Lethal Injection

As Lethal Injection Decision Nears, Oklahoma Court Permits Open Records Lawsuit on Botched Execution to Move Forward

As the anticipated late-June decision by the U.S. Supreme Court in the Oklahoma lethal injection case, Glossip v. Gross, approaches, the Oklahoma state courts have ruled that a media lawsuit seeking discovery and depositions relating to the state's botched execution of Clayton Lockett may proceed. On June 8, the Oklahoma Supreme Court unanimously denied a motion filed by Oklahoma Governor Mary Fallin to block action in Branstetter v. Fallin, a lawsuit filed by the Reporters Committee on Freedom of the Press on behalf Tulsa Frontier editor Ziva Branstetter and the Tulsa World. As described by Branstetter, the lawsuit seeks disclosure of "why attorneys [for Oklahoma] blacked out hundreds of sentences and dozens of pages in interview transcripts related to the execution." Oklahoma has for more than a year failed to act on an open records law request for these records. Branstetter says "[t]he secrecy surrounding the execution almost certainly contributed to the 'procedural disaster' and international criticism that followed. But the secrecy continues."

An Historical Look at Nitrogen Gas, the Electric Chair, and the Firing Squad as Execution Alternatives

With lethal injection in administrative crisis and facing constitutional challenges, some states are looking towards abolition and others towards alternative methods of execution. In an article for The Marshall Project, reporters Maurice Chammah, Andrew Cohen, and Eli Hager explore the histories of nitrogen gas, electrocution, and the firing squad -- different methods of execution three states have recently adopted as alternatives to lethal injection in the event lethal injection is declared unconstitutional or execution drugs become unavailable. The article notes the similarities between promises made by proponents of each method that their method would be the most efficient, painless, and humane execution procedure, and discusses the ambivalence engendered by each execution method.  The article reports that experts have criticized the manner in which Oklahoma researched and adopted its nitrogen gas alternative as “cavalier.” "What Oklahoma is doing is not a scientific endeavor,” Emory University anesthesiologist Joel Zivot is quoted as saying. “It’s nonsense, empirically.” Highlighting the historical context of the electric chair in light of Tennessee's decision to reintroduce electrocution, the article chronicles the origins of the method and contrasts Thomas Edison's promise that the electric chair would be painless and efficient with stories of botched electrocutions. Finally, the article turns to the firing squad, which it quotes Utah Gov. Gary Herbert as calling “a little bit gruesome," even as he approved the law that brought it back as an option in his state. It recounts the unique historical relationship between Utah's use of the firing squad and some forms of Mormon theology. Finally, it contrasts the efficiency of the firing squad with the visceral responses it produces: in the words of Chief Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, “We mask the most violent act that society can inflict on one of its members with such an antiseptic veneer. Isn’t death by firing squad, with mutilation and bloodshed, more honest?”

New Reports Reveal Irregularities in Oklahoma Execution Process

Two recent media reports reveal additional details of irregularities in Oklahoma's administration and defense of its lethal injection procedures.  A story in The Atlantic describes in detail the botched execution of Clayton Lockett and the failed attempts made by a paramedic and a doctor to insert the IV into Lockett's veins.  A Buzzfeed report asserts that Oklahoma's brief to the Supreme Court in the lethal injection case, Glossip v. Grossmade misrepresentations about the state's efforts to obtain lethal injection drugs.  The Atlantic reports that, after failing to insert the IV in Lockett's arm, the paramedic sought help from the doctor, Johnny Zellmer, and describes their unsuccessful attempts to insert the needle in Lockett's neck and chest before deciding to place the IV in the femoral vein near his groin. However, the longest needle available in the execution chamber was less than half the length necessary to reach the femoral vein. "We'll just have to make it work," the doctor reportedly said. After the drugs were administered and Lockett began to struggle and writhe on the gurney, the doctor checked the IV and found that it was displaced. When Zellmer pushed the needle back into Lockett's vein, blood squirted all over him, soaking his jacket. "You’ve hit the artery,” the paramedic said. “It’ll be all right,” Zellmer told her. “We’ll go ahead and get the drugs.” Ten minutes later, before additional drugs could be administered, Lockett was delcared dead. Buzzfeed reported that Oklahoma had misinformed the Supreme Court that its supplier of compounded pentobarbital had come "under intense pressure from death penalty opponents" to cease making the lethal injection drug "and subsequently declined to continue supplying the drug to Oklahoma."  It supplied a redacted copy of letter in support of that claim. The pharmacy, however, told Buzzfeed that it had never supplied any drugs to Oklahoma for any execution, and an unredacted copy of the letter showed that it had actually been sent to Texas, not Oklahoma, prison officials.  

EDITORIALS: Washington Post Calls for Transparency in Executions

In light of the three botched executions that took place in 2014, the Washington Post published an editorial urging states not to drop "a veil of secrecy over executions." In particular, the editorial board opposes a proposed law in Virginia, which, "would make practically everything about executions in Virginia a state secret — even the building in which they take place. " "It’s hard to see the compelling need for that kind of blatant censorship, which in other states has been challenged by death row inmates, civil liberties groups and media outlets as an infringement on the First Amendment," the editorial said. "Depriving the public of information on the dark side of capital punishment, and impoverishing the public debate, will not make botched executions any more palatable." It calls such laws constitutionally suspect, adding, "The fact that such mishaps might arouse public disgust does not justify granting anonymity to drug companies that enter into government contracts. If it did, states might conclude that any unpleasant news, and the resulting inconvenient public reaction, would occasion suspending the First Amendment." Read the editorial below.

DPIC Releases Year End Report: Executions and Death Sentence Fall to Historic Lows

On December 18, DPIC released its annual report on the latest developments in capital punishment, "The Death Penalty in 2014: Year End Report." In 2014, 35 people were executed, the fewest in 20 years. Death sentences dropped to their lowest level in the modern era of the death penalty, with 72 people sentenced to death, the smallest number in 40 years. Just seven states carried out executions, and three states (Texas, Missouri, and Florida) accounted for 80% of the executions. The number of states carrying out executions was the lowest in 25 years. Seven people were exonerated from death row this year, including three men in Ohio, who were cleared of all charges 39 years after their convictions, the longest time among all death row exonerees. There have now been 150 people exonerated from death row since 1973. “The relevancy of the death penalty in our criminal justice system is seriously in question when 43 out of our 50 states do not apply the ultimate sanction,” said Richard Dieter, DPIC’s Executive Director and the author of the report. “The U.S. will likely continue with some executions in the years ahead, but the rationale for such sporadic use is far from clear.” See DPIC's Press ReleaseView a video summarizing the report.

Ohio Senate Holds Hearing on Lethal Injection Secrecy Bill

On December 4, the Ohio Senate Judiciary Committee held a hearing on HB 663, which would shield the identity of those who produce lethal injection drugs for the state. Previously, critics of the bill had warned that the measure could be unconstitutional because it interferes with the courts and violates the First Amendment right to free speech. Among those testifying at the committee hearing was Kevin Smith of the Society of Professional Journalists, who called the bill, "one of the most over-reaching in terms of secrecy we have encountered." Public defenders and the Ohio ACLU also testified against the bill. The Ohio House has already passed the bill. Additional Senate hearings are scheduled for next week.

State Media Coverage of Baze v. Rees

State Media Coverage of
Baze v. Rees
Below are examples of state media coverage of Baze v. Rees regarding the constitutionality of lethal injection. In many instances, the articles discuss the possible impact of the decision on specific states:

Capital Doubts

Supreme Court mulls lethal injections as Christian support for the death penalty drops.
by Sarah Eekhoff Zylstra

Christianity Today

The U.S. Supreme Court heard arguments against Kentucky's lethal injection procedure in January, as attorneys for two death row inmates contended that when done incorrectly, the procedure—which involves three shots to numb, paralyze, and kill—can cause extreme pain to the prisoner.