In March 2018, Alabama enacted a new law authorizing the use of nitrogen gas as an alternative method of execution. Although lethal injection remained the primary method of execution, the law provided condemned prisoners a limited opportunity to designate nitrogen asphyxiation (hypoxia) as the means of their death. The availability of execution by nitrogen gas led to a July 2018 settlement of a federal lawsuit Alabama’s death-row prisoners had filed that had challenged the constitutionality of the state’s three-drug lethal injection protocol as constituting cruel and unusual punishment. But nine months after the law was enacted and five months after the prisoners opted for execution by lethal gas, Alabama has not yet issued a protocol explaining how it intends to conduct nitrogen-gas executions, and there are no clear indications as to when the state will do so.
No state has carried out an execution through nitrogen hypoxia, although three states – Alabama, Mississippi, and Oklahoma – now authorize its use if lethal injection is held unconstitutional or determined to be unavailable. Alabama also permits its use if the prisoner selects lethal gas over lethal injection. Other forms of lethal gas, all involving a gas chamber, have been used in 11 of the 1,490 executions carried out in the United States since executions resumed in 1977. However, none of the states authorizing the use of nitrogen gas has issued a nitrogen-gas execution protocol nor have the states indicated whether they plan to construct a vacuum chamber or use some form of a death mask to administer the gas.
The Alabama legislature turned to nitrogen gas as an alternative to lethal injection in response to difficulty obtaining appropriate drugs for lethal injection and a series of botched or visibly problematic lethal-injection executions using the drug midazolam. In February 2018, the execution of Doyle Lee Hamm was called off after an Alabama execution team failed for two-and-a-half hours to find a suitable vein in which to place an intravenous execution line. In October 2017, witnesses to the 35-minute execution of Torrey McNabb reportedly “expressed repeated concerns to each other that he was still conscious during the lethal injection.” Witnesses also reported that Ronald Smith heaved, coughed, clenched his left fist, and opened one eye during one 13-minute period of his 34-minute execution in December 2016. In November and December 2018, two Tennessee death-row prisoners elected to be executed in the electric chair after a medical expert reported that Billy Ray Irick had not been properly anesthetized and experienced the torturous effects of the second and third lethal-injection drugs while still conscious during a prolonged midazolam execution
After a gas protocol is promulgated, it will still be subject to court challenges based upon the particular method chosen. The Alabama Department of Corrections has said it is “continuing to develop the protocol” in conjunction with the Alabama Attorney General's Office.
With the support of a record 120 nations, the United Nations General Assembly adopted a resolution on December 17, 2018 calling for a worldwide moratorium on the death penalty. The resolution expressed “deep concern” over the use of the death penalty and urged those countries that continue to use it to take action to ensure that death sentences are not the product of discriminatory or arbitrary laws or practices. The moratorium resolution, proposed this year by Brazil and co-sponsored by 83 nations, marked the seventh time since 2007 that the global body has formally called for an end to executions. When Italy sponsored the first resolution, it drew the support of 105 countries. This year, the recorded vote was 121-35 in favor, with 32 abstentions. However, Pakistan’s Foreign Office later said that its apparent vote in favor of the resolution had been miscounted.
The UN General Assembly last considered a moratorium resolution during its 2016 session. At that time, 117 countries voted in favor. Dominica, Libya, and Malaysia voted in favor of the resolution for the first time this year, and Antigua and Barbuda, Guyana, and South Sudan moved from opposition to abstention. According to Amnesty International, 139 of the 193 UN member states are abolitionist in law or in practice. Amnesty International Death Penalty Expert Chiara Sangiorgio said in a statement, “The fact that more countries than ever before have voted to end executions shows that global abolition of the death penalty is becoming an inevitable reality. A death penalty-free world is closer than ever.”
On the same day as the UN vote, Pope Francis met with a delegation from the International Commission Against the Death Penalty and reiterated his unequivocal opposition to the death penalty. In a statement prepared for the meeting, the Pope called the death penalty “a consequence of a mentality of the time – more legalistic than Christian – that sanctified the value of laws lacking in humanity and mercy.” He explained the recent revision of the Church’s catechism, saying, “The church could not remain in a neutral position in the face of today’s demands to reaffirm personal dignity.” He urged countries that continue to use the death penalty to adopt a moratorium, with the eventual goal of abolition.
Six former governors have urged California Governor Jerry Brown (pictured) to “be courageous in leadership” and grant clemency to the 740 men and women on California’s death row before he leaves office on January 7, 2019. In a December 13 op-ed in the New York Times, the former governors—Ohio’s Richard Celeste, Oregon’s John Kitzhaber, Maryland’s Martin O’Malley, New Mexico’s Bill Richardson and Toney Anaya, and Illinois’s Pat Quinn—wrote that “Mr. Brown has the power to commute the sentences of 740 men and women, to save 740 lives. ... Such an act will take political will and moral clarity, both of which Mr. Brown has demonstrated in the past. In the interest of his legacy, the people of California need his leadership one more time before he leaves office.”
The governors called signing a death warrant “a terrible responsibility, hard even to imagine until you’re asked to carry it out, as we were. But we became convinced that it wasn’t something a civilized society should ask of its leaders. That’s why we halted executions in our states, and we call on Gov. Jerry Brown of California to do the same.” Each of the former governors granted clemency to at least one death-row prisoner during their tenures in office, and Anaya, O’Malley, and Quinn commuted the death sentences of all the prisoners on their states’ death rows. The ex-governors said, “we know it must weigh on Mr. Brown that, unless he acts soon, he will leave behind 740 men and women on California’s death row. It’s a staggering number and our hearts go out to him. From a humanitarian perspective, it is horrifying to imagine executing that many humans. As a practical matter, it’s beyond comprehension. ... If the state were to execute a single person every day, people would still be waiting on death row after two years.”
In late November, three former Ohio governors, Richard Celeste, Bob Taft, and Ted Strickland gave a joint interview to the Columbus Dispatch in which each told the paper that the toughest burden he had to bear as governor was deciding whether a condemned prisoner should live or die. Celeste commuted the death sentences of eight prisoners—four men and all four women on the state’s death row—towards the close of his second term. Although no one was executed during his eight years in office, Celeste said, “[a]s I look back on it, if I had really ... been bold, I would have ... just sa[id], ‘I’m going to commute them all to life [sentences], without the benefit of parole.’” Strickland said his biggest regret was not stopping executions in his state. “I wish I had done what my friend Jay Inslee, who’s the governor of Washington state, did when he became governor. He just said, ‘There will be no executions as long as I’m the governor of the state of Washington.’ And I wish I had had the courage to make that decision.” Strickland granted clemency five times, but allowed 17 executions to go forward. “I’m just convinced as long as we have the death penalty, innocent people are going to lose their lives .... [O]ur judicial system has serious problems that need attention,” he said.
In their New York Times op-ed, the six former governors wrote: “The achievement of high office demands that one be courageous in leadership. Mr. Brown now has the chance to do what others in our ranks have done after they became aware of the price paid for taking a human life. We were compelled to act because we have come to believe the death penalty is an expensive, error-prone and racist system, and also because our morality and our sense of decency demanded it.” Brown, they said, should commute California's entire death row or “declare a moratorium on the death penalty and give Governor-elect Gavin Newsom the time he will need to figure out how to end a system broken beyond repair.” At an international conference on the death penalty at the Italian Parliament in November, the Community of Sant’ Egidio—a Catholic group with close connections to Pope Francis—and representatives of 25 countries, including the justice ministers of South Africa, Benin, Zimbabwe and Malaysia also called upon Brown to commute all death sentences in the state before leaving office.
The long-term decline of death-penalty use in the U.S. continued in 2018, as a twentieth state abolished capital punishment and executions and new death sentences remained near generational lows. On October 11, the Washington State Supreme Court struck down the state’s death penalty, finding that it was imposed arbitrarily and in a racially discriminatory manner. Washington became the eighth state to legislatively or judicially abolish the death penalty since 2007. According to the Death Penalty Information Center’s 2018 Year End Report, fourteen states and the federal government have imposed a total of 41 new death sentences this year, with one more death sentence anticipated towards the end of the year. Eight states carried out a total of 25 executions.
The executions and death sentences extended a long decline in capital punishment, with fewer than 30 people executed and fewer than 50 sentenced to death in each of the last four years. Before this four-year period, neither had happened in a quarter century. For the first time since death sentencing resumed in the U.S. in 1973, no U.S. county imposed more than two death sentences. The death penalty remained geographically isolated, with most executions carried out in a few southern states. More than half (13) were in Texas, and the nine executions carried out in the rest of the country were the fewest executions in those 49 states since 1991.
The declining usage of capital punishment, however, did not redress concerns about the manner of its application. “Death sentences have been dropping over the course of the last 25 years and the hope always had been that as use of the death penalty declined, it would be imposed in a way that would be less arbitrary and less discriminatory,” Death Penalty Information Center Executive Director Robert Dunham told the Houston Chronicle. “That hasn’t happened, and in many respects it’s gotten worse.” A review of the 2018 executions by DPIC and the Promise of Justice Initiative found that 72% of the prisoners executed showed evidence of serious mental illness, brain damage, intellectual impairment, or chronic abuse and trauma, and four were executed despite substantial innocence claims.
Public opinion polls in 2018 also showed that support for the death penalty remained near historic lows, with 56% of Americans saying they support capital punishment (down from 80% in the 1990s). For the first time since Gallup began asking about the fairness of capital punishment in 2001, fewer than half of Americans (49%) said they believe it is fairly applied. Election results confirmed the reduced public appetite for the death penalty. The three states with death penalty moratoria (Colorado, Oregon, and Pennsylvania) elected governors who will continue those policies. Prosecutors in six counties known for the heavy use of the death penalty were defeated, replaced in most case with candidates who ran on reform platforms pledging to use the death penalty sparingly, if at all. Since 2015, voters in 11 of the 30 most prolific death-sentencing counties have replaced their prosecutors.
“America continued its long-term movement away from the death penalty in 2018,” Dunham said. “Even in the face of inflammatory political rhetoric urging its expanded use, voters showed that the death penalty is no longer a political wedge issue. The reelection of governors who imposed death penalty moratoria, the replacement of hardline pro-death-penalty prosecutors with reformers, and Washington’s court decision striking down its death penalty suggest that we will see even greater erosion of the death penalty in the years ahead.”
Report on “Principles for the 21st Century Prosecutor” Calls for Prosecutors to Work to End Death PenaltyPosted: December 13, 2018
A group of justice-reform organizations has issued a new report, 21 Principles for the 21st Century Prosecutor, that calls on prosecutors to “work to end the death penalty” as part of its recommended reforms in prosecutorial practices. The report, prepared jointly by the organizations Fair and Just Prosecution, the Brennan Center for Justice, and the Justice Collaborative, sets forth a series of principles that the groups say are designed “to improve the overall fairness and efficacy of the criminal justice system.” The report sets forth 21 principles of prosecution for a “21st Century vision for meting out mercy and justice.” Ten of the principles address ways to reduce incarceration. Eleven are proposals to increase fairness in the criminal justice system. Because prosecutors “wield enormous influence at every stage of the criminal process, from initial charging decisions to the sentences sought and imposed,” the report says, they are “well positioned to make changes that can roll back over-incarceration.”
The groups’ proposals on the death penalty fall within their recommendations on increasing fairness. “Countless studies have shown that the death penalty is fraught with error, provides no more public safety benefit than other sentences, and is routinely imposed on people with diminished culpability,” the report says. “Studies also show that the death penalty is applied in a racially discriminatory manner[,] … is expensive and puts victims through decades of litigation and uncertainty.” The report recommends that prosecutors “[o]ppose legislation to expand or expedite the death penalty”; establish a review committee to determine whether to prosecute a case capitally; consider alternative punishments in cases in which the death penalty has already been imposed, “particularly when there is substantial evidence of reduced culpability”; and “[d]on’t threaten to seek the death penalty to coerce a plea.” It quotes two big-city prosecutors, Denver’s Democratic District Attorney Beth McCann and Kings County (Seattle) Republican Prosecuting Attorney Dan Satterberg, in support of the principle that prosecutors should work to end the death penalty. Shortly after her election, McCann said, “I don’t think the state should be in the business of killing people.” Satterberg spoke out in favor of abolishing Washington’s death penalty, saying that the death penalty “no longer serves the interests of public safety, criminal justice, or the needs of victims.”
Election results in 2018 continued a trend away from prosecutors known for their aggressive pursuit of capital punishment. Since 2015, voters have removed prosecutors in 11 of the 30 most prolific death-sentencing counties in the country, replacing most of them with reform candidates. This year, prosecutorial candidates who ran on reform platforms won election in St. Louis County, Missouri; Jefferson County (Birmingham), Alabama; Bexar (San Antonio) and Dallas, Texas. Two of the nation’s most aggressive pro-death-penalty prosecutors also were ousted in Orange and San Bernardino counties in California.
Mark Heyer, whose daughter, Heather Heyer (pictured), was killed in 2017 while protesting a white supremacist rally in Charlottesville, Virginia, says he does not want federal prosecutors to pursue the death penalty against the man who killed his daughter. James Alex Fields, Jr., a 21-year-old who identifies as a neo-Nazi, was tried in Virginia state court and convicted of murder and a litany of other crimes for driving a car into a crowd of protesters, killing Heather Heyer and injuring many others. On December 11, the state-court judge accepted the jury’s sentencing recommendation and sentenced Fields to life in prison plus 419 years and a fine of $480,000. However, Fields still faces federal hate crime charges arising out of the incident, including one murder charge for which prosecutors could seek the death penalty.
Mark Heyer told BuzzFeed News, “I don’t relish the thought of [Fields] getting the death penalty. That’s my belief. I’d rather him get his heart straight and get life [in prison].” On the issue of Fields’s hateful beliefs, Heyer wondered, “What happened to make him hate that much? You don’t just wake up in the morning like that. He had hatred building up in him for years.” Heyer expressed sympathy for Fields’s family, saying, “He was too stupid and too young to realize what he was about to do would change his whole life. I think about his mother and what she’s having to go through.” During the state court trial, Fields’s lawyers presented evidence that he had suffered from psychiatric disorders dating back to his early childhood. Heather Heyer’s mother, Susan Bro, has not publicly shared her views on the appropriate punishment for Fields, but has promoted her daughter’s legacy of fighting racism. In an email to BuzzFeed News, she wrote that killing Fields “would not bring Heather back.”
Federal prosecutors have not yet announced whether they will seek the death penalty against Fields. Whether they are able to do so may depend, in part, upon the outcome of an unrelated case being considered by the U.S. Supreme Court. On December 6, 2018, the Court heard argument in Gamble v. United States, a challenge to a legal concept known as the “separate sovereigns” doctrine, which allows a defendant to be tried in state and federal court for the same conduct. Terance Gamble, who was charged in both state and federal court with being a felon in possession of a firearm, argued that facing both state and federal charges violated the Constitution’s double jeopardy clause, which protects against being "twice put in jeopardy” “for the same offence.” If the Court rules in Gamble’s favor, it could block Fields from being tried in federal court on at least some of the federal charges. Court watchers said after the argument that the Court did not appear inclined to strike down the separate sovereigns doctrine.
Texas is scheduled to execute Alvin Braziel, Jr. on December 11, 2018, in what would be the state’s 13th execution of the year. Braziel was 18 years old in 1993 when he killed a man and sexually assaulted a woman after a failed robbery attempt. His age places him just above the legal boundary to be eligible for a death sentence, though recent neuroscience research on brain development indicates the deficits in judgment and impulse control that led the United States Court to exempt juveniles from capital punishment persist through an individual’s early 20s. As a result of that research, the American Bar Association adopted a resolution to bar the death penalty for offenders 21 and under, and a Kentucky trial court ruled that it would be unconstitutional to seek a death sentence against defendants who were under 21 at the time of their crime.
Braziel’s appeals presented evidence that his trial attorney was ineffective and failed to present significant mitigating evidence. His appellate attorneys said Braziel suffered brain damage from head injuries as a child that rendered him intellectually disabled and therefore ineligible for the death penalty. Braziel was also exposed to drugs and alcohol in utero, experienced abuse and homelessness as a child, and has a family history of mental illness. None of that evidence was offered to his jury, which, the defense argued, might have been persuaded to impose a lesser sentence.
Braziel would be the 13th person executed in Texas this year and the 24th in the U.S. The pharmacy that has provided lethal drugs to Texas has a record of safety violations, and five of the prisoners executed in the state this year have reported pain or burning as the execution drug was injected, which doctors have indicated may be a sign that the drugs are out of date or impure.
On December 10, 2018, the United Nations and other international organizations celebrated Human Rights Day, marking the 70th anniversary of the adoption of the Universal Declaration of Human Rights. The Declaration, which has served as a foundation for the UN’s efforts to abolish the death penalty, contains 30 articles stating universally applicable rights based on the “inherent dignity” and “equal and inalienable rights of all members of the human family.” Article 3 declares, “Everyone has the right to life, liberty and security of person,” and has provided the basis of UN treaties and resolutions against capital punishment, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, which, as of 2017, had been signed by 85 nations.
When the Universal Declaration of Human Rights was adopted in 1948, only 16 countries had abolished the death penalty. Today, 142 countries are abolitionist in law or practice. The Declaration was written in the wake of World War II and the Holocaust, and called for an end to torture, cruel punishments, and discrimination. It affirmed the rights to fair trials, asylum from persecution, and presumption of innocence. The Universal Declaration, along with the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights, comprise what has come to be known as the International Bill of Rights. Articles 6 and 7 of the ICCPR provide human rights safeguards against the improper use of capital punishment. Article 6 limits the circumstances in which the death penalty can be applied and provides: “Every human being has the inherent right to life. … No one shall be arbitrarily deprived of his life.” Article 7 states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
On the 70th anniversary of the Universal Declaration, a UN statement said, “Thanks to the Declaration, and States' commitments to its principles, the dignity of millions has been uplifted and the foundation for a more just world has been laid. While its promise is yet to be fully realized, the very fact that it has stood the test of time is testament to the enduring universality of its perennial values of equality, justice and human dignity.”
Tennessee executed David Earl Miller (pictured at age 24) in the state’s electric chair on December 6, 2018, after Governor Bill Haslam denied his application for clemency and the U.S. Supreme Court refused to address the denials of his challenges to the constitutionality of Tennessee’s execution methods. Miller, a 61-year-old man with a significant history of mental illness who experienced extensive sexual and physical abuse as a child, opted to be executed by electric chair after the Tennessee Supreme Court denied other prisoners’ challenges to a three-drug lethal-injection process that Miller and his lawyers believed would result in an extended torturous death.
The Tennessee prisoners challenged the state’s three-drug lethal-injection process, seeking to replace it with execution with a single barbiturate, pentobarbital. Miller presented evidence that the three-drug protocol would result in approximately 18 minutes of unnecessary pain and suffering. He submitted an affidavit from one of the nation’s leading anesthesiologists that Billy Ray Irick “was aware and sensate” during his lethal-injection execution on October 11, 2018 “and would have experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.” The prisoners’ challenge was rejected because Miller—prevented from obtaining critical information by Tennessee’s execution secrecy law—was unable to show that pentobarbital was readily available to the state. Miller elected to be executed in the electric chair, but argued that his choice of electrocution instead of lethal injection was coerced and that both methods were unconstitutionally cruel and unusual. The lower courts ruled that Miller had waived his challenge to constitutionality of the electric chair by choosing it over lethal injection, and the U.S. Supreme Court refused to intervene. In dissent, Justice Sonia Sotomayor wrote that “electrocution can be a dreadful way to die,” but there was “credible scientific evidence that lethal injection as currently practiced in Tennessee may well be even worse.” It was “perverse,” she said, to require prisoners to prove that an alternative method was available to kill them. “Such madness should not continue.”
Miller was charged with murdering his intellectually-disabled girlfriend, Lee Standifer, in May 1981. He was 24 years old at the time. Miller’s attorneys submitted an 89-page clemency petition to Tennessee Governor Bill Haslam detailing Miller’s upbringing and childhood abuse, including an instance in which Miller’s stepfather “knocked [Miller] out of a chair, hit him with a board, threw him into a refrigerator with such force it dented the refrigerator and bloodied [Miller’s] head, dragged him through the house by his hair, and twice ran [Miller’s] head through the wall.” Miller’s mother, who drank heavily while he was in utero, sexually abused Miller and forced him to have sex with her on at least three occasions. The document also noted that Miller attempted suicide two times before age ten. Governor Haslam denied the petition with a one-sentence statement: “After careful consideration of David Earl Miller’s clemency request, I am declining to intervene in this case.”
Following the execution, Miller’s lawyer Steve Kissinger said: “If any of you have been reading what we've been submitting to the governor, what we have been sending to the courts for the last 20 years you'll know that he cared deeply for Lee Standifer and she would be alive today if it weren't for a sadistic stepfather and a mother who violated every trust that a son should have. I came up here promising to tell you what we did here today, but I think maybe what I should be doing is ask you all that question. What is it that we did here today?”
Miller is the second death-row prisoner to be executed by electrocution in Tennessee this year. Edmund Zagorski, executed by electrocution on November 1, 2018, was the first. Miller’s last words were “beats being on death row.”
The execution process in Indiana and Missouri may become more transparent as a result of public-access lawsuits filed in the two states. In Indiana, a Marion County trial judge ruled on November 30, 2018 that the state must release pre-2017 records concerning the drugs obtained by the state for executions and the companies that produced them. Three days earlier, the ACLU of Missouri announced the settlement of a lawsuit filed on behalf of investigative journalist Chris McDaniel that ensured that the Missouri Department of Corrections could no longer retaliate against reporters or news outlets by excluding them from witnessing executions.
The Indiana ruling came in a public records suit brought by a lawyer, A. Katherine Toomey, in which Circuit Court Judge Sheryl Lynch had previously ordered the state to disclose documents on the details of Indiana’s execution protocol. To evade compliance with the court’s 2016 order, at 2 a.m. on the final day of the 2017 legislative session, the legislature inserted a two-page secrecy provision into the state 175-page budget bill. That provision exempted the records Toomey had sought from public disclosure. David Dickmeyer, arguing on behalf of the state, told Judge Lynch that the new law constituted a “special circumstance” requiring the court to change her prior ruling. The secrecy provision was necessary, he asserted, because releasing the records would subject the state’s drug supplier to “public shaming, public protests, hate mail and lawsuits.” Judge Lynch disagreed, writing, "The General Assembly may not change the result of [the public records] litigation. While other requests may be precluded by the Statute, blocking Toomey’s request after this Court had already ordered the Department to produce the documents violates ... Indiana’s Constitution.”
The Missouri litigation challenged the state’s procedure for designating execution witnesses, which granted the director of the Department of Corrections sole discretion to select media witnesses. McDaniel—who as a reporter for St. Louis Public Radio and then BuzzFeed News had exposed questionable conduct by the Missouri Department of Corrections and reported that the state’s previously secret drug supplier had committed more than 1,800 health and safety violations—had applied to be a media witness for 17 executions. The corrections department ignored the applications and provided no reason for refusing to select McDaniel as a witness. In announcing the settlement, the ACLU of Missouri, which represented McDaniel, said: “The government cannot give or deny access to a reporter based on government officials’ feelings about an individual’s reporting.” Under the settlement, media witnesses will now include reporters designated by the Associated Press, the Missouri Broadcaster’s Association, and the Missouri Press Association, along with a fourth reporter from a local agency. “Executing inmates is the most serious power state governments have,” said McDaniel. “And the public has a right to know the details of how the government is using that power.”
An op-ed by Los Angeles Times opinion writer Scott Martelle took issue with the secrecy surrounding recent U.S. executions. “Secrecy advocates argue that the drugmakers must remain in the shadows to keep opponents of the death penalty from protesting them,” wrote Martelle. “In other words, if the states can’t conduct the people’s business in secret, the people might rise in opposition to the business the state is conducting. So much for open governments and public accountability.” The op-ed cited McDaniel’s investigation of the safety violations committed by the compounding pharmacy that produces Texas’s lethal-injection drugs and DPIC’s report on secrecy, Behind the Curtain: Secrecy and the Death Penalty in the United States. “Remember, executions are conducted in the name of the people, who have a right to know how the state performs the abominable act. This retreat into secrecy is an act of shame, not openness,” Martelle wrote.