Lethal Injection

Missouri Judge Orders State to Reveal Source of Lethal Injection Drugs

Cole County, Missouri Circuit Judge Jon Beetem ruled on March 21 that Missouri must release the names of pharmacies that have provided lethal injection drugs for executions. Judge Beetem ruled in favor of the ACLU of Missouri and several media organizations that had filed three separate suits against the state. The media plaintiffs included the Reporters Committee for Freedom of the Press, the St. Louis Post-Dispatch, The Kansas City Star, the Springfield News-Leader, Associated Press, The Guardian, and BuzzFeed reporter Chris McDaniel. Judge Beetem found that Missouri had "knowingly violated the sunshine law by refusing to disclose records that would reveal the suppliers of lethal injection drugs, because its refusal was based on an interpretation of Missouri statutes that was clearly contrary to law." Bernard Rhodes, an attorney for The Guardian, said the information was critical to public oversight: "Without this information, the public is unable to exercise meaningful oversight of the executions carried out in its name. One of the primary purposes of a free and independent press is to perform a watchdog function over government activities, and this lawsuit is a perfect example of that." Because it determined that Missouri had knowingly violated the law, the court also awarded the plaintiffs more than $100,000 in attorneys fees. In a column for the Los Angeles Times, Scott Martelle called the decision, "a win for transparency," and said that companies' reluctance to participate publicly in executions was evidence of society's changing views. "[C]apital punishment has become so contrary to American societal norms that here in the land of the quick buck, even the business world has turned its back on the practice," he wrote. The state of Missouri has indicated that it intends to appeal the decision.

After Initial Botched Execution of Romell Broom, Ohio Supreme Court Gives Approval for State to Try Again

In a divided 4-3 decision, the Ohio Supreme Court on March 16 authorized the state to try for a second time to execute death row inmate Romell Broom (pictured, after the state's failed first attempt to execute him). The court majority held that a second execution attempt would not violate constitutional protections against twice placing a defendant in jeopardy of life, nor constitute cruel and unusual punishment. Ohio first tried to execute Broom on September 15, 2009, but the attempt was called off after two hours of unsuccessful efforts by executioners to establish a viable IV line. Despite attempting to insert the IV in 18 different sites on Broom's arms and legs, prison personnel failed to find a suitable vein, and in one case instead struck bone. Justice Judith Lanzinger, writing for the majority, said the event was not a failed execution because setting the IV line was only a "preliminary step" to an execution and the execution itself "commences when the lethal drug enters the IV line." The majority reasoned that "because the attempt did not proceed to the point of injection of a lethal drug into the IV line, jeopardy never attached." The court denied Broom an evidentiary hearing on his claim that a second execution attempt would constitute cruel and unsual punishment, assuming that prison personnel would this time adhere to the state's execution protocol. It wrote: "Strict compliance with the protocol will ensure that executions are carried out in a constitutional manner and can also prevent or reveal an inmate’s attempt to interfere with the execution process. We simply are unable to conclude that Broom has established that the state in carrying out a second attempt is likely to violate its protocol and cause severe pain." Justice Judith French dissented, saying, "The majority’s decision to deny Romell Broom an evidentiary hearing on his Eighth Amendment claim is wrong on the law, wrong on the facts, and inconsistent in its reasoning. If the state cannot explain why the Broom execution went wrong, then the state cannot guarantee that the outcome will be different next time." In a separate dissent, Justice William O'Neill wrote, "Any fair reading of the record of the first execution attempt shows that Broom was actually tortured the first time. Now we embark on the task of doing it again." Dr. Jon Groner, who examined Broom shortly after the 2009 botched execution, described the attempts at accessing Broom's veins as, "somewhere between malpractice and assault." Broom's attorneys said they intend to seek further review in other courts.

Missouri Paid More Than $250,000 in Cash to Executioners, With No Tax Documentation

Missouri has paid state executioners $284,551.84 in cash since November 2013, without providing notification of the payments to tax authorities, according to a BuzzFeed News investigation. The payments, mostly in envelopes filled with $100 bills, were intended to keep the identities of execution team members hidden from the public by limiting the paper trail. However, Missouri's Department of Corrections failed to file 1099 forms with the IRS for the cash payments, potentially contributing to tax evasion and violating federal tax law that requires issuance of 1099s for contractor payments of $600 or more. George Lombardi, director of the Department of Corrections, confirmed that Missouri paid execution team members in cash without issuing 1099s, but defended the practice to the Missouri legislature, saying, "It is my understanding that giving 1099s to these individuals would reveal who they were, and would mean the end of the death penalty, because these individuals wouldn’t do it." A February 2015 audit by the Missouri Auditor's Office found that prison officials also failed to comply with state administrative procedures concerning documentation of the payments. The auditors reported that "[t]he DOC did not record the amount of the cash payments on receipt forms signed by execution team members and did not always require the exchange of the cash payments to be acknowledged by a witness signature, as required by DOC procedures." Discrepancies in state documentation of the payments continued even after the audit, as some state forms - called “confidential execution team member receipts” - were left entirely blank, others lacked a witness signature, and many of the witnesses signed the receipts on different days than did the prison employee who is believed to have delivered the cash envelopes. BuzzFeed found evidence that Arizona and Oklahoma also make cash payments to executioners in the interest of concealing their identities, but Arizona has supplied the appropriate tax forms and Oklahoma's payments may be below the threshold required for issuing 1099s.

Ten Years After Last Execution, California Still Far From Resuming Executions

On January 17, 2006, California executed Clarence Ray Allen, who was 76 years old, legally blind, diabetic, and used a wheelchair. He was the last person the state has executed. A decade later, California's death row population has increased by 100 to 746, making it the largest in the nation. The state has executed 13 prisoners in 40 years at an estimated cost of $4 billion, while more than 100 other prisoners have died on death row. Prisoners wait 11-15 years to be appointed counsel, and the entire appeal process routinely takes 20-25 years. In November 2015, California proposed a new, one-drug lethal injection protocol, but the protocol cannot be implemented until it goes through a public vetting process, which may take years, and then survives legal challenges. This November, California voters may be presented with two competing ballot measures - one that aims to shorten the time between conviction and execution by speeding up the appeal process and another that would abolish the death penalty. A prior referendum to abolish the death penalty failed 48% to 52% in 2012. Commentators close to the issue say California's death penalty isn't working. Jeanne Woodford, who worked at San Quentin for over 25 years and oversaw executions, said that many of those who were sentenced to death were young men, "the very people whose behavior changes over time." Donald Heller, who wrote the initiative that expanded California's death penalty in 1978, said he did so based upon two assumptions about the death penalty that have proven to be false: "The first was that it would deter murders. The second: I assumed defendants would have competent representation." He also voiced concerns about the potential execution of innocent people: "If you have an imperfect system taking someone's life, it's a little bit frightening." 

Texas Prepares to Execute Richard Masterson While Autopsy Data Suggests Death Was Not Murder At All

As Texas readies itself to execute Richard Masterson (pictured), his lawyers have filed new pleadings questioning whether any murder occurred at all and are seeking a stay of execution based on what they say is "evidence of State fraud, misconduct, and his actual innocence." Masterson's filings challenge the forensic testimony presented by the prosecution in the case, the accuracy of instructions given to jurors, and the constitutionality of Texas' lethal injection secrecy law. Masterson is scheduled to be executed on January 20 for the death of Darrin Honeycutt, which medical examiner, Paul Shrode, testified had been caused by strangulation. His attorneys argue in a new federal court filing that prosecutors concealed evidence that their expert witness and attending medical examiner was unqualified to perform Mr. Honeycutt’s autopsy, botched the autopsy, falsified his credentials, and gave false testimony in this case and other capital murder trials. Two pathologists who examined autopsy data say that the Shrode was unqualified and incorrectly ruled Honeycutt's death a homicide, when it was most likely caused by a heart attack. In 2010, Ohio Governor Ted Strickland commuted the death sentence of Richard Nields based upon concerns about Dr. Shrode's assertion that the victim in that case had been strangled. Shrode was subsequently fired as chief medical examiner in El Paso County, Texas, after discrepancies were found in his resume and revelations were made about his unsupported testimony in the Ohio case.  

Arizona Executions to Remain on Hold as Court Challenge to Lethal Injection Secrecy Moves Forward

Arizona officials have agreed not to schedule any executions until a federal court challenge to the state's lethal injection protocol and secrecy policy is resolved. U.S. District Court Judge Neil V. Wake had previously put the lawsuit on hold while Arizona rewrote its execution protocol. He said the execution hold was necessary to prevent what he called "crisis litigation" -- artificially forcing the court to decide issues in the 60 days before an execution was scheduled to occur. Such litigation, he said, did not allow for adequate consideration of the issues. With the state's agreement not to set new execution dates, Judge Wake will now allow the litigation to proceed. Inmates are suing the state to obtain information about the source of the drugs that will be used in executions. In July 2014, Arizona used midazolam and hydromorphone from anonymous sources to execute Joseph Wood. Arizona's secrecy laws prevented Wood from obtaining key details of how the state intended to execute him. Wood's execution took 2 hours, during which witnesses reported that he gasped and snorted more than 600 times. Arizona later attempted to import sodium thiopental to use in a three-drug protocol, but the shipment was halted by the Food and Drug Administration, which said the drug was being imported illegally.

Arizona, Texas Attempted to Import Illegal Lethal Injection Drugs Linked to Indian Supplier with Troubling History

Arizona and Texas attempted to import lethal injection drugs in violation of federal law, but the shipments were halted by U.S. Food and Drug Administration officials in late July, according to reports by The Arizona Republic and Buzzfeed. The Republic reports that the Arizona Department of Corrections paid $27,000 for sodium thiopental for use in executions, but the shipment was halted at the Phoenix airport by U.S. Food and Drug Administration officials. BuzzFeed reports that on the same date, the FDA halted a second shipment of sodium thipoental from the same shipper at the Houston airport. This second shipment was bound for the Texas prisons. Though Arizona had redacted the seller's name and information from the documents obtained by The Republic, the offer of sale is identical to an offer sent to Nebraska from Harris Pharma, a drug supplier in India. Sodium thiopental was widely used as the first drug in executions until the sole U.S. manufacturer halted production in 2011 over concerns about the product's use in executions. Chris Harris, the owner of Harris Pharma, has sold execution drugs to Nebraska, Ohio, and South Dakota, and approached the Idaho Department of Corrections, though that sale fell through. A BuzzFeed investigation found that the office in which Harris claims to manufacture the drugs is not equipped to make drugs, raising the question of where the drugs are actually being produced. Earlier this year, Nebraska paid Harris $54,400 for execution drugs that Federal Express refused to bring into the country because they lacked import approval from the FDA.

Ohio Postpones Executions Due to Lack of Lethal Injection Drugs

The Ohio Department of Rehabilitation and Correction announced on October 19 that the state was postponing all executions until at least 2017 because it has been unable to obtain the lethal injection drugs necessary to carry them out. Governor John Kasich issued warrants of reprieve rescheduling the executions of 11 death-row prisoners with execution dates in 2016 and a 12th with a January 2017 execution date. Ohio rescheduled the executions for dates in 2017 through 2019. The Department issued a statement explaining that "over the past few years it has become exceedingly difficult to secure [execution] drugs because of severe supply and distribution restrictions." Ohio passed a secrecy law to shield the identity of any lethal injection drug provider. However, the Columbus Dispatch recently reported that the law did not work because Ohio pharmacies, bound by the Hippocratic oath or fearing adverse reactions from their customers, did not want to be involved in executions. Ohio also has been unable to obtain lethal injection drugs from abroad. In June, the U.S. Food & Drug Administration warned the state that importation of execution drugs would violate federal law. The state has sent a letter to the FDA arguing that it should be able to legally import sodium thiopental for executions. Ohio's last execution was the botched execution of Dennis McGuire on January 16, 2014, using an experimental two-drug protocol of midazolam and hydromorphone. Witnesses reported that McGuire gasped, snorted, and struggled throughout the execution, taking 25 minutes to die. After that execution, Ohio announced that it would shift to a one-drug protocol of either pentobarbital or sodium thiopental. 

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