Lethal Injection

Veil of Execution Secrecy Expands in Several Southern Death-Penalty States

Three southern states have taken action to limit the public’s access to information relating to executions by increasing secrecy surrounding lethal-injection drug suppliers. On April 12, 2019, the Texas Supreme Court reversed an earlier decision that would have disclosed the source of lethal-injection drugs used to carry out executions in Texas in 2014, asserting that disclosure “would create a substantial threat of physical harm to the source’s employees and others.” On April 9, Arkansas Governor Asa Hutchinson signed into law one of the most expansive and punitive execution secrecy laws in the nation, concealing the identity of lethal-injection drug suppliers from the public and criminalizing disclosure of execution-related information. Act 810 exempts lethal-injection records from the state’s Freedom of Information Act and makes the intentional or reckless disclosure of the exempted information a felony. In Louisiana, amidst partisan feuding over the reasons the state has not carried out executions, a bill that would make secret the source of execution drugs was referred to the House Committee on Administration of Criminal Justice on April 8, the first day of the 2019 Louisiana state legislative session. Democratic Governor John Bel Edwards, who voted against a similar bill five years ago while serving as a state legislator, indicated that he would likely sign the measure. Louisiana’s legislature is also considering two bills that would abolish capital punishment.

The Texas Supreme Court decision marked the culmination of several years of litigation over the state’s lethal-injection secrecy policy. A Texas district court and a state court of appeals both ordered disclosure of the drug supplier’s identity, and the Supreme Court initially upheld those lower court rulings. The state asked for a rehearing, arguing that disclosure would have “potentially devastating consequences” to public safety. The rehearing took place after BuzzFeed News revealed through investigative reporting that the state had obtained lethal-injection drugs from Greenpark Compounding Pharmacy, a Houston based compounding pharmacy with a history of safety violations. When the compounder’s identity was revealed, activists peacefully protested outside the pharmacy. Attorney Ari Cuenin, arguing for the state, said that protests, along with alleged threats, had convinced pharmacies not to provide drugs to the state. The state called the pharmacy a “soft target” in an “urban area, whose only defense is its anonymity.”

A number of states have asserted that anti-death-penalty activists have intimidated pharmacies and major pharmaceutical companies into refusing to supply drugs for executions and have argued in legislative debates and in litigation that these alleged threats justify execution secrecy. In its secrecy bill, the Arkansas legislature alleged without evidence that “there is a well-documented guerilla war being waged against the death penalty” and that “[a]nti-death penalty advocates have pressured pharmaceutical companies to refuse to supply the drugs used by states to carry out death sentences.” In fact, calling the use of their medicines in execution contrary to their medical mission, several drug companies have sued Arkansas or filed friend-of-the-court briefs alleging that the state engaged in misrepresentations and subterfuge to improperly obtain their drugs. Independent media and law enforcement investigations have concluded that the alleged threats against drug manufacturers and suppliers have been unfounded or grossly exaggerated. A 2016 BuzzFeed News investigation revealed that FBI records debunked an alleged threat that Texas and Ohio claimed established the need for secrecy. That supposed threat was an email from a university professor who provided his name and phone number and warned an Oklahoma pharmacy to take safety precautions. The email was one of three pieces of evidence, along with a blog post and comments left on the website of a previous supplier, that the Texas court relied on in its decision. “There is no evidence of a history of specific threats to that particular pharmacist or pharmacy because the source's identity has been kept confidential,” the court wrote. “Thus, the question before us in this case is whether the mere fact that the public knows that the Department is receiving lethal injection drugs from some source, whoever it might be, is enough to conclude that a substantial threat of physical harm will come to bear on the source of the drugs if the identifying information is made public.”

Post-Midnight Decision on Alabama Execution Highlights Deeply Divided Supreme Court

In a contentious ruling issued in the early morning hours of April 12, 2019, the U.S. Supreme Court vacated a stay of execution issued by lower federal courts and cleared the way for Alabama to execute Christopher Price (pictured). The Court’s 5-4 decision, issued after 2:00 a.m. Eastern time, came after Alabama had postponed Price’s execution minutes before the midnight Central time expiration of his death warrant, with the lower court stay of execution still in effect. Joined by the three other liberal and moderate justices, Justice Breyer authored a scathing dissent that exposed sharp divisions in the Court over the manner in which it considers execution-related challenges in death-penalty cases.

Scheduled to be executed April 11, Price challenged Alabama’s lethal-injection protocol as unnecessarily torturous and –as required by Supreme Court case law – proposed an alternative method of execution. Price selected nitrogen hypoxia, the alternative method of execution made available in Alabama’s death-penalty statute. The Alabama Attorney General’s office opposed Price’s motion, arguing that lethal gas was not available to Price because he had failed to select it during the 30-day window created when Alabama added lethal gas to its execution statute. The district court agreed and denied Price’s claim, prompting an appeal to the U.S. Court of Appeals for the Eleventh Circuit. The circuit court ruled that once Alabama had codified lethal gas as an alternative method of execution under its statute, it could not claim that gas was unavailable to execute Price. However, the circuit court rejected Price’s stay motion, saying he had failed to meet the additional burden imposed by the U.S. Supreme Court that he prove that execution by nitrogen hypoxia would significantly reduce the risk of unnecessarily severe pain during the execution.

Following the 11th Circuit’s ruling, Price returned to the district court with uncontroverted affidavits from medical experts who said nitrogen gas posed a significantly reduced risk of severe pain compared to the state’s lethal-injection protocol. Based on this evidence, the federal district court granted Price a stay of execution. Later in the day, without ruling on the merits of the district court’s order, the 11th Circuit imposed its own stay of execution to consider jurisdictional issues presented by the district court stay. Alabama then filed an emergency motion in the U.S. Supreme Court seeking to vacate the stay, leading to the overnight ruling by the Court.

In a one-paragraph order vacating the stay, the majority said that Price had not timely selected lethal gas during a 30-day window created when Alabama added lethal gas to its execution statute and then waited until February 2019 to challenge the state’s method of execution. As a result, the majority viewed Price’s lawsuit and pre-execution filings as untimely. Justice Stephen Breyer – joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – wrote an impassioned dissent. “Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way,” he wrote, “let that person review the … circumstances as they have been presented to our Court this evening.” Breyer highlighted the uncontested evidence presented in the courts below: that Alabama’s lethal injection protocol will likely cause Price “severe pain and needless suffering”; that lethal gas is a readily available method, and that lethal gas is likely less painful than Alabama’s lethal injection protocol. Breyer also criticized the majority’s substitution of its judgment for the district court’s finding that Price had been “proceeding as quickly as possible on this issue since before the execution date was set” and was not attempting “to manipulate the execution.” Breyer expressed deep concern for the majority’s insistence on vacating a stay despite his request to consider the issue at a prescheduled conference to be attended by all the justices that morning. “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system,” Breyer wrote.

Alabama has not yet set a new execution date.

Badly Divided Supreme Court Denies Execution Challenge by Prisoner With Rare Disease

In a divisive 5-4 decision that exposed rancor and deep rifts among the justices, the U.S. Supreme Court has given Missouri the go-ahead to execute a prisoner whose blood-filled tumors in his head, neck, and mouth could burst if the state carries out his execution by its chosen method. Russell Bucklew (pictured), who suffers from the rare medical condition, cavernous hemangioma, had argued that Missouri’s lethal injection procedures would subject him to unnecessarily torturous and excruciating pain caused by the combination of suffocation and drowning in his own blood. Writing for the Court majority, Justice Neil Gorsuch rejected Bucklew’s claim, saying that the constitution prohibits only executions that intensify the sentence of death with “superadd[ed] … terror, pain, or disgrace.” “The Eighth Amendment,” he wrote, “does not guarantee a prisoner a painless death.” Gorsuch said a death-row prisoner could not prove superadded pain without proposing an available alternative execution method and that Bucklew had failed to do so. The four dissenters sharply criticized the decision for ignoring evidence that Bucklew would be subjected to excruciating pain, for creating impossible burdens on prisoners to avoid a torturous execution, and for sacrificing constitutional values for expediency in death penalty cases.

In a non-binding portion of the opinion, Justice Gorsuch suggested that challenges to lethal injection are often “tools to interpose unjustified delay” and wrote that “[l]ast-minute stays should be the extreme exception, not the norm.” Justice Clarence Thomas concurred separately reiterating his belief that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain. … Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there,” he wrote. Justice Brett Kavanaugh also concurred, emphasizing that the alternative method proposed by the death row prisoner “need not be authorized under current state law.” Kavanaugh suggested death by firing squad as an example of a potentially available alternative method.

Justices Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, dissented. Justice Breyer’s lead dissent criticized the majority’s treatment of the evidence Bucklew had presented in support of his Eighth Amendment claim. That evidence, Breyer wrote, establishes that “executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering” and “violates the clear command of the Eighth Amendment.” He also argued that a prisoner who is challenging the cruelty of a particular execution method based solely on his or her unique medical circumstances should not be required to identify an alternative method of execution, but that Bucklew nevertheless had adequately raised nitrogen hypoxia as an alternative. Finally, in a part of the dissent expressing only his own opinion, Breyer argued that the majority’s approach to redressing execution delays by “curtailing the constitutional guarantees afforded to prisoners” is inappropriate. Instead, he suggested, the delays necessary to ensure that the capital punishment is fairly imposed and properly carried out may be evidence that “there simply is no constitutional way to implement the death penalty.”

In a separate dissent, Justice Sotomayor called the Court’s approach to lethal-injection challenges “misguided,” writing that, “[a]s I have maintained ever since the Court started down this wayward path in [2015], there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions.” Calling the majority’s comments about last-minute stays “not only inessential but also wholly irrelevant to its resolution of any issue” before the Court, Sotomayor cautioned that “[i]f a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”

Federal Court Orders Alabama to Release Execution Protocol

In a victory for the media and advocates of open government, a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled on March 18, 2019 that Alabama must disclose key portions of its highly secretive lethal-injection execution protocol to the public. The Associated Press, the Montgomery Advertiser, and Alabama Media Group had sued for access to the protocol, which came under intense scrutiny in the wake of Alabama’s failed attempt to execute Doyle Lee Hamm (pictured) in February 2018.

Hamm, who has terminal cancer, challenged Alabama’s execution protocol. He argued that his veins had been compromised by his illness and executing him by lethal injection would constitute cruel and unusual punishment. The courts permitted the execution to proceed after Alabama said it would not attempt to insert an IV-line in Hamm’s arms or upper extremities. On February 22, 2018, executioners tried and failed for two-and-one-half hours to set an intravenous execution line. Alabama Department of Corrections Commissioner Jeffrey Dunn called off the execution but told the media, “I wouldn’t characterize what we had tonight as a problem.” Dunn repeatedly asserted the state had followed its execution protocol and claimed the execution had been halted only because the late court rulings in the case did not leave corrections personnel sufficient time to execute Hamm before his death warrant would have expired. Hamm filed a federal civil-rights lawsuit seeking to prevent Alabama from attempting to execute him a second time. As part of that suit, he filed a doctor’s report—the only public document describing the circumstances of the execution attempt—that indicated execution personnel had unsuccessfully inserted IV needles more than 10 times into Hamm’s feet, legs, and right groin, causing bleeding in his groin, and likely puncturing his bladder, causing blood in his urine. Shortly thereafter, Hamm and the state reached a confidential settlement in which Alabama agreed not to seek another execution date, the court records of the case would be sealed, Hamm would dismiss his lawsuit, and Hamm and his lawyers would not disclose any additional information about the case. In the aftermath, the three media outlets filed a motion to gain access to the protocol and execution records. A federal district court ruled in their favor in May 2018.

Alabama appealed that ruling, arguing that the lethal-injection protocol had never been formally filed with a lower court, and therefore was not a court record subject to public access. The appeals court rejected that argument, with Judge Charles Wilson writing: “Alabama’s lethal injection protocol may not have been formally filed under the rushed timeline of Hamm’s approaching execution, but the protocol constitutes a judicial record subject to the common law right of access because it was submitted to the district court to resolve disputed substantive motions in the litigation, was discussed and analyzed by all parties in evidentiary hearings and arguments, and was unambiguously integral to the court’s resolution of the substantive motions in Hamm’s as-applied challenge to the protocol.” The decision also addressed the importance of transparency to the public, saying “Judicial records provide grounds upon which a court relies in deciding cases, and thus the public has a valid interest in accessing these records to ensure the continued integrity and transparency of our governmental and judicial offices.”

Alabama’s execution secrecy has been at the core of several other execution controversies. In December 2016, execution witnesses reported that Ronald Smith clenched his fists and gasped repeatedly for nearly fifteen minutes. After the execution, Dunn told the public only that the state had “followed [its] protocol.” State officials later refused to provide any documentation about the execution. In February 2019, late disclosure of its secret protocol provision mandating that a Christian chaplain—and no other religious adviser—be present in the execution chamber led to the controversial execution of Muslim prisoner Domineque Ray without affording him access to an imam at the time of his execution.

Two Legislatures, Two Divergent Approaches to Execution Transparency

After controversial executions raised questions of government competence or misconduct, legislatures in two states have responded with bills taking sharply different approaches to the questions of government accountability and public oversight. Following an execution in which Nebraska Department of Corrections officials closed the curtain on fourteen crucial minutes of the execution of Carey Dean Moore, the Nebraska Senate Judiciary Committee heard testimony on March 7, 2019 on a bill that would mandate that two legislators witness an execution and require that eyewitnesses be permitted to observe the entirety of an execution from the moment the condemned prisoner enters the execution chamber to the time death is declared or the execution is called off. By contrast, an Arkansas state senator has responded to a lawsuit by pharmaceutical companies challenging widespread improprieties in the state’s procurement of execution drugs with a proposal that the state adopt the most extreme and punitive drug-secrecy law in the country.

In her statement to the Judiciary Committee, Nebraska State Sen. Patty Pansing Brooks of Lincoln (pictured, left), who sponsored Legislative Bill 238, said legislation was necessary to redress the “profound” lack of transparency in the state’s execution process. “This bill is not about whether the death penalty is right or wrong,” she said, “it’s about whether we have proper government accountability and transparency in carrying out this grave and somber event.” Corrections Director Scott Frakes, whom committee members criticized for failing to appear personally to respond to questions about the Moore execution, sent a letter to the committee opposing the bill. Omitting reference to the periods of the execution in which the execution-IV line was inserted and the curtain was dropped, Frakes claimed that “[w]itnesses observe the entire execution process." Referring legislators to the Death Penalty Information Center’s November 2018 report on execution secrecy in the United States, DPIC Executive Director Robert Dunham told the committee of numerous incidents in which eyewitness observations could have resolved serious questions about problematic executions. Dunham told the committee that in a government by and for the people, the state “shouldn't hide important information from the people.”

In Arkansas, a bill introduced in the state senate sought to further conceal the state’s controversial execution practices. On March 6, the Senate Judiciary Committee approved a bill sponsored by State Sen. Bart Hester (pictured, right), that would broadly exclude from public disclosure any documents, records, or information that could lead to the discovery of the state’s sources of execution drug or the identification of drug manufacturers or distributors. The bill also would make reckless disclosure of such information a felony. Arkansas’s conduct in procuring execution drugs, which led drug distributor McKesson Medical-Surgical to sue the state alleging that Arkansas had deliberately misled the company to believe that the drug purchase was for legitimate medical purposes, raised questions concerning the need for transparency in the execution process. Those questions were heightened following evidence of additional problems during executions with those drugs. After Arkansas state courts ruled that the state’s prisons must disclose portions of the pharmaceutical drug and packaging labels for the drugs it intended to use in executions, the Department of Corrections said it was suspending its search for new supplies of execution drugs until the legislature adopted even broader secrecy laws.

Hester downplayed the importance of transparency concerns, calling a March 8 meeting of a legislative Freedom of Information Act Task Force “a waste of my time.” Refusing to attend the meeting, Hester said “[a]nything that they have to say on it I don't think has value.” In an email to the Associated Press, Dunham said, “If a state wanted to break the law and breach contracts with impunity and hide its misconduct from the public, [the Arkansas bill] is the type of bad-government law it would pass.”

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 14, 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 14, 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.

Pages