Department of Justice Asserts That Food and Drug Administration ‘Lacks Jurisdiction’ Over Lethal-Injection Drugs
The U.S. Department of Justice (DOJ) has issued an advisory memorandum declaring that the Food and Drug Administration (FDA) “lacks jurisdiction” to regulate execution drugs, including enforcing federal laws that prohibit the import of such drugs from abroad. The memorandum, authored by Assistant Attorney General Steven A. Engel (pictured) for the Department’s Office of Legal Counsel, places the administration squarely in conflict with a 2012 federal district court order requiring the FDA to enforce federal laws barring the importation of unapproved or misbranded drugs or drugs that come from unregistered facilities. The ruling, which came in a case brought by death-row prisoners to force the agency to comply with federal law, was upheld by a federal appeals court in 2013, and the FDA is still permanently enjoined by the ruling from allowing the illegal importation of execution drugs.
The DOJ legal opinion — which is binding on federal agencies — is apparently a response to the FDA’s seizure and impoundment of lethal-injection drugs that prison officials in Texas and Arizona had attempted to import in 2015 for use in executions. After the drug seizure, the Texas Department of Criminal Justice sued the FDA, and in April 2017, the agency issued a final order refusing to release the drugs. The FDA’s order stated: “The  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.” Several states have attempted to illegally import sodium thiopental, an anesthetic once commonly used in executions, after its U.S. manufacturer ceased production in 2009.
Engel’s memorandum bases the DOJ’s opinion on a U.S. Supreme Court case addressing whether the FDA can regulate tobacco products. In FDA v. Brown & Williamson Tobacco Corp. (2000), the Court found that the FDA could not regulate tobacco products because “they cannot be used safely for any therapeutic purpose,” but “they cannot be banned” because Congress had clearly intended for tobacco to be available. Engel wrote that the situations were analogous: “Congress has repeatedly authorized the death penalty on the assumption that there are lawful means to carry it out, but the regulation of such articles under the [Federal Food, Drug, and Cosmetic Act of 1938] would effectively require their prohibition because they could hardly be found ‘safe and effective’ for such an intended use.”
Fordham University Law Professor Deborah Denno said the opinion “is intended to allow departments of corrections to access drugs outside the country because they’re having so much difficulty doing so,” but, according to The Washington Post, “The Justice Department’s opinion is unlikely to have any immediate effect … because the FDA is still operating under the 2012 injunction.” The Justice Department has not taken any steps to have the injunction lifted. As long as the injunction remains in place, the opinion represents only the views of the Department of Justice, and does not have the force of law.
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Federal Court Hears Two Weeks of Testimony in Arkansas Lethal-Injection Challenge
A two-week federal trial on the constitutionality of Arkansas’s lethal-injection protocol came to a close May 2, 2019, as the parties presented legal arguments to the court after eight days of testimony. U.S. District Judge Kristine G. Baker must now determine whether the state’s three-drug protocol beginning with the sedative midazolam is allowable. Lawyers representing a group of death-row prisoners presented testimony from witnesses of recent executions, as well as medical experts who said that midazolam does not render prisoners unconscious. In his closing argument, the prisoners’ lawyer Will Freeman likened the three-drug cocktail of midazolam followed by a paralytic drug and the heart-attack inducing drug potassium chloride to being conscious while “having gasoline poured on you and being set on fire.” The Arkansas attorney general’s office presented testimony from other execution witnesses and medical professionals that contradicted the prisoners’ evidence. “The prisoners’ burden is … [to] show that the midazolam protocol is sure or very likely to cause needless suffering by pointing to actual objective evidence, or at the very least, demonstrating a strong scientific consensus," Assistant Attorney General Jennifer Merritt argued. “They’ve simply failed to carry the burden.”
Much of the testimony in the trial came from people who had witnessed the four executions performed in Arkansas in April 2017, with an intense focus on the executions of Kenneth Williams (pictured) and Marcel Williams. Kelly Kissel, a former Associated Press reporter who has witnessed ten executions, provided a detailed timeline of Kenneth Williams’s execution. “Three or four minutes into the execution was where he had the episode in which his body lurched forward 15 times in quick succession and then five additional times at a slower rate,” Kissell testified. “It was lurching, jerking, convulsing.” Kissel also testified that Williams moaned loud enough that he could hear it in the witness chamber, even though the microphone in the execution chamber had been turned off. Cassandra Belter, a lawyer from Philadelphia who had assisted in Kenneth Williams’s defense, corroborated Kissell’s account. “He was convulsing up and, like, bucking against the restraints,” she testified. “At that point, I think at 10:55 [p.m.], he also groaned in pain. The breathing became audible, he was gasping as it grew stronger to the point that it sounded like he was choking.” Former Arkansas Times reporter Jacob Rosenberg recounted the execution of Marcel Williams, testifying: “At the time he was breathing heavily with [his] chest lifting off of the gurney and his back arching in order to do so. And his eyes began to slowly droop, though one sort of stayed open throughout this process, and his heavy breathing and arching sort of continued throughout this time.”
The state’s witnesses characterized the prisoners’ reactions differently, describing them as “muscle spasms,” rather than “convulsions.” State Sen. Trent Garner, a legislative proponent of capital punishment who witnessed Kenneth Williams’s execution, said that "[f]or approximately 10 to 15 seconds there were some brief involuntary muscle spasms. His chest rose two to three inches a few times." Garner, who has no medical training, testified that he can recognize pain from seeing soldiers killed and injured during his military service in Afghanistan. “I call it involuntary because I didn’t see any pain on his face, no grimacing. I didn’t hear any noises that would indicate pain,” he said.
The two sides also presented competing testimony from medical professionals. Craig W. Stevens, a professor of pharmacology at Oklahoma State University in Tulsa, said "For a certain, [the second and third drugs are] going to cause severe pain because midazolam does not produce anesthesia. ... Even at massive doses, persons still respond to noxious stimulus. There will be pain and suffering masked by the paralytic.” State’s witness Dr. Daniel Buffington, a clinical pharmacologist with the University of South Florida, said convulsions are a known side effect of midazolam. “They would go from still to moving or moving aggressively or gasping or coughing, making an audible sound. It’s when the body is sending a signal to the body so it’s a neuromuscular response to try to get more air at that moment,” he said.
In closing arguments, Freeman called the Arkansas execution protocol “a clear step backward. It is sure or very likely to cause serious illness and needless suffering when it is implemented, and, respectfully, we have identified an alternative that is feasible; it is readily implemented and is, in fact, significantly likely to reduce the substantial risk of severe pain.” To fulfill the requirement that the prisoners present a viable alternative execution method, attorneys offered secobarbital, a drug used in physician-assisted suicide, or the firing squad.
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John Oliver’s “Last Week Tonight” Takes a Satirical Look at Lethal Injection
Sometimes you need a joke about a cute but very angry desert rain frog to prepare an unsuspecting audience for a serious discussion of lethal-injection executions in the United States. That was the approach undertaken by Last Week Tonight, the satirical weekly HBO comedy-news show hosted by John Oliver, as Oliver addressed the deadly serious issue of lethal injection in the show’s May 5, 2019 episode. Oliver called the death penalty “a wrong, bad thing the government should not be able to do,” but said that whether you are against the death penalty or not, the evidence graphically demonstrates that lethal injection is a “horrifying” way to carry it out.
In the twenty-minute segment, Oliver outlined several of the reasons he opposes the death penalty, including wrongful convictions, lack of deterrent effect, and cost. “There’s actually no proof it has an effect on bringing down crime, [and] it’s technically more expensive to execute someone than to keep them in prison for life,” he explained, citing DPIC’s 2009 report, Smart on Crime, for data on the cost of capital punishment. “According to one study, around 4% of people sentenced to death are actually innocent, which in itself, should give us pause about the whole enterprise,” he added.
Oliver devoted most of the segment to discussion of the problems and controversy surrounding the use of lethal injection. “Let’s start with the idea that it’s medical, that is more than a bit of a stretch, because lethal injections aren’t performed by medical personnel for a pretty obvious reason,” Oliver said, quoting death-penalty researcher Michael Radelet, who said, “It violates ethical codes for physicians to be involved.” Recounting the history of lethal injection, Oliver explained that the formula was invented by an Oklahoma medical examiner who called himself “an expert in dead bodies, but not an expert in getting them that way.” Oliver described him as “just an enthusiast with a can-do attitude for killing people.” He also criticized an expert witness who has testified in support of the use of midazolam for several death-penalty states. Dr. Roswell Lee Evans, Oliver said, has been a key witness for six states, but he has never conducted any research on any kind of anesthetic. Dr. Evans presented 150 pages of printouts from drugs.com in his 300-page expert report for a case before the U.S. Supreme Court. “Incredibly, in our desire to find a more humane method, we’ve ended up letting amateurs both invent and administer a form of unpredictable torture,” Oliver said.
He went on to describe how the use of midazolam has created new problems with lethal injection, as it does not adequately anesthetize prisoners before a suffocating paralytic and a profoundly painful heart-stopping drug are administered. “You could be fully aware, feel like you’re suffocating, but unable to move or communicate while fire is about to be injected into your veins. And this somehow qualifies as more humane than an electric chair, which seems pretty debatable at best,” he summarized. Oliver concluded with a repudiation of lethal injection as a sanitized, humane execution method: “If the thing that’s making you comfortable with lethal injection is that it’s humane, it isn’t. Because the fundamental fact to understand about lethal injection is, it is a show. It is designed not to minimize the pain of people being executed, but to maximize the comfort of those who want to support the death penalty without confronting the reality of it, which is that it’s violent and it’s brutal, and it’s never going to be anything other than that.”
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Veil of Execution Secrecy Expands in Several Southern Death-Penalty States
Three southern states have taken action to limit the public’s access to information relating to executions by increasing secrecy surrounding lethal-injection drug suppliers. On April 12, 2019, the Texas Supreme Court reversed an earlier decision that would have disclosed the source of lethal-injection drugs used to carry out executions in Texas in 2014, asserting that disclosure “would create a substantial threat of physical harm to the source’s employees and others.” On April 9, Arkansas Governor Asa Hutchinson signed into law one of the most expansive and punitive execution secrecy laws in the nation, concealing the identity of lethal-injection drug suppliers from the public and criminalizing disclosure of execution-related information. Act 810 exempts lethal-injection records from the state’s Freedom of Information Act and makes the intentional or reckless disclosure of the exempted information a felony. In Louisiana, amidst partisan feuding over the reasons the state has not carried out executions, a bill that would make secret the source of execution drugs was referred to the House Committee on Administration of Criminal Justice on April 8, the first day of the 2019 Louisiana state legislative session. Democratic Governor John Bel Edwards, who voted against a similar bill five years ago while serving as a state legislator, indicated that he would likely sign the measure. Louisiana’s legislature is also considering two bills that would abolish capital punishment.
The Texas Supreme Court decision marked the culmination of several years of litigation over the state’s lethal-injection secrecy policy. A Texas district court and a state court of appeals both ordered disclosure of the drug supplier’s identity, and the Supreme Court initially upheld those lower court rulings. The state asked for a rehearing, arguing that disclosure would have “potentially devastating consequences” to public safety. The rehearing took place after BuzzFeed News revealed through investigative reporting that the state had obtained lethal-injection drugs from Greenpark Compounding Pharmacy, a Houston based compounding pharmacy with a history of safety violations. When the compounder’s identity was revealed, activists peacefully protested outside the pharmacy. Attorney Ari Cuenin, arguing for the state, said that protests, along with alleged threats, had convinced pharmacies not to provide drugs to the state. The state called the pharmacy a “soft target” in an “urban area, whose only defense is its anonymity.”
A number of states have asserted that anti-death-penalty activists have intimidated pharmacies and major pharmaceutical companies into refusing to supply drugs for executions and have argued in legislative debates and in litigation that these alleged threats justify execution secrecy. In its secrecy bill, the Arkansas legislature alleged without evidence that “there is a well-documented guerilla war being waged against the death penalty” and that “[a]nti-death penalty advocates have pressured pharmaceutical companies to refuse to supply the drugs used by states to carry out death sentences.” In fact, calling the use of their medicines in execution contrary to their medical mission, several drug companies have sued Arkansas or filed friend-of-the-court briefs alleging that the state engaged in misrepresentations and subterfuge to improperly obtain their drugs. Independent media and law enforcement investigations have concluded that the alleged threats against drug manufacturers and suppliers have been unfounded or grossly exaggerated. A 2016 BuzzFeed News investigation revealed that FBI records debunked an alleged threat that Texas and Ohio claimed established the need for secrecy. That supposed threat was an email from a university professor who provided his name and phone number and warned an Oklahoma pharmacy to take safety precautions. The email was one of three pieces of evidence, along with a blog post and comments left on the website of a previous supplier, that the Texas court relied on in its decision. “There is no evidence of a history of specific threats to that particular pharmacist or pharmacy because the source's identity has been kept confidential,” the court wrote. “Thus, the question before us in this case is whether the mere fact that the public knows that the Department is receiving lethal injection drugs from some source, whoever it might be, is enough to conclude that a substantial threat of physical harm will come to bear on the source of the drugs if the identifying information is made public.”
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Post-Midnight Decision on Alabama Execution Highlights Deeply Divided Supreme Court
In a contentious ruling issued in the early morning hours of April 12, 2019, the U.S. Supreme Court vacated a stay of execution issued by lower federal courts and cleared the way for Alabama to execute Christopher Price (pictured). The Court’s 5-4 decision, issued after 2:00 a.m. Eastern time, came after Alabama had postponed Price’s execution minutes before the midnight Central time expiration of his death warrant, with the lower court stay of execution still in effect. Joined by the three other liberal and moderate justices, Justice Breyer authored a scathing dissent that exposed sharp divisions in the Court over the manner in which it considers execution-related challenges in death-penalty cases.
Scheduled to be executed April 11, Price challenged Alabama’s lethal-injection protocol as unnecessarily torturous and –as required by Supreme Court case law – proposed an alternative method of execution. Price selected nitrogen hypoxia, the alternative method of execution made available in Alabama’s death-penalty statute. The Alabama Attorney General’s office opposed Price’s motion, arguing that lethal gas was not available to Price because he had failed to select it during the 30-day window created when Alabama added lethal gas to its execution statute. The district court agreed and denied Price’s claim, prompting an appeal to the U.S. Court of Appeals for the Eleventh Circuit. The circuit court ruled that once Alabama had codified lethal gas as an alternative method of execution under its statute, it could not claim that gas was unavailable to execute Price. However, the circuit court rejected Price’s stay motion, saying he had failed to meet the additional burden imposed by the U.S. Supreme Court that he prove that execution by nitrogen hypoxia would significantly reduce the risk of unnecessarily severe pain during the execution.
Following the 11th Circuit’s ruling, Price returned to the district court with uncontroverted affidavits from medical experts who said nitrogen gas posed a significantly reduced risk of severe pain compared to the state’s lethal-injection protocol. Based on this evidence, the federal district court granted Price a stay of execution. Later in the day, without ruling on the merits of the district court’s order, the 11th Circuit imposed its own stay of execution to consider jurisdictional issues presented by the district court stay. Alabama then filed an emergency motion in the U.S. Supreme Court seeking to vacate the stay, leading to the overnight ruling by the Court.
In a one-paragraph order vacating the stay, the majority said that Price had not timely selected lethal gas during a 30-day window created when Alabama added lethal gas to its execution statute and then waited until February 2019 to challenge the state’s method of execution. As a result, the majority viewed Price’s lawsuit and pre-execution filings as untimely. Justice Stephen Breyer – joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – wrote an impassioned dissent. “Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way,” he wrote, “let that person review the … circumstances as they have been presented to our Court this evening.” Breyer highlighted the uncontested evidence presented in the courts below: that Alabama’s lethal injection protocol will likely cause Price “severe pain and needless suffering”; that lethal gas is a readily available method, and that lethal gas is likely less painful than Alabama’s lethal injection protocol. Breyer also criticized the majority’s substitution of its judgment for the district court’s finding that Price had been “proceeding as quickly as possible on this issue since before the execution date was set” and was not attempting “to manipulate the execution.” Breyer expressed deep concern for the majority’s insistence on vacating a stay despite his request to consider the issue at a prescheduled conference to be attended by all the justices that morning. “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system,” Breyer wrote.
Alabama has not yet set a new execution date.
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Badly Divided Supreme Court Denies Execution Challenge by Prisoner With Rare Disease
In a divisive 5-4 decision that exposed rancor and deep rifts among the justices, the U.S. Supreme Court has given Missouri the go-ahead to execute a prisoner whose blood-filled tumors in his head, neck, and mouth could burst if the state carries out his execution by its chosen method. Russell Bucklew (pictured), who suffers from the rare medical condition, cavernous hemangioma, had argued that Missouri’s lethal injection procedures would subject him to unnecessarily torturous and excruciating pain caused by the combination of suffocation and drowning in his own blood. Writing for the Court majority, Justice Neil Gorsuch rejected Bucklew’s claim, saying that the constitution prohibits only executions that intensify the sentence of death with “superadd[ed] … terror, pain, or disgrace.” “The Eighth Amendment,” he wrote, “does not guarantee a prisoner a painless death.” Gorsuch said a death-row prisoner could not prove superadded pain without proposing an available alternative execution method and that Bucklew had failed to do so. The four dissenters sharply criticized the decision for ignoring evidence that Bucklew would be subjected to excruciating pain, for creating impossible burdens on prisoners to avoid a torturous execution, and for sacrificing constitutional values for expediency in death penalty cases.
In a non-binding portion of the opinion, Justice Gorsuch suggested that challenges to lethal injection are often “tools to interpose unjustified delay” and wrote that “[l]ast-minute stays should be the extreme exception, not the norm.” Justice Clarence Thomas concurred separately reiterating his belief that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain. … Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there,” he wrote. Justice Brett Kavanaugh also concurred, emphasizing that the alternative method proposed by the death row prisoner “need not be authorized under current state law.” Kavanaugh suggested death by firing squad as an example of a potentially available alternative method.
Justices Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, dissented. Justice Breyer’s lead dissent criticized the majority’s treatment of the evidence Bucklew had presented in support of his Eighth Amendment claim. That evidence, Breyer wrote, establishes that “executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering” and “violates the clear command of the Eighth Amendment.” He also argued that a prisoner who is challenging the cruelty of a particular execution method based solely on his or her unique medical circumstances should not be required to identify an alternative method of execution, but that Bucklew nevertheless had adequately raised nitrogen hypoxia as an alternative. Finally, in a part of the dissent expressing only his own opinion, Breyer argued that the majority’s approach to redressing execution delays by “curtailing the constitutional guarantees afforded to prisoners” is inappropriate. Instead, he suggested, the delays necessary to ensure that the capital punishment is fairly imposed and properly carried out may be evidence that “there simply is no constitutional way to implement the death penalty.”
In a separate dissent, Justice Sotomayor called the Court’s approach to lethal-injection challenges “misguided,” writing that, “[a]s I have maintained ever since the Court started down this wayward path in , there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions.” Calling the majority’s comments about last-minute stays “not only inessential but also wholly irrelevant to its resolution of any issue” before the Court, Sotomayor cautioned that “[i]f a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”
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Federal Court Orders Alabama to Release Execution Protocol
In a victory for the media and advocates of open government, a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled on March 18, 2019 that Alabama must disclose key portions of its highly secretive lethal-injection execution protocol to the public. The Associated Press, the Montgomery Advertiser, and Alabama Media Group had sued for access to the protocol, which came under intense scrutiny in the wake of Alabama’s failed attempt to execute Doyle Lee Hamm (pictured) in February 2018.
Hamm, who has terminal cancer, challenged Alabama’s execution protocol. He argued that his veins had been compromised by his illness and executing him by lethal injection would constitute cruel and unusual punishment. The courts permitted the execution to proceed after Alabama said it would not attempt to insert an IV-line in Hamm’s arms or upper extremities. On February 22, 2018, executioners tried and failed for two-and-one-half hours to set an intravenous execution line. Alabama Department of Corrections Commissioner Jeffrey Dunn called off the execution but told the media, “I wouldn’t characterize what we had tonight as a problem.” Dunn repeatedly asserted the state had followed its execution protocol and claimed the execution had been halted only because the late court rulings in the case did not leave corrections personnel sufficient time to execute Hamm before his death warrant would have expired. Hamm filed a federal civil-rights lawsuit seeking to prevent Alabama from attempting to execute him a second time. As part of that suit, he filed a doctor’s report—the only public document describing the circumstances of the execution attempt—that indicated execution personnel had unsuccessfully inserted IV needles more than 10 times into Hamm’s feet, legs, and right groin, causing bleeding in his groin, and likely puncturing his bladder, causing blood in his urine. Shortly thereafter, Hamm and the state reached a confidential settlement in which Alabama agreed not to seek another execution date, the court records of the case would be sealed, Hamm would dismiss his lawsuit, and Hamm and his lawyers would not disclose any additional information about the case. In the aftermath, the three media outlets filed a motion to gain access to the protocol and execution records. A federal district court ruled in their favor in May 2018.
Alabama appealed that ruling, arguing that the lethal-injection protocol had never been formally filed with a lower court, and therefore was not a court record subject to public access. The appeals court rejected that argument, with Judge Charles Wilson writing: “Alabama’s lethal injection protocol may not have been formally filed under the rushed timeline of Hamm’s approaching execution, but the protocol constitutes a judicial record subject to the common law right of access because it was submitted to the district court to resolve disputed substantive motions in the litigation, was discussed and analyzed by all parties in evidentiary hearings and arguments, and was unambiguously integral to the court’s resolution of the substantive motions in Hamm’s as-applied challenge to the protocol.” The decision also addressed the importance of transparency to the public, saying “Judicial records provide grounds upon which a court relies in deciding cases, and thus the public has a valid interest in accessing these records to ensure the continued integrity and transparency of our governmental and judicial offices.”
Alabama’s execution secrecy has been at the core of several other execution controversies. In December 2016, execution witnesses reported that Ronald Smith clenched his fists and gasped repeatedly for nearly fifteen minutes. After the execution, Dunn told the public only that the state had “followed [its] protocol.” State officials later refused to provide any documentation about the execution. In February 2019, late disclosure of its secret protocol provision mandating that a Christian chaplain—and no other religious adviser—be present in the execution chamber led to the controversial execution of Muslim prisoner Domineque Ray without affording him access to an imam at the time of his execution.
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California Governor Announces Moratorium on Executions
California Governor Gavin Newsom on March 13, 2019 declared a moratorium on executions in the state with the nation’s largest death row. Newsom implemented the moratorium through an executive order granting reprieves to the 737 prisoners currently on California’s death row. He also announced that he was withdrawing the state’s execution protocol—the administrative plan by which executions are carried out—and was closing down the state’s execution chamber. In his executive order imposing the moratorium, Newsom said, “I will not oversee the execution of any person while Governor.”
With the governor’s announcement, California joins Colorado, Oregon, and Pennsylvania as states in which governors have imposed moratoria on executions, meaning that more than one-third (34.1%) of all death-row prisoners in the U.S. are now incarcerated in states in which governors have said no executions will occur. As a result of legal challenges to the state’s execution protocol and appeals challenging the constitutionality of the state’s death-penalty system, California has not carried out an execution since 2006. “Our death penalty system has been, by all measures, a failure,” Newsom said in a statement accompanying his moratorium declaration. “It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation. It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars. But most of all, the death penalty is absolute. It’s irreversible and irreparable in the event of human error.”
Despite the large number of death sentences in California, the state has conducted only 13 executions since reintroducing the death penalty in 1978. A 2011 study estimated the state had spent more than $4 billion on death penalty trials, appeals, and incarceration, and estimated an annual savings of $170 million if the death penalty were abolished. In his executive order, the governor said that the cost has since risen to $5 billion. In his remarks at the news conference, Newsom said that 164 wrongly convicted prisoners have already been exonerated from U.S. death rows since 1973, and an estimated 30 innocent prisoners may be among those still sentenced to death in California. In 2012 and 2016, voters narrowly rejected referenda that would have abolished capital punishment. In 2016, a voter referendum intended to speed up executions by limiting appeals passed by a two-percentage point margin. That measure, Proposition 66, was upheld but curtailed by a 2017 California Supreme Court decision.
Governor Newsom follows the lead of governors in three other Western U.S. states who have imposed moratoria on executions in the last decade. Governors John Kitzhaber of Oregon (November 2011), John Hickenlooper of Colorado (May 2013), and Jay Inslee of Washington (January 2014) halted executions in their states, and Kate Brown of Oregon announced in February 2015 that she would extend the existing moratorium. Washington’s supreme court struck down the death penalty in October 2018 on grounds of geographic arbitrariness and racial bias, making it the 20th state to abolish the death penalty. Legislators in Colorado and Oregon are considering bills to abolish or seriously restrict the death penalty, and a Republican-backed bill to repeal the death penalty passed the Wyoming state House and a Senate committee earlier this year before failing in a vote before the full Senate. No state west of Texas carried out any executions in 2018, and those states collectively imposed the fewest new death sentences since California brought back capital punishment in 1978. Newsom said “[t]he intentional killing of another person is wrong” and that his moratorium was a first step towards the ultimate goal of ending the death penalty in California.
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Two Legislatures, Two Divergent Approaches to Execution Transparency
After controversial executions raised questions of government competence or misconduct, legislatures in two states have responded with bills taking sharply different approaches to the questions of government accountability and public oversight. Following an execution in which Nebraska Department of Corrections officials closed the curtain on fourteen crucial minutes of the execution of Carey Dean Moore, the Nebraska Senate Judiciary Committee heard testimony on March 7, 2019 on a bill that would mandate that two legislators witness an execution and require that eyewitnesses be permitted to observe the entirety of an execution from the moment the condemned prisoner enters the execution chamber to the time death is declared or the execution is called off. By contrast, an Arkansas state senator has responded to a lawsuit by pharmaceutical companies challenging widespread improprieties in the state’s procurement of execution drugs with a proposal that the state adopt the most extreme and punitive drug-secrecy law in the country.
In her statement to the Judiciary Committee, Nebraska State Sen. Patty Pansing Brooks of Lincoln (pictured, left), who sponsored Legislative Bill 238, said legislation was necessary to redress the “profound” lack of transparency in the state’s execution process. “This bill is not about whether the death penalty is right or wrong,” she said, “it’s about whether we have proper government accountability and transparency in carrying out this grave and somber event.” Corrections Director Scott Frakes, whom committee members criticized for failing to appear personally to respond to questions about the Moore execution, sent a letter to the committee opposing the bill. Omitting reference to the periods of the execution in which the execution-IV line was inserted and the curtain was dropped, Frakes claimed that “[w]itnesses observe the entire execution process." Referring legislators to the Death Penalty Information Center’s November 2018 report on execution secrecy in the United States, DPIC Executive Director Robert Dunham told the committee of numerous incidents in which eyewitness observations could have resolved serious questions about problematic executions. Dunham told the committee that in a government by and for the people, the state “shouldn't hide important information from the people.”
In Arkansas, a bill introduced in the state senate sought to further conceal the state’s controversial execution practices. On March 6, the Senate Judiciary Committee approved a bill sponsored by State Sen. Bart Hester (pictured, right), that would broadly exclude from public disclosure any documents, records, or information that could lead to the discovery of the state’s sources of execution drug or the identification of drug manufacturers or distributors. The bill also would make reckless disclosure of such information a felony. Arkansas’s conduct in procuring execution drugs, which led drug distributor McKesson Medical-Surgical to sue the state alleging that Arkansas had deliberately misled the company to believe that the drug purchase was for legitimate medical purposes, raised questions concerning the need for transparency in the execution process. Those questions were heightened following evidence of additional problems during executions with those drugs. After Arkansas state courts ruled that the state’s prisons must disclose portions of the pharmaceutical drug and packaging labels for the drugs it intended to use in executions, the Department of Corrections said it was suspending its search for new supplies of execution drugs until the legislature adopted even broader secrecy laws.
Hester downplayed the importance of transparency concerns, calling a March 8 meeting of a legislative Freedom of Information Act Task Force “a waste of my time.” Refusing to attend the meeting, Hester said “[a]nything that they have to say on it I don't think has value.” In an email to the Associated Press, Dunham said, “If a state wanted to break the law and breach contracts with impunity and hide its misconduct from the public, [the Arkansas bill] is the type of bad-government law it would pass.”
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Ohio Governor Halts “Cruel and Unusual” Lethal-Injection Executions
Ohio Governor Mike DeWine (pictured) has halted all executions in the state until its Department of Rehabilitation and Correction is able to develop a new execution protocol that gains approval from the courts. Responding to the findings of a federal court that likened Ohio’s three-drug lethal-injection protocol to a combination of waterboarding and chemical fire, DeWine said “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment.” DeWine announced his decision at an Associated Press forum in Columbus on February 19. The Republican governor did not set a date on which he expected executions to resume, saying “[a]s long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio.”
On January 14, federal magistrate Judge Michael Merz issued an opinion saying that executions under Ohio’s current drug protocol “will almost certainly subject [prisoners] to severe pain and needless suffering.” Mertz noted that 24 of 28 available autopsies from executions involving the sedative midazolam – the first drug in Ohio’s protocol – showed evidence of pulmonary edema, a build-up of fluid in the lungs that was “painful, both physically and emotionally, inducing a sense of drowning and the attendant panic and terror, much as would occur with the torture tactic known as waterboarding.” Mertz found that midazolam lacked the pharmacological properties necessary to keep the prisoner unconscious during the administration of the paralytic second drug, rocuronium bromide, and the heart-stopping third drug, potassium chloride. As a result, he said, the prisoner would experience the sensation of “fire … being poured” through his veins when those drugs were administered. The court’s ruling led DeWine to issue a six-month reprieve to death-row prisoner Warren Keith Henness, who had been scheduled to be executed February 13.
DeWine sponsored Ohio’s capital punishment law as a state senator in 1981 and later represented the state in death-penalty cases as its Attorney General. The governor, who is Catholic and identifies himself as pro-life, has not said how those beliefs affect his stance on the death penalty. When reporters at the forum asked about his personal views on capital punishment, DeWine equivocated. “It is the law of the state of Ohio,” he said. “And I’ll let it go [not comment further] at this point. We are seeing clearly some challenges that you have all reported on in regard to carrying out the death penalty.” Ohio has six more executions scheduled in 2019 and 23 scheduled through 2023.
Kevin Werner of Ohioans to Stop Executions praised the governor’s decision, but cautioned that broad problems identified in a 2014 Task Force Report on the state’s death penalty still need to be addressed. The people set to be executed, he said, are among the most vulnerable in the criminal legal system: “They are people who are poor, who killed white victims, and who have some underlying substance abuse or abuse as children or have a mental illness – I mean, that’s who we’re talking about here."
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