Executions on Hold in Ten States

As 2006 draws to a close, most executions in ten states are effectively on hold as aspects of their capital punishment laws are examined.  Two states, Illinois and New Jersey, have a formal moratorium on all executions while the viability of the death penalty is considered.  In eight other states, almost all executions are being stayed as the states grapple with the lethal injection issue.  Those states are Arkansas, California, Delaware, Florida, Maryland, Missouri, Ohio, and South Dakota.  In these states, individual executions have been stayed and it is likely that only inmates who waive their appeals could be executed until officials approve the lethal injection process.  In addition, New York's death penalty law was declared unconstitutional in 2004 and New Hampshire has no one on death row, making executions unlikely in those places, as well.

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Maryland High Court Puts Executions on Hold

Maryland's highest court has ruled that the state's adoption of its lethal injection protocols is subject to the state's Administrative Procedures Act, and it halted all executions until the protocols are properly reviewed.  This decision may require prison officials to conduct hearings on the lethal injection procedures in a forum open to the public for comment. The Maryland Court of Appeals ruling comes just days after executions in California and Florida were halted amid concerns that lethal injections were being improperly administered in those states.

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A Closer Look at the Ruling on Lethal Injections in California

The ruling from U.S. District Court Judge Jeremy Fogel (pictured) on Friday, December 15, appears intended to spur California public officials to modify the current system of putting inmates to death.  Judge Fogel's order was not a final decision, but rather a "Memorandum of Intended Decision: Request for Response from Defendants."  The defendants in this case are the corrections officials of the state, including, ultimately, the governor, Arnold Schwarzenegger. 

Judge Fogel makes clear that "this case is not about whether the death penalty makes sense morally or as a matter of policy."  It is only about whether California's lethal-injection protocol "as actually administered in practice" violates the Eighth Amendment.  After an exhaustive review, including a visit to the execution chamber in San Quentin, Judge Fogel concluded that the state's "implementation of lethal injection is broken, but it can be fixed."

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Executions Put on Hold in Florida and California

Florida's governor halted all executions in the state until a commission can investigate and report what went wrong with the lethal injection of Angel Nieves Diaz on December 13. Gov. Jeb Bush issued an executive order announcing a panel of experts to make recommendations for changes to the process and said that no death warrants will be signed until modifications are adopted.  Diaz's execution took more than twice as long as normal and required two rounds of the lethal chemicals. Witnesses stated that Diaz appeared to be moving, grimacing, and trying to mouth words after the first injection.

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DPIC's 12th annual Year End Report was released on December 14 and reveals a broad decline in the use of the death penalty in the U.S. based on a number of factors:  the public now favors life without parole over the death penalty; the number of executions has dropped to the fewest in a decade, in part because of challenges to the lethal injection process; and the annual number of death sentences is now at a 30-year low.  The report notes that various states have put a hold on all executions, while others are reviewing problems in the capital punishment system.  The report cites a number of new developments, including the challenges posed by the severe mental illness of many on death row, and quotes a series of law enforcement personnel, editorials, and public officials voicing serious concerns about the death penalty.

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NEW RESOURCES: Bureau of Justice Statistics Releases Capital Punishment, 2005

The Bureau of Justice Statistics has just released the 2005 version of its annual report on the death penalty in the U.S. The report notes that both the number of death sentences and the size of death row were down for 2005, and that this represents a trend over the past 5 years. The report states that there were 60 executions in 2005, all by lethal injection, and that the time between sentencing and execution was longer in 2005 than in 2004.

California had the most death sentences (23) in 2005, followed by Florida (15), Texas (14) and Alabama (12). Together these states accounted for half of those sentenced to death in 2005. California had the largest number on death row (646) and Texas had the most executions (19) in 2005.

(U.S. Dept. of Justice, Capital Punishment, 2005 (pub. December 2006)). See also DPIC's 2005 Year End Report. DPIC will be releasing its 2006 Year End Report by the end of this week, and it will have information on the death penalty in 2006. See Sentencing.

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ARBITRARINESS: Federal Judge Deeply Troubled about Inconsistencies in Lethal Injection Rulings

Recently in Ohio and other states, some inmates challenging the lethal injection process in federal courts have been given stays of executions, while others, similarly situated, have been denied stays and have been executed.  This inconsistent application of federal law in capital cases has raised concerns among a number of federal judges.  A stay was recently granted to Ohio inmate Jerome Henderson, but denied to Jeffrey Lundgren.  On December 6, U.S. District Court Judge Gregory Frost denied a stay of execution to Ohio inmate John Spirko.  However, Judge Frost sharply criticized the lack of any clear guidance from the Court of Appeals on this matter, saying it left the lower courts in a "morass of deadly ambiguity" as to how to apply the law:

This Court agrees [with a judge dissenting from the Henderson decision] and cannot fathom how the appellate court’s earlier concern over how “[i]t would be grossly unfair for different panels of this Court to reach opposite conclusions on the issue of the constitutionality of Ohio’s method of lethal injection so that some capital defendants are put to death by lethal injection while other similarly situated are spared” meshes with what has transpired in regard to Lundgren and Henderson. In the words of the Sixth Circuit, there is no “consistent, uniform and fair application of federal law in all such lethal injection cases before the [appellate court].” (Doc. # 107, at 2.) Certainly, Henderson will not complain about the inconsistency, but Lundgren, who was executed on October 24, 2006, would no doubt have been interested in the Henderson panel’s unexpressed rationale.
. . .
[T]his Court is now confronted with two different unreported decisions by two different appellate panels, both concerned with the same issues of law and both reaching wholly opposite, unexplained results.
. . .
This Court’s inability to discern the appellate rationale for denying or granting a stay does not promote confidence in the system, does not promote consistency in court decisions, and does not promote the fundamental value of fairness that underlies any conception of justice.

(Cooey v. Taft, No. 2:04-cv-1156, U.S. District Court for Southern Div. of Ohio, Dec. 6, 2006) (Order denying reconsideration of previous denial of a stay of execution to John Spirko, intervenor). 

See Lethal Injection and Arbitrariness.

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Stays Granted in Two Pending Executions: Issues are Lethal Injection and Mental Illness

Stays have been granted in two of the three executions that had still been scheduled for December.  On December 1 in Ohio, the U.S. Court of Appeals for the 6th Circuit granted a stay of execution to Jerome Henderson, whose execution had been scheduled for December 5.  Henderson was allowed to join a challenge to the state's lethal injection protocol.  The 6th Circuit denied the state's request to rehear the issue, and the U.S. Supreme Court declined to lift the stay.  (Associated Press, Dec. 5, 2006).

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Kentucky Court Orders State to Hold Public Hearings on Lethal Injection Process

In a ruling that may put all executions on hold in the state of Kentucky, a Franklin County Circuit Judge held that the state must hold public hearings because it changed the way the state plans to carry out executions.  A group of death row inmates had challenged the state's lethal injection protocol in 2004, and subsequently the state altered the mixture of drugs used and the way they would be administered without going through the necessary administrative process for such a change.  Recently, the Kentucky Supreme Court upheld the constitutionality of the state's lethal injection process.  Kentucky has 40 inmates on death row, but only two inmates have been executed since the death penalty was reinstated in 1976; only one was executed by lethal injection.

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Kentucky Supreme Court Upholds State's Lethal Injection Process

The Kentucky Supreme Court rejected claims by death row inmates that the state's lethal injection process risks wanton and excruciating pain in violation of the ban on cruel and unusal punishments.  The Court upheld a 2005 lower court ruling similarly rejecting the claims of inmates Ralph Baze and Thomas C. Bowling.  In its unanimous ruling, the Supreme Court held: "Conflicting medical testimony prevents us from stating categorically that a prisoner feels no pain.  But the prohibition is against cruel punishment and does not require a complete absence of pain."  Lawyers for the defendants plan to appeal the case further.

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