Lethal Injection

South Carolina Seeks Drug-Secrecy Law to Carry Out Execution that was Never Going to Happen

Claiming that a lack of lethal-injection drugs was preventing the state from executing Bobby Wayne Stone (pictured, right) on December 1, South Carolina Governor Henry McMaster (pictured, left) urged state legislators to act quickly to enact an execution-drug secrecy law. But as McMaster and Department of Corrections Director Bryan Stirling held a press conference outside barbed-wire fences at the Broad River Capital Punishment Facility in Columbia, South Carolina on November 20, they knew, critics say, that there was no lethal-drug emergency and that the death warrant against Stone was never going to be carried out. Since his conviction and death sentence in 1997, Stone has been actively pursuing the court review of his case to which he is entitled as a matter of state and federal law. The South Carolina Supreme Court overturned Stone's death sentence in 2002, but he was resentenced to death in 2006. In February 2017, after completing the state direct appeal and post-conviction appeal processes, the South Carolina Supreme Court affirmed Stone's death sentence. In April, he asked the federal court to appoint counsel to represent him in federal habeas corpus proceedings challenging his conviction and death sentence. At a telephone conference with a federal district court judge one week prior to the press conference, lawyers for Stone and the state attorney general's office agreed to a procedure by which the court would stay Stone's execution to permit his lawyers to file his habeas petition. The parties agreed to a November 21 deadline for Stone to file his stay motion, and he filed the motion on November 20. The state attorney general's reponse, also filed November 20, "agree[d] that the issuance of a stay of execution [was] warranted." The federal court granted the stay of execution on November 21. Justice 360, a non-profit legal services organization that tracks death-penalty issues in South Carolina, criticized the press conference at the prison as a public relations ploy. In a news release, its executive director, Lindsey Vann said: "The Director of the South Carolina Department of Corrections ... knew a stay would be issued by the court. He nevertheless chose to make public statements implying otherwise in an attempt to force the General Assembly to pass a 'secrecy' bill that would allow the State to purchase unsafe drugs for execution and shield their source from the public." In its daily newsletter, the "Opening Statement," The Marshall Project summarized the issue, "Officials in South Carolina ginned up a death penalty deadline — a death warrant that a judge promptly declared premature — to press state lawmakers for new injection secrecy rules." Governor McMaster said at the press conference that executions in South Carolina were "at a dead stop" because the state lacked execution drugs. He said "[t]he reason we don't have the drugs despite intense efforts to get them is because the companies that make them, the distributors who distribute them and the pharmacies who may have to compound them don't want to be identified." All of the FDA-regulated pharmaceutical manufacturers in the U.S. that produce drugs used in executions oppose the use of their products for capital punishment and have distribution agreements with drug suppliers that prohibit the sale of their medicines to states for use in executions. Governor McMaster said a secrecy law was necessary because potential suppliers are "afraid that their names will be made known and they don't want to have anything to do with it for fear of retribution or exposure." The South Carolina legislature has twice in the past rejected execution secrecy bills. Vann said Justice 360 was "disappointed" that the Department of Corrections was "attempting to mislead the press and the public, especially if [Stirling] led the victim’s family to believe that an execution was imminent."

Ohio Halts Execution of Physically Debilitated Prisoner After It Cannot Find Vein for Intravenous Line

Having failed to find a suitable vein in which to set an intravenous execution line, Ohio called off the scheduled November 15 execution of gravely ill and physically debilitated death-row prisoner, Alva Campbell (pictured). After execution personnel failed in four attempts to find a vein for the IV line, Ohio Department of Rehabilitation and Correction Director Gary Mohr stopped the execution and Governor John Kasich granted Campbell a temporary reprieve. Kasich rescheduled Campbell's execution for June 5, 2019. The execution was delayed for nearly an hour as executioners assessed Campbell's veins, and then witnesses watched for another half hour as prison personnel used an ultraviolet light to probe Campbell's arm for a vein, sticking him twice in the right arm, once in the left arm, and once in the left leg. Columbus Dispatch reporter Marty Schladen, a media witness to the execution, reported that, when he was stuck in the leg, "Campbell threw his head back and appeared to cry out in pain." Campbell's lead lawyer, assistant federal public defender David Stebbins said, "We had warned them for months that they were going to have this problem." In court documents seeking to stay his execution, Campbell's lawyers unsuccessfully argued that a combination of severe medical ailments and physical disabilities made it inappropriate for him to be executed. These afflictions include lung cancer, chronic obstructive pulmonary disease, respiratory failure, prostate cancer, and severe pneumonia, and Campbell relies on a colostomy bag that hangs outside his body, needs oxygen treatments four times a day, and requires a walker for even limited mobility. Following the reprieve, Stebbins questioned whether the state would be able to successfully execute Campbell. "He's 69 years old and has all kinds of illnesses and his veins are a mess," he said. "They're just not going to get any better." "This type of state-sponsored torture is not acceptable," said ACLU of Ohio senior policy director Mike Brickner. “This marks the fifth botched execution for Ohio in recent years, and the second time the state could not complete an execution. This is not justice," he said, "and this is not humane." In the past eleven years, Ohio has also botched the executions of Joseph L. Clark, Christopher Newton, Romell Broom, and Dennis McGuire. In a video posted on the website of the Columbus Dispatch, reporter Marty Schladen, who was scheduled to witness the execution, said "I don't think anything that happened today would make anybody sanguine about the death penalty in Ohio right now."

Ohio Set to Execute Gravely Ill Prisoner, Alva Campbell

Ohio death-row prisoner Alva Campbell (pictured) is 69, suffers from severe chronic obstructive pulmonary disorder, is unable to walk without a walker, relies on a colostomy bag that hangs outside his body, requires four breathing treatments each day, may have lung cancer, and is reportedly allergic to midazolam, the controversial first drug in the state's lethal-injection process. Prison personnel have been unable to find veins suitable for inserting an intravenous line into either of Campbell's arms. Ohio intends to execute him November 15. Campbell has challenged the constitutionality of Ohio’s lethal-injection protocol, arguing that it carries unconstitutional risks for a person with his medical conditions, and has asked to be executed by firing squad. The Ohio federal courts denied Campbell's challenge earlier in November, and he has petitioned the U.S. Supreme Court to stay his execution, arguing he is too ill for lethal injection. Ohio is defending its execution process, and officials for the state’s Department of Rehabilitation and Correction say that as a medical accommodation, the state will provide Campbell with “a wedge-shaped pillow” to prop him up “in a semi-recumbent position” to help him breathe as he is being executed. Corrections spokesperson JoEllen Smith said that Campbell's “medical condition and history are being assessed and considered in order to identify any necessary accommodations or contingencies for his execution.” Campbell’s lawyer, assistant federal public defender David Stebbins, warns that Campbell's death could become a “spectacle” if prison staff are unable to find a suitable vein during his execution. “All of this in an attempt to execute an old and frail man who is no longer a threat to anyone,” Stebbins said. “Killing Alva Campbell is simply not necessary.” On November 9, Gov. John Kasich rejected Campbell's plea to stop the execution and let him die of his terminal illnesses. [UPDATE: The U.S. Supreme Court has denied Campbell's motion for a stay of execution. After four unsuccessful attempts to find a vein, Ohio called off the execution.]

Nebraska Proposes Untried Lethal-Injection Combination as Nevada Court Halts Execution With Similar Drugs

As Nebraska announced its intention to use a never-before-tried four-drug execution combination featuring the opiod pain medication fentanyl and the paralytic drug cisatracurium, a Nevada judge issued a stay of execution that put off the nation's first attempted execution using those drugs. On November 9, the Nebraska Department of Correctional Services provided notice to death-row prisoner Jose Sandoval that it intends to execute him using a combination of the drugs diazepam (Valium), fentanyl citrate, cisatracurium besylate, and potassium chloride. Later that day, Clark County (Las Vegas) District Judge Jennifer Togliatti granted a request by lawyers for the Nevada Department of Corrections to stay the scheduled November 14 execution of Scott Dozier to permit them to appeal her order directing the state to remove cisatracurium from its also untried execution protocol of diazepam, fentanyl, and the paralytic. Dozier, who has waived his appeals and asked to be executed, is only contesting the state's method of execution. The judge issued her order after considering medical evidence that the cisatracurium could cause Dozier to experience "air hunger" and suffocate to death, while masking signs that he was conscious and suffering during the execution. Doctors testified that a paralytic drug would be unnecessary if the other two drugs, fentanyl and diazepam, were administered properly. In staying the execution to permit Nevada to appeal to the state supreme court, Judge Togliatti said: "They're going to have to be the court to make that determination that we as a state are OK with a paralytic." Nebraska law requires the state to give a prison notice of the drugs to be used in the execution at least sixty days in advance of issuing a death warrant. The state attorney general's office has indicated it will ask the Nebraska Supreme Court to issue a warrant after that time has passed. State Senator Ernie Chambers, one of the leaders of the Nebraska legislature's repeal of the state's death-penalty statute and its override of Governor Pete Ricketts's veto of the measure, criticized the notice as politically motivated and called the timing of its issuance "suspicious." The notice was issued almost a year to the day after the voters brought back the death-penalty law in a voter iniative bankrolled by Rickett, and as the governor gears up for a re-election campaign in 2018. Sandoval is currently unrepresented. The Nebraska Commission on Public Advocacy, which typically represents death-row prisoners, cannot represent Sandoval because it represented other defendants in the case. But the commission's executive director, Jeffery Pickens, said Sandoval "has to be given some sort of opportunity to challenge [the drug protocol]."

Arkansas Supreme Court Orders Partial Disclosure of Information on State's Lethal-Injection Drugs

The Arkansas Supreme Court has ruled that the state's Freedom of Information Act requires the Arkansas Department of Corrections (ADC) to release copies of the pharmaceutical drug and packaging labels for the supply of the drug midazolam that it intends to use in upcoming executions, but that the secrecy provisions of the state's Methods of Execution Act permit the department to redact the batch and lot numbers that appear on the labels. The high court's November 2 decision reverses part of an earlier ruling by a Pulaski County Circuit Court that had directed the ADC to disclose the entire packaging labels. The appeals court ruling effectively permits the public and the pharmaceutical industry to identify the company that manufactured the midazolam that Arkansas purchased for the execution of Jack Greene on November 9, but the redaction prevents disclosure of information that could allow the public and the manufacturer to learn the identity of the company or companies that supplied and sold those drugs to the state. The identities of both the manufacturers and suppliers of the drugs used to execute prisoners have been at the center of a continuing controversy in Arkansas, as both drug manufacturers and their distributors have alleged that the state improperly obtained the drugs by misrepresenting the purposes for which they would be used or by breaching contracts between manufacturers and suppliers that prohibit the sale of medicines to state prisons for use in executions. The Arkansas Department of Corrections had argued in the litigation that the Methods of Execution Act required that materials that could reveal the identities of the drug manufacturers be kept secret because "[a]bsent such an interpretation, drug manufacturers will continue to be publicly identified in published news reports and will continue to interject themselves into litigation in an effort to halt the State’s use of their drugs for capital punishment." The state supreme court disagreed, saying that when the legislature wrote the MEA, it included specific provisions relating to manufacturers, could have included manufacturers among those identities covered by secrecy provisions, and did not do so. The court said that, instead, the legislature required the ADC to conduct executions with "drugs that are made by an FDA-approved manufacturer," and that withholding the identity of the manufacturer would make it impossible for the public to "verify whether the ADC is complying with that requirement." 

Witnesses—Alabama Prisoner Still Moving 20 Minutes Into Execution With Controversial Drug

Alabama executed Torrey McNabb (pictured) on October 19, amid questions of state interference in the judicial process, resulting in another apparent failure by the drug midazolam to render a prisoner insensate during an execution. Alabama prison officials defended the execution—which took 35 minutes—as conforming with state protocol, most of which has been withheld from the public. Montgomery Advertiser execution witness Brian Lyman reported that at 9:17 p.m., twenty minutes into the execution and after two consciousness checks, "McNabb raised his right arm and rolled his head in a grimace" and then fell "back on the gurney." Associated Press reported that his “family members and attorneys who witnessed the execution expressed repeated concerns to each other that he was still conscious during the lethal injection.” Alabama Department of Corrections Commissioner Jeff Dunn dismissed McNabb's responses as "[i]nvoluntary movement," which he said were not unusual. "I’m confident he was more than unconscious at that point," he said. McNabb had been challenging the state's execution protocol in court for more than a year at the time Alabama issued a warrant for his execution. He had won an appeal permitting his case against the state's use of midazolam to move forward to trial, and the Alabama federal courts had issued an injunction stopping the execution so that judicial review of the state's execution process could take place. However, on October 19, the U.S. Supreme Court, over the dissents of Justices Breyer and Sotomayor, lifted the injunction, vacating the stay and permitting the execution to proceed. Two-and-a-half hours after the execution was scheduled to begin, the Supreme Court denied another last-minute stay application, without dissent, and the execution proceeded. The execution capped a dramatic 48 hours during which Texas courts halted two other executions that had been scheduled for October. On October 18, the Texas Court of Criminal Appeals had stayed Clinton Young's October 26 execution to permit an evidentiary hearing on his challenge that newly discovered gunshot residue evidence showed that the state's lead witness was the actual killer in his case, and a Texas trial court had stayed the execution of Anthony Shore to investigate allegations that he may have colluded with another death-row prisoner to falsely confess to the murder for which that prisoner had been condemned. McNabb's execution was Alabama's third and the 21st in the United States in 2017.

Mixed Rulings in Arkansas and Arizona Highlight Issue of Lethal-Injection Secrecy

Recent court rulings in Arkansas and Arizona reaching opposite outcomes highlight the continuing controversy over state practices keeping information relating to state acquisition of drugs for use in executing prisoners secret from the public. A state trial court judge in Pulaski County, Arkansas ruled on September 19 that the Arkansas Department of Correction must disclose package inserts from the supplies of the sedative midazolam recently purchased by the state as part of its three-drug execution protocol. On September 21, a federal district court judge in Arizona denied a First Amendment challenge brought by a coalition of news organizations seeking disclosure of who supplies execution drugs to the state. In the Arkansas case, circuit court judge Judge Mackie Pierce rejected arguments by lawyers for the state that the packet inserts were shielded from disclosure under state law because disclosure of the inserts would ultimately result in the discovery of who supplied execution drugs to the state. The Arkansas ruling was the second time a state trial court had ordered the Arkansas Department of Correction to disclose packaging information about its execution drugs under the state's Freedom of Information Act and public-disclosure requirements in the Arkansas Method of Execution Act. In April, another Arkansas judge directed the state to disclose packaging information related to its supply of potassium chloride, the third drug in the execution protocol, which causes the prisoners searing pain before it stops the heart unless the prisoner has been adequately anesthetized. Also in April, the drug distributor, McKesson Medical-Surgical, Inc., sued the state in an attempt to prevent it from carrying out executions with supplies of the paralytic drug, vercuronium bromide, obtained from the company under what McKesson described as false pretenses. Assistant Attorney General Jennifer Merritt had told Judge Pierce that it was necessary to keep the package labels secret because some drug manufacturers had objected to the state’s use of their drugs in executions. In his ruling, Judge Pierce said the Arkansas legislature knew how to grant pharmaceutical companies secrecy under the state's execution law, but didn’t do so. “They know what manufacturers are. They knew what the issues were," he said. The state has appealed the April order and is seeking an emergency stay to block implementation of the current order. In the Arizona case, a group of local and national news organizations, including The Arizona Republic, Guardian News & Media, Arizona Daily Star, The Associated Press, and two local television stations had sought disclosure of the state's drug suppliers, arguing that such disclosure was essential for the integrity of the criminal justice system and to determine whether the death penalty was being carried out humanely. District court judge Grant Murray Snow wrote that while the First Amendment protects speech about the death penalty, it does not require Arizona to disclose "protected information" about the identity of its drug supplier, "to the detriment of the state's ability to carry out its constitutional, lawfully imposed criminal punishments." Last December, Judge Snow had ruled in favor of the media on a separate secrecy issue, requiring the Arizona Department of Corrections to permit media witnesses to see the entire execution, including each time drugs are administered. Media witnesses had been unable to see key portions of the botched execution of Joseph Rudolph Wood in 2014, when he was administered 15 doses of lethal-injection drugs in an execution that took nearly two hours to complete. Arizona has not carried out an execution since then and no executions are currently scheduled.

Ohio Executes Gary Otte as State and Federal Courts Decline to Review Use of Death Penalty Against Those Under Age 21

Ohio executed Gary Otte on September 13 after both the United States Supreme Court and the Ohio Supreme Court declined to review his challenge to the constitutionality of applying the death penalty against people who were younger than age 21 at the time of the offense. Otte's lawyer, supervisory assistant federal public defender Carol Wright, said Otte exhibited "abnormal" chest and stomach movements when he was injected with the execution drug, midazolam, showing signs of struggling for air and what she described as "air hunger." Wright attempted to leave the witness room to reach a phone to alert a federal judge to possible problems with the execution, but prison officials delayed her exit for several minutes and it took several more minutes to reach the court. By that time, Otte's stomach movements had ceased and the court declined to intervene. Corrections spokesperson, JoEllen Smith, said the prison "followed proper security protocol, and once [Wright's] identity and intention was verified she was given permission to exit the room." Smith said the execution was "carried out in compliance with the execution policy and without complication." Otte had sought stays of execution from the state and federal courts, asking them to review his claim that his death sentence should be overturned because he was only 20 years old at the time he killed Robert Wasikowski and Sharon Kostura in 1992. Otte's lawyers cited an August 2017 decision by a Kentucky trial court that had found the brain development and maturation of individuals aged 18-20 to be similar in critical respects to that of adolescents under age 18, and had declared the death penalty unconstitutionally cruel and unusual for defendants under age 21. They argued that "[t]he current scientific understanding of adolescent development underscores [that] their moral culpability is reduced making them categorically exempt from the death penalty." The Kentucky trial court issued a second ruling on September 6 that barred prosecutors from seeking the death penalty against an 18-year-old defendant in another case. On Tuesday night, September 12, the United States Supreme Court declined to review the issue and denied a stay of execution. The Ohio Supreme Court followed suit on the morning of September 13. Otte was pronounced dead shortly before 11:00 a.m.

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