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DPIC Releases 2010 Year End Report

On December 21, the Death Penalty Information Center released its latest report, “The Death Penalty in 2010: Year End Report,” on statistics and trends in capital punishment in the past year.  The report noted there was a 12% decrease in executions in 2010 compared to 2009 and a more than 50% drop compared to 1999. DPIC projected that the number of new death sentences will be 114 for 2010, near last year’s number of 112, which was the lowest number since the death penalty was reinstated in 1976. Death sentences declined in all four regions of the country over the past ten years, with a 50 percent decrease nationwide when the current decade is compared to the 1990s.  Only 12 states carried out executions in 2010, mostly in the South, and only seven states carried out more than one execution. Texas led the country with 17 executions, but that was a significant drop from last year.  The number of new death sentences in Texas this year was 8, a dramatic decline from 1999 when 48 people were sentenced to death.  Since the death penalty was reinstated in 1976, 82% of the executions have been in the South. California has not had an execution in almost 5 years, and the same is true for North Carolina, Maryland, Pennsylvania, and many other states that rarely carry out the death penalty.  “Whether it’s concerns about the high costs of the death penalty at a time when budgets are being slashed, the risks of executing the innocent, unfairness, or other reasons, the nation continued to move away from the death penalty in 2010,” said Richard Dieter, DPIC’s Executive Director and the report’s author.


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Oklahoma Set to Execute First Inmate Using New Drug

On December 14, the U.S. Court of Appeals for the Tenth Circuit rejected a claim by Oklahoma death row inmate Jeffrey Matthews that the use of the drug pentobarbital could result in a cruel and unusual punishment. The Court unanimously concluded that the amount of pentobarbital authorities plan to use, as the first in a three-drug procedure, would likely be lethal by itself. The decision also allows the execution of John David Duty, scheduled for December 16, to proceed. Duty would be the first death row inmate in the country to be executed using this new drug as part of a three-drug protocol.  Earlier this year, a shortage of sodium thiopental from the nation’s sole manufacturer forced corrections departments around the country to seek alternatives for their lethal injection procedures. (Matthews' execution date was set for Jan. 11, 2011.)


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Tennessee Judge Declares State's Execution Process Unconstitutional; Other States Confront Same Issue

On Nov.19, a Davidson County judge ruled that Tennessee’s lethal injection procedure was unconstitutional, possibly delaying the execution of Stephen Michael West and others on death row. Chancellor Claudia Bonnyman, who issued the ruling, said that the state’s lethal injection procedure “allows for death by suffocation while conscious,” because it did not specify a sufficient dosage for sodium thiopental, the first of three drugs used in lethal injections. In Baze v. Rees, the U.S. Supreme Court decided that Kentucky’s lethal injection method was constitutional, although the decision did not specifically address the amount of sodium thiopental used in executions, provided it was administered properly. Federal public defender Stephen Kissinger presented two medical experts who testified that autopsies performed on executed inmates showed that concentrations of two of the drugs used in lethal injections were too low to cause their intended effect. Medical experts found that levels of sodium thiopental (the first drug used) in all three autopsies were too low to cause unconsciousness and levels of potassium chloride (the final drug used) were not enough to stop the heart.  UPDATE: Tennessee Supreme Court upheld the state's execution procedure, allowing West's execution date to be set for Nov. 30.

In other states: a federal court in Oklahoma approved the use of the anesthetic pentobarbital as the first of 3 drugs to be used in its executions.  It would be used in place of sodium thiopental, which is in short supply.  Oklahoma has an execution scheduled on Dec. 16.  Pentobarbital has been used in the euthanasia of animals.  In Texas, the Attorney General has ruled that the source of the state's lethal injection drugs should be made public.  Texas reportedly has sufficient quantities of sodium thiopental for 39 executions, but the supply has an expiration date in March 2011.  In California, the state has so far refused to divulge its source of sodium thiopental.  Arizona, which secured a supply of this drug around the same time as California, obtained the drug from overseas and carried out an execution.  Litigation in the United Kingdom is seeking to block the exportation of drugs used in executions after it was reported that U.S. states were acquiring sodium thiopental from a British company. (Various news stories.)


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Oklahoma Proposes New Lethal Injection Drug

Oklahoma recently filed a petition with a federal court asking that pentobarbital, an anesthetic agent used in euthanasia of animals, be allowed as a substitute for sodium thiopental in lethal injection procedures. Earlier this year, Hospira Inc., the nation’s sole manufacturer of the latter drug, announced that it has ceased production because of a shortage in one of the ingredients. The shortage has forced Oklahoma and other states to delay executions and seek other sources for the drug. Attorneys for John David Duty, who is scheduled for execution in Oklahoma in December, raised questions about the new drug, asserting that at this point the drug "is untested, potentially dangerous, and could well result in a torturous execution." Efforts to obtain sodium thiopental from other sources have initiated legal battles around the country. Some experts believe that inmates are at a greater risk of suffering severe pain during executions if states use imported or unproven drugs. A foreign supply of thiopental could be less powerful than the domestic variety. Defense lawyers also contend prison officials might not use proper care in transporting the drug, potentially exposing it, for example, to temperature extremes that could hurt its effectiveness. Oklahoma City federal judge Stephen Friot is expected to hear arguments next week. If approved, pentobarbital could be a new standard for lethal injections around the country.  Dr. A. Jay Chapman, the former medical examiner of Oklahoma who recommended thiopental in the 1970s as a suitable drug for lethal injections recently expressed a lack of concern about whether the drug worked as originally claimed: "If they (inmates being executed) have a bit of pain exiting this world, it is of no great concern to me."


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EDITORIAL: "No Justification" for Recent Execution

On October 29, a New York Times editorial raised many concerns regarding the recent execution of Native American Jeffrey Landrigan in Arizona.  The Times said “the system failed him at almost every level, most disturbingly at the Supreme Court.” Landrigan’s execution garnered national attention because a nationwide shortage of sodium thiopental forced the state to seek the drug from foreign suppliers. Despite repeated orders from a federal District Court judge, Arizona refused to divulge the source of their lethal drug supply.  The judge stayed the execution based on these concerns, but the stay was overturned by the U.S. Supreme Court in a 5-4 ruling that said there was “no evidence in the record to suggest that the drug obtained from a foreign source is unsafe.” But, as the editorial pointed out, "There was no evidence — either way — because Arizona defied orders to provide it."  In addition to concerns about the drugs used in Landrigan’s execution, recent statements made by Landrigan’s sentencing judge questioned the appropriateness of a death sentence in this case. Judge Cheryl Hendrix, who presided over Landrigan's trial, recently told the Arizona Board of Executive Clemency that she would not have sentenced Landrigan to death if his trial attorney presented evidence of the defendant’s brain damage and other problems.  The Board's vote was 2-2, so clemency was denied. Read full editorial below.


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States Suddenly Acquiring Lethal Injection Drug from Unknown Source

Lawyers for Jeffrey Landrigan, an Arizona death row inmate scheduled for execution on October 26, have filed a motion asking courts to compel the state to reveal its source of a drug to be used in his lethal injection. Despite a nationwide shortage of sodium thiopental, Arizona recently announced that it has obtained new supplies of the drug. The announcement came the same day that California filed a notice in federal court that it had obtained the same drug with an expiration date of 2014. Hospira Inc., the sole U.S. manufacturer of the drug, said it cannot be the manufacturer of the drug because the last batch the company manufactured expires in 2011 and it will be unable to produce any more of the drug until early 2011. Both the Arizona and California Departments of Corrections have declined to reveal the source of their new supply. The FDA says that because of Hospira’s shortage, there are currently “no FDA-approved manufacturers for [sodium] thiopental,” and the agency is not aware of any supplier currently able to supply the drug to the U.S. It is possible the drug was obtained from China or India where companies that manufacture the drug exist.

Oklahoma, where Donald Wackerly was recently executed using a dose of sodium thiopental supplied by Arkansas, is also facing inquiry into the legality of how it acquired its supply. Federal law requires that transfer of a Schedule III controlled substance must take place between two Drug Enforcement Agency (DEA) registrants and that a record of the transaction must be kept for two years. According to an official in the Oklahoma Department of Corrections, the state did not consult a DEA registrant in obtaining the drug from Arkansas and did not file paperwork regarding the transaction. Sylvia Lett, a Federal Public Defender in Arizona, said, “The refusal to provide information or solidly commit to its protocol gives the appearance that the State is hiding something. Why is the State being so secretive when the Arizona Department of Corrections is about to carry out the most severe sanction allowed by law?"

(B. Crair, "A Death Penalty Serum Mystery," The Daily Beast, October 14, 2010; M. Kiefer, "Arizona death row inmate's lawyers want drug info from state," Arizona Republic, October 14, 2010).  See Lethal Injection.


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Appeals Court Orders Federal Judge to Reconsider Execution Plan in California

Late on Monday (September 27), the U.S. Court of Appeals for the Ninth Circuit ordered U.S. District Judge Jeremy Fogel of San Jose, California, to reconsider his plan that would have allowed the execution of Albert Greenwood Brown. In a ruling on September 24, Judge Fogel denied a stay of execution for Brown, and said that he lacked the time to inquire whether the state’s new lethal injection protocol contained sufficient safeguards against painful executions.  Fogel said that Brown could request that the state use a single drug (sodium thiopental) for the execution, but Brown refused to make a choice.  Brown's execution is now scheduled for September 30, and would be the first execution in the state since 2006 if it proceeds. The appeals court said that it appeared that the state’s haste to execute Brown was in part because California’s supply of one of the drugs used in its lethal injection protocol, sodium thiopental, has an expiration date of October 1. The state has not been able to secure more of the lethal drug because of a nationwide shortage that has affected other states. The manufacturer, Hospira Inc., has said that new supplies will not be available until at least January 2011.


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Georgia Execution Stayed After Suicide Attempt

Brandon Rhode, a Georgia death row inmate, who was scheduled for execution on September 21, received a temporary stay after he attempted to commit suicide. The Georgia Supreme Court granted a stay until September 24 to allow Rhode access to counsel after he was taken to the hospital on the day of his scheduled execution. His attorney filed a motion stating that his client is incompetent, and his execution would violate standards of cruel and unusual punishment. In the court filing, Rhode's lawyers said Rhode suffered from brain impairments associated with fetal alcohol spectrum disorder because his mother was drinking alcohol and taking drugs until she found out she was pregnant well into her second trimester. The motion asserted that Rhode should not be executed because his brain damage "rendered him incapable of the requisite level of culpability required to justify execution.”


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Kentucky Judge Rules Against Lethal Injection Protocol and Halts Execution

On September 10, Franklin County Circuit Judge Phillip Shepherd ruled that Kentucky’s new execution protocol is inconsistent with state law and does not provide safeguards to prevent an inmate who is intellectually disabled or criminally insane from being executed. As a result, Judge Shepherd stayed the September 16 execution of Gregory Wilson, stating, “Because the state's protocol doesn't include a mechanism to determine if someone is mentally retarded and there are serious questions about Wilson's mental state, the execution cannot go forward.” Wilson’s attorney has stated that the only mental test given to him showed an IQ of 62, well below the limit of 70 usually used as an indication of intellectual disability. Judge Shepherd wrote, “The Court finds there is a good faith basis to believe that Wilson may be ineligible for the death penalty,” and noted that "Mr. Wilson appears to be the only inmate on death row in Kentucky who had no lawyer at trial."  The judge also questioned why Kentucky's new protocol did not allow for a 1-drug lethal injection process since that is permitted under the state law.  The state is appealing the ruling.


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National Shortage of Drug for Lethal Injections Leads to Stays of Execution

Kentucky Governor Steven Beshear recently held off signing death warrants for two inmates because of a shortage of the drug sodium thiopental, a key component of the state’s lethal injection protocol. Kentucky’s stock of the lethal injection drug expires October 1, and the Department of Corrections does not expect a new supply until early 2011 because the only supplier of this drug in the country, Hospira, is unable to obtain the active ingredient for the drug.  Even when a new supplier for the active ingredient is found, FDA approval will be needed. The governor did set a September 16 date for the execution of Gregory Wilson, which could occur before the state's supply of the drug expires.  In Oklahoma, the state’s Department of Corrections recently tried to substitute another drug for sodium thiopental for the execution of Jeffrey Matthews because of concerns about the purity of the supply on hand. A federal judge stayed the execution of Matthews in order to provide time to study the situation. Attorneys for Matthews challenged the substitution of a new drug as a form of human experimentation.  Almost all states in the country use essentially the same protocol for lethal injections.


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