Execution News and Developments: 2004 - 1998
Autopsies of Executed Inmates by State Medical Examiners Reveal Probability of Botched Procedures
An
autopsy of the last man executed in Kentucky, Edward L. Harper, found
only 3 to 6.5 milligrams per liter of barbiturate in Harper's blood --
a level leaving a high chance that Harper was conscious throughout the
execution and that he felt pain when he was injected with subsequent
drugs that paralyzed and suffocated him, and then stopped his heart.
Dr. Mark Dershwitz, the prosecution expert who developed the standards
that Kentucky relies upon, said the low level of barbiturate found in
Mr. Harper's body was potentially troubling, stating "[t]he blood level
should be a lot higher than seven," the level at which about 50 percent
of people are unconscious and 50 percent conscious. Applying the same
standards, autopsies conducted by state medical examiners after 23
executions in South Carolina and 11 in North Carolina, would indicate a
50 percent or greater chance that eight of the condemned men were
conscious throughout their executions. In one of those cases, the
likelihood of consciousness would have been 90 percent. In four, it
would have been 100 percent. (N.Y. Times, Sept. 16, 2004). See other Botched Executions. Supreme Court Unanimously Allows Lethal Injection Procedure Challenge to Continue
The
U.S. Supreme Court unanimously ruled that an Alabama death row inmate
could pursue his claim that the lethal injection procedures in his case
constitute cruel and unusual punishment. David Nelson, who was less
than three hours away from his scheduled execution last fall when the
Supreme Court gave him a temporary reprieve, had filed a claim under
section 1983 of the Civil Rights Law stating that his damaged veins
would make it impossible to insert an intravenous line without cutting
deep into flesh and muscle. Nelson said that such a procedure was a
violation of his rights under the Eighth Amendment. Alabama maintained
that this claim was simply part of Nelson's death penalty appeal and
should be dismissed because it was filed too late. The Justices ruled
that lower courts were wrong to block appeals by Nelson, and, in the
opinion written by Justice Sandra Day O'Connor, the Justices agreed
that Nelson's claim was separate from any challenge to his sentence or
conviction. Physicians have stated that the cut-down procedure the
state would use to find a vein for lethal injection could cause Nelson
to badly hemorrhage and suffer heart problems prior to his death caused
by the lethal injection drugs. (See Associated Press, May 24, 2004) See
Supreme Court.New Jersey Court Halts Executions, Orders Review of Lethal Injection
The
Appellate Division of New Jersey's Superior Court ruled today that the
state's Department of Corrections (DOC) must examine its lethal
injection execution procedures before it carries out any death
sentences, thereby halting executions in the state until such a review
takes place. The ruling notes, "[B]ecause of the patent gravity of the
life and death issues implicated by the regulations, we have concluded
that rather than simply striking down those regulations, DOC should
have the opportunity to give them further consideration, by additional
hearings if necessary, and to articulate, if it is able to do so, a
supporting basis for those determinations. In the meantime, however, we
are satisfied that the regulations as a whole, as they now stand, may
not be implemented by the carrying out of a death sentence." The ruling
may also require the DOC to release additional documents regarding the
state's lethal injection procedures to New Jerseyans for a Death
Penalty Moratorium, the non-profit organization that filed the original
challenge to the DOC's lethal injection procedures. Read the opinion (Feb. 20, 2004).Utah Governor Signs Bill to End Firing Squad
Governor
Olene Walker, who recently stated that it was a "sad commentary" that
Utah still had a firing squad, has announced that legislation passed in
February 2004 abolishing the practice will be signed into law. While
the primary method of execution has been lethal injection, inmates were
allowed the option of firing squad. The last execution by firing squad
in 1996 in Utah brought scores of media and curiosity seekers to the
state. A second bill eliminated executions on Sundays, Mondays, or
holidays, in a cost-cutting measure. The last execution to take place
in Utah, in 1999, was by lethal injection. (Associated Press, February
21, 2004) On March 15, 2004, Governor Walker signed the legislation
into law, to take full effect on May 3, 2004. (Associated Press, March
16, 2004).Four Executions in Texas and Georgia Stayed, Clemency Recommended for Foreign National in Oklahoma
Four
stays were granted for executions that were scheduled to take place
this week in Texas and Georgia, and Oklahoma's Pardon and Parole Board
unanimously recommended clemency for a foreign national facing
execution in January 2004. In Texas, courts ordered three stays of
execution. Two of the cases involved challenges to the use of
pancuronium bromide as part of the state's lethal injection process. A
third case, that of Bobby Lee Hines, was stayed on the basis of a
mental retardation claim. Attorneys for Texas death row inmates Billy
Frank Vickers and Kevin Lee Zimmerman filed a suit stating that one of
the lethal injection drugs, which has been banned by the American
Veterinary Medical Association, violates the constitutional protection
against cruel and unusual punishment. The Supreme Court issued a stay
for Zimmerman just 20 minutes before his scheduled execution. Vickers'
execution was put off by the state because of uncertainty of how the
courts would rule. (Associated Press, December 11, 2003) Pancuronium
bromide is used in 28 states that execute by lethal injection.
In
Georgia, just hours before the scheduled execution of Eddie Crawford,
the state Supreme Court agreed to hear his appeal to have several
pieces of possible blood evidence tested for DNA. Attorneys for
Crawford stated that the evidence must be tested based on a new law
granting inmates greater access to post-conviction DNA-testing. Oral
arguments in the case are expected to take place in February. (Atlanta
Journal-Constitution, December 11, 2003).
The Oklahoma Pardon and
Parole Board recommended clemency to Hung Thanh Le, a Vietnamese
foreign national on the state's death row. The Board voted unanimously
to recommend relief after hearing Le's claim that he did not have
access to legal help from his embassy after being arrested and accused
of murder, and that his original trial attorney failed to consider his
client's post traumatic stress disorder as a possible defense. (The
Oklahoman, December 10, 2003). See Clemency.
Federal Judge Declares Electrocution Unconstitutional and Ring v. Arizona to be Retroactive
In
a decision vacating the death penalty for Nebraska death row inmate
Charles Jess Palmer, U.S. District Court Judge Joseph Bataillon
declared that electrocution is unconstitutional. Bataillon wrote, "In
light of evidence and evolving standards of decency, the court would
find that a death penalty sentence imposed on a defendant in a state
that provides electrocution as its only method of execution is an
unnecessary and wanton infliction of pain." Nebraska is the only state
that maintains electrocution as its sole method of execution.
Bataillon's ruling also stated that the U.S. Supreme Court's decision
in Ring v. Arizona - which held that it is unconstitutional to have a
judge, rather than a jury, decide eligibility for a death sentence - is
retroactive and applies to Palmer's case. The judge further decried the
lengthy period of time Palmer has spent on death row. Palmer remains
incarcerated with a sentence of life imprisonment. (Lincoln Journal
Star, October 10, 2003) See Ring v. Arizona, and Life Without Parole.
Experts Warn Execution Drug May Mask Suffering
A
growing number of medical and legal experts are warning that the
chemical pancuronium bromide, a commonly used lethal injection drug,
could leave a wide-awake inmate unable to speak or cry out as he slowly
suffocates. Advances in medicine have found that the drug, used by
executioners to paralyze the skeletal muscles while not affecting the
body's brain or nerves, can mask severe suffering. While the American
Veterinary Medical Association condemns the use of pancuronium bromide
in the euthanasia process because "the animal may perceive pain and
distress after it is immobilized," the majority of states that maintain
the death penalty continue to incorporate it as the second of three
drugs used to execute those on death row. When questioned about what
death row inmates would feel if the first short-term anesthesia drug
did not function properly and the remaining two drugs, including
pancuronium bromide, were administered, Dr. Mark J.S. Heath of Columbia
University stated, "It would basically deliver the maximum amount of
pain the veins can deliver, which is a lot." (New York Times, October
7, 2003). See also Botched Executions.
Alabama Halts Mandatory Electrocutions
Legislation
that changes the primary method of execution in Alabama from the
electric chair to lethal injection was signed by Governor Donald
Siegelman on April 25. As of July 1, 2002, lethal injection will be
used as the method of execution unless an inmate requests the electric
chair. Nebraska is now the only state in the country to use
electrocution as its sole means of execution. (New York Times, 4/26/02
and Associated Press, 4/26/02)
Georgia Supreme Court Strikes Down Electric Chair
On
October 5, 2001, Georgia's highest court held that use of the electric
chair was cruel and unusual punishment in violation of the state
constitution. In the 4-3 decision, the court stated that electrocution
"inflicts purposeless physical violence and needless mutilation that
makes no measurable contribution to accepted goals of punishment." The
court added:
[W]e hold that death by electrocution, with its specter of excruciating pain and its certainty of cooked brains and blistered bodies, violates the prohibition against cruel and unusual punishment in Art. I, Sec. I, Par. XV of the Georgia Constitution.
Last year, the state passed legislation making lethal injection the method of execution for those convicted after enactment of the statute, but did not authorize the change in method for those convicted before its enactment. With the court's ruling, lethal injection becomes the state's sole method. (Associated Press, 10/5/01)
Currently, 11 states allow the use of the electric chair, but only Alabama and Nebraska use electrocution as their sole method of execution. See also, the "Execution Tapes" recorded by the Georgia Department of Corrections, which narrate the executions of inmates in the electric chair.
The Georgia Supreme Court granted a stay to Ronald Spivey until the
court decides whether use of the electric chair constitutes "cruel and
unusual punishment." Georgia has not used its electric chair since
1998. The state has since passed legislation to change its method of
execution to lethal injection, but the statute only applies to those
sentenced after May 1, 2000. In a concurring opinion issued just four
hours before Spivey's execution, Justice Sears noted that the
Legislature changed the method of execution to lethal injection because
electrocution "offends the evolving standards of decency that
characterize a mature, civilized society." (Atlanta
Journal-Constitution, 3/6/01)
Tennessee
has approved the use of lethal injection for those sentenced after
January 1, 1999. Current inmates will have a choice between lethal
injection and the electric chair.
Kentucky
has also voted to give inmates a choice of lethal injection or the
electric chair. Those sentenced after March 31, 1998 will be executed
by lethal injection.
(Florida's Electric Chair/Doug Magee)
On October 20, 1997, the Florida Supreme Court upheld the constitutionality of the state's use of its electric chair which had caused a fiery execution in March of this year. The vote was 4-3. The dissenting justices wrote: "Execution by electrocution is a spectacle whose time has passed . . . . Florida's electric chair, by its own track record, has proven itself to be a dinosaur more befitting the laboratory of Baron Frankenstein than the death chamber of Florida State Prison." In 1998, Florida electrocuted 4 people.
The late
U.S. Supreme Court Justice, William Brennan, Jr., described
electrocutions in his dissent in Glass v. Louisiana (1985):
"Th[e]
evidence suggests that death by electrical current is extremely violent
and inflicts pain and indignities far beyond the 'mere extinguishment
of life.' Witnesses routinely report that, when the switch is thrown,
the condemned prisoner 'cringes,' 'leaps,' and 'fights the straps with
amazing strength.' 'The hands turn red, then white, and the cords of
the neck stand out like steel bands.' The prisoner's limbs, fingers,
toes, and face are severely contorted. The force of the electrical
current is so powerful that the prisoner's eyeballs sometimes pop out
and 'rest on [his] cheeks.' The prisoner often defecates, urinates, and
vomits blood and drool."
Brennan questioned whether electrocutions were "nothing less than the contemporary technological equivalent of burning people at the stake."
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