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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Governor Grants Execution Reprieve Over Concerns About Ohio’s Lethal-Injection Process
Citing a federal court’s concerns that Ohio’s lethal-injection process is unnecessarily torturous, newly inaugurated Ohio Governor Mike DeWine (pictured, left) has issued a six-month reprieve to death-row prisoner Warren Keith Henness (pictured, right), delaying his execution from February 13 to September 12, 2019. In granting the reprieve, DeWine also directed the Ohio Department of Rehabilitation and Correction to review Ohio’s possible alternative drugs to carry out lethal-injection executions.
On January 14, federal magistrate Judge Michael Merz issued an opinion likening Ohio’s current three-drug execution process to a combination of waterboarding and chemical fire. Judge Mertz wrote: “If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering. Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment.” Nonetheless, Merz allowed the execution to go forward, saying the U.S. Supreme Court’s controversial 2015 ruling in the lethal-injection case Glossip v. Gross prevented him from granting a stay. Glossip requires a prisoner who challenges an execution protocol to provide an alternative method that is “available, feasible and can be readily implemented,” a standard Mertz said that Henness was unable to meet. Henness’s attorneys applauded the governor’s decision to issue a reprieve. “The evidence presented in the federal court hearing made it clear that moving forward under the current lethal-injection protocol would subject Mr. Henness to needless pain and suffering, in direct violation of his rights under state law and the state and federal constitutions,” said David Stebbins of the federal public defender’s office. “We commend Governor DeWine for his leadership and for ensuring the justice system operates humanely in Ohio."
Merz’s ruling described several problems with the use of midazolam, the first drug in Ohio’s lethal-injection protocol. He said that — contrary to the evidence available to the Court at the time of Glossip — midazolam does not render the prisoner sufficiently unconscious to block the painful effects of the second drug, a paralytic, and the third drug, potassium chloride, which he said would feel “as though fire was being poured” through the prisoner’s veins. He also noted that 24 of 28 available autopsies from midazolam executions showed the prisoner experienced pulmonary edema, or fluid in the lungs, which he said 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.”
Ohio has struggled to find a constitutionally and legally acceptable method of execution. Its state law holds that executions must be “quick and painless.” After the 2014 botched execution of Dennis McGuire, the state changed its protocol, removing midazolam. It reversed course in October 2016, announcing a three-drug protocol beginning with midazolam. In January 2017, Judge Merz halted three executions because he said the protocol amounted to cruel and unusual punishment, and a three-judge panel of the U.S. Court of Appeal for the Sixth Circuit upheld that decision, but the full Sixth Circuit court reversed it in June 2017, allowing executions to resume. Since 2014, Ohio has carried out three executions, while 33 have been delayed by court decisions or by the state’s inability to obtain lethal-injection drugs.
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Scott Dozier, Who Unsuccessfully Tried to Force Nevada to Execute Him, Dead of Apparent Suicide
Nevada death-row prisoner Scott Dozier (pictured), who unsuccessfully tried to force the state to execute him, was found dead in his prison cell on January 5, 2019 of an apparent suicide. News reports indicated that Dozier had hanged himself. Dozier had told the court and several reporters that he would rather die than spend life in prison and had attempted to speed up his execution by dropping his appeals. However, his prior suicide attempt raised questions about his mental state and his competency to waive appeals.
Dozier’s case gained national attention when Nevada proposed to execute him with an untested fentanyl-based drug combination after it was unable to replace its expired supplies of the drugs authorized under its prior execution protocol. He would have been the first person ever executed using fentanyl. Though steadfast in seeking execution, Dozier initially allowed federal public defenders to challenge the constitutionality of the new drug protocol. That challenge resulted in two stays of execution in 2017, after the trial judge found that the use of the paralytic drug cisatracurium in combination with diazepam (Valium) and fentanyl could cause Dozier to experience “air hunger” and suffocate to death, while masking signs that he was conscious and suffering during the execution. The court authorized the execution if Nevada dropped the paralytic drug, but Nevada appealed, prompting Dozier to write to the state judge who had halted his execution that “I’ve been very clear about my desire to be executed ... even if suffering is inevitable.” Court filings in a prior lawsuit challenging Dozier’s isolation in prison revealed that he had previously attempted suicide after having been denied recreation time, communication with his family, and consultation with his legal counsel. The state argued at that time that Dozier’s isolation was necessary to protect him from self-harm.
The Nevada Supreme Court later vacated the lower court’s stay order on procedural grounds, clearing the way for a second death warrant, which was issued in June 2018. Eight days before the July 11, 2018 execution, Nevada changed its drug formula again, and drug manufacturer Alvogen filed suit against the state for allegedly obtaining a supply of its sedative, midazolam, “by subterfuge” to circumvent the company’s restrictions against sales of its products for use in executions. A Clark County District Judge halted Dozier’s execution, agreeing with Alvogen that Nevada had misrepresented its intended use of the drugs and purchased them in “bad faith” through subterfuge. The court barred the state from using the drugs obtained from Alvogen in any execution. At the time of Dozier’s death, state prosecutors had not yet decided whether to appeal that order. Nevada prison officials had recently placed Dozier in solitary confinement, purportedly for self-protection.
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