Lethal Injection

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.

Three Controversial Executions Turn Into A Commutation, An Execution, and an Execution Failure

Three states—Alabama, Florida, and Texas—prepared to carry out controversial executions on Thursday, February 22, all scheduled for 7 PM Eastern time, but by the end of the night, two had been halted. Less than an hour before his scheduled execution, and after having said a final good-bye to his anguished father, Texas death-row prisoner Thomas "Bart" Whitaker (pictured, left) learned that Governor Greg Abbott had commuted his death sentence to life in prison. Minutes later, Florida executed Eric Branch (pictured, center), despite undisputed evidence that he had been unconstitutionally sentenced to death. He was pronounced dead at 7:05 p.m. And nearing midnight Central time, two-and-one-half hours after a divided U.S. Supreme Court had given Alabama the go-ahead to execute terminally ill Doyle Hamm (pictured, right) corrections commissioner Jeff Dunn called off the execution saying prison personnel did not have "sufficient time" to find a suitable vein in which to place the intravenous execution line before the death warrant expired. For Texas, it was the first time in more than a decade and only the third time since the death penalty was reinstated in 1976, that any governor had granted clemency to a condemned prisoner. The Texas commutation came after a unanimous recommendation by the parole board, support from the only living victim, Whitaker's father, and various state lawmakers. In explaining his grant of clemency—the first time Gov. Abbott had commuted any death sentence—the Governor cited the fact that Whitaker's codefendant, the triggerperson, did not get the death penalty, the victim "passionately opposed the execution," and Whitaker had waived any possibility of parole and would spend the remainder of his life in prison. The final-hour commutation was relayed to Whitaker in the holding cell next to the death chamber, as he was preparing to be executed. Florida executed Eric Branch despite the fact that a judge sentenced him death after two of his jurors had voted for life and the jury had been told not to record the findings that would make Branch eligible for the death penalty. Both of those practices have now been found unconstitutional. In Hurst v. Florida, decided in 2016, the U.S. Supreme Court reiterated that a capital defendant's right to a jury trial includes the right to have a jury find all facts necessary for the state to impose the death penalty, and later that year, the Florida Supreme Court declared that the Sixth Amendment and the Florida constitution require jury sentencing verdicts to be unanimous. Alabama had been warned that, because of his terminal cancer and prior history of drug use, Doyle Hamm's veins were not accessible and therefore an attempt to execute him via intravenous injection would be cruel and unusual. After the U.S. Supreme Court issued a temporary stay at 6:00pm CT, followed by a full denial of a stay with dissents from Justices Breyer, Ginsburg, and Sotomayor around 9:00pm CT, Alabama started preparing to carry out Hamm's execution. After more than two-and-a-half hours, the state called it off. At a news conference immediately thereafter, Commissioner Dunn repeatedly asserted the state had followed its execution protocol, and said "I wouldn’t characterize what we had tonight as a problem.” Dunn was unable to describe what the state had been doing during the time that Hamm was being prepared for the lethal injection and dismissed questions about failed attempts to set the IV lines saying he was not qualified to answer medical questions. He said he could not tell reporters how long the medical personnel had attempted to establish IV access because "I am not back there with the staff." Alabama keeps its protocol secret, making it impossible to verify the state's assertions. Hamm's attorney Bernard Harcourt, who—like all witnesses—was not permitted to view the IV insertion portion of the execution, speculated that prison personnel could not find a vein and called the process "[s]imply unconscionable." On the morning of February 23, Harcourt filed an emergency motion saying that Hamm had "endured over two-and-a-half hours of attempted venous access" and seeking a hearing to "establish exactly what happened" during that time frame. The federal district court scheduled a hearing on the issue for Monday, February 26.

Tennessee Attorney General Seeks Eight Execution Dates as Prisoners Challenge "Torturous" Drug Protocol

Thirty-three Tennessee death-row prisoners have filed a lawsuit challenging the constitutionality and legality of the state's new execution protocol, after Tennessee Attorney General Herbert Slatery (pictured) asked the state supreme court to expedite executions before one of the state's execution drugs expires. On February 14, Slatery asked the court to schedule eight execution to be carried out before June 1. Attorneys for the death-row prisoners, who were in the process of finalizing their challenge to the protocol, asked the high court for two weeks to respond to the Attorney General's request for death warrants. On February 20, they filed their own complaint in the Davidson County Court of Chancery arguing that the execution process adopted by state officials used drugs their own suppliers have told them will not work properly, and that the "torturous" drug protocol adopted by the state should be ruled unconstitutionally cruel and usual. In January, Tennessee changed its lethal-injection protocol from a one-drug barbiturate—the method used in the most recent executions carried out by Texas, Missouri, and Georgia—to a three-drug formula using the controversial drug midazolam, which has resulted in protracted and problematic executions in several states. Although Tennessee has not carried out an execution since 2009, the Attorney General said the state's ability to carry out lethal-injection executions "after June 1, 2018 is uncertain due to the ongoing difficulty in obtaining the necessary lethal injection chemicals." One of the lawyers for the prisoner, Supervisory Assistant Federal Public Defender Kelley J. Henry, said, "What Tennessee is proposing to do amounts to torturing prisoners to death, which we know because we’ve seen this protocol fail in other states." She said "You cannot break the law in order to enforce the law," but the protocol "requires pharmacists, doctors, and prison officials to act illegally." The prisoners' lawsuit references an email between a drug supplier and Tennessee corrections officials—a copy of which was obtained by the USA Today Network—showing that prison officials had been alerted to potential problems with midazolam months before they adopted their new drug protocol. In that September 2017 email, the supplier wrote: "Here is my concern with midazolam ... it does not elicit strong analgesic effects. The subjects may be able to feel pain from the administration of the second and third drugs. Potassium chloride especially." The Justices of the U.S. Supreme Court have likened the unanesthetized use of potassium chloride to being "chemically burned at the stake," and the prisoners' lawyers it would unconstitutionally subject their clients to "being burned alive from the inside." In February of last year, the state of Arkansas set eight executions over an 11-day period of time—all scheduled before the end of April based on the concern that the lethal-injection drugs would expire and the state would be unable to obtain more. Arkansas only carried out four of the eight, and there were notably visible problems with the use of midazolam in at least one of the four executions. Later in the year, Arkansas obtained additional drugs for another execution, which ultimately was stayed as a result of competency issues.  [UPDATE: On March 15, 2018, the Tennessee Supreme Court denied the Attorney General's request, but did set two execution dates, scheduling the executions of Edmund Zagorski for October 1, 2018 and David Earl Miller for December 6, 2018.] 

Missouri Executed 17 Prisoners With Drugs Secretly Obtained From 'High-Risk' Pharmacy Cited for Hazardous Practices

BuzzFeed News investigation has disclosed that Missouri carried out seventeen executions between 2014 and 2017 using supplies of the drug pentobarbital it secretly obtained from a pharmacy the Food and Drug Administration had classified as “high risk” because of repeated serious health violations. The February 20 exposé describes a complex system of clandestine meetings, code names, and undocumented cash payments that Missouri employed to conceal the identity of Foundation Care, a suburban St. Louis compounding pharmacy that reporter Chris McDaniel discovered “has been repeatedly found to engage in hazardous pharmaceutical procedures.” Foundation Care—which was reportedly paid more than $135,000 for execution drugs—is alleged to have engaged in illegal practices, medicare fraud, and numerous manufacturing improprieties and, McDaniel reports, its cofounder has been accused of "regularly ordering prescription medications for himself without a doctor’s prescription.” Two former senior employees of the company—including the head of pharmacy operations—have alleged in a lawsuit that Foundation Care violated government regulations by reselling drugs returned by patients, intentionally omitting the names of ingredients in drugs it prepared, and failing to notify other states about a $300,000 settlement with Kansas over allegations of Medicaid fraud. Another suit by a former employee alleges that she was fired after complaining to her supervisors and the Missouri Board of Pharmacy about “serious operational violations.” Missouri switched to Foundation Care after reporters discovered the identifty of the state's prior secret supplier of execution drugs—an Oklahoma compounding pharmacy called The Apothecary Shoppe. Reporters learned that The Apothecary Shoppe was not licensed to sell drugs in Missouri and had admitted to nearly 2,000 health and safety violations. Foundation Care first came to the attention of FDA investigators after a doctor complained to the agency that a patient he was treating had developed “a 'life threatening' illness” after taking a drug that had been prepared by the pharmacy. At that time, the investigators found that the pharmacy had shipped drugs to patients without conducting tests for sterility and bacteria, and a lab sample revealed drugs that had been contaminated with bacteria. In 2013, the FDA designated Foundation Care as a "high-risk" compounding pharmacy, and cited it as an example as to why greater federal oversight of compounders was necessary. A second inspection of the company that year found “multiple examples” of practices that could lead to contamination, and that Foundation Care had failed to “assure that drug products conform to appropriate standards of identity, strength, quality and purity.” In a February 2014 letter to the Missouri Board of Pharmacy, the FDA warned that the pharmacy’s practices “could lead to contamination of drugs, potentially putting patients at risk.” The possibility of drug contamination is one of the centerpieces of prisoner challenges to Missouri's execution process, and experts in the case have indicated that contamination could create a “substantial risk of pain and suffering.” However, in a deposition in the Missouri prisoners' legal challenge, state officials refused to say whether they were aware of any problems with their drug manufacturer, and lawyers for the state have affirmatively used Missouri's secrecy provisions to deny prisoners' access to information about its drug supplier and the company's safety record, while at the same time arguing the prisoners have not proven that the execution may be unconstitutionally cruel. Foundation Care was acquired by AcariaHealth, a subsidiary of health-care giant Centene Corporation, in October 2017. After McDaniel's report was published, the company issued a statement that, “[u]nder Centene’s ownership, Foundation Care has never supplied, and will never supply any pharmaceutical product to any state for the purpose of effectuating executions.”

Alabama Cancels Cancer Surgery, Sets Execution Date for Terminally Ill Prisoner

Alabama has set an execution date for Doyle Lee Hamm (pictured), a 60-year-old man with terminal cranial and lymphatic cancer that his lawyer says has rendered his veins unusable for lethal injection. Hamm has received radiation and chemotherapy, and was scheduled for surgery to remove a cancerous lesion on December 13, but Alabama prison officials cancelled the surgery and instead informed Hamm that a death warrant had been issued scheduling his execution for February 22, 2018. In September, Hamm's attorney, Bernard Harcourt, asked anesthesiologist Dr. Mark Heath to examine Hamm to determine whether his veins would be suitable for the execution protocol. Dr. Heath found that Hamm has virtually "no accessible veins" in his arms and legs, and that his lymphatic cancer would complicate any attempts at the already challenging procedure of obtaining central vein access. Heath concluded, “the state is not equipped to achieve venous access in Mr. Hamm’s case.” In a commentary in The New York Times, Harcourt wrote that Hamm "will suffer an agonizing, bloody, and painful death” if prison officials proceed with the execution as planned. "Our justice is so engrossed with how we kill that it does not even stop to question the humanity of executing a frail, terminally ill prisoner," Harcourt wrote. “Mr. Hamm’s serious and deteriorating medical condition poses an unacceptable risk that he will experience significant pain.” Andrew Cohen of the Brennan Center for Justice wrote in a December 15 commentary that Hamm's case "has come to symbolize the injustice of [Alabama's death-penalty] system. The idea that executioners want to make sure they kill Hamm before he dies of cancer, the fact that it is likely the lethal injection itself will cause him 'needless pain' before he dies, may be abhorrent but it's entirely consistent with the way state officials have handled Hamm's case for years." When Hamm was sentenced to death in September 1987, his jury did not unanimously agree on his sentence, but Alabama law permitted the trial judge to impose a death sentence based upon a jury's non-unanimous sentencing recommendation. At that time, Alabama was one of only three states to permit that practice; and now it is the only state to do so. Cohen wrote that Hamm's constitutional rights "were ignored in virtually every way" during the trial. "Witnesses changed their stories, ultimately testifying against him only after they were charged as co-defendants and made sweetheart plea deals. His trial lawyer did a miserable job during the mitigation phase, failing utterly to give jurors a fair sense of the intellectual disability, or perhaps brain damage, from which Hamm has suffered his whole life." During state post-conviction review of Hamm's case, the trial court denied his appeal by adopting verbatim an order written by the state attorney general's office, without even removing the word "proposed" from the title. In 2016, Hamm sought review of that practice from the U.S. Supreme Court, but the court declined to review his case.

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