Lethal Injection

Supreme Court To Review Lethal-Injection Case of Condemned Prisoner with Rare Congenital Disease

The U.S. Supreme Court has granted review in the case of Missouri death-row prisoner Russell Bucklew, who has argued that the severe form of a rare congenital disorder from which he suffers makes it unconstitutionally cruel for him to be executed by lethal injection. Bucklew has an extreme form of cavernous hemangioma, a malformation of his blood vessels that causes blood-filled tumors to grow in his head, neck, and throat. The tumors, he has argued, are likely to rupture during the lethal-injection process, resulting in an excruciatingly painful execution during which he would choke on his own blood. Bucklew proposed as an alternative that the state execute him using nitrogen gas. Missouri has twice set execution dates for Bucklew while he has been challenging its execution method—once in May 2014 and again in March 2018. In both instances, the Supreme Court intervened, issuing stays of execution that permitted further court proceedings in his case. The first stay permitted the U.S. Court of Appeals for the Eighth Circuit to hear and decide Bucklew's appeal from a Missouri federal district court ruling that had dismissed his lethal-injection challenge without an evidentiary hearing. After considering the appeal, the Eighth Circuit reversed the district court decision and ruled that Bucklew was entitled to move forward with his lawsuit. In an attempt to develop facts relating to how risky his execution would be, Bucklew filed a series of discovery requests—each opposed by Missouri prosecutors—seeking information about the qualifications of the execution team members. The court denied each of Bucklew's requests. The district court accepted Bucklew's argument that lethal injection carried a substantial risk that he would choke and be unable to breathe for up to four minutes before dying. Nonethless, in June 2017, it again dismissed his case, again without holding a trial, saying that Bucklew had not shown that nitrogen gas would significantly reduce his suffering during the execution. Bucklew appealed, but while the appeal was pending, the state obtained a second execution date, this time for March 20, 2018. On March 6, a split appeals court panel voted 2-1 to affirm the lower court. Hours before the execution was to be carried out, the Supreme Court issued a second stay of execution to give itself more time to decide whether to hear Bucklew's case. On April 30, the Court accepted the case for review. In addition to the questions Bucklew had raised, the Court ordered the parties to address whether Bucklew had met his burden under the Court's 2015 lethal-injection decision in Glossip v. Gross "to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution." The Glossip decision requires a prisoner who challenges the constitutionality of a method of execution to show not only that the state's method of execution will create a substantial risk of severe pain, but also that a feasible and readily available alternative exists that significantly reduces that risk. This is the first time that the Supreme Court has granted review in a case involving lethal-injection procedures since it decided Glossip.

Aging of Death Row Raises Humanitarian and Practical Concerns, As Alabama Executes 83-Year Old Prisoner

Death row is aging and increasingly infirm and, as a series of recent death warrants suggest, that phenomenon is raising legal, practical, and humanitarian concerns. One year after executing 75-year-old Thomas ArthurAlabama on April 19 executed 83-year-old Walter Moody (pictured, left), the oldest person and only octogenarian put to death in the United States since executions resumed in 1977. Attempts to execute prisoners debilitated by physical and cognitive impairments exacerbated by aging have proven problematic and inhumane. After canceling his previously scheduled cancer surgery to issue a death warrant, Alabama failed for 2 1/2 hours to set an intravenous line to execute gravely ill 61-year-old Doyle Hamm on February 22. His lawyer moved to bar the state from trying a second time, describing the failed attempt as "torture." Ohio tried and failed to execute terminally ill 69-year-old Alva Campbell (pictured, center) in November 2017. He then died of his terminal illness on March 3. And in late January 2018, the U.S. Supreme Court halted Alabama's scheduled execution of 67-year-old Vernon Madison (pictured, right), who is legally blind, incontinent, and unable to walk independently, and suffers from vascular dementia caused by strokes that have left him with no memory of the offense for which he was sentenced to death. The Court on February 26 agreed to review his claim that his illness leaves him mentally incompetent to be executed. A Washington Post review of Department of Justice data reported that the percentage of death-row prisoners aged sixty or older has more than doubled this century, up from 5.8 percent of U.S. death rows in 2007 to 12.2 percent in 2013. The aging of the row has also affected executions. An Associated Press review of the Death Penalty Information Center execution database found that the median age of an executed prisoner in the U.S. rose from 34 to 46 between 1983 and 2017. A DPIC analysis of U.S. execution data found that only two of the 933 prisoners executed in the United States between 1977 and 2004 were aged 65 or older. That total was matched in a single 35-day period this year between March 15 and April 19, when Georgia executed 67-year-old Carlton Gary and Alabama executed Mr. Moody. In 23 years of executions between 1977 and the close of the 20th century, ten prisoners aged 60 or older were executed. Thirty-six have already been executed this decade, 13 since 2015 alone. The aging of death row raises humanitarian issues, separate and apart from the risk of botched executions. Speaking to Associated Press, DPIC Executive Director Robert Dunham noted that, while many of the prisoners facing execution have been convicted of terrible crimes, the public is "torn between wanting to punish [them] severely and the belief it is beneath us as a nation to kill a frail person who is already dying. It’s a challenge to our morality and our sense of humanity,” Dunham said. The attempts to execute the infirm also have attracted international attention and approbation. When Alabama sought to execute Madison, David O'Sullivan, the European Union's Ambassador to the United States, wrote "an urgent humanitarian appeal" to Alabama Governor Kay Ivey not to execute him. The Ambassador's letter reminded Alabama that "[t]he execution of persons suffering from any mental illness or having an intellectual disability is in contradiction to the minimum standards of human rights, as set forth in several international human rights instruments." When Ohio sought to execute Campbell, his lawyer, assistant federal defender David Stebbins, predicted that the execution could become a “spectacle” if prison staff were unable to find a suitable vein. “All of this in an attempt to execute an old and frail man who is no longer a threat to anyone,” Stebbins said. In a statement that applies to more and more prisoners facing death warrants, Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative, summed up the issue: “Killing a fragile man suffering from dementia," he said, "is unnecessary and cruel.”

Confidential Settlement Leaves Questions About Alabama Execution Process Unanswered

One month after Alabama called off its two-and-a-half hour attempted execution of Doyle Hamm, the state reached a confidential settlement agreement in which it agreed not to seek another execution date and Hamm's attorney dismissed his client’s pending civil-rights lawsuit. In a March 27, 2018 press release, Columbia University law professor Bernard Harcourt, who has represented Hamm for 28 years, said the settlement was reached “after lengthy, fruitful discussions with the Alabama Attorney General's office.” But the settlement left unanswered numerous questions about what happened during the failed execution and about the state’s secret execution protocol. In response, Alabama’s death-row prisoners filed a motion in their on-going challenge to the state’s execution protocol seeking a federal court order to preserve all evidence from the attempted execution, and several leading media organizations have sought permission to intervene in Hamm’s case to obtain access to information that currently remains sealed. The confidential settlement came after Hamm’s attorney submitted a medical report by a doctor who examined Hamm three days after the failed execution. The report—the only public document describing the circumstances of the execution attempt—indicates that execution personnel 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. After executioners failed for more than two hours to set an intravenous execution line, Alabama Department of Corrections Commissioner Jeffrey Dunn called off the execution and held a news conference in which he repeatedly asserted the state had followed its execution protocol. “I wouldn’t characterize what we had tonight as a problem,” Dunn said. In the face of conflicting reports about the attempted execution, The Montgomery Advertiser, Alabama Media Group, and The Associated Press filed a motion to intervene in the lawsuit to gain access to sealed documents. “Open government is good goverment,” said Montgomery Advertiser Executive Editor Bro Krift. “There are few things the citizens of Alabama need to know more than how the state is executing someone.” Alabama does not disclose its execution protocol to the public nor does it allow the public to witness the part of the execution in which prison personnel attempt to insert the IV lines. The media's motion argued that, “[w]ithout access to the protocol, it is impossible for the public to understand if the failure was due to a problem inherent in protocol, or to some other cause.” Alabama continues to publicly deny that anything went wrong in its failed attempt to execute Hamm. On March 30, in response to motion to preserve evidence filed in the prisoners’ lawsuit, the Alabama Attorney General blamed the U.S. Supreme Court for the state’s failure to execute Hamm. Prosecutors wrote: “because the Supreme Court prevented Defendants [the Alabama Department of Corrections] from beginning preparations until a mere three hours before the execution warrant was set to expire, time ran out for Defendants and necessitated aborting the execution.” Also on March 30, Chief Judge Karon Owen Bowdre granted the media group's motion to intervene in Hamm’s case, but reserved judgment on whether to unseal the record. “The Press Movants claim an interest in this case because it centers on a ‘matter of intense public interest: the method by which the State of Alabama exercises the power to put people to death,’” Judge Bowdre wrote. “The court agrees.” In allowing the media organizations to intervene, the court found that neither Alabama prosecutors nor Doyle Hamm “adequately represent” the interests of “the public’s right of access to the records.”

BOOK: “Surviving Execution” Chronicles Miscarriages of Justice in the Richard Glossip Case

In his new book Surviving Execution: A Miscarriage of Justice and the Fight to End the Death Penalty, Sky News reporter Ian Woods tells the story of his relationship with condemned Oklahoma prisoner Richard Glossip, whose case gained prominence after the U.S. Supreme Court agreed to review his challenge to the state’s lethal-injection procedures. Although Glossip’s case is most frequently associated with the Supreme Court’s 2015 decision in Glossip v. Gross and Oklahoma’s dramatic, last-minute recission of his execution warrant when the state’s anonymous drug supplier delivered the wrong execution drug, Surviving Execution focuses more on Glossip’s conviction itself and the author’s belief that Oklahoma is attempting to execute an innocent man. Glossip, who has consistently maintained his innocence, was prosecuted and sentenced to death in Oklahoma County by a prosecuting administration riddled with misconduct in capital cases. The book chronicles the details of Glossip’s conviction, exposing the numerous holes Woods sees in the state’s case. Against the backdrop of multiple execution dates, Woods explains how he developed a friendship with Glossip, and in turn, witnessed the intensive ourpouring of support that Glossip gained as his execution date approached, including the high-profile involvement of Sister Helen Prejean, actress Susan Sarandon, and British businessman Richard Branson. Woods—whom Glossip asked to witness the execution—also discusses his personal struggle over whether to watch a man die at the hands of the state. Glossip's execution, originally scheduled for January 2015, was stayed while the Supreme Court reviewed his lethal-injection case. After his narrow 5-4 loss in that case, Oklahoma rescheduled his execution for September 2015. That execution date was stayed by the Oklahoma courts to consider Glossip's claim of innocence. Ultimately, the state court gave the go-ahead for the execution, and Glossip's execution was rescheduled for later in the month. However, that execution attempt was halted when the state failed to obtain the correct lethal-injection drug and all executions in Oklahoma were put on hold while the state reviewed its execution procedures. Woods’ book attempts to combine journalistic independence with his search for the truth and his conclusion that Glossip was not guilty of the murder of victim Barry Van Trease. In a Sky News podcast just before the aborted execution was to occur, Woods summarized Glossip’s case, saying, “There is no incontrovertible proof that Richard Glossip is guilty of murder. No forensic evidence, no eyewitness account, other than that of the killer, who saved his own skin by blaming Richard. The state of Oklahoma is going to kill him on Wednesday, so I’m not going to sit on the fence any longer. I'm telling you: I think that’s wrong.” In Surviving Execution, Woods explains why.

Tennessee Supreme Court Rejects Attorney General’s Request for 8 Executions by Drug Expiration Date

The Tennessee Supreme Court has denied a request from the state's attorney general to schedule eight executions before the June 1, 2018 expiration date of Tennessee's supply of one of its execution drugs. Tennessee Attorney General Herbert Slatery had filed the request on February 14, saying that scheduling executions "after June 1, 2018 is uncertain due to the ongoing difficulty in obtaining the necessary lethal injection chemicals." The court's March 15, 2018 order did not explain why it rejected the request, but it did set two execution dates to be carried out later in the year. The court scheduled the execution of Edmund Zagorski for October 11 and set a December 6 execution date for David Earl Miller. Three other Tennessee death-row prisoners already had execution dates this year, though two of them—James Hawkins and Sedrick Clayton—have not yet completed their appeals. Thirty-three Tennessee death-row prisoners are challenging the state's use of midazolam as part of its execution protocol, arguing that the protocol "amounts to torturing prisoners to death." The prisoners cite botched executions in other states that have used midazolam, including Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama. Because of that litigation and the Attorney General's statements about the unavailability of lethal-injection drugs, Tennessee's ability to carry out any of the scheduled executions remains uncertain. The state prosecutor's request was reminiscent of Arkansas's controversial attempt in April 2017 to carry out eight executions over the span of eleven days before its supply of midazolam expired. Four of those executions were stayed and witnesses reported indications that two of the executed prisoners—Jack Jones and Kenneth WIlliams—remained conscious during the execution process after the midazolam was supposed to have rendered them insensate. 

Human Rights Advocates: Prisoner's Rare Medical Condition Risks Gruesome Botched Execution in Missouri

Human rights advocates are warning that the impending execution of Russell Bucklew (pictured) in Missouri on March 20 presents a “substantially increase[d] risk of a gruesome and botched execution.” Court pleadings and a March 14 letter from the American Civil Liberties Union to the Inter-American Commission on Human Rights (IACHR) say that Bucklew suffers from congenital cavernous hemangioma, a rare and severe blood-vessel condition that his lawyers and doctors say compromises his veins and makes lethal injection inappropriate and potentially torturous. Bucklew’s medical condition causes large tumors of malformed blood vessels to grow on his head, face, and neck, including a vascular tumor that obstructs his airway. Dr. Joel Zivot, a board-certified anesthesiologist who reviewed Bucklew’s medical records for defense lawyers in the case, said his compromised veins will likely prevent the pentobarbital Missouri uses in executions from circulating through his bloodstream as intended, risking a “prolonged and extremely painful” execution. Zivot says there is a substantial risk that Bucklew’s throat tumor may burst during the execution and that he will suffocate, choking on his own blood. Missouri first sought to execute Bucklew on May 21, 2014. At that time, his lawyers filed a challenge to the state’s lethal-injection process based on Bucklew's medical condition, and the ACLU filed a petition in the IACHR seeking precautionary measures—the international equivalent of an injunction—against the execution. The IACHR petition argued that the execution would violate international human rights proscriptions against cruel and inhumane treatment and torture. On May 19, 2014, the Missouri federal district court denied Bucklew’s execution challenge and his motion to stay his execution. A divided panel of the U.S. Court of Appeals for the Eighth Circuit granted him a stay of execution so it could consider his lethal-injection claim, but the full court, sitting en banc, vacated the stay. Bucklew then sought review in the U.S. Supreme Court, which stayed his execution pending the outcome of the lethal-injection appeal in the Eighth Circuit. While the case was working its way through the federal courts, the IACHR issued precautionary measures against the United States on May 20, 2014, requesting that the U.S. comply with its human rights obligations under the charter of the Organization of American States and the American Convention on Human Rights. The IACHR directive asked the U.S. to “abstain from executing Russell Bucklew” until the human rights body could hear his case. On March 6, 2018, the Eighth Circuit Court of Appeals rejected Bucklew’s appeal and affirmed the district court’s ruling, concluding that “Bucklew has failed to establish that lethal injection, as applied to him, constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments.” The ACLU then requested that the IACHR “immediately intervene” to halt Bucklew’s execution, and the human rights commission informed the U.S. government that its precautionary measures were still in effect. “This execution should not move forward,” ACLU’s Human Rights Program Director Jamil Dakwar told Newsweek. “Because the state is pursuing lethal injection, that will most certainly cause severe pain and suffering which under international law is considered torture.” Bucklew’s scheduled execution comes on the heels of two failed executions of gravely ill prisoners in which states ignored warnings that the prisoners’ medical conditions had compromised their veins and would make it impossible for executioners to set intravenous execution lines. Nonetheless, Ohio tried and failed to execute Alva Campbell and Alabama called off the execution of Doyle Hamm after failing for more than 2 1/2 hours to obtain venous access in his lower extremities. Campbell subsequently died of his terminal illness and Hamm has sued to bar Alabama from attempting to execute him again. On March 15, Bucklew’s lawyers filed pleadings in the U.S. Supreme Court asking the Court to stay his execution and review his case.

Oklahoma Announces Plans to Execute Prisoners with Nitrogen Gas

At a news conference on March 14, Oklahoma Attorney General Mike Hunter and Corrections Director Joe M. Allbaugh announced that the state plans to switch its method of execution from lethal injection to nitrogen gas asphyxiation. Attorney General Hunter said the move to nitrogen hypoxia was necessary “because of the well-documented fact that states across the country are struggling to find the proper drugs to perform executions by lethal injection." "Oklahoma,” he said, “is no exception.” No state has ever carried out an execution with nitrogen gas, and the ACLU of Oklahoma and lawyers for the state's death-row prisoners critized the new execution plan as “experimental.” Dale Baich, an assistant federal defender who is representing 20 Oklahoma death-row prisoners in a challenge to the state's execution process, cautioned that “Oklahoma is once again asking us to trust it as officials ‘learn-on-the-job’ through a new execution procedure and method. How can we trust Oklahoma to get this right when the state’s recent history reveals a culture of carelessness and mistakes in executions?” In 2015, Oklahoma legislators authorized the use of nitrogen gas as a backup method of execution should lethal injection be declared unconstitutional or unavailable. State officials said the change is a response to the unavailability of execution drugs, although there has been no judicial declaration on that issue. “Trying to find alternative compounds or someone with prescribing authority willing to provide us with the drugs is becoming exceedingly difficult, and we will not attempt to obtain the drugs illegally,” Allbaugh said. Oklahoma botched the execution of Clayton Lockett in April 2014, the first time the state had attempted to use the controversial drug midazolam. Lockett died of a heart attack shortly after the state halted the procedure and delayed the execution of Charles Warner, which it had scheduled for the same night. The state executed Warner on January 15, 2015—the last execution carried out in the state—using a drug that was not authorized in the state's execution protocol. Executions have been on hold since October 2015, after Richard Glossip was granted a last-minute stay when the state again obtained the wrong execution drug. A grand jury report on Warner’s execution and Glossip’s near-execution called the actions of prison officials, “careless,” “negligent,” and “reckless,” and said the state’s “paranoia" about keeping execution information secret had caused corrections personnel “to blatantly violate their own policies.” Following the mishandled executions, the independent bipartisan Oklahoma Death Penalty Review Commission spent more than a year studying Oklahoma’s capital punishment practices and unanimously recommended that the state halt all executions “until significant reforms are accomplished.” ACLU of Oklahoma Executive Director Ryan Kiesel said the commission report “paint[s] a picture of a system that fails at multiple points to provide the necessary safeguards” to protect the innocent and ensure fair trials. He said the state’s attempt to restart executions without addressing the 46 recommendations made by the commission was “deeply troubling.” The Department of Corrections has not yet written a protocol for how it will carry out executions using nitrogen gas, but Allbaugh indicated that he expected the protocol to be ready within 90 to 120 days. Under the terms of an agreement in the federal challenge to Oklahoma’s execution process, Oklahoma may not seek to carry out executions for at least five months after adopting a new protocol.

Alva Campbell, Terminally Ill Prisoner Who Survived Botched Execution Attempt, Dies on Ohio Death Row

Alva Campbell (pictured), the terminally ill death-row prisoner who survived a botched execution attempt by the state of Ohio on November 15, 2017, has died. Campbell, 69, was afflicted with lung cancer, chronic obstructive pulmonary disease, respiratory failure, prostate cancer, and severe pneumonia; he relied on a colostomy bag, needed oxygen treatments four times a day, and required a walker for even limited mobility. He was found unresponsive in his cell at Chillicothe Correctional Institution in Ross County in the predawn hours of March 3 and was pronounced dead at a local hospital at 5:24 a.m. Ohio corrections personnel were aware prior to the failed execution attempt that Campbell was gravely ill and physically debilitated. Campbell’s lawyers unsuccessfully argued in court that Campbell's medical condition had compromised his veins, making IV access problematic and creating the risk that any lethal-injection execution would be unconstitutionally torturous. Lead counsel, assistant federal public defender David Stebbins, warned that the execution could become a “spectacle” if prison staff were unable to find a suitable vein. Calling Campbell “an old and frail man who is no longer a threat to anyone,” Stebbins said that "[k]illing Alva Campbell is simply not necessary.” Ohio's attempt to put Campbell to death was delayed for nearly an hour as executioners assessed his veins. Witnesses then watched for another half hour as prison personnel used an ultraviolet light to probe Campbell's arm for a vein, repeatedly sticking his arms and legs. Columbus Dispatch reporter Marty Schladen, a media witness to the execution attempt, reported that when he was stuck in the leg, “Campbell threw his head back and appeared to cry out in pain.” After failing four times to find a suitable vein in which to set an intravenous execution line, Ohio called off the execution and Governor John Kasich granted Campbell a temporary reprieve and rescheduled his execution for June 2019. The botched execution attempt was the fourth time in twelve years that executioners in Ohio had prolonged difficulty in setting an execution IV, and the second time in which an execution attempt was halted. The failure highlights the growing problem states face in attempting to execute an aging and increasingly infirm death-row population.

On February 22, 2018, Alabama attempted to execute Doyle Hamm, a 60-year-old death-row prisoner with terminal cranial and lymphatic cancer that his lawyer had warned rendered his veins unusable for lethal injection. In a failed execution that media reports described as “horribly botched,” executioners repeatedly punctured Hamm’s legs and groin in unsuccessful attempts, spanning more than two-and-a-half hours, to set an IV line. Four days later, the U.S. Supreme Court stayed the execution of Vernon Madison, a 67-year-old Alabama death-row prisoner with vascular dementia caused by strokes that have left him legally blind, incontinent, unable to walk independently, and with no memory of the offense for which he was sentenced to death. Alabama is scheduled to execute 83-year-old Walter Leroy Moody on April 19.

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