2010 and before lethal injection news

Alabama

• The 11^th 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 (11^th 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 11^th 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 8^th 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 8^th 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. 8^th 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 1^st 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 9^th 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 3^d 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 11^th 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 1^st 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 8^th 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 8^th 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 6^th Circuit and he was exe­cut­ed by lethal injec­tion on October 24.

• On Dec. 1, the U.S. Court of Appeals for the 6^th 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 6^th 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 6^th 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 6^th 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 6^th 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 6^th 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 6^th 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.