nor any other person whose witness application "expressed a desire to ensure that execution[s] were carried ou[t] properly and constitutionally" has been accepted as a witness, and that McDaniel also had been rejected as a witness because he has written articles critical of Missouri's administration of its death penalty. Working first for St. Louis Public Radio and laterw for BuzzFeed News, McDaniel's reporting revealed that Missouri had obtained lethal-injection drugs for executions carried out in 2013 and 2014 from an unlicensed out-of-state compounding pharmacy that committed nearly 1,900 violations of pharmacy regulations before it was sold and its assets auctioned off to help repay defaulted loans. In February 2018, he reported that the compounding pharmacy to which Missouri then switched to carry out 17 executions between 2014-2017 had been deemed "high risk" by the Food and Drug Administration because of the company's hazardous pharmaceutical practices. McDaniel reported that the state had paid the company—which was alleged to have engaged in illegal practices, Medicare fraud, and numerous manufacturing improprieties—more than $135,000 for execution drugs. The court wrote that "McDaniel’s allegations support a plausible claim that an applicant’s viewpoint is a factor used by the Director when considering whom to invite as a witness." Though the state argued that McDaniel did not have standing to file suit, the court found "McDaniel’s allegations that the Director’s policies provide an opportunity to exclude McDaniel based on his viewpoint and that the Director has excluded McDaniel and all applicants sharing his particular viewpoint are sufficient to give him standing to press the claim."

 

Federal Judge Grants New Trial to Barry Jones Based on Evidence Suggesting His Innocence

Posted: August 3, 2018

A federal district court has vacated the murder conviction of Arizona death-row prisoner Barry Jones (pictured) in the death of 4-year-old Rachel Gray, and has ordered the state to immediately retry or release Jones. On July 31, 2018, U.S. District Judge Timothy Burgess granted a new trial to Jones, who has spent 23 years on Arizona’s death row, finding that if Jones had been competently represented at trial, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.” Jones has consistently maintained his innocence. Jones’s case was tainted by what Judge Burgess called a “rush to judgment” by police investigators. His conviction was based largely on questionable eyewitness testimony from two 8-year-olds, combined with unreliable forensic testimony. A medical examiner who testified against Jones later gave contradictory testimony about the timing of the victim’s fatal injury that would have ruled out Jones as a suspect. Police failed to investigate evidence pointing to other suspects, and Jones’s defense team failed to examine alternative theories of the crime. Jones was also convicted of raping Gray, despite the lack of any evidence that the alleged rape occurred at the time she sustained her fatal abdominal injury. Judge Burgess found that both Jones’s trial lawyer and the lawyer Arizona appointed to represent him in his state post-conviction proceedings were ineffective, and that both failed to conduct professionally appropriate investigations into the case. He wrote that trial counsel “failed to perform an adequate pretrial investigation, leading to his failure to uncover key medical evidence that Rachel’s injuries were not sustained on May 1, 1994”—the day the prosecution said Jones raped and killed her—and unreasonably “fail[ed] to impeach the state’s other physical and eyewitness testimony.” Sylvia Lett, Jones’s former appellate attorney, summarized the judge’s findings, saying, “He saw the state’s investigation for what it was, which was shoddy, the defense investigation for what it was, which was nonexistent, and he said, ‘That’s not fair.’ And that’s how it’s supposed to work.” A decade ago, the federal courts would have considered Jones’s ineffective assistance claim waived because of his prior lawyers’ failures to raise it in state court, and Jones likely would have been executed. However, in 2012 in Martinez v. Ryan, the U.S. Supreme Court ruled that federal habeas corpus courts may review a state prisoner’s claim that his trial lawyer was ineffective if the failure to raise the claim in state court resulted from additional ineffective representation by his state post-conviction lawyer. The federal courts had originally refused to hear Jones’s claim, but after Martinez was decided, the U.S. Court of Appeals for the Ninth Circuit sent the case back to the district court for further consideration.

 

Pope Francis Formally Changes Catholic Church Stance on Death Penalty, Calling It “Inadmissible”

Posted: August 2, 2018

Pope Francis (pictured) has formally changed the official Catholic Church teaching on the death penalty, calling capital punishment “an attack on the inviolability and dignity of the person” and deeming it “inadmissible" in all cases. The Vatican's August 2, 2018 announcement that it had revised its Catechism—the Church's official compilation of teachings on a wide range of issues—to unambiguously oppose capital punishment also committed the Church to work “with determination” to abolish the death penalty worldwide. Prior to the revision, the Catechism used softer language on the death penalty, allowing it “if this is the only possible way of effectively defending human lives against the unjust aggressor,” while noting that “the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically nonexistent.’” In a letter to Bishops accompanying the change, Pope Francis wrote, “This conclusion is reached taking into account the new understanding of penal sanctions applied by the modern State, which should be oriented above all to the rehabilitation and social reintegration of the criminal. Finally, given that modern society possesses more efficient detention systems, the death penalty becomes unnecessary as protection for the life of innocent people.” His letter places the new stance in the context of the Church's broader teachings on the dignity of human life, and previous statements by Pope John Paul II, Pope Benedict XVI, and Pope Francis on the need to end capital punishment. Vatican observers said there is no mistaking the political intent of the new revision. The letter to the bishops said the new doctrine sought to “give energy” to efforts working “for the elimination of the death penalty where it is still in effect.” Vatican expert and author John Thavis called Pope Francis's action “the next logical step” in the evolution of formal Catholic opposition to the death penalty. “I think this will be a big deal for the future of the death penalty in the world,” Thavis said. “People who work with prisoners on death row will be thrilled, and I think this will become a banner social justice issue for the church.” The new catechism also poses a direct challenge to Catholic politicians like Philippines President Rodrigo Duterte, who has sought to bring capital punishment back in his nation, and U.S. governors such as Greg Abbott and Pete Ricketts of Texas and Nebraska, who have made support for the death penalty a cornerstone of their policies. “There is no doubt the pope wants politicians to pay attention to this,” said John Gehring, the Catholic program director at the advocacy group Faith in Public Life. “He is not just speaking internally. The pope wants to elevate this as a definitive pro-life issue.”

 

New Podcast: Authors of Tennessee Death-Penalty Study Discuss Arbitrariness

Posted: August 1, 2018

The latest edition of Discussions with DPIC features H.E. Miller, Jr. and Bradley MacLean, co-authors of a recent study on the application of Tennessee's death penalty. Miller and MacLean describe the findings from their article, Tennessee's Death Penalty Lottery, in which they examined the factors that influence death-penalty decisions in the state. Based on their survey of thirty years of homicide cases, they found that whether a death sentence is imposed is influenced far less by the circumstances of the offense than by arbitrary factors such as geography, race, and the poor quality of defense representation. MacLean says, "It operates just like a lottery. There's no rationale, there's no rhyme or reason for why an infinitesimally small number of defendants are sentenced to death and even a much smaller number are actually executed, as compared to all the defendants who are convicted of first-degree murder." The authors collected data on more than 2,500 first-degree murder cases in Tennessee from 1977-2017, and found that about 3.5% of first-degree murder defendants have been sentenced to death and fewer than 0.3% have been executed. Those few who are selected for the death penalty, though, do not represent the worst of the worst, with about 90% of multiple-victim murders resulting in life sentences. "The bottom line is, the people who get the death penalty are the most vulnerable, not the ones who commit the worst crimes," MacLean said. In the podcast, the authors also discuss the litigation surrounding Tennessee's method of execution, saying, "If the state can't get their method of execution right, then how can we expect them to get anything else right about the system?" They conclude, "The whole point of our study was to look at whether we have properly addressed the problem of arbitrariness that the Supreme Court talked about in Furman [v. Georgia, which declared all U.S. death-penalty statutes unconstitutionally arbitrary in 1972]. Our conclusion is that our system is no less arbitrary, it is just as arbitrary, as the systems that existed before Furman was decided. ...That's why we believe that our system is clearly unconstitutional."

 

Associated Press Reporter Michael Graczyk, Who Witnessed More Than 400 Executions, Retires

Posted: July 31, 2018

Michael Graczyk (pictured), who witnessed more than 400 executions as an Associated Press reporter in Texas, has retired after nearly 46 years with the news service. On March 14, 1984, Texas executed James Autry—the second person put to death in Texas since the U.S. Supreme Court upheld the state's capital punishment statute in 1976. According to a non-exhaustive list of execution witnesses maintained by the Texas Department of Criminal Justice, it was the first of at least 429 executions Graczyk witnessed in the nation's most prolific death-penalty state. Graczyk is believed to have witnessed more executions in the U.S. than any other person: no other reporter or corrections official in Texas has seen as many executions, and no other state has executed even one-third as many prisoners. In his 34 years observing executions, Graczyk was committed to telling the full story behind the case, interviewing death-row prisoners if they were willing, and speaking to victims’ families, lawyers, and prison officials. He said the volume of executions in Texas was surprising: “I talked to inmates on death row at the time, and some of them had foreseen that once the ball got rolling the state would be very aggressive. But I don’t think anybody could have foreseen the numbers.” His conversations with prisoners also revealed some of their thinking, including one insight that raises questions about the death penalty’s effect as a deterrent: “Despite Texas’ notoriety as this center of capital punishment, so many inmates I talked to told me they didn’t know or weren’t aware of the death penalty in Texas,” Graczyk said. Noreen Gillespie, the Associated Press’s deputy managing editor for U.S. news, described the critical role that Graczyk played in witnessing executions, saying, “Mike’s description of what happens in an execution is how the world and most of the country knows how that happens.” Graczyk’s retirement on July 31, 2018 does not mark the end of the line for his execution coverage. He will continue to cover Texas executions for the AP as a freelance reporter.

 

New Conservative Voices Criticize Death Penalty as an 'Inept, Biased and Corrupt' Big Government Policy

Posted: July 30, 2018

Calling the death penalty a wasteful "big government" policy that is "inept, biased, and corrupt," a libertarian think tank and a New Orleans columnist have joined the chorus of conservative voices calling for the end of the death penalty. In Conservative doesn't mean supporting death penalty, New Orleans Times-Picayune columnist Tim Morris (pictured) argues that being a conservative requires neither "an unyielding fealty to a party or person [or] simply finding the polar opposite of some liberal position," and that while he believes that "capital punishment can be morally justified," "our government has proven to be ... inept, biased and corrupt in carrying out that responsibility." Likewise, in a July 22, 2018 commentary, If You Hate Big Government, You Should Oppose the Death Penalty, published on the Foundation for Economic Education website, Patrick Hauf writes that "[f]rom fiscal irresponsibility to wrongful convictions to botched executions, the death penalty is merely another wasteful government effort." Hauf, too, criticizes what he sees as reflexive support for the death penalty among some conservatives. While many "pride themselves on their unapologetic use of the death penalty, its enactment," Hauf says, "like most government programs, is both inefficient and ineffective." Morris, whom the newspaper describes as an “independent thinker with a Christian worldview and a journalist’s sense of skepticism,” dismisses the notion that all conservatives must support the death penalty. As evidence that government cannot properly administer capital punishment, he says "too many innocent people are being sentenced to death" and notes that 82 percent of death-row cases in Louisiana from 1975-2015 ended with the conviction or sentence being reversed. In another op-ed, he cites findings from a University of North Carolina study that a black male in Louisiana is 30 times more likely to be sentenced to death if the victim was a white female than when the victim was a black male. After detailing the reasons conservative political strategist Richard Viguerie and Pulitzer prize winning conservative columnist George Will also oppose capital punishment, Morris sums up: “the death penalty is arbitrary, racially discriminatory, and doesn't deter crime. I don't see anything conservative about supporting an inept, biased, corrupt system." Hauf also tauts growing Republican resistance to the death penalty, citing a 2017 report by Conservatives Concerned About the Death Penalty that highlighted a dramatic rise in Republican sponsorship of bills to abolish capital punishment and the results of a Gallup poll that reported 10-percentage-point decrease in support for the death penalty among conservatives in 2017. He notes the ideological inconsistency between principled conservatism and the death penalty, saying capital punishment is "one issue where conservatives often give far too much power to the government." He writes, "many Republicans allow their 'tough on crime' mentality to overrule limited government ideals and innate skepticism of state overreach. This contradiction within the Republican platform, although rarely acknowledged, exposes a weakness in the party’s ideology. If Republicans pride themselves on their limited government philosophy, then why would they grant the government control over life and death?" There is, he concludes, "nothing 'small government' about capital punishment. ... It’s time for Republicans to kill capital punishment off for good." 

 

Public Health Experts, Generic-Pharmaceuticals Association Warn Lethal-Injection Policies Put Public Health at Risk

Posted: July 27, 2018

State lethal-injection practices may have collateral consequences that place public health at risk, according to briefs filed in the U.S. Supreme Court on July 23, 2018 by public health experts and an association representing generic drug manufacturers. In amicus (or friend-of-the-court) briefs filed in connection with a challenge brought by death-row prisoner Russell Bucklew (pictured) to Missouri's use of lethal injection, the Association for Accessible Medicines (AAM)—a professional association representing generic and biosimilar drug manufacturers and distributors—and eighteen pharmacy, medicine, and health policy experts warn that questionable state practices in obtaining and hoarding drugs for use in executions undermine law enforcement efforts to combat black markets in controlled substances and jeopardize the availability of some medicines for their intended therapeutic use. The AAM, which takes no position on the death penalty or the specific issues in Bucklew's case, told the court that its membership "strongly oppose the use of their medicines ... to carry out executions." The Association wrote: "Like doctors and other medical professionals, many drug manufacturers (including the members of AAM) recognize that they have an ethical obligation to ensure that their products are used only to heal, not to harm. Yet despite many manufacturers’ best efforts, drugs that are essential to the healthcare system—including some that are in short supply—have been diverted to state prison systems for use in capital punishment. AAM and its members cannot support such misuse of their products." The AAM brief stressed that their products are developed and tested for particular approved medical uses, but in executions, "powerful injectable drugs such as sedatives and barbiturates are being used at untested levels for an untested purpose, often without adequate physician supervision." The AAM called "the off-label use of these prescription drugs" in executions "medically irresponsible." Further, they wrote, some of the drugs used in executions that "are considered 'essential medicines' by the World Health Organization ... are in short supply," but have been diverted from medical use by death-penalty states. Citing a 2017 study by The Guardian, the AAM said "four states had stockpiled enough of these drugs to treat 11,257 patients—if the drugs were used as intended for medical treatment rather than in executions." Eighteen public health experts filed a brief in support of Bucklew's lethal injection challenge. The portion of that brief addressing public health issues warned that "States have created serious public health risks in their efforts to conduct lethal injections" and that continued improper practices "could lead to a public health crisis." The health experts argue that states have violated federal law by importing unapproved drugs for use in executions, obtained compounded drugs of questionable quality from unlicensed and secret pharmacies, breached supply chain controls and misled healthcare providers to obtain drugs for executions, and employed secrecy laws to "hide potentially illegal and unsafe conduct from scrutiny." These practices, they say, circumvent and undermine the country's "carefully and extensively regulated [medical] supply chain .... The result is twofold: it undermines federal laws that protect the public health, and it circumvents pharmaceutical companies’ ability to ensure the safety and effectiveness of drugs in the supply chain." 

 

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