Lethal Injection

FDA Issues Final Order Refusing to Release Illegally Imported Lethal-Injection Drugs to States

The U.S. Food and Drug Administration (FDA) has issued a final order refusing to release illegally imported medicines that the states of Texas and Arizona had intended to use in executions. On April 20, 2017, the FDA notified prison officials that it would not release the two states' shipments of 1,000 vials each of sodium thiopental that the FDA had seized at U.S. airports in October 2015 when the states had attempted to import the drug from a supplier in India. Both shipments were halted at the airport by FDA officials, who said the importation of the drugs violated federal regulations. A third shipment of 1,000 vials of the drug ordered by Nebraska was halted by FedEx before it left India because the shipping company was not provided paperwork indicating FDA approval to import the drugs. Sodium thiopental, an anesthetic widely used in executions prior to 2010, is no longer produced by any U.S. pharmaceutical manufacturers, and the FDA has said that it has no legal uses in the U.S. In January 2017, the Texas Department of Criminal Justice sued the FDA, demanding a final decision on the detained imports. In a statement, the FDA announced it had "made a final decision, refusing admission of the detained drugs into the United States." FDA press officer Lyndsay Meyer said that the shipments of sodium thiopental had been confiscated because the detained drugs appeared to be unapproved new drugs and misbranded drugs. The shipments, the agency said, must be either exported or destroyed within 90 days. Texas insisted that the import was covered by a "law enforcement exemption," because the drug was intended for use in executions. The FDA said its decision was made in compliance with a 2012 court order: "The court order requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug." Since 2012, Texas has used another anesthetic, pentobarbital, in all executions. Arizona has used several different lethal-injection protocols since sodium thiopental became unavailable.

State and Federal Courts Grant Stays, Preliminary Injunctions Blocking 8 Arkansas Executions

In legal challenges filed separately by Arkansas death-row prisoners and a company involved in the distribution of pharmaceuticals, the Arkansas state and federal courts issued preliminary injunctions putting on hold the state's plan to carry out an unprecedented eight executions in the span of eleven days. After a four-day evidentiary hearing that ended late in the evening on Thursday, April 13, the United States District Court for the Eastern District of Arkansas issued a preliminary injunction barring Arkansas from carrying out the eight scheduled executions with a three-drug cocktail of midazolam, vecuronium bromide, and potassium chloride. The District Court issued its opinion and order early Saturday, April 15, finding "a significant possibility” that the prisoners' challenge to the lethal injection protocol will succeed and that Arkansas' execution plan denies the prisoners meaningful access to counsel and to the courts during the course of the executions themselves. In granting the preliminary injunction, Judge Kristine G. Baker wrote, "The threat of irreparable harm to the plaintiffs is significant: If midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die." The ruling came a week after the U.S. Court of Appeals for the Sixth Circuit upheld a preliminary injunction granted by an Ohio federal district court barring that state from using midazolam in a three-drug execution process. Arkansas has appealed the decision to the U.S. Court of Appeals for the Eighth Circuit.

In another lawsuit filed in state court by McKesson, the company that distributed vecuronium bromide to the Arkansas Department of Corrections, an Arkansas circuit judge issued an order in the late afternoon on Friday, April 14, temporarily blocking the state from using the drug. McKesson had filed a complaint alleging that Arkansas misled them about the intended use of the drug and refused to return it even after being issued a refund. Arkansas appealed the court's order, but after the federal injunction was issued, McKesson asked the Arkansas Supreme Court to vacate the state-court order because it would not be necessary as long as the federal injunction is in place.

Two prisoners separately received individual stays of execution. The Arkansas Supreme Court stayed the execution of Bruce Ward, scheduled for April 17, to allow consideration of his claim that he is incompetent to be executed. A federal district court stayed the execution of Jason McGehee, scheduled for April 27, to comply with the required 30-day public comment period after the Arkansas Parole Board's 6-1 recommendation for clemency.  [UPDATE: The U.S. Court of Appeals for the 8th Circuit reversed the District Court's ruling staying the Arkansas executions based upon its use of midazolam and the U.S. Supreme Court declined to review the issue. The Arkansas Supreme Court lifted the temporary restraining order against the state's use of medicines obtained from the McKessen Corporation to carry out executions.]

Federal Appeals Court Upholds Injunction Against Ohio Execution Protocol

The U.S. Court of Appeals for the Sixth Circuit has upheld a lower federal court ruling blocking the state of Ohio from proceeding with plans to carry out executions with its new three-drug execution protocol. The decision affirmed a district court preliminary injunction that barred the state from using the drug midazolam as part of a three-drug execution process, and barred the state from using "any lethal injection method which employs either a paralytic agent...or potassium chloride." Judge Karen Moore, writing for the 2-1 majority, said, “We are bound by the district court’s factual finding that ‘use of midazolam as the first drug in a three-drug execution protocol will create ‘a substantial risk of serious harm.’” Midazolam, a sedative, has been linked to botched executions in Ohio, Oklahoma, Arizona, and Alabama. Three Ohio death-row prisoners, Gary Otte, Ronald Phillips, and Raymond Tibbets, challenged Ohio's proposed protocol, which would use midazolam, followed by a paralytic drug, followed by potassium chloride to stop the heart. In January, a U.S. Magistrate Judge conducted the most extensive evidentiary hearing to date on the constitutionality of using midazolam in executions. After hearing five days of testimony featuring expert medical witnesses and eyewitness accounts of previous midazolam executions, the court issued a preliminary injunction against Ohio's execution protocol. The Sixth Circuit upheld the district court's decision, ruling that—given the evidence presented at the hearing—the court's findings of fact regarding the risks posed by midazolam were not clearly erroneous. The appeals court also upheld the lower court's injunction against the use of any paralytic drug or potassium chloride, agreeing with the district court that Ohio was bound by its previous repeated representations that it would not use those drugs in future executions. In reliance on those representations, the death-row plaintiffs had dropped claims related to those drugs from the litigation. The Sixth Circuit wrote, "[a]llowing the State to reverse course and use pancuronium bromide and potassium chloride in executions not only would unfairly advantage the State, but also would undermine the integrity of this litigation." In a short concurring opinion, Judge Jane Stranch commented: "This dialogue about the constitutional prohibition on cruel and unusual punishment is closely intertwined with our ongoing national conversation about the American criminal justice system. Woven through both is disquiet about issues such as punishing the innocent, discrimination on the basis of race, and effective deterrence of crime. These concerns are present throughout the criminal justice processes from arrest, to trial, to sentencing, to appeals, and to the final chapter in death penalty litigation such as this." Judge Raymond Kethledge dissented from the majority opinion. Ohio Attorney General Mike DeWine's office has not yet decided whether to appeal the decision.  

Virginia Increases Execution Secrecy After Difficulty Setting IV in Last Execution

After prison personnel took more than a half hour to set the IV line during Virginia's January 18 execution of Ricky Gray, the Commonwealth's Department of Corrections has changed its execution procedures to conduct more of the execution preparations out of view of witnesses. Prior to the change, witnesses watched as the prisoner entered the execution chamber and was strapped to the gurney. A curtain was closed while staff placed intravenous lines and electrodes for a cardiac monitor, then reopened when the execution was ready to be carried out. The curtain was closed for 33 minutes during Gray's execution, raising concerns that something had gone wrong in the placement of the IV. The ACLU of Virginia said, "the length of time Gray was behind the curtain, as well as the presence of a doctor who confirmed his death using a stethoscope rather than by viewing a heart monitor as the previous protocols required, suggest something unusual happened during the process of killing him." Under the new protocol, witnesses will no longer be able to view the prisoner entering the chamber, so they will not know when the process begins. In 2015, the American Bar Association adopted an Execution Transparency Resolution calling for execution protocols to be promulgated "in an open and transparent manner" and to "require that an execution process, including the process of setting IVs, be viewable by media and other witnesses from the moment the condemned prisoner enters the execution chamber until the prisoner is declared dead or the execution is called off." In response to the Commonwealth's change in policy, the ACLU of Virginia urged Governor Terry McAuliffe to halt all pending executions and initiate a public review of the execution protocol. "It seems that, when confronted with questions and criticism over issues with the written protocols and actual practice of executing people in Virginia, the DOC and the administration’s posture is to ignore these concerns and then tighten the veil of secrecy even further to avoid uncomfortable questions in the future," the ACLU stated in a letter to the governor. The Virginia ACLU's Director of Public Policy and Communications, Bill Farrar, told WVIR-TV, "We have secrets upon secrets upon secrets with Virginia's process of executing people in this state and it needs to stop."

Inventor of Midazolam Opposes Its Use in Executions

As U.S. pharmaceutical companies have removed medicines from the market to prevent states from obtaining them for executions, states have turned to alternatives, like the sedative midazolam. Dr. Armin Walser, who was part of the team that invented the drug in the 1970s, is dismayed at that development. “I didn’t make it for the purpose” of executing prisoners, Dr. Walser told The New York Times. “I am not a friend of the death penalty or execution.” For most of midazolam's history, the medicine was used only for its intended purpose: as a sedative in procedures like colonoscopies and cardiac catheterizations. Since 2009, however, six states have used it to carry out a total of 20 executions. Midazolam's use in executions has been marked by controversy because, critics argue, it is a sedative, not an anesthetic, and does not adequately anesthetize the condemned prisoner before painful execution drugs are administered. Megan McCracken, a specialist in lethal injection litigation with the University of California-Berkeley law school said, “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.” Midazolam was used in the botched executions of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama. In January 2017, a federal magistrate judge barred Ohio from using midazolam in executions, saying that its use presented a substantial and objectively intolerable risk of serious pain and suffering during executions. As a result of litigation challenging Arizona's lethal injection protocol in the wake of Wood's execution, that state agreed that it would never again use midazolam. The manufacturer of the drug has said it “did not supply midazolam for death penalty use and would not knowingly provide any of our medicines for this purpose," leaving states to turn to alternative suppliers if they want to continue using midazolam in executions. Walser said that, when he learned about midazolam's use in executions, "I didn't feel good about it."

Arkansas Schedules Unprecedented Eight Executions in Ten-Day Period

Arkansas Governor Asa Hutchinson signed orders on February 27 for an unprecedented eight executions to be carried out over a period of ten days in April. The scheduled dates for the four sets of double executions are: April 17, Bruce Ward and Don Davis; April 20, Stacey Johnson and Ledell Lee; April 24, Jack Jones and Marcel Williams; and April 27, Kenneth Williams and Jason McGehee. Arkansas Attorney General Leslie Rutledge asked that the dates be set after the U.S. Supreme Court on February 21 declined to review a state court decision upholding Arkansas' lethal injection protocol. Because of drug shortages and challenges to its lethal injection procedures, the state has not carried out an execution since 2005. If all eight executions are performed, it will be the first time since 1997 that a state has executed eight people in one month, when Texas conducted eight executions in both May and June of that year. No other state has conducted as many as eight executions in a single month since executions resumed in the U.S. in 1977, and no state has carried out eight executions in ten days. Scheduling two or more executions on the same day is also unusual; states have executed two or three inmates on the same day just ten times in the last forty years, and no state has carried out more than one double execution in the same week. The hurried schedule appears to be an attempt to use the state's current supply of eight doses of midazolam, which will expire at the end of April. Arkansas does not currently have a supply of potassium chloride, the killing drug specified in its execution protocol, but believes it can obtain supplies of that drug prior to the scheduled execution dates. Attorneys for the eight death-row prisoners filed an amended challenge to Arkansas' lethal injection procedures in state court on February 25 and wrote a letter to the governor urging him to reconsider the lethal injection protocol. "We believe it would be a mistake for you to uncritically accept the Supreme Court's opinion as a license to use the current protocol," the attorneys said. "Not only would our clients suffer, but so would our state's image and moral standing in the eyes of the country and the world." No state has successfully executed two prisoners on the same day using midazolam. Oklahoma attempted to do so on April 29, 2014, but called off the second execution after the botched execution of Clayton Lockett earlier that night. The eight prisoners scheduled for execution make up 23% of Arkansas' current death row.

American Bar Association Human Rights Magazine on Capital Punishment

Human Rights Magazine, a quarterly publication by the American Bar Association, focused its first-quarter 2017 edition on capital punishment, marking the 40th anniversary of Gregg v. Georgia. Articles by nationally-renowned death penalty experts examine geographic disparities in death sentences, secrecy and lethal injection, intellectual disability, mental illness, and other critical questions in the current discourse around the death penalty. In the introduction to the magazine, Seth Miller, executive director of the Innocence Project of Florida and chair of the ABA Death Penalty Due Process Review Project, and Misty Thomas, staff director of the ABA Death Penalty Due Process Review Project, write, "Forty years after Gregg, attorneys, scholars, and advocates continue to debate whether our collective con­cerns regarding the arbitrary and discriminatory application of the death penalty have indeed been ade­quately addressed. The anniversary of this crucial decision—which marks, in effect, the “birth” of the modern death penalty—provides an essential opportunity for reflection and con­sideration of this critical question." 

American Nurses Association Adopts Position Statement Against Capital Punishment

In an expansion of their stance opposing nurse participation in executions, the American Nurses Association (ANA) announced on February 21, 2017 that the organization now for the first time opposes capital punishment itself. "Capital punishment is a human rights violation, and ANA is proud to stand in strong opposition to the death penalty," ANA President Pamela F. Cipriano said. "All human beings, regardless of their crimes, should be treated with dignity. For those states where capital punishment is currently legal, the American Nurses Association will continue to provide ethical guidance, education, and resources for nurses and other health care providers dealing with these ethical dilemmas." The ANA had long opposed nurses participating in the death penalty in any role, adopting that position in 1983. “The drafters of the subcommittee were initially supporters of the death penalty until they started doing research," Liz Stokes, the senior policy advisor for the ANA Center for Ethics and Human Rights, said. But as they studied the issue, she said, they were moved by the body of evidence showing problems in the way it was administered. Ultimately, the ANA’s board of directors unanimously adopted the new position. The ANA statement offers nine reasons for the association's opposition to the death penalty, including racially and geographically biased application, the risk of executing innocent people, botched executions, and high costs. The new position aligns with the International Council of Nurses, which "considers the death penalty to be cruel, inhuman and unacceptable," and reflects a growing consensus among medical organizations that participation in executions by medical professionals is unethical. The American Medical Association, American Board of Anesthesiology, and American Pharmacists Association, among others, have discouraged or forbidden their members from participating in executions and American pharmaceutical manufacturers have adopted policies seeking to prevent misuse of their medicines as execution drugs.

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