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DPIC Releases Year End Report: Executions and Death Sentence Fall to Historic Lows

On December 18, DPIC released its annual report on the latest developments in capital punishment, "The Death Penalty in 2014: Year End Report." In 2014, 35 people were executed, the fewest in 20 years. Death sentences dropped to their lowest level in the modern era of the death penalty, with 72 people sentenced to death, the smallest number in 40 years. Just seven states carried out executions, and three states (Texas, Missouri, and Florida) accounted for 80% of the executions. The number of states carrying out executions was the lowest in 25 years. Seven people were exonerated from death row this year, including three men in Ohio, who were cleared of all charges 39 years after their convictions, the longest time among all death row exonerees. There have now been 150 people exonerated from death row since 1973. “The relevancy of the death penalty in our criminal justice system is seriously in question when 43 out of our 50 states do not apply the ultimate sanction,” said Richard Dieter, DPIC’s Executive Director and the author of the report. “The U.S. will likely continue with some executions in the years ahead, but the rationale for such sporadic use is far from clear.” See DPIC's Press ReleaseView a video summarizing the report.


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Texas Judge Orders State to Reveal Execution Drug Supplier

On December 11 District Judge Darlene Byrne ruled that the source of Texas' lethal injection drugs is a matter of public record, and the state should release the information. Texas has been obtaining pentobarbital from an unnamed compounding pharmacy. The decision resulted from a suit filed earlier this year on behalf of death row inmates, two of whom have since been executed. Texas had been open about the source of its execution drugs until May, when Attorney General Greg Abbott decided that releasing the identity of the drug supplier could be a safety risk. Maurie Levin, one of the attorneys who filed the suit, said, "This is about the drugs, but it's also about open government." Similar suits have been filed in Oklahoma, Missouri, and Ohio, where drug suppliers are also shielded by secrecy policies. The Texas Department of Criminal Justice plans to appeal the decision.


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Oklahoma Warden Called Recent Execution a "Bloody Mess"

Attorneys for several inmates in Oklahoma have asked a federal court to stay their executions and presented new accounts of the botched execution of Clayton Lockett (pictured) as evidence the state's execution procedure is unconstitutionally cruel. The recent filing included statements describing the execution from the warden, an attending paramedic, and a victims' services advocate who witnessed the execution. Warden Anita Trammell called the execution, "a bloody mess," and said, "I was kind of panicking. Thinking oh my God. He’s coming out of this. It’s not working.” Edith Shoals, a victims' services advocate for the Department of Corrections, witnessed the execution from an overflow room and said, “It was like a horror movie … [Lockett] kept trying to talk.” The paramedic who participated in the execution described the doctor's failed attempts to insert an IV, saying, "I don’t think he realized that he hit the artery and I remember saying you’ve got the artery. We’ve got blood everywhere." Lockett was pricked at least 16 times in attempts to insert the IV. The doctor declined to set a backup IV line, as called for in the execution protocol, explaining, "We had stuck this individual so many times, I didn’t want to try and do another line." Mike Oakley, a former general counsel for the Department of Corrections, said "political pressure" played a role in the selection of execution drugs. “[T]he attorney general’s office, being an elective office, was under a lot of pressure. The, the staff over there was under a lot of pressure to, to say, ‘Get it done,’ you know, and so, yeah, I, I think it was a joint decision but there was, I got to say there was a definite push to make the decision, get it done, hurry up about it.”


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Ohio Senate Holds Hearing on Lethal Injection Secrecy Bill

On December 4, the Ohio Senate Judiciary Committee held a hearing on HB 663, which would shield the identity of those who produce lethal injection drugs for the state. Previously, critics of the bill had warned that the measure could be unconstitutional because it interferes with the courts and violates the First Amendment right to free speech. Among those testifying at the committee hearing was Kevin Smith of the Society of Professional Journalists, who called the bill, "one of the most over-reaching in terms of secrecy we have encountered." Public defenders and the Ohio ACLU also testified against the bill. The Ohio House has already passed the bill. Additional Senate hearings are scheduled for next week.


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Proposed Ohio Lethal Injection Secrecy Bill May Be Unconstitutional

The Ohio legislature is considering a bill that would prevent the public and the courts from knowing the name of compounding pharmacies that produce lethal injection drugs for the state and the identity of medical personnel participating in executions. Critics of the bill say such interference with the courts and the First Amendment right to free speech would be unconstitutional. At a committee hearing, Dennis Hetzel, executive director of the Ohio Newspaper Association, said, "This bill likely will prompt endless litigation – a precise situation you are trying to avoid." Similar secrecy laws in Pennsylvania, Missouri, Arizona, and Oklahoma are being challenged in court by media organizations. The non-partisan Legislative Service Commission also raised constitutional concerns about a provision of the bill that would void any contract if it had a clause prohibiting the sale of lethal injection drugs to the state, saying that could violate state and federal prohibitions against impairing contracts. Ohio State University law professor Doug Berman questioned whether the state should go to such lengths to preserve lethal injection: "If the only way we can preserve this method of execution is by making it more secret, that, to me, is something of a sign that we shouldn't be trying to preserve this method of execution."


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Maryland Attorney General Asks Court to Vacate Death Sentences

On November 6, Maryland Attorney General Doug Gansler (pictured) filed a brief with an appellate court, formally requesting that the death sentence of Jody Lee Miles be vacated. Gansler argued that Miles's death sentence is no longer valid. Miles was convicted and sentenced to death in 1998. In 2006, Maryland's Court of Appeals suspended executions because the state's lethal injection procedures had not been lawfully implemented. In 2013, the state repealed the death penalty for future offenses. Upon repeal, Miles filed a motion to have his sentence changed to life in prison without parole, arguing that the repeal should apply to him, too. However, the appellate court rejected the argument, stating that the repeal only applied to future convictions. Gansler's motion contended that the absence of an execution protocol rendered an execution in Maryland a "legal and factual impossibility." He requested that Miles's death sentence be changed to life in prison without parole, and he noted that a decision on this motion would leave the door "wide open" for challenges from the other three defendants on Maryland's death row.


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INTERNATIONAL: European Perspective on America's Death Penalty

In an op-ed in the New York Times, Sylvie Kauffmann, of the French magazine Le Monde, described the interaction between Europe and the U.S. on the death penalty. She noted that Felix Rohatyn said the most controversial subject he faced as the American ambassador to France was the enormous opposition to the U.S. death penalty. She also noted the broad European refusal to have their drugs used in lethal injections. In a recent development, a German investmunt fund sold off its stock in an American drug company because the company planned to sell drugs to Alabama for executions. Kauffmann attributed the decline in the U.S. use of the death penalty to the proliferation of innocence cases and the shortage of lethal drugs.


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Nebraska Attorney General Says Death Penalty in Limbo

Nebraska Attorney General Jon Bruning said executions in the state are unlikely to resume for at least another year because of the scarcity of lethal injection drugs. "Death row is sort of in limbo today," he said, adding that efforts to find alternative drugs have been diverted due to other state concerns. Nebraska's last execution was in 1997, by electrocution. The state's execution protocol calls for use of sodium thiopental, which is no longer being manufactured for the U.S. Earlier, the state had obtained sodium thiopental from a distributor in India, but the drug expired this year. The Department of Corrections would have to rewrite its protocol to allow for different drugs. State Sen. Ernie Chambers said he would work to prevent such changes: “I would fight tooth and nail... against what Bruning is talking about.” Bruning, who is leaving office in two months, said it will be up to the new governor and attorney general to decide “if and when” they want to address the state’s death penalty.


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Lawsuit Following Botched Oklahoma Execution Names Participating Doctor

On October 14 a lawsuit was filed by the family of Clayton Lockett (l.) against the state of Oklahoma for damages related to his botched execution in April. The suit alleges “unsound procedures and inadequately trained personnel” and claims that Dr. Johnny Zellmer was the physician present at Lockett's execution. The family asserts that Zellmer, “was willing to, and did in fact, conduct the medical experiment engaged in by Defendants to kill Clayton Lockett regardless of the fact that these chemicals had never been approved or tested by any certifying body.” Oklahoma law makes the names of its execution team, including participating doctors, secret. In Lockett's execution, most of the execution team was out of view of witnesses, but the doctor who pronounced death was visible. Oklahoma has delayed all executions for the remainder of 2014 in order to allow time to obtain lethal injection drugs and prepare personnel. The state revised its execution protocol and remodeled its execution chamber after Lockett's execution, but retained the controversial drug midazolam and secrecy surrounding the sources of drugs and personnel.


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Botched Execution Results in $100,000 Renovation and Fewer Media Witnesses

The Oklahoma Department of Corrections recently gave the media a tour (see video here) of its newly renovated execution chamber. The state spent over $100,000 updating the rooms in response to the botched execution of Clayton Lockett in April. Among the changes are a new gurney (an "electric bed"), a new intercom, and an atomic clock. Previously, communications included colored sticks pushed through a wall, with a red stick indicating something had gone wrong. Correctional officials were secretive about the participation of medical personnel, citing ongoing litigation. The state has said it will reduce the number of media witnesses from twelve to five. The ACLU and two media outlets have asked a judge to stop the state from reducing the number of media witnesses. "They took a process already corrupted by secrecy that had already led to at least one botched execution, and managed somehow to make it even more difficult for the people of Oklahoma and their representatives in the media to know anything about that process," said Ryan Kiesel, executive director of the American Civil Liberties Union of Oklahoma. (Image: The Guardian, link to video in text above).


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