Ohio Executes Gary Otte as State and Federal Courts Decline to Review Use of Death Penalty Against Those Under Age 21
Ohio executed Gary Otte on September 13 after both the United States Supreme Court and the Ohio Supreme Court declined to review his challenge to the constitutionality of applying the death penalty against people who were younger than age 21 at the time of the offense. Otte's lawyer, supervisory assistant federal public defender Carol Wright, said Otte exhibited "abnormal" chest and stomach movements when he was injected with the execution drug, midazolam, showing signs of struggling for air and what she described as "air hunger." Wright attempted to leave the witness room to reach a phone to alert a federal judge to possible problems with the execution, but prison officials delayed her exit for several minutes and it took several more minutes to reach the court. By that time, Otte's stomach movements had ceased and the court declined to intervene. Corrections spokesperson, JoEllen Smith, said the prison "followed proper security protocol, and once [Wright's] identity and intention was verified she was given permission to exit the room." Smith said the execution was "carried out in compliance with the execution policy and without complication." Otte had sought stays of execution from the state and federal courts, asking them to review his claim that his death sentence should be overturned because he was only 20 years old at the time he killed Robert Wasikowski and Sharon Kostura in 1992. Otte's lawyers cited an August 2017 decision by a Kentucky trial court that had found the brain development and maturation of individuals aged 18-20 to be similar in critical respects to that of adolescents under age 18, and had declared the death penalty unconstitutionally cruel and unusual for defendants under age 21. They argued that "[t]he current scientific understanding of adolescent development underscores [that] their moral culpability is reduced making them categorically exempt from the death penalty." The Kentucky trial court issued a second ruling on September 6 that barred prosecutors from seeking the death penalty against an 18-year-old defendant in another case. On Tuesday night, September 12, the United States Supreme Court declined to review the issue and denied a stay of execution. The Ohio Supreme Court followed suit on the morning of September 13. Otte was pronounced dead shortly before 11:00 a.m.
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Federal Appeals Court Sides with Alabama Prisoners on Lethal-Injection Case, Sends Back to District Court
The U.S. Court of Appeals for the Eleventh Circuit has issued a ruling reviving a lawsuit brought by Alabama death-row prisoners that challenged the constitutionality of the state's three-drug execution protocol using the controversial lethal-injection drug midazolam. The unanimous decision by the three-judge federal appeals panel on September 1 reversed a federal district court ruling against several death-row prisoners who sued the Alabama Department of Corrections, alleging that the state's planned execution process created an unnecessary risk of a torturous death that could be eliminated if the state used other available drugs. The lower federal court had issued summary judgment for the state, finding that there was no feasible and readily implementable alternative drug protocol without having first determined whether Alabama's lethal-injection protocol created a substantial risk of pain. In reversing the district court's decision, the Eleventh Circuit held that the court failed to "first mak[e] a finding regarding the risk of pain, if any, the current three-drug protocol presents," saying that a court cannot evaluate whether an alternative reduces a risk if it does not know "what that risk is." The appellate court returned the case to the district court for further fact-finding proceedings, saying resolution of the issue "will require the presentation of expert opinion testimony" from both sides. The appeals court also rejected the lower court's finding that pentobarbital was not available as an alternative execution drug, noting that Texas, Georgia, and Missouri had conducted numerous recent executions with the drug. "From these facts it can reasonably be inferred that compounded pentobarbital was available" to Alabama, the court said. John Palombi, counsel for the prisoners, called the decision encouraging and said he was "very pleased that that the 11th Circuit has recognized that there are serious questions about the unconstitutionality of this protocol." He said the prisoners were "looking forward to finally getting to present evidence that we believe will demonstrate that the protocol is unconstitutional." That evidence is likely to include detailed accounts of botched executions that have used midazolam, including Alabama's execution of Ronald Bert Smith last December, during which Smith heaved, coughed, and clenched his fist for 13 minutes after receiving the injection of midazolam. Alabama currently has two executions scheduled for October—Jeffrey Borden on October 5 and Torrey McNabb on October 19. Neither of those prisoners is a party to this case, but both have similar challenges to the state's lethal-injection protocol pending on appeal before the Eleventh Circuit. Palombi has indicated that Borden and McNabb will ask the Alabama Supreme Court to vacate the scheduled execution dates in light of the Eleventh Circuit's ruling. [UPDATE: On September 6, Borden and McNabb filed emergency motions in the Alabama Supreme Court to vacate their execution dates. Later that day, the 11th Circuit overturned the district court's dismissal of their lethal injection challenges and remanded the case for further proceedings.]
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Oklahoma to Have Longest Hiatus Between Executions in Modern Death-Penalty History
Oklahoma will not execute anyone in 2017 and, without an execution protocol in place, cannot seek any execution dates through at least January 2018, marking the longest period of time between executions in the state in the modern era of capital punishment. As part of an agreement in a federal lawsuit challenging the state's execution procedures, the Oklahoma Attorney General's office may not request execution dates for any prisoner for at least five months after the state adopts a new execution protocol. According to an August 22 report by FOX 25 news in Oklahoma City, the state's Department of Corrections has not adopted a new protocol and the state attorney general's office says it has not been notified of any pending changes to execution procedures. Oklahoma—whose 112 executions rank third among U.S. states since the 1970s—has not carried out any execution since January 15, 2015, when it violated its protocol by using an unauthorized drug in the execution of Charles Warner. The only other time there had been a three-year hiatus between executions since the state resumed executions in 1990 was from March 13, 1992 to March 20, 1995, between the executions of Olan Robison and Thomas Grasso. The current halt in executions comes in the wake of three consecutive botched execution attempts in the state. In April 2014, Oklahoma botched the execution of Clayton Lockett, who died of a massive heart attack as prison officials were attempting to call off the execution. In September 2015, the governor halted the execution of Richard Glossip at the last moment after learning that state officials had again obtained the same wrong drug it had used to execute Warner. Since then, a grand jury has issued a scathing report detailing "blatant violations" of the state's execution protocol, key corrections officials involved in the botched executions have retired, and an independent, bipartisan commission has reviewed the entire capital-punishment system in Oklahoma and recommended a moratorium on executions until the state enacts "significant reforms" at all stages of the state's death-penalty process.
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Florida Death-Penalty Practices, Mark Asay Execution Draw Criticism From Human Rights Groups, Johnson & Johnson
As Florida prepared to execute Mark Asay (pictured) on August 24, the state’s death-penalty practices came under fire from human rights groups, criminal justice reformers, and one of the world’s largest pharmaceutical companies. Asay was executed despite the Florida Supreme Court’s recognition that his death sentence—imposed by a judge after three jurors had voted for life—was unconstitutionally imposed and that the court mistakenly believed both of Asay’s victims were black when it upheld his death sentence for what it believed to have been two racially motivated killings. Asay's execution also drew criticism from Johnson & Johnson, the world’s largest pharmaceutical company. Its pharmaceutical division, Janssen Pharmaceuticals, condemned the state’s proposed use of the drug etomidate, which the company invented a half-century ago exclusively for medical use. Asay’s execution has been described as a twist on Florida’s racially disproportionate use of capital punishment. His execution made him the first white defendant since the state brought back capital punishment in the 1970s to be put to death for the murder of any black victim. In December 2016, African-American Florida Supreme Court Justice James Perry—in dissenting from the court’s decision to lift a stay of execution for Asay—described this “sad statistic” as a “reflection of the bitter reality that the death penalty is applied in a biased and discriminatory fashion, even today.” To date, all 57 white prisoners executed in Florida in the modern era were condemned for killing at least one white or Latino victim. In that same time period, Florida has executed 28 black death-row prisoners, with more than 70% condemned for the interracial murder of at least one white victim. On August 21, Amnesty International issued a new report, USA: Death in Florida, saying that the Asay execution and Governor Rick Scott’s decision to remove Orlando State Attorney Aramis Ayala from 27 homicide prosecutions provided “a moment to reflect upon an often overlooked aspect of Florida’s history—that it was a leader in lynching in the South and slow to eradicate this phenomenon in the 20th century.” The Amnesty report noted that Ayala, the first African American to be elected as a Florida state attorney, had cited systemic racial discrimination as one of the flaws in capital punishment that led to her decision that pursuing the death sentences in first-degree murder prosecutions was “not in the best interests of the community” or “the best interests of justice.” It also highlighted her replacement, Brad King, a white prosecutor whose “well-established” support for the death penalty, Amnesty said, included “act[ing] as lobbyist-in-chief for the Florida prosecutorial community” in legislative efforts to oppose requiring unanimous jury recommendations for death. Asay’s execution was the first ever in which a state has used the injectable sedative etomidate. As part of its three-drug process, Florida then administered rocuronium bromide as a paralytic drug and potassium acetate to stop the heart. In a statement issued on August 21, Janssen said: “Janssen discovers and develops medical innovations to save and enhance lives. … We do not condone the use of our medicines in lethal injections for capital punishment." The human rights organization, Reprieve, issued a statement saying that “Governor Scott should listen to clear and unequivocal statements from Johnson & Johnson and others calling time on this dangerous misuse of medicines, and stay the execution of Mark Asay.” The state and federal courts denied Asay's applications to stay his execution and he was put to death on August 24.
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Arkansas, Nevada Obtain New Supplies of Drugs, Plan to Carry Out Two Questionable Executions
The states of Arkansas and Nevada have announced that they have obtained new supplies of execution drugs that will permit them to carry out two executions in what critics have called questionable circumstances. On August 4, Arkansas obtained a supply of midazolam—the controversial drug used in botched executions in at least four states—paying $250 in cash to an undisclosed supplier for 40 vials of the drug. Then, on August 17, Attorney General Leslie Rutledge asked Governor Asa Hutchinson to set an execution date for Jack Greene (pictured), described by his lawyers as “a severely mentally ill man [with] well-documented brain damage.” Also on August 17, Nevada—which does not currently have an execution protocol in place—announced that it had obtained drugs to execute Scott Dozier, using a three-drug formula that no state has ever tried before. Dozier—who has waived his appeal rights and volunteered to be executed—is scheduled to die on November 14. In a press statement, Greene’s lawyer, John C. Williams, said “[c]apital punishment should not be used on vulnerable people like the severely mentally ill.” Greene, he said, is mentally incompetent and suffers from delusions that “his spinal cord has been removed and his central nervous system has been destroyed.” Responding to this delusion, Williams said, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain,” often causing himself to bleed. A spokesperson for Hutchinson—who authorized Arkansas’s unprecedented attempt to execute eight prisoners over an eleven-day span in April—has indicated that the governor will set an execution date for Greene. To execute Dozier, Nevada has indicated that it will use an untried combination of diazepam (Valium), fentanyl (an opiod), and cisatracurium (a paralytic). The state has not yet announced how the drugs will be administered. All but one of the prisoners executed in Nevada since 1977 were found to have waived their appeals; Dozier would be the state's 12th death-row prisoner to volunteer to be executed. Nevada recently spent nearly $900,000 on building a new execution chamber.
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Ohio Executes Ronald Phillips, Resumes Executions After 3½-Year Pause
After a hiatus of 3½ years, Ohio resumed executions on July 26, putting Ronald Phillips (pictured, photo credit: Forgiveness Foundation) to death with a three-drug combination of the sedative midazolam, the paralytic drug rocuronium bromide, and the heart-stopping drug potassium chloride. Phillips was pronounced dead at 10:43 a.m. It was the state's first execution since the botched execution of Dennis McGuire on January 16, 2014, and the 15th in the U.S. in 2017. Phillips' execution is the first of four executions that Ohio has scheduled for this year and of 27 scheduled through 2020. Ohio's resumptions of executions is expected to contribute to a small increase in executions in the U.S. this year, although the annual total is likely to remain among the lowest in the last quarter century. Phillips was executed despite the efforts of a diverse range of groups, including former attorney generals, justice reform advocates, exonerees, faith leaders, and editorial writiers, urging Governor John Kasich not to resume executions before Ohio addressed serious systemic flaws in its death penalty process that had been identified by a statewide death penalty task force. Phillips had sought a stay of execution until an ongoing challenge to Ohio's lethal-injection process is finally resolved, and his application drew support from fifteen pharmacology professors who filed a brief calling midazolam "unsuitable" and its as an execution drug "profoundly troubling." Justices Sotomayor and Ginsburg dissented from the denial of the stay, saying the court's action constituted a “failure to step in when significant issues of life and death are present.” Ohio officials said the execution proceeded without incident. Allen L. Bohnert, one of the lawyers who represents prisoners in the ongoing lethal-injection litigation, released a statement saying: "While Ohio will try to characterize today’s execution as 'problem-free,' do not be fooled." By choosing to inject the paralytic drug "extremely quickly," he said, Ohio "hid[ ] the real facts behind an artificial chemical curtain, . . . masking the problems with midazolam seen in multiple other executions." He urged the state to "heed the warnings of numerous pharmacists, pharmacologists, and anesthesiologists . . . and immediately halt any further use of midazolam and the paralytic drug in lethal injection executions." Ohio has executed 53 prisoners since the turn of the century—the most of any northern state and more than the combined total of every other northern state east of the Mississippi. Ohio ranked with Texas and Oklahoma as the only states to have executed at least one prisoner each year from 2001 to 2014.
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Independent Pathologist Says Autopsy Reveals Problems With Virginia's Execution of Ricky Gray
Something went wrong during the execution of Ricky Gray (pictured), who was put to death in Virginia on January 18, 2017, according to an independent expert who reviewed the official autopsy report of Gray's death. Dr. Mark Edgar, associate director of bone and soft tissue pathology at the Emory University School of Medicine, reviewed the official autopsy report, which Gray's family obtained from the Virginia medical examiner's office. Dr. Edgar says Gray suffered an acute pulmonary edema during the execution, with liquid in his upper airways and blood entering his lungs while he was still breathing. “The anatomic changes described in Ricky Gray’s lungs are more often seen in the aftermath of a sarin gas attack than in a routine hospital autopsy," Edgar said. "This is of concern especially given the fact that midazolam is not an anesthetic, but a sedative often used for medical procedures requiring conscious sedation and the issue that the compounded drugs used in this case may have lacked potency or been impure.” Virginia's lethal-injection protocol consists of three drugs: midazolam, a sedative intended to render the prisoner unconscious, followed by a paralytic intended to stop the prisoner's breathing, followed by potassium chloride, which stops the prisoner's heart. The use of midazolam in executions is controversial because it is not an anesthetic, it is used in medical settings only for lower levels of sedation rather than to produce full unconsciousness, and its use has been linked to numerous problematic executions. In Virginia, both the midazolam and the potassium chloride are produced by compounding pharmacies whose identities are secret under state law. “This way of dying is intolerable. You can’t control your breathing—it is terrible,” Edgar said. “When it is this severe, you can experience panic and terror and, if the individual was in any way aware of what was happening to them, it would be unbearable.” After Edgar's report was released on July 6, lawyers for William Morva—whose execution was scheduled in Virginia that night—asked Governor Terry McAuliffe for a temporary reprieve. “We believed a reprieve was appropriate to allow time for further investigation to ensure that the Commonwealth carries out future executions—including Mr. Morva’s—in a manner that avoids unnecessary pain and suffering,” explained Rob Lee, one of Morva's attorneys. McAuliffe denied the reprieve, and witnesses reported that Morva made a loud noise after the midazolam was administered and had several sharp contractions of his abdomen. The same three-drug protocol used in Virginia has been proposed for use in Ohio, but is being challenged in court by death-row prisoners.
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Execution Drugs Three States Attempted to Illegally Import Have Now Expired
Three thousand vials of the anesthetic sodium thiopental that three states attempted to illegally import into the United States for use in executions have now expired, according to an investigative report by BuzzFeed News. Arizona, Nebraska, and Texas each purchased 1000 vials of the drug in 2015 from a questionable supplier in India called Harris Pharma, despite warnings from the Food and Drug Administration (FDA) that importation of the drug would violate federal law. Citing documents obtained from the FDA through a public records request, BuzzFeed reports that the sodium thiopental in the shipments expired in May 2017. The FDA confiscated the sodium thiopental Arizona and Texas attempted to bring into the country after U.S. Customs and Border Protection agents seized the shipments at airports in Phoenix and Houston. Federal officials justified their action saying that a 2012 court order "requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug." FedEx halted Nebraska's shipment in India because of "improper or missing paperwork." Harris Pharma, the company that sold the drugs, claimed to have manufactured the sodium thiopental itself, but the facilities it registered with the FDA and the Drug Enforcement Administration were not equipped to produce pharmaceuticals. Harris had, in fact, purchased the drug from another Indian manufacturer and resold it to the three states at a substantially inflated price. The sole U.S. manufacturer of sodium thiopental halted production in 2011 over ethical concerns about the use of the product in executions. In January 2017, Texas sued the FDA in federal court over the agancy's continued detention of the drugs without having issued a formal decision on the disposition of the drugs. The FDA issued a final order in April 2017 refusing to release the drugs to Arizona and Texas, and Texas has challenged that ruling. A spokesperson for the Texas Department of Criminal Justice said the state's lawsuit against the FDA would continue, despite the expiration of the drugs. Last year, a Texas official whose name was redacted from official documents said in an affidavit that the state, "intends to continue importing thiopental sodium from the same foreign source, and with the same labeling, as the entry that FDA is currently detaining."
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Federal Appeals Court Upholds Ohio Lethal-Injection Process, Vacates Execution Stays
A divided U.S. Court of Appeals for the Sixth Circuit on June 28 reversed the decision of a federal district court that had stayed executions in Ohio. In an 8-6 en banc decision, the court voted to allow Ohio to proceed with executions using a proposed combination of the controversial sedative midazolam, the paralytic drug pancuronium bromide, and the heart-stopping drug potassium chloride. Midazolam has been implicated in botched executions in Alabama, Arizona, Ohio, and Oklahoma and flawed executions in Arkansas. After a five-day evidentiary hearing in early January 2017, the District Court issued a preliminary injunction that stayed the executions of Ohio death-row prisoners Ronald Phillips, Raymond Tibbetts, and Gary Otte. At that time, it found "that administration of a paralytic drug and potassium chloride will cause a person severe pain" that would not be amerliorated by using midazolam, that the protocol itself created a "substantial" and "objectively intolerable" risk of serious harm, and that a compounded version of the drug pentobarbital was available as an alternative method of execution. The State appealed that decision to the Sixth Circuit, and in April, a three-judge panel affirmed the lower court's decision. The State then appealed that decision to the full court (a procedure called en banc review). The majority agreed that the prisoners "have shown some risk that Ohio’s execution protocol may cause some degree of pain," but said "some risk of pain 'is inherent in any method of execution—no matter how humane'” and "the Constitution does not guarantee ‘a pain-free execution.’” Allen Bohnert, one of the lawyers for the prisoners, said in a statement: "Multiple executions have demonstrated that midazolam is not a suitable drug for lethal injection, and especially when used with the two excruciatingly painful drugs Ohio abandoned in 2009. ... Ohio should not take the risk of continued botched executions by going back to using these dangerous, unsuitable drugs." He said the prisoners will seek review of the decision in the U.S. Supreme Court because "[n]o one in Ohio wants to see another botched execution." The decision permits Ohio to move forward with 30 executions that are scheduled between this month and 2021, while the District Court conducts a full trial on the lethal-injection challenge brought by death-row prisoners. Ohio has scheduled the execution of Ronald Phillips for July 26.
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Arizona Makes Key Concessions, Reaches Deal With Prisoners to Settle Lethal-Injection Lawsuit
Death-row prisoners and the state of Arizona have reached a tentative settlement to address the state's lethal-injection protocol. Under the settlement, which could have an impact on lethal-injection litigation across the country, Arizona has dropped a three-drug formula from its protocol in favor of using a high dose of single barbiturate, and will honor a prior commitment not to use the sedative midazolam. The state also agreed not to use any paralytic drug in the execution process—which defense lawyers argued had served only to mask the prisoners' reaction to the painful third drug used to stop his heart. The proposed agreement provides greater transparency and accountability throughout the execution process, permitting witnesses to see corrections personnel escort the prisoner into the execution chamber, strap him to the gurney, and insert the intravenous line. The witnesses also will be able to view via closed-circuit monitors the drugs being inserted into the IV lines. In the past, Arizona had been sharply criticized for repeatedly changing execution procedures, and the state has agreed that the director of the Department of Corrections would no longer be able to make last-minute changes to the execution process. Arizona also agreed to test the drugs before they are used in an execution, and committed to not use expired drugs. Previously, the state had agreed it would not use the sedative midazolam—which was used in the botched execution of Joseph Wood in 2014—but had hedged on that commitment in a revised protocol published in 2015. At a hearing before U.S. District Judge Neil Wake, Assistant Attorney General Jeff Sparks said the agreement wouldn't immediately restart executions. "The state doesn't have drugs right now and has no intention of seeking a warrant," Sparks said. Dale Baich, a lawyer for the death-row prisoners, praised the settlement. "Arizona has had this history of problematic executions, but today the state is taking steps to decrease the risk that prisoners will be tortured to death," he said. Prisoners in Ohio are raising similar challenges as the state has repeatedly changed its proposed protocol, promising in 2009 that it would never again use a three-drug formula, then proposing exactly such a protocol in 2016. Arizona's lethal-injection procedure is still the subject of another lawsuit brought by a group of media organizations that are seeking transparency on the source of execution drugs and the qualifications of executioners.
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