2010 and before lethal injec­tion news

Alabama

• The 11th Circuit denied a stay of execution and dismissed the lethal injection challenge of Luther Williams, who was then executed on Aug. 23, 2007. Williams v. Allen (11th Cir. Aug. 21, 2007).

• The governor granted a 45-day stay to Tommy Arthur, who was to be executed on Sept. 27, 2007, to allow time for the state’s new lethal injection protocol to be implemented.

• The state proceeded with the planned execution of Daniel Siebert to occur on Oct. 25, but the U.S. Court of Appeals for the 11th Circuit granted a stay on Oct. 24, 2007.

• A new execution date of Dec. 6, 2007 was set for Tommy Arthur. The date was stayed by the U.S. Supreme Court on Dec. 5, 2007. A Jan. 31, 2008 execution date for James Callahan was also stayed by the U.S. Sup. Ct.
• UPDATE: A new execution date of July 31, 2008 was set for Tommy Arthur. The Alabama Supreme Court stayed Arthur’s execution after new claims of innocence were asserted.
• Alabama has carried out multiple executions in 2009.

Arizona

• On Oct. 11, 2007, the Arizona Supreme Court granted a stay of excution to Jeffrey Landrigan who was scheduled to be executed on Nov. 1 in light of the U.S. Supreme Court’s cert. grant in Baze.
• UPDATE: Arizona employed Dr. Alan Doerhoff, who had been banned from participating in lethal injections in Missouri, in its most recent lethal injection in 2007.
• UPDATE: 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. Landrigan was executed after the US Sup. Ct. lifted a District Court stay.

(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).

Arkansas

• In Arkansas on June 26, the US Dist. Ct. for the Eastern District of Ark., granted a stay of execution for Don Davis and a preliminary injunction to allow further investigation into the constitutionality of the state’s execution protocol.

• UPDATE: The 8th Circuit lifted the stay of execution for Davis (AP, July 9, 2007).

• UPDATE: Arkansas has set execution dates for 2 inmates in Sept. 2007.

• UPDATE: The 8th Circuit stayed the execution of Jack Jones, scheduled for Oct. 16. The state is considering an appeal to the U.S. Sup. Ct.

• UPDATE: The U.S. Sup. Ct. refused to lift the stay on Oct. 16, with Justice Scalia dissenting.

• UPDATE: The Nov. 8th scheduled execution of Don Davis was stayed by the U.S. District Court on Oct. 31, 2007.
• UPDATE: In August 2008, a federal District Court upheld the state’s method of lethal injection.
• UPDATE: Pulaski County Circuit Judge Timothy Fox barred the Arkansas Department of Correction from using the state’s protocol in its execution of Frank Williams, Jr. on Sept. 9, 2008 because the new execution procedures should have been subject to public comment before implementation. The Ark. Sup. Ct. refused the state’s request for an expedited appeal of the lower court’s ruling.
• UPDATE: Execution of Jack Jones scheduled in March 2010 stayed by a federal court. Probably temporarily puts all executions on hold.

California

• In California, a federal judge conducted hearings on February 9 concerning the lethal injection process in that state in conjunction with the scheduled execution of Michael Morales on February 21. Morales’ execution was eventually called off by California because they could not find doctors willing to assist with the execution. (L.A. Times, Feb. 9, 2006). Further hearings were first scheduled for May 2, but have since been put off until September 26, 2006. Judge Fogel indicated he would issue a ruling in the near future. At the conclusion of the hearings, Judge Fogel submitted a series of questions to the parties in the case regarding various changes to the lethal injection protocol. The parties submitted responses by Nov. 9.

• • UPDATE: On Dec. 15, 2006, Judge Fogel issued a Memorandum of Intended Decision. 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.” The judge concluded that the state’s protocol “does not function as intended.” He listed a number of deficiencies including unreliable screening of execution team members, a lack of meaningful training and supervision of team members, and improper preparation of the anesthetic. Judge Fogel stated that the “evidence is more than adequate to establish a constitutional violation” and that the state’s lack of professionalism was “deeply disturbing.” The responsibility for the flaws “falls squarely upon the Defendants (the state).” He noted that remedying this situation will take time, especially since the state had “still [] not fulfilled their discovery obligations.” The judge noted that the state’s unwillingness earlier to “see the situation for what it is and to be proactive is self-defeating.” Nevertheless, he concluded that this case “presents an opportunity for executive leadership.” Read Judge Fogel’s Memorandum.
  • UPDATE: Gov. Schwarzenegger released a statement on December 18 saying that “My administration will take immediate action to resolve court concerns which have cast legal doubt on California’s procedure for carrying out the death penalty.” (L.A. Times, Dec. 18, 2006).

• The California Attorney General and Governor have informed the federal court overseeing the lethal injection process in that state that they will make their recommendations for reforming the existing execution protocol by May 15, 2007. They have asked the court for a protective order to shield their deliberations from the attorneys representing Michael Morales, the death row inmate who challenged the state’s process. (Jan. 16, 2007). A hearing will be held on Feb. 23, 2007 regarding the secrecy request from the state. Judge Fogel reached a compromise between the state and those desiring access to information about the state’s proposed changes to the lethal injection process. No new requests for information will be made by the defense or four news organizations until the state has made its formal recommendation. However, the information leading to that recommendation is not protected from future discovery.

• • UPDATE: The state issue a proposed Lethal Injection Protocol (see Resources below) on May 15, 2007. The state will use the same 3 drugs as in the past and will not use doctors in carrying out the executions.
  • UPDATE: Judge Fogel indicated that he will visit the new execution chamber (presently under construction) before holding a hearing, probably in October 2007, to consider the next steps in addressing the lethal injection problems in the state. The hearing was subsequently moved to Dec. 10, 2007.
  • UPDATE: The December hearing was postponed in light of other developments on lethal injection.

• A California trial judge has held that the state did not comply with the Administrative Procedures Act in promulgating new execution procedures. Marin County Judge Lynn O’Malley Taylor invalidated the state’s new procedure because, in part, it had not been subjected to a period of public comment. (San Jose Mercury News, Oct. 31, 2007).
• It appears that the federal review of the state’s execution process will await the resolution of the APA issue (above).
• UPDATE: The 1st District Court of Appeals upheld (3-0) the decision finding the state’s lethal injection protocol to be in violation of the APA (L.A. Times, Nov. 21, 2008). Until a legal protocol is proposed, it will be difficult for the federal court to rule on its constitutionality, leaving executions on hold.
• UPDATE: The state has agreed to comply with the requirements of the APA and submit changes to the lethal injection procedures to public comment.
• State has submitted new regulations for public comment period, ending June 30, 2009. A large number of public comments have been received. Final promulgation of regulations expected by May 2010.

• HOLD ON ALL EXECUTIONS: Late on September 27, 2010, 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.

  Excerpts from the 9th Circuit’s opinion:

  “After a four-year moratorium on executions in California, multiple proceedings in federal court, a state administrative law proceeding, and state court appeals, it is incredible to think that the deliberative process might be driven by the expiration date of the execution drug. As the State acknowledges, additional supplies will be available in the first quarter of 2011. Timing is everything and the district court should take the time necessary to address the State’s newly revised protocol in accord with Supreme Court authority.”

  “Imposing on Brown such a choice between the new three-drug protocol and a one-drug option never adopted by the State places an undue burden on Brown and is beyond the power and expertise of the district court at this juncture. The result in this case should not be driven by compromise nor by the State’s deadlines superimposed on the district court’s already pending review of the new execution protocol.”

  (B. Egelko, “Court sends execution case back to U.S. judge,” San Francisco Chronicle, September 28, 2010). Click here to read a letter from Hospira, Inc indicating that it is not their intention that their their drugs be used for lethal injection.

Delaware

• In Delaware on May 9, a federal judge stayed the scheduled May 19 execution of Robert Jackson because of his challenge to the lethal injection process (NY Times, May 9, 2006). It now appears that all executions are on hold until this matter is decided. (The News Journal, July 25, 2006).

• • UPDATE: A federal judge ruled that all inmates on Delaware’s death row are part of the class action suit challenging lethal injection. Hence, all executions are formally on hold. (News Journal, Feb. 23, 2007).
  • UPDATE: On May 15, 2008, a federal judge continued the stay of executions until an evidentiary hearing is held in June. No further action is expected until September 2008.
  • UPDATE: U.S. Distirct Court has upheld state’s lethal injection procedure (March 2009) but has continued stay of executions to allow an appeal.
  • US Ct. of Appeals for the 3d Circuit upheld protocols on Feb. 1, 2010 and lifted stays of execution. Court denied a rehearing.

Florida

• Florida is now required under Hill v. McDonough to allow inmates to raise civil rights challenges to the lethal injection process. Nevertheless, an execution date of Sept. 20 was set for Clarence Hill and he was executed.

• UPDATE: The U.S. Supreme Court (5-4) denied a stay of execution to Clarence Hill. Hill had raised a civil rights challenge to Florida’s lethal injection law after the Supreme Court unanimously ruled in June in his favor that such a challenge was proper. However, the lower courts stated that his claim was filed too late and they denied him an evidentiary hearing on the merits of his lethal injection challenge. (Associated Press, Sept. 20, 2006). Hill was executed on September 20. Arthur Rutheford, who had also been granted a stay by the Supreme Court pending its decision in Hill, was executed on Oct. 18. Just prior to Rutherford’s execution, Florida revealed a document, prepared earlier, that details the state’s method of execution.
• UPDATE: On December 13, 2006, Angel Nieves Diaz was executed in Florida. The lethal injection was not properly administered and he had to be administered a second round of the lethal drugs. The whole process took about 34 minutes, and Diaz was reportedly moving and mouthing words after the first set of drugs. On December 15, Gov. Jeb Bush issued an Executive Order establishing a commission to look into the problems with Diaz’s execution. No death warrants will be signed until recommendations for changes have been made and appropriate reforms initiated. The commission is expected to issue its recommendations by March 1, 2007. See Bush’s Executive Order.
• UPDATE: Florida Lethal Injection Commission charged with examining the state’s botched execution of Angel Diaz has urged Governor Charlie Crist to consider reviewing the mix of chemicals used to carry out lethal injections in the state. The 11-member panel questioned the need for Florida’s lethal injection protocol to include pancuronium bromide, which medical experts say has the potential to leave an improperly sedated person in intense agony without the ability to show it. Though it did not offer suggested replacements for any of the three drugs (sodium pentothal, pancuronium bromide, and potassium chloride) currently used to carry out lethal injections in Florida, the commission did note that Governor Crist should see “if more effective substances could or should be substituted.” The commission also recommended that “under no circumstances should the executioner continue with the second and third lethal substance without the warden’s authorization.” The panel’s 11-page report included a call for increased training for state execution teams and a clear protocol that defines the state’s lethal injection process. It urged prison staff to find a way to ensure that intravenous lines stay in place throughout the lethal injection procedure, and it urged better supervision of executions. The commission suggested that radio communication between members of the execution team and the warden be established, as well as closed circuit monitoring of the inmate during an execution. The group also urged the addition of a Florida Department of Law Enforcement agent to provide an alternative account from the witness area, and a second agent who could keep a detailed log of the activities of the execution team. Executions in Florida have been on hold since Diaz’s December 13, 2006, execution, which took twice as long as normal for death to occur, and which required a second dose of lethal chemicals. Witnesses said Diaz seemed to grimace and gasp as the execution continued for 34 minutes. The commission said it was not clear if Diaz was properly sedated when painful drugs were injected into his body, and it is impossible to know whether he felt pain. (Associated Press, March 1, 2007). Read the Florida Commission Report.
• UPDATE: Florida’s Dept. of Corrections issued new lethal injection protocols on May 9, 2007 (see Additional Resources below). The governor has indicated a willingness to move ahead with executions.
• UPDATE: The governor signed a death warrant for Mark Schwab for Nov. 15, 2007. A Florida Circuit judge issued a temporary injunction on July 22, 2007 to the signing of a death warrant in another case and called for further review of the state’s new execution procedures. This action may stay all executions in the state.
• UPDATE: Circuit Judge Carven Angel of Ocala reviewed the execution of Angel Diaz in conjuntion with an appeal by death row inmate Ian Lightbourne. Judge Angel ruled that Diaz had not been subjected to a “botched” execution and hence Lightbourne’s request for a further stay of any execution date was denied. However, the matter may still be reviewed by the Florida Supreme Court on Oct. 11. (St. Petersburg Times, Sept. 11, 2007).
• UPDATE: On Nov. 1, 2007, the Florida Supreme Court rejected Lightbourne’s and Mark Schwab’s challenge to the state’s new lethal injection procedures. Schwab is scheduled for execution on Nov. 15.
• UPDATE: Schwab’s execution was stayed by the U.S. Dist. Ct. on Nov. 14. The state will appeal. (rev’d by 11th Cir.; stay granted by U.S. Sup. Ct. on Nov. 15).
• UPDATE: Schwab was executed on July 1, 2008.
• UPDATE: The Florida Supreme Court granted a stay of Wayne Tomkins scheduled execution on Oct. 28, 2008 in order to review his lethal injection claim. The stay expires Nov. 18. Tompkins was executed by lethal injection on Feb. 11, 2009.

Georgia

• On Oct. 18, 2007, the Georgia Supreme Court granted a stay of excution to Jack Alderman who was scheduled to be executed on Oct. 19 in light of the U.S. Supreme Court’s cert. grant in Baze. Similarly, the court granted as stay to Curtis Osborne who was to be executed on Oct. 23.
• UPDATE:Curtis Osborne was executed on June 3, 2008. William Earl Lynd was executed on May 6, 2008.

Kentucky

• 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. (The Courier-Journal, Nov. 23, 2006).

• Also in Kentucky, a Franklin County Circuit Judge initially held that the state must hold public hearings because it changed the way the state plans to carry out executions. (Associated Press, Nov. 29, 2006). However, the judge reversed himself, holding that the lethal injection regulations were exempt from hearings under the state’s Administrative Procedures Act. (Bowling, et al. v. KY Dept. of Corr., No. 06-CI-00574, Dec. 27, 2006).

• Three Kentucky death row inmates filed suit in U.S. District Court in Frankfort on Jan. 23, 2007 claiming that the drugs used in Kentucky’s lethal injection process are not approved under the federal Controlled Substances Act. (Associated Press, Jan. 24, 2007).

• The U.S. Supreme Court granted cert. in Baze v. Rees, halting executions in KY and probably everywhere in the country. Baze was decided on April 16, 2008 (see above).
• UPDATE: The KY Supreme Court held on Nov. 25, 2009 that the state’s new lethal injection protocol had not been properly reviewed and approved as required by the state’s APA. All executions are now on hold until public hearings and administrative approval are completed.

• UPDATE: KY has revealed details of its new execution protocol. Public hearings and final approval may come in 2010.

Details made public for the 1st time include:

*A coroner and physician are nearby to certify death. The coroner checks the inmate’s pupils and pulse and the physician certifies the cause of death. Neither is in the execution chamber.

*If an inmate is conscious after 60 seconds during a lethal injection, the warden must stop the procedure and order that a backup IV be used in another site on the inmate’s body.

*If an inmate has not died after 10 minutes during a lethal injection or 2 minutes during an electrocution, a second dose of drugs or jolt of electricity is administered.

*Members of the execution team must be a phlebotomist — a person trained to draw blood — emergency medical technician, paramedic or military corpsman or combat medic and have at least 1 year of professional experience.

*Each execution costs the Department of Corrections $17,000.

(Associated Press, Dec. 16, 2009).

• On September 10, 2010, 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. (B. Barrouquerre, “Judge halts execution scheduled in Kentucky,” Dayton Daily News, September 10, 2010).

Maryland

• In Maryland, hearings were held in federal District Court on the state’s lethal injection process in September. The hearings were recessed until Oct. 10. According to corrections officials, the state has implemented some changes to the lethal injection process: requiring a nursing assistant, who administers the IV to the inmate, to remain in the execution chamber throughout the process, and providing better lighting in the chamber. The federal challenge was brought by death row inmate Vernon Evans. (Baltimore Sun, Sept. 22, 2006).

• • UPDATE: On Dec. 19, 2006, the Maryland Court of Appeals ruled in Vernon Evans case that the state had not complied with the Administrative Procedures Act in adopting its lethal injection procedures. Hence, all executions are on hold until those procedures for reviewing such changes to the law have been followed, or the legislature exempts the protocols from this Act. (Baltimore Sun, Dec. 19, 2006).
  • UPDATE: During the 2007 legislative session, the legislature rejected a bill to exempt lethal injection procedures from the normal procedural review.

• • UPDATE: During the 2008 legislative session, the legislature rejected a bill to exempt lethal injection procedures from the normal procedural review. A bill to establish a study commission was passed by the legislature.
  • UPDATE: On May 22, 2008, the governor began steps to enact lethal injection procedures that comply with the APA. A study commission has also begun review of the death penalty.
    
  • UPDATE: Maryland’s death penalty is being reviewed by a commission approved by the legislature and the governor. Recommendations are due by the end of 2008.
  • UPDATE: Commission recommended abolition but senate (March 2009) voted only to reform evidence standards to help prevent wrongful convictions. Reforms were signed into law. Governor continues with development of new lethal injection procedures.

Missouri

• In Missouri, the U.S. Court of Appeals stayed the scheduled Feb. 1 execution of Michael Taylor to allow more time for his lethal injection challenge. In late April, the Court granted a 60-day period for further investigation and hearings. On June 26, 2006, the District Court for the Western District of Missouri ordered that all executions in the state be put on hold until the Dept. of Corrections adjusts the execution procedures. The District Court ruled on Sept. 12 that the state’s proposals still do not meet Eighth Amendment standards. State has until Oct. 27 to submit revised protocols. (Associated Press, Sept. 12, 2006).

• • UPDATE: The State asked for reconsideration and stated it believed its protocols were constitutional. The District Court denied reconsideration, reaffirmed its holding that the state’s proposals were insufficient to remedy the problems discovered, thereby clearing the way for an appeal to 8th Circuit. (Order of the Dist. Ct., Oct. 16, 2006). The state has appealed the District Court’s decision and a response from Taylor is due in January 2007.
  • UPDATE: The 8th Circuit unanimously ruled on June 4, 2007, that Missouri’s current execution protocol is constitutional, thereby overruling the District Court’s decision in the Taylor case. (See decision below). The court held that a doctor is not necessary to monitor executions given the high level of anesthetic to be given the inmate. Executions remain on hold while this ruling is being appealed.
  • UPDATE: Execution dates may be set in Missouri as the federal court has refused to continue the moratorium on executions imposed earlier in the controversy, even though challenges continue. (AP, Aug. 17, 2007). Executions on hold in light of Baze.
  • UPDATE: An execution date of July 30, 2008, has been set for John Middleton.
  • UPDATE: U.S. Dist. Ct. Judge Gaitan reversed his earlier ruling and held that MO’s lethal injection process is constitutional in light of Baze. John Middleton was granted a stay of execution by the MO Sup. Ct. Middleton’s execution date was reset for Sept. 17. This date was also stayed by the MO Sup. Ct.
    
  • UPDATE: New challenges have been filed concerning the state’s lethal injection process, including the personnel involved and whether the law complies with the state Administrative Procedures Act. Dennis Skillicorn was executed on May 20, 2009, but was not party to this recent litigation.
    

New Jersey

• In New Jersey, an appellate court in 2004 ordered a halt to all executions until the state could justify its lethal injection procedures.

• • UPDATE: On December 17, 2007, New Jersey abolished the death penalty.

Nevada

• The Nevada Supreme Court stayed the scheduled execution of William Castillo, a “volunteer,” on October 15, 2007 in response to a suit by the ACLU. The Court gave parties time to discuss whether Nevada’s execution process is implicated by Baze v. Rees.

• Nevada had planned to double the dosage of each of the 3 drugs used in lethal injection for the execution of Castillo. They were also intending to give him a mandatory sedative. (Nevada Appeal, Oct. 12, 2007).
• UPDATE: the ACLU dropped its suit challenging lethal injection. William Castillo has renewed his appeals. (July 2008).

North Carolina

• In North Carolina, a federal judge has ordered the monitoring of the lethal injection process by medically trained personnel. The state agreed to have a doctor monitor a machine indicating the defendant’s degree of consciousness in a room adjacent to the execution chamber (case of Willie Brown) (News & Observer, April 10, 2006). Brown was executed as scheduled on April 21.

• North Carolina Superior Court Judge Donald Stephens granted stays of execution to Marcus Robinson, James Thomas, and James Campbell because the state did not seek the necessary approval of changes to its lethal injection process. The state said it would not appeal the ruling, making it likely that other executions will be stayed until the issue is resolved. The North Carolina Medical Board had issued an ethics opinion saying that doctors and nurses should not participate in executions, though they could be present. The state originally used a doctor to observe a consciousness monitor attached to the inmate to be executed. That monitoring would now be performed by someone other than a doctor. (News & Observer, Jan. 25, 26, 2007).

• • UPDATE: The N.C. Council of State approved a lethal injection process that requires doctors to be both present and to monitor the possible suffering of the inmate being executed. The doctor would warn the prison warden of complications. Although this approval was mandated by Judge Stephens’ order, it appears to violate the Medical Board’s proscription of doctor participation in executions. (Fayetteville Observer, Feb. 7, 2007). Gov. Mike Easley has said that there is an effective moratorium on executions until the lethal injection issue is resolved, probably in the courts.
  • UPDATE: Archie Billings’ scheduled execution date of March 2 was also stayed by Judge Stephens.
  • UPDATE: Allen Holman’s scheduled execution date of March 9 was also stayed by Judge Stephens.
  • UPDATE: The Attorney General of Ohio intends to sue the state Medical Board in an attempt to have them rescind their ban on the participation of doctors in executions.
  • UPDATE: Judge Stephens ruled that it was improper for the Medical Board to bar physican participation in executions. The Medical Board is appealing the ruling.
  • North Carolina Sup. Ct. upheld lower court ruling (4-3), thus barring the Medical Board from prohibitiing doctor participation.

Ohio

• In Ohio, a federal judge issued a preliminary injunction on April 28 thereby staying the scheduled June 15 execution of Jeffrey Hill for further hearings on lethal injection. A stay was also granted to Jeffrey Lundgren as part of a class action challenge to lethal injection filed by the Public Defender’s Office.

• • UPDATE: Lundgren’s stay was overturned by the 6th Circuit and he was executed by lethal injection on October 24.

• On Dec. 1, the U.S. Court of Appeals for the 6th Circuit granted a stay of Jerome Henderson’s execution, allowing him to join the class action suit. His stay remains in place. On Dec. 21, the U.S. District Court for the Southern Dist. of Ohio granted a stay of execution to Kenneth Biros, who was scheduled to be executed on Jan. 23, 2007.

• • UPDATE: On March 3, 2007, the 6th Circuit dismissed the class action suit, Cooey v. Taft, brought by numerous Ohio death row inmates because it was not filed within the statute of limitations allowing for such challenges. The defense attorneys said they would appeal.
  • UPDATE: Kenneth Biros was given another execution date of Mar. 20, 2007. However, that date was stayed pending the appeal of Cooey v. Taft decision.

• UPDATE: James Filiaggi was executed on April 24, 2007. Filiaggi had originally not opted to be part of the lethal injection suit, but changed his mind days before his execution. Ohio courts ruled that he had not properly sought administrative remedies before attempting to be part of the federal suit, which is still on appeal. It appears that some other executions in Ohio remain on hold pending resolution of this suit.

• UPDATE: Christopher Newton was executed on May 24, 2007 by lethal injection. Newton had waived his appeals. The execution took over 90 minutes as guards had considerable trouble finding a suitable vein for the IV.

• UPDATE: On June 1, 2007, the 6th Circuit denied an en banc hearing in Cooey v. Taft, thereby leaving in place their holding that the plaintiffs (death row inmates) had not filed their civil rights suit in a timely manner.

• UPDATE: U.S. District Court Judge Gregory Frost granted a stay of execution to Clarence Carter who is scheduled to be executed on July 10. Carter was allowed to join the class action challenge to Ohio’s lethal injection process. The court’s stay came before the 6th Circuit’s denial of an en banc hearing in Cooey. However, that decision will be appealed to the U.S. Supreme Court. Romell Broom’s scheduled execution on Oct. 18, 2007, has also been stayed.

• UPDATE: Judge James Burge halted a death penalty trial until he conducts hearings on the state’s lethal injection process. The Ohio Supreme Court upheld this ruling in a 5-2 decision. To read Ohio’s revised execution protocols, see Resources on main Lethal Injection page.
• UPDATE: Judge Burge ruled on a pre-trial motion challenging lethal injection and held that the state must use a 1-drug protocol to carry out its lethal injection of the defendants before him because state law requires that executions be quick and painless. Since a single dose of an anesthetic is more likely to produce that result, a change is required in the procedures. See Judge Burge’s ruling.
• UPDATE: Richard Cooey was executed on October 14, 2008.
• UPDATE: On Sept. 15, 2009, the execution of Rommel Broom was halted when guards could not find a suitable vein for the lethal injection. Subsequently, all executions in the state were put on hold. Ohio recently agreed to change its method to a 1-drug protocol (backed up by a two-drug injection into the muscles). The US Ct. of Appeals for 6th Cir. ruled that Kenneth Biros’ challenge to OH’s old protocol was moot and lifted his stay of execution. Execution was carried out on Dec. 8, 2009.
• UPDATE: Ohio’s 1-drug protocol and backup plan as outlined by the state’s attorney general.
  
• Ohio has carried out numerous executions using the 1-drug protocol, but has not set a re-execution date for Rommel Broom.

Oklahoma

• Oklahoma recently changed its lethal injection protocol in response to legal challenges. The state will now double the dose of sodium pentothal (an anesthetic) initially administered to the inmate, prior to the injection of the drugs that kill the inmate. (Associated Press, Aug. 21, 2006).

• Following the grant of cert. in Baze v. Rees, the attorney general of OK asked the state’s high court to stop setting execution dates.
• Oklahoma carried out its first post-Baze execution on June 14, 2008.
• Kevin Young is scheduled for execution on July 22, though the Pardons Board has recommended clemency.
• UPDATE: Young’s execution was delayed by the governor in order to consider information that his trial jury wanted to sentence him to life without parole. Young’s death sentence was commuted in 2008. The state has carried out executions by lethal injection in 2009.
  
• 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).

South Dakota

• Gov. Mike Rounds of South Dakota stayed the execution of Elijah Page on the day it was to be carried out because of concerns about the state’s lethal injection process. The governor said there was a conflict between state law requiring the use of two drugs, and the anticipated practice of using three drugs in the lethal injection. Such a practice could put state employees at risk of violating the law. Page had waived his appeals, but other inmates had raised challenges to the practice. (Argus Leader, Aug. 29, 2006). This act appears to put all executions in the state on hold until at least July 1, 2007.

• • UPDATE: A bill has been introduced to modify South Dakota’s lethal injection law. The Dept. of Corrections would determine the substances used and medical personnel need not participate. (Text of bill available from DPIC, Jan. 25, 2007). The bill has passed the legislature. New execution procedures have been issued by the state (see below).

• UPDATE: Elijah Page, a volunteer, was executed on July 11, 2007.

Tennessee

• In Tennessee on May 11, a federal judge stayed the scheduled May 17 execution of Sedley Alley because of his challenge to the lethal injection process (Nashville Tennessean, May 11, 2006). However, that stay was lifted by the Circuit Court. The governor subsequently granted a stay on May 16 to allow pursuit of DNA testing. (Tennessean, May 16, 2006). Alley was subsequently executed.

• • UPDATE: On Feb. 1, 2007, Governor Phil Bredesen issued an order staying all executions in the state for 90 days (until May 2) in order to allow time for a review of the state’s lethal injection procedures. Four executions had been scheduled. (Tennessean, Feb. 1, 2007). The governor stated that his order:
  • First of all, directs the Commissioner of Correction to initiate a comprehensive review of the manner in which death sentences are administered in Tennessee. It’s a comprehensive review, specifically including the state’s protocols and any related procedures, written or otherwise, related to the administration of the death sentence. And, in completing this review, have directed him to utilize all relevant and appropriate resources, including but not limited to scientific and medical experts, legal experts, and Correction professionals, both from within and outside of Tennessee, and also to research and perform an analysis of the best practices used by other states.
  • Number two, as soon as practical, but not later than May 2, 2007, the Commissioner of Correction is directed to establish and provide to me new protocols and related written procedures related to administering death sentences in Tennessee, both by lethal injection and electrocution. In addition, the Commissioner is directed to provide me with a report outlining the results of that review that has been performed.

• UPDATE: Tennessee issued new lethal injection protocols on April 30, 2007. An execution date had previously been set for May 9 (Philip Workman), and the governor said that the new protocols are what the state needed to proceed with executions. The new protocols carefully designate the role of each participant in the executions. However, the protocol still uses the same drugs that have been found problematic in many states. A doctor would be present only to declare death and to perform a cutdown procedure if absolutely necessary. A second round of the lethal drugs are to be administered if the inmate does not die from the first round.

• UPDATE: A U.S. District Court in Tennessee on May 4, 2007 issued a temporary restraining order on the execution of Workman. The judge said that Workman’s challenge to the state’s lethal injection process demonstrated a likelihood of success on the merits. (L.A. Times, May 5, 2007). The stay was lifted by the 6th Circuit and the U.S. Supreme Court denied a stay. Workman was executed on May 9. Despite family protests, an autopsy was done on his body, and the state announced that the lethal injection had proceeded properly.

• UPDATE: U.S. District Judge Aleta Trauger ruled that Tennessee’s new lethal injection procedures are cruel and unusual, a decision that halts executions in the state. Trauger stated that Tennessee’s new lethal injection protocols, released in April 2007, present “a substantial risk of unnecessary pain” and violate death row inmate Edward Jerome Harbison’s constitutional protections under the Eighth Amendment. She added that the protocols do not adequately ensure that inmates are properly anesthetized during lethal injections, a problem that could “result in a terrifying, excruciating death.” The decision noted that State Department of Corrections Commissioner George Little adopted the new guidelines despite having knowledge about the remaining risks of excessive pain for inmates. (Associated Press, September 19, 1007).

• UPDATE: Edward Harbison’s execution date of Jan. 9, 2008 was stayed by the 6th Cir. on Oct. 31, 2007.
• UPDATE: The state’s attorney general announced executions are on hold pending the appeal of the U.S. Dist. Ct.’s ruling in Harbison. (Assoc. Press, June 20, 2008).
• Two executions by lethal injection were carried out in 2009.

Texas

• In Texas on May 15, the Texas Court of Criminal Appeals stayed the scheduled May 16 execution of Derrick O’Brien because of his challenge to the lethal injection process (Houston Chronicle, May 15, 2006). The same court lifted the stay two days later. (H. Chron., May 17, 2006). He was executed on July 11.

• Texas allowed the execution of Michael Richard on Sept. 25, 2007, despite the U.S. Supreme Court’s decision to hear Baze v. Rees, a case with national implications for the lethal injection controversy.

• The U.S. Supreme Court stayed the execution of Carlton Turner on Sept. 27, 2007, after a stay was denied by the Texas Court of Criminal Appeals (TCCA).

• The TCCA granted a stay to Heliberto Chi on Oct. 2, 2007, possibly starting a state-wide hold on all executions while the matter is before the U.S. Supreme Court. The Nov. 27 execution of Dale Scheanette was also stayed.
• The TCCA granted a stay to Derrick Sonnier on June 3, 2008, the day of his scheduled execution. Sonnier’s petition for a stay pointed to the Chi case currently before the court. Other execution dates may be stayed.
• Chi’s lethal injection challenge was denied. Texas has carried out two post-Baze executions and Sonnier was given a new execution date.
• UPDATE: As of Aug. 13, 2008, Texas has carried out 7 post-Baze executions, including the executions of Sonnier and Chi.

Virginia

• On April 1, 2008, Gov. Tim Kaine issued a statement staying the execution of Edward Bell, scheduled for April 8, 2008, until the U.S. Supreme Court decides Baze v. Rees. The governor stayed other executions, as well, noting the disruption that execution dates cause when the execution will not be carried out. Bell’s execution was stayed until July 24, 2008. (Wash. Post, April 2, 2008).
• UPDATE: The governor lifted the reprieve on executions after the U.S. Supreme Court’s ruling in Baze. Kevin Green was executed on May 27, 2008.
• UPDATE: Christopher Emmett’s federal lethal injection challenge was denied by the Fourth Circuit (July 2008) and he has an execution date of July 24. He was executed.

Washington

• Switched to a 1-drug protocol in March 2010. No executions scheduled. Inmates may choose older 3-drug protocol, or hanging.