Lethal Injection

Ohio Governor Halts “Cruel and Unusual” Lethal-Injection Executions

Ohio Governor Mike DeWine (pictured) has halted all executions in the state until its Department of Rehabilitation and Correction is able to develop a new execution protocol that gains approval from the courts. Responding to the findings of a federal court that likened Ohio’s three-drug lethal-injection protocol to a combination of waterboarding and chemical fire, DeWine said “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment.” DeWine announced his decision at an Associated Press forum in Columbus on February 19. The Republican governor did not set a date on which he expected executions to resume, saying “[a]s long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio.”

On January 22, federal magistrate Judge Michael Merz issued an opinion saying that executions under Ohio’s current drug protocol “will almost certainly subject [prisoners] to severe pain and needless suffering.” Mertz noted that 24 of 28 available autopsies from executions involving the sedative midazolam – the first drug in Ohio’s protocol – showed evidence of pulmonary edema, a build-up of fluid in the lungs that was “painful, both physically and emotionally, inducing a sense of drowning and the attendant panic and terror, much as would occur with the torture tactic known as waterboarding.” Mertz found that midazolam lacked the pharmacological properties necessary to keep the prisoner unconscious during the administration of the paralytic second drug, rocuronium bromide, and the heart-stopping third drug, potassium chloride. As a result, he said, the prisoner would experience the sensation of “fire … being poured” through his veins when those drugs were administered. The court’s ruling led DeWine to issue a six-month reprieve to death-row prisoner Warren Keith Henness, who had been scheduled to be executed February 13.

DeWine sponsored Ohio’s capital punishment law as a state senator in 1981 and later represented the state in death-penalty cases as its Attorney General. The governor, who is Catholic and identifies himself as pro-life, has not said how those beliefs affect his stance on the death penalty. When reporters at the forum asked about his personal views on capital punishment, DeWine equivocated. “It is the law of the state of Ohio,” he said. “And I’ll let it go [not comment further] at this point. We are seeing clearly some challenges that you have all reported on in regard to carrying out the death penalty.” Ohio has six more executions scheduled in 2019 and 23 scheduled through 2023.

Kevin Werner of Ohioans to Stop Executions praised the governor’s decision, but cautioned that broad problems identified in a 2014 Task Force Report on the state’s death penalty still need to be addressed. The people set to be executed, he said, are among the most vulnerable in the criminal legal system: “They are people who are poor, who killed white victims, and who have some underlying substance abuse or abuse as children or have a mental illness – I mean, that’s who we’re talking about here."

Governor Grants Execution Reprieve Over Concerns About Ohio’s Lethal-Injection Process

Citing a federal court’s concerns that Ohio’s lethal-injection process is unnecessarily torturous, newly inaugurated Ohio Governor Mike DeWine (pictured, left) has issued a six-month reprieve to death-row prisoner Warren Keith Henness (pictured, right), delaying his execution from February 13 to September 12, 2019. In granting the reprieve, DeWine also directed the Ohio Department of Rehabilitation and Correction to review Ohio’s possible alternative drugs to carry out lethal-injection executions.

On January 22, federal magistrate Judge Michael Merz issued an opinion likening Ohio’s current three-drug execution process to a combination of waterboarding and chemical fire. Judge Mertz wrote: “If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering. Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment.” Nonetheless, Merz allowed the execution to go forward, saying the U.S. Supreme Court’s controversial 2015 ruling in the lethal-injection case Glossip v. Gross prevented him from granting a stay. Glossip requires a prisoner who challenges an execution protocol to provide an alternative method that is “available, feasible and can be readily implemented,” a standard Mertz said that Henness was unable to meet. Henness’s attorneys applauded the governor’s decision to issue a reprieve. “The evidence presented in the federal court hearing made it clear that moving forward under the current lethal-injection protocol would subject Mr. Henness to needless pain and suffering, in direct violation of his rights under state law and the state and federal constitutions,” said David Stebbins of the federal public defender’s office. “We commend Governor DeWine for his leadership and for ensuring the justice system operates humanely in Ohio."

Merz’s ruling described several problems with the use of midazolam, the first drug in Ohio’s lethal-injection protocol. He said that — contrary to the evidence available to the Court at the time of Glossip — midazolam does not render the prisoner sufficiently unconscious to block the painful effects of the second drug, a paralytic, and the third drug, potassium chloride, which he said would feel “as though fire was being poured” through the prisoner’s veins. He also noted that 24 of 28 available autopsies from midazolam executions showed the prisoner experienced pulmonary edema, or fluid in the lungs, which he said was “painful, both physically and emotionally, inducing a sense of drowning and the attendant panic and terror, much as would occur with the torture tactic known as waterboarding.”

Ohio has struggled to find a constitutionally and legally acceptable method of execution. Its state law holds that executions must be “quick and painless.” After the 2014 botched execution of Dennis McGuire, the state changed its protocol, removing midazolam. It reversed course in October 2016, announcing a three-drug protocol beginning with midazolam. In January 2017, Judge Merz halted three executions because he said the protocol amounted to cruel and unusual punishment, and a three-judge panel of the U.S. Court of Appeal for the Sixth Circuit upheld that decision, but the full Sixth Circuit court reversed it in June 2017, allowing executions to resume. Since 2014, Ohio has carried out three executions, while 33 have been delayed by court decisions or by the state’s inability to obtain lethal-injection drugs.

Scott Dozier, Who Unsuccessfully Tried to Force Nevada to Execute Him, Dead of Apparent Suicide

Nevada death-row prisoner Scott Dozier (pictured), who unsuccessfully tried to force the state to execute him, was found dead in his prison cell on January 5, 2019 of an apparent suicide. News reports indicated that Dozier had hanged himself. Dozier had told the court and several reporters that he would rather die than spend life in prison and had attempted to speed up his execution by dropping his appeals. However, his prior suicide attempt raised questions about his mental state and his competency to waive appeals.

Dozier’s case gained national attention when Nevada proposed to execute him with an untested fentanyl-based drug combination after it was unable to replace its expired supplies of the drugs authorized under its prior execution protocol. He would have been the first person ever executed using fentanyl. Though steadfast in seeking execution, Dozier initially allowed federal public defenders to challenge the constitutionality of the new drug protocol. That challenge resulted in two stays of execution in 2017, after the trial judge found that the use of the paralytic drug cisatracurium in combination with diazepam (Valium) and fentanyl could cause Dozier to experience “air hunger” and suffocate to death, while masking signs that he was conscious and suffering during the execution. The court authorized the execution if Nevada dropped the paralytic drug, but Nevada appealed, prompting Dozier to write to the state judge who had halted his execution that “I’ve been very clear about my desire to be executed ... even if suffering is inevitable.” Court filings in a prior lawsuit challenging Dozier’s isolation in prison revealed that he had previously attempted suicide after having been denied recreation time, communication with his family, and consultation with his legal counsel. The state argued at that time that Dozier’s isolation was necessary to protect him from self-harm.

The Nevada Supreme Court later vacated the lower court’s stay order on procedural grounds, clearing the way for a second death warrant, which was issued in June 2018. Eight days before the July 11, 2018 execution, Nevada changed its drug formula again, and drug manufacturer Alvogen filed suit against the state for allegedly obtaining a supply of its sedative, midazolam, “by subterfuge” to circumvent the company’s restrictions against sales of its products for use in executions. A Clark County District Judge halted Dozier’s execution, agreeing with Alvogen that Nevada had misrepresented its intended use of the drugs and purchased them in “bad faith” through subterfuge. The court barred the state from using the drugs obtained from Alvogen in any execution. At the time of Dozier’s death, state prosecutors had not yet decided whether to appeal that order. Nevada prison officials had recently placed Dozier in solitary confinement, purportedly for self-protection.

NEW PODCAST: DPIC’s 2018 Year End Report

In the latest podcast episode of Discussions with DPIC, members of the DPIC staff discuss key themes from the 2018 Year End Report. Robert Dunham, Ngozi Ndulue, and Anne Holsinger delve into the major death-penalty trends and news items of the year, including the “extended trend” of generational lows in death sentencing and executions, election results that indicate the decline will likely continue, and the possible impact of Pope Francis’s change to Catholic teaching on capital punishment. They explore the reasons for reduced death-penalty usage, highlighting the stories of people who were exonerated in 2018, the theme of executing people with characteristics that make them vulnerable to unfair legal proceedings, and the ongoing controversy surrounding execution methods.

DPIC Executive Director Robert Dunham noted the importance of the shrinking death-row population, saying, “Death row is declining in size even as the number of executions is declining, which suggests that the decline is a result of the erosion of capital punishment, as opposed to it actually being carried out.” He explains the lack of death sentences in several traditional death-penalty states, including Virginia, North Carolina, South Carolina, and Georgia. “The biggest change is the availability of quality indigent defense,” Dunham said, adding that the adoption of life without parole as a sentencing option has also been a major contributing factor.

Dunham addresses the theme of inadequate legal process, saying that the current system fails to ensure that prisoners’ constitutional rights are fully upheld. “If we want the death penalty in the United States, ... it’s imperative that it be able to accurately assess whether somebody was fairly tried, whether somebody was fairly sentenced, and whether the individual deserves to live or die,” he said. Those procedural failures, and the secrecy that surrounds executions, have created a “distrust” among the public that Dunham predicts with have a “prolonged and lingering effect.” “In 2018, death sentences were down, executions were down for a variety of reasons, but I think one of the reasons that’s going to last and contribute to a continued reduction in the future is that more and more people think that we can’t trust the states to carry it out,” Dunham concluded.

Alabama’s Use of Nitrogen Asphyxiation Still in Limbo

In March 2018, Alabama enacted a new law authorizing the use of nitrogen gas as an alternative method of execution. Although lethal injection remained the primary method of execution, the law provided condemned prisoners a limited opportunity to designate nitrogen asphyxiation (hypoxia) as the means of their death. The availability of execution by nitrogen gas led to a July 2018 settlement of a federal lawsuit Alabama’s death-row prisoners had filed that had challenged the constitutionality of the state’s three-drug lethal injection protocol as constituting cruel and unusual punishment. But nine months after the law was enacted and five months after the prisoners opted for execution by lethal gas, Alabama has not yet issued a protocol explaining how it intends to conduct nitrogen-gas executions, and there are no clear indications as to when the state will do so.

No state has carried out an execution through nitrogen hypoxia, although three states – Alabama, Mississippi, and Oklahoma – now authorize its use if lethal injection is held unconstitutional or determined to be unavailable. Alabama also permits its use if the prisoner selects lethal gas over lethal injection. Other forms of lethal gas, all involving a gas chamber, have been used in 11 of the 1,490 executions carried out in the United States since executions resumed in 1977. However, none of the states authorizing the use of nitrogen gas has issued a nitrogen-gas execution protocol nor have the states indicated whether they plan to construct a vacuum chamber or use some form of a death mask to administer the gas.

The Alabama legislature turned to nitrogen gas as an alternative to lethal injection in response to difficulty obtaining appropriate drugs for lethal injection and a series of botched or visibly problematic lethal-injection executions using the drug midazolam. In February 2018, the execution of Doyle Lee Hamm was called off after an Alabama execution team failed for two-and-a-half hours to find a suitable vein in which to place an intravenous execution line. In October 2017, witnesses to the 35-minute execution of Torrey McNabb reportedly “expressed repeated concerns to each other that he was still conscious during the lethal injection.” Witnesses also reported that Ronald Smith heaved, coughed, clenched his left fist, and opened one eye during one 13-minute period of his 34-minute execution in December 2016. In November and December 2018, two Tennessee death-row prisoners elected to be executed in the electric chair after a medical expert reported that Billy Ray Irick had not been properly anesthetized and experienced the torturous effects of the second and third lethal-injection drugs while still conscious during a prolonged midazolam execution

After a gas protocol is promulgated, it will still be subject to court challenges based upon the particular method chosen. The Alabama Department of Corrections has said it is “continuing to develop the protocol” in conjunction with the Alabama Attorney General's Office.

Execution Secrecy Takes a Hit in Court Proceedings in Indiana, Missouri

The execution process in Indiana and Missouri may become more transparent as a result of public-access lawsuits filed in the two states. In Indiana, a Marion County trial judge ruled on November 30, 2018 that the state must release pre-2017 records concerning the drugs obtained by the state for executions and the companies that produced them. Three days earlier, the ACLU of Missouri announced the settlement of a lawsuit filed on behalf of investigative journalist Chris McDaniel that ensured that the Missouri Department of Corrections could no longer retaliate against reporters or news outlets by excluding them from witnessing executions.

The Indiana ruling came in a public records suit brought by a lawyer, A. Katherine Toomey, in which Circuit Court Judge Sheryl Lynch had previously ordered the state to disclose documents on the details of Indiana’s execution protocol. To evade compliance with the court’s 2016 order, at 2 a.m. on the final day of the 2017 legislative session, the legislature inserted a two-page secrecy provision into the state 175-page budget bill. That provision exempted the records Toomey had sought from public disclosure. David Dickmeyer, arguing on behalf of the state, told Judge Lynch that the new law constituted a “special circumstance” requiring the court to change her prior ruling. The secrecy provision was necessary, he asserted, because releasing the records would subject the state’s drug supplier to “public shaming, public protests, hate mail and lawsuits.” Judge Lynch disagreed, writing, "The General Assembly may not change the result of [the public records] litigation. While other requests may be precluded by the Statute, blocking Toomey’s request after this Court had already ordered the Department to produce the documents violates ... Indiana’s Constitution.”

The Missouri litigation challenged the state’s procedure for designating execution witnesses, which granted the director of the Department of Corrections sole discretion to select media witnesses. McDaniel—who as a reporter for St. Louis Public Radio and then BuzzFeed News had exposed questionable conduct by the Missouri Department of Corrections and reported that the state’s previously secret drug supplier had committed more than 1,800 health and safety violations—had applied to be a media witness for 17 executions. The corrections department ignored the applications and provided no reason for refusing to select McDaniel as a witness. In announcing the settlement, the ACLU of Missouri, which represented McDaniel, said: “The government cannot give or deny access to a reporter based on government officials’ feelings about an individual’s reporting.” Under the settlement, media witnesses will now include reporters designated by the Associated Press, the Missouri Broadcaster’s Association, and the Missouri Press Association, along with a fourth reporter from a local agency. “Executing inmates is the most serious power state governments have,” said McDaniel. “And the public has a right to know the details of how the government is using that power.”

An op-ed by Los Angeles Times opinion writer Scott Martelle took issue with the secrecy surrounding recent U.S. executions. “Secrecy advocates argue that the drugmakers must remain in the shadows to keep opponents of the death penalty from protesting them,” wrote Martelle. “In other words, if the states can’t conduct the people’s business in secret, the people might rise in opposition to the business the state is conducting. So much for open governments and public accountability.” The op-ed cited McDaniel’s investigation of the safety violations committed by the compounding pharmacy that produces Texas’s lethal-injection drugs and DPIC’s report on secrecy, Behind the Curtain: Secrecy and the Death Penalty in the United States. “Remember, executions are conducted in the name of the people, who have a right to know how the state performs the abominable act. This retreat into secrecy is an act of shame, not openness,” Martelle wrote.

Investigation Reveals Texas Obtained Possibly Tainted Execution Drugs from Pharmacy With Tainted Safety Record

For the past three-and-a-half years, Texas has purchased execution drugs from a Houston-based compounding pharmacy that, BuzzFeed News reports, “has been cited for scores of safety violations” and whose license to operate is currently on probation. In an exclusive story by investigative reporter Chris McDaniel, BuzzFeed discovered that Texas secretly obtained execution drugs from the Greenpark Compounding Pharmacy, a pharmacy that the Texas State Board of Pharmacy has cited for 48 violations in the past eight years, including “keeping out-of-date drugs in stock, using improper procedures to prepare IV solutions, and inadequate cleaning of hands and gloves.” Greenpark’s license was put on probation in November 2016 after it botched a prescription for three children, sending one of them to the hospital for emergency care. Instead of providing the children lansoprazole, a drug to treat high levels of stomach acid, the pharmacy gave them lorazepam, an anti-anxiety drug similar to Xanax. A pharmacy technician was found to have forged quality-control documents relating to the incident. Two hundred compounding pharmacies are currently licensed in Texas, and Greenpark is one of only eight whose license is on probation or revoked.

The discovery of Greenpark’s tainted safety history comes in the wake of suggestions by medical experts that the drugs used in recent Texas executions may have been outdated or impure. The last words of five of the eleven prisoners executed in Texas so far in 2018 indicated that they experienced burning after the execution drug, pentobarbital, was injected. Pentobarbital, an anesthetic, is intended to produce a painless execution. In January, as the state executed Anthony Shore, he called out, “I can feel that it does burn. Burning!” Juan Castillo, Troy Clark, Christopher Young, and Danny Bible all said the drug burned or hurt during their executions. A sixth prisoner, William Rayford, was observed writhing and shaking on the gurney after the drug injection. Dr. David Waisel, an anesthesiologist and Harvard Medical School professor, wrote in a 2016 affidavit, “Improper compounding and testing procedures may leave fine particles undetectable by the naked eye in the solution, or larger particles that would not be detected by an untrained eye. These particles can cause great irritation to the vein, resulting in extraordinary pain.”

Both Texas and Greenpark sought to keep the pharmacy’s identity secret, but BuzzFeed obtained documents showing that Texas sent the compounding pharmacy the raw ingredients for pentobarbital in April 2015 and February 2016. In June 2018, Greenpark submitted a declaration in a lethal-injection suit, using the pseudonym “Pharmacy X,” stating that its “decision to supply the Texas Department of Criminal Justice with lethal injection chemicals was and is contingent on Pharmacy X’s identity remaining secret.” The declaration asserted that “Pharmacy X will no longer conduct business with the Texas Department of Criminal Justice” if its identity is disclosed or revealed.

Kentucky Joins States With No Executions for at Least Ten Years

On November 21, 2018, Kentucky marked 10 years since its last execution, becoming the eleventh current death-penalty state that has not carried out an execution in more than a decade. Another 20 states have legislatively or judicially abolished their death-penalty laws, bringing the number of states that do not actively use the death penalty to 31. On the day before Kentucky reached its 10-year milestone, a lawsuit filed in federal court highlighted some of the greatest dangers of capital punishment in the Commonwealth. On November 20, Nickie Miller—a military veteran and cancer patient who spent two years in jail facing a possible death sentence before murder charges against him were dropped in 2017—filed a lawsuit against Montgomery County, Kentucky and local and state law enforcement officials alleging that they had conspired to frame him for murder.

Miller’s complaint names six people involved in his investigation and prosecution as defendants: Montgomery County Sheriff Fred Shortridge, Assistant Commonwealth Attorney Keith Craycraft, Detectives Ralph Charles Jr. and Mark Collier, county jailer Eric Jones, and Kentucky State Police Polygraph Examiner John Fyffe. The complaint alleges that the defendants fabricated and destroyed evidence, testified falsely, and coerced a woman into falsely implicating Miller by threatening to take her children unless she provided the statement they wanted. It specifically claims that Fyffe and the sheriff’s officers “conspired to take [Miller’s] liberty by knowingly initiating false charges based on evidence that the Defendants fabricated.” According to the complaint, the alleged misconduct “had a profound impact” on Miller’s health, denying him “proper medical treatment [for his cancer], including chemotherapy, while incarcerated.” “The defendants succeeded in manipulating the justice system for several years, including falsely accusing Mr. Miller of capital murder and seeking the death penalty against a clearly innocent man,” defense investigator Joshua Powell said. “Mr. Miller has suffered tremendous damage, mental suffering, cancer recurrence and loss of a normal life, all caused by the defendants’ misconduct.”

Kentucky has imposed 97 death sentences since reinstating the death penalty in 1975. More than half (49) of those convictions or sentences have been overturned, including the conviction of Larry Osborne, who was exonerated in 2002. Two of the three men executed in Kentucky waived some or all of their appeals, “essentially committing legal suicide,” said Damon Preston, a Public Advocate at the Kentucky Department of Public Advocacy. Preston also said that Kentucky’s death penalty system deprives families of closure: “It’s hard to see how the family would get resolution when the cases go on for so long. But the reason cases go on for so long is because the death penalty in Kentucky doesn’t work. If a defendant is sentenced to life without parole, that defendant gets an appeal to the Kentucky Supreme Court and then the case is essentially over.” Executions in Kentucky have been under a judicial hold since 2010, as a result of challenges to the lethal-injection protocol. The Attorney General’s Office is scheduled to file its brief in the lethal-injection case on November 30, but additional hearings and briefing are expected before the court issues a ruling in the case.

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