In response to a lawsuit filed by pharmaceutical manufacturer Alvogen, Inc., a Clark County, Nevada District Judge has stayed the July 11, 2018, execution of Scott Dozier and issued a temporary restraining order barring Nevada from using drugs produced by Alvogen to execute Dozier. Saying Nevada had obtained a supply of the drug-maker's sedative midazolam “by subterfuge,” the multibillion-dollar generic drug company sued Nevada and the state Department of Corrections on July 10 to prevent the state from using its drugs in any execution. The lawsuit alleged that Nevada “intentionally defrauded Alvogen’s distributor” by concealing its intention to use Alvogen’s medicine in Dozier‘s execution and by “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug. In granting the restraining order, District Judge Elizabeth Gonzalez wrote that the misuse of midazolam in an execution would result in “irreparable harm to [Alvogen’s] reputation as a company that produces life-enhancing and life-saving drugs” and that the damage to its business reputation could adversely affect investor and customer relations. Alvogen has a policy not to accept direct orders from prison systems or departments of correction and “does not condone the use of any of its drug products, including midazolam, for use in state sponsored executions.” Alvogen's lawyers said that the company also had sent a letter in April to the governors, attorneys general, and prison directors of all of the death-penalty states in the U.S. expressing “in the clearest possible terms that Alvogen strongly objects to use of its products in capital punishment.” After Nevada's supply of another drug expired and it decided to switch to midazolam, prison officials bought the drug from pharmaceutical distributor Cardinal Health without disclosing its intended purpose. Alvogen said Nevada officials directed Cardinal Health to ship the drug to a state office more than 200 miles from the state prison “to further the implication that the midazolam was for a legitimate medical purpose.” Alvogen's suit is the second time a pharmaceutical company has taken legal action to stop its drugs from being used in executions. In April 2017, McKesson Medical-Surgical sued the state of Arkansas over the use of the paralytic drug vecuronium bromide, but ultimately was unsuccessful in blocking the state from using the drug. The Clark County court has ordered a status conference in this case for September 10.
A new study of Tennessee's death penalty concludes that the state's capital-punishment system is "a cruel lottery" that is "riddled with arbitrariness." The study, published in the summer 2018 issue of the Tennessee Journal of Law and Policy, examined every first-degree murder case in Tennessee since 1977 to determine whether the state had redressed the arbitrariness that led the U.S. Supreme Court to declare the nation's death-penalty laws unconstitutional in 1972. In their article, Tennessee's Death Penalty Lottery, lawyers H.E. Miller, Jr., who conducted the study, and Bradley A. MacLean write that the odds "are close to nil" that a person who was supplied with a description of the 2,514 first-degree murder cases prosecuted in Tennessee in the last forty years could identify the 86 cases that have resulted in death sentences sustained on appeal or the six cases that have resulted in executions. The facts of the crime, they found, did not predict whether a death sentence would be imposed. Rather, the best indicators were arbitrary factors such as where the murder occurred, the race of the defendant, the quality of the defense, and the views of the prosecutors and judges assigned to the case. The study found that more Tennessee death sentences have been overturned in the courts — 106 — than have been sustained, and many of the sustained cases are still under post-conviction appeal. Moreover, the study found "a sharp decline" in death sentences imposed over the past twenty years. In the four-year period from July 1989 through June 1993, there were 282 first-degree murder cases in Tennessee, with 38 trials resulting in death sentences; from July 2009 through June 2013, 284 first-degree murder cases produced six death sentences. Tennessee has imposed only one new death sentence since 2013. The authors concluded that "[t]he death penalty system as it has operated in Tennessee over the past 40 years, and especially over the past ten years, is but a cruel lottery, entrenching the very problems that [the Supreme Court] sought to eradicate." The study was released shortly before Tennessee is scheduled to perform its first execution in nearly nine years. The state plans to execute Billy Ray Irick on August 9, 2018, using a three-drug protocol (midazolam, vecuronium bromide, and potassium chloride) that has been implicated in past botched executions in other states. More than 30 death-row prisoners are suing the state, arguing that the protocol violates the Eighth Amendment ban on cruel and unusual punishment. Even Tennessee's own corrections staff has raised concerns about the plan. An unidentified state employee who was working to obtain lethal injection drugs wrote in an email to state officials: "Here is my concern with Midazolam. Being a benzodiazepine, it does not elicit strong analgesic effects. The subjects may be able to feel pain from the administration of the second and third drugs. Potassium chloride, especially." The state's plan to use compounded drugs has also drawn criticism, in part because drug-production by compounding pharmacies is not subject to the same regulatory oversight as drugs produced by major manufacturers. In a trial that began July 9, lawyers for the prisoners argued that medical evidence will show that Tennessee's three-drug combination is the equivalent of chemical waterboarding, being buried alive, or being exposed to liquid fire or sarin gas. Prosecutors have argued that to be unconstitutional, the state's execution method would have to amount to torture or be a gruesome practice such as disembowelment, beheading, or burning at the stake.
A joint committee of the Kentucky legislature conducted a hearing on July 6, 2018 on the Commonwealth's rarely used death penalty, including a presentation by supporters and opponents of a bill to abolish capital punishment. The General Assembly's Interim Joint Committee on Judiciary took testimony from prosecutors, defense attorneys, correctional officials, and legislators on issues ranging from costs and arbitrariness to the length of the appeal process. Though Kentucky currently has 31 prisoners on death row, and prosecutors across the Commonwealth have filed 52 notices of intent to seek a death sentence, only three people have been executed since 1976. The last execution took place in 2008, and only one death sentence has been imposed in the last five years. Rep. Jason Nemes (R-Louisville), one of the sponsors of a House bill to abolish the death penalty, told the committee, "Kentucky should get out of the business of killing its citizens – period." Criticizing capital punishment based on his pro-life and small government views, Nemes noted that more than 150 people have been exonerated since the 1970s after having been wrongly convicted and sentenced to death in the U.S., and 49 out of the 97 death sentences imposed in Kentucky have already been overturned. "We don’t believe the government can adequately fill potholes," Nemes said. "And if we don’t believe the government can do that perfectly, then why should we give it the power to do that which is irreversible?" Senate Minority Leader Ray S. Jones (D-Pikeville) said that infrequent executions erode whatever deterrent effect the death penalty might have. Instead, he said, the death penalty creates a "false hope of closure." Rep. John Blanton (R-Salyersville), a retired Kentucky State Police officer and an execution proponent, responded, “[t]he problem is not the death sentence, the problem is the length of time we allow these people to look for everything under the sun." "Let's speed up the process," he said. The Kentucky Department of Public Advocacy estimates the cost of the death penalty to Kentucky taxpayers at about $10 million per year. Executions have been on hold in the Commonwealth since 2010, when a state judge placed an injuction halting all executions while courts reviewed the lethal injection protocol. Andrew English, general counsel for the Justice Cabinet, said the Department of Corrections has attempted to "rewrite the regulations to achieve conformity with the court rulings," but that "[t]here’s an ever-evolving change in the landscape when it comes to federal and state courts, with the death penalty." Kentucky, like other states, has encountered problems with determining what drugs are appropriate and available for use in executions.
Justice Anthony Kennedy's votes swung both to the right and to the left on death-penalty issues, professors Carol Steiker (pictured, l.) of Harvard Law School and her brother, Jordan Steiker (pictured, r.) of the University of Texas School of Law write in a commentary for SCOTUSblog, "but [he] declined to swing for the fences." The Steikers, who co-authored the acclaimed book, Courting Death: The Supreme Court and Capital Punishment, recount Justice Kennedy's nuanced interpretation of the Eighth Amendment and his mixed legacy as a swing vote on capital punishment. Though he was "a frequent supporter of restrictions on the availability of federal habeas review of capital cases, a skeptic of claims challenging the constitutionality of lethal injection and a relatively reliable vote against granting stays of execution in end-stage capital litigation," they write, he also was "the author of numerous opinions that broke new ground in the court’s Eighth Amendment jurisprudence." Most notably, he joined or authored landmark decisions that narrowed the scope of the death penalty, exempting defendants with intellectual disability, juvenile offenders, and those who committed non-homicide crimes. Those decisions on the Court's "proportionality doctrine" had systemic impact on the administration of the death penalty nationwide and paved the way for later decisions banning the use of mandatory life-without-parole sentences for juveniles. However, Justice Kennedy was content to grapple with the constitutionality of individual death-penalty practices one at a time, rather than addressing the constitutionality of capital punishment as a whole. Kennedy's role as a swing vote is illustrated by his change of heart on guarantees of individualized sentencing. In his early days on the Court, he voted to restrict defendants' rights to the consideration of mitigating evidence that could spare their lives, but nearly 20 years later, as the Court as a whole moved ideologically to the right, he shifted leftwards and joined majority opinions that broadly protected the rights to present and have capital sentencers meaningfully consider that evidence. In 1989, he provided the fifth vote in Stanford v. Kentucky to permit the use of the death penalty against offenders aged sixteen and seventeen. By 2005, citing an evolution of values in the United States, he authored the Court's 5-4 decision in Roper v. Simmons banning the death penalty for offenders under age eighteen. In 2015, Kennedy started an important discussion of the conditions of incarceration on death row, raising questions about the effects of long-term solitary confinement. Justice Stephen Breyer drew on Kennedy's concerns in his dissent in Glossip v. Gross, questioning the constitutionality of capital punishment.
A Colorado Springs jury rejected a death sentence for Glen Law Galloway (pictured), marking the third high-profile case since 2015 in which Colorado jurors have selected a life sentence over death. The verdict brought to an end El Paso County’s first capital prosecution in more than a decade, after a six-week trial in a courtroom with a $50,000 makeover that included new audio and video technology and a remodeled jury box enlarged to accommodate six alternate jurors. 2,800 potential jurors had received summonses to appear for service in the case. Prosecutors unsuccessfully attempted to portray Galloway as an unrepentent and remorseless killer who, in the words of El Paso District Attorney Dan May, had committed “two horrific homicides.” They claimed that Galloway had killed a homeless man, Marcus Anderson, to steal his truck and silence him as a witness, and then drove it to the house of his ex-girlfriend, Janice Nam, where he killed her to exact revenge for a stalking conviction. The jurors found Galloway guilty of premeditated murder in Nam's killing, but determined that Anderson’s murder had not been premeditated and acquitted Galloway of aggravated robbery, rejecting the prosecution’s contention that he had killed Anderson to steal his truck. The same defense team that represented Aurora movie-theater shooter James Holmes presented more than thirty witnesses in four days of testimony about Galloway’s character and background, describing to the jury how the former Army veteran “snapped” following the detoriation of his relationship with Nam. Defense attorneys presented mitigating evidence on Galloway's harsh upbringing and his life in the Army, followed by a career in microchip manufacturing. Denver public defender Daniel King, one of Galloway's attorneys, said Galloway was an otherwise law-abiding person who tragically lost control. “Mr. Galloway is not just the worst thing that he’s done,” King said. “He’s committed many acts of kindness, friendship, service, love and duty.” After five hours of deliberation, the jury found that the mitigating evidence in the case outweighed aggravating evidence and sentenced Galloway to life. Colorado juries had previously rejected death sentences for Holmes, who killed twelve people in a mass shooting, and Dexter Lewis, who fatally stabbed five people in a Denver bar. “Once again, a jury has told the government that seeking the death penalty is a waste of everyone’s time,” said Phil Cherner, a retired attorney and chairman of the board for Coloradans for Alternatives to the Death Penalty. Colorado has not imposed a death sentence since 2010, and has not executed a prisoner since 1997. Governor John Hickenlooper declared a moratorium on executions in 2013.
Eight days before the scheduled July 11, 2018 execution of Scott Dozier, the Nevada Department of Corrections issued a new lethal-injection protocol, switching the drugs the state intends to use in carrying out his execution. On July 3, the Department announced that it plans to use an untested three-drug protocol of the sedative midazolam, the opioid fentanyl, and the paralytic cisatracurium. The last-minute change prompted an emergency filing by the ACLU of Nevada seeking additional information about the drugs the state will use. In November 2017, Nevada had announced a different, but also untried execution method involving diazepam (Valium), fentanyl citrate, and cisatracurium besylate. A Nevada trial court declared that protocol unconstitutional in November after considering medical evidence that the paralytic drug, cisatracurium, could cause Dozier to experience “air hunger” and suffocate to death, while masking signs that he was conscious and suffering during the execution. Nevada prosecutors appealed, and the Nevada Supreme Court overturned the ruling on procedural grounds, allowing the execution to go forward. During the course of the state’s appeal, however, its supply of diazepam expired, leaving the Nevada with the choice of delaying the execution or changing its protocol. The ACLU was particularly critical of the protocol’s switch to midazolam, which has been involved in the botched executions of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama and in problematic executions in Arkansas and Virginia. “I think the state of Nevada should think very carefully about whether it wants to use it, especially because of its very concerning history and its association with botched executions,” said Amy Rose, the legal director of the ACLU of Nevada. “I don’t think Nevada wants to be known for having a botched execution.” The paralytic, they argue, could potentially mask serious pain that prisoners experience during executions. The lawsuit seeks information about the process used to arrive at the protocol, the purchase orders for the drugs, and the use of a new execution chamber. Dozier has waived his appeals, allowing his execution to proceed without completing judicial review of the constitutionality of his conviction and death sentence. He would be the first person executed in Nevada since 2006, and his execution would be the first to take place in the new execution chamber that the state built in 2016 at taxpayer expense of $860,000. The state has executed twelve prisoners since the 1970s, eleven of whom waived their appeals.
Lindy Isonhood (click to enlarge picture) served on the Mississippi jury that sentenced Bobby Wilcher to death in 1994. In a commentary published on Medium, she writes that the decision to condemn Wilcher "continue[s] to haunt me today." Isonhood—whose experience as a death-penalty juror is the subject of a new documentary film, Lindy Lou, Juror Number 2—explains how little she and her fellow jurors knew about the death-penalty system when they were tasked with determining Wilcher's fate. They were unaware of the rarity of death sentences, the lack of adequate counsel, and changing public attitudes toward capital punishment. She describes feeling "guilt and complicity" for her role in Wilcher's execution. "Judges, lawyers, prison guards, families of the victims and families of the condemned — along with ordinary jurors like myself — are swept into a world where judgments of death are handed down, but everyone else is expected to emerge untouched," she wrote. The one-hour film, which will premiere on PBS on July 16, 2018, follows Isonhood's journey to visit other jurors from the case and discuss their experiences. Isonhood met with Wilcher before his execution, and said, "I saw him as a fellow human being, flawed but caring, even towards me." She concludes, "If I was called to serve on Bobby Wilcher’s jury today, I could not sentence him to death. I say this not because of what I learned about him before his execution, but because of what handing down a death sentence can do to people like me. I no longer feel as guilty about my decision in Bobby’s case, but I wish I could have foreseen how it would affect me and my loved ones for the rest of my life."
As its 2017-2018 term came to a close, the U.S. Supreme Court declined to review two Mississippi cases that presented significant challenges to capital punishment as implemented in that state and across the country. Over the dissent of Justice Stephen Breyer (pictured), who renewed his call for the Court to review the constitutionality of the death penalty as a whole, the Court on June 29 denied certiorari in the cases of Timothy Evans and Richard Jordan. Reiterating concerns he first voiced in his landmark dissent three years ago in Glossip v. Gross (2015), Justice Breyer wrote: “the death penalty, as currently administered, suffers from unconscionably long delays, arbitrary application, and serious unreliability.” Two Mississippi cases, he wrote, illustrate the first two of those factors. Evans and Jordan were both sentenced to death in Mississippi’s Second Judicial District, which—according to death sentencing data maintained by Mississippi’s Office of the State Public Defender—has imposed more death sentences than any of the 21 other judicial districts in the state and nearly 1/3 of all the death sentences imposed in the state this century. Evans’s petition for writ of certiorari had argued that his death sentence was unconstitutionally arbitrary because of the geographic disproportionality in the way in which the death penalty was imposed and carried out across the state. Jordan had asked the Court to review the constitutionality of his more than forty-year tenure on Mississippi’s death row for a crime committed in 1976. Jordan’s death sentence was overturned three separate times because of different constitutional violations in each of his sentencing trials. In 1991, after his sentence had been overturned for the third time, a special prosecutor agreed that Jordan should be sentenced to life without parole. However, the Mississippi Supreme Court vacated the life sentence saying the sentence was invalid because it had not been authorized by Mississippi law in effect at the time of the murder. The state then sought and obtained the death penalty against Jordan for a fourth time. “Jordan has lived more than half of his life on death row,” Breyer wrote, living most of that time “in isolated, squalid conditions.” Breyer said the cruelty of the conditions of Jordan’s imprisonment constitute an “additional punishment” that warrants review by the Court to address whether the lengthy delay, in and of itself, violates the Eighth Amendment. The geographically arbitrary death-sentencing practices in the Second District also warranted review, Breyer wrote. “This geographic concentration reflects a nationwide trend. Death sentences, while declining in number, have become increasingly concentrated in an ever-smaller number of counties,” he wrote. This arbitrariness, Justice Breyer explained, “is aggravated by the fact that definitions of death eligibility vary depending on the state.” As a result, in Mississippi, unlike most states, a defendant may be sentenced to death for a felony robbery-murder, which does not require that the defendant actually intended to kill someone. Justice Breyer also found evidence in Mississippi that the death penalty was not reliably administered. He noted that just “[f]our hours before Willie Manning was slated to die by lethal injection, the Mississippi Supreme Court stayed his execution,” and in April 2015, Manning became the fourth Mississippi death-row prisoner to be exonerated. With six more death-row prisoners exonerated throughout the U.S. since January 2017, the unreliability of the death penalty, Justice Breyer argued, provides a third reason for the Court to review the constitutionality of capital punishment. “[M]any of the capital cases that come before this court,” Justice Breyer wrote, “involve, like the cases of Richard Jordan and Timothy Evans, special problems of cruelty or arbitrariness. Hence, I remain of the view that the court should grant the petitions now before us to consider whether the death penalty as currently administered violates the Constitution’s Eighth Amendment.”
Two men charged with killing Philadelphia Police Sgt. Robert Wilson III have been sentenced to life without possibility of parole, plus an additional term of 50 to 100 years, as prosecutors in one of the nation’s largest death-penalty counties agreed not to seek the death penalty in exchange for the defendants’ guilty pleas. Philadelphia District Attorney Larry Krasner (pictured) appeared in court on June 25 to personally explain the rationale behind the plea deal that ensures brothers Carlton Hipps and Ramone Williams will spend the rest of their lives in jail. Krasner told the court that the mothers of Sgt. Wilson’s two young children “do not want the death penalty” and that the plea deal would “minimize the re-traumatization” that would occur if they were exposed to a capital trial and lengthy appeals. Krasner said “[t]he death penalty in Pennsylvania is not what people think it is. The reality is people are not executed in Pennsylvania. They die in custody on death row.” The plea deal drew highly publicized criticism from the Philadelphia Fraternal Order of Police and other members of Wilson's family who wanted the death penalty to be pursued. It also provoked opposition from activists who said that Krasner’s use of the death penalty as leverage for the guilty pleas violated his campaign promise never to seek death sentences. The Philadelphia lodge of the FOP—who, along with former prosecutors who were fired from or left the DA’s office, have engaged in a prolonged public relations war against Krasner’s proposals for criminal-justice reform—called the plea deal “despicable.” On social media, it urged its members to attend the sentencing to “show support” for the Wilson family. Krasner said that the mothers of Wilson’s children had received threatening messages, which they believed were from the FOP, pressuring them to ask Krasner to seek the death penalty. Only family members who opposed the deal came to the court hearing. Krasner’s decision not to seek the death penalty comes in the wake of a twenty-year decline in Philadelphia’s use of capital punishment. The city imposed 99 death sentences in the 1990s, 21 in the first decade this century, and fewer than one every other year in the 2010s. Nearly 150 death sentences imposed in the city since the 1970s have been overturned, and there has been only a single execution. After highlighting the high cost of capital punishment, Krasner said, “A choice to waste money may be a choice to endanger police officers. And frankly, if you really want to get down to it, when did the death penalty prevent this outcome? The death penalty has not stopped it here. The death penalty has not stopped it in the past. And, every bit of scientific evidence indicates that it’s not going to stop it in the future.” A Death Penalty Information Center analysis of FBI murder data has shown that over the last three decades, police officers have been killed at a rate that is 1.37 times higher in states that currently have the death penalty than in states that have long abolished it.
Justice Anthony Kennedy (pictured) announced on June 27, 2018, that he will retire from the U.S. Supreme Court. During Kennedy’s thirty years on the Court, he became known as a swing vote, siding with both the conservative and liberal wings of the Court. His role as the Court's swing vote extended to some crucial death-penalty cases, including Roper v. Simmons (2005), in which the justices struck down the death penalty for juvenile offenders under age 18, and Kennedy v. Louisiana (2008), in which the justices barred the death penalty for child rape and other offenses that did not result in death. He also provided the decisive fifth vote against a challenge to lethal-injection practices brought by Oklahoma death-row prisoners in Glossip v. Gross. In his opinion for the five-member majority in the Kennedy case, Justice Kennedy wrote: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint. For these reasons we have explained that capital punishment must ‘be limited to those offenders who commit a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’” Justice Kennedy was a leading architect of caselaw decided under the Eighth Amendment’s “evolving standards of decency.” Under that doctrine, the Court looked to various measures of contemporary American values to determine whether a national consensus had evolved against a penal practice. Justice Kennedy authored numerous decisions for the Court applying or interpreting that doctrine, including Roper and Kennedy, as well as 5-4 decisions that struck down statutes or practices that risked execution of defendants with intellectual disability (Hall v. Florida (2014)) or would have permitted the execution of individuals whose extreme mental illness caused them to become mentally incompetent after having been sentenced to death (Panetti v. Quarterman). In declaring unconstitutional Florida’s use of a strict IQ threshold in determining whether defendants were intellectually disabled and therefore ineligible for the death penalty, Justice Kennedy wrote: “The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.” Vann R. Newkirk II, writing about Kennedy's civil rights legacy in The Atlantic, said, “The Eighth Amendment has been invoked often by Kennedy and the four liberal justices as a legal weapon in the nation’s highest court in order to curb the most draconian impulses of the criminal-justice system.” In his resignation letter to the President, Justice Kennedy wrote, “Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret and defend the Constitution and the laws that must always conform to its mandates and promises.”