Lethal Injection

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.

Nevada Says Fentanyl Was Easy to Obtain, But Execution Protocol Draws Criticism from Doctors, Legal Experts

As U.S. pharmaceutical companies have strengthened distribution controls on their medicines to prevent their use in executions, states have been changing their execution protocols in search of new or more readily available drugs. That search has led Nebraska and Nevada to build their execution protocols around fentanyl—the drug known for its role in the current opioid crisis in America—and the paralytic cisatracurium, which have never been used in executions before. According to a report in the Washington Post, Nevada's former chief medical officer, Dr. John DiMuro, quickly chose a never-before-used combination of drugs for the state's execution protocol based upon “the few drugs available to the prison system.” In an e-mail to the Post, the Nevada corrections department said the drug was easy to obtain. “We simply ordered it through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” wrote corrections spokeperson Brooke Keast. “Nothing out of the ordinary at all.” In April, drug distributor McKesson Medical-Surgical sued Arkansas after learning that the state was using one of the medicines it obtained from the distributor as an execution drug, alleging the state had deliberately misled McKesson to believe that the purchase was for legitimate medical purposes. That lawsuit is still pending in the Arkansas courts. Dr. DiMuro said he created the untried execution protocol “based it on procedures common in open-heart surgery.” However, the protocol has spawned a new round of criticism from doctors and lethal-injection experts. Mark Heath, a professor of anesthesiology at Columbia University, told the Post that if the fentanyl or the sedative Valium—which Nevada would also administer before the paralytic—“don’t work as planned, or if they are administered incorrectly,” then the prisoner would be awake and conscious during the execution. “It would be an agonizing way to die, but the people witnessing wouldn’t know anything had gone wrong because you wouldn’t be able to move” because of the paralytic drug, he said. Emory University Professor of Anesthesiology Joel Zivot said the protocol is the latest in a series of attempts by states to “obtain certain drugs, try them out on prisoners, and see if and how they die.” The states, he said, have “no medical or scientific basis” for selecting the execution drugs. Fordham University law professor Deborah Denno, a leading scholar on methods of execution, criticized the states for continuing to adopt experimental drug protocols. The reason for the change in protocols, she said, is “not really for the prisoner. It’s for the people who have to watch it happen. We don’t want to feel squeamish or uncomfortable. We don’t want executions to look like what they really are: killing someone.”  On November 27, a Nevada state trial court issued an inunction barring the state from using a paralytic in conjunction with fentanyl in the execution of Scott Dozier.  The state has appealed the order. 

Senior U.N. Official Assails Death-Penalty Secrecy As Obstruction of Human Rights

A senior United Nations human rights official has criticized the secrecy with which countries carry out the death penalty and called for greater transparency by countries that still employ capital punishment. "There is far too much secrecy," United Nations Assistant Secretary-General for Human Rights Andrew Gilmour (pictured) said in an interview released November 21 by the U.N. News Centre, "and it’s quite indicative the fact that although many countries are giving up the practice, those that retain it nevertheless feel that they have something to hide." 170 nations have either abolished the death penalty—which U.N. Secretary-General António Guterres has described as a “barbaric practice” that “has no place in the 21st century”—or have not carried out an execution in more than a decade. Many of the governments that continue to execute prisoners have shrouded their death-penalty practices in secrecy, hiding who is on death row and why, how executions are carried out, and—in some countries—how the government has disposed of the executed prisoner's body. Guterres said the practice manifests “a lack of respect” for the human rights of those sentenced to death and "obstructs efforts to safeguard the right to life.” In December 2016, the General Assembly added an anti-secrecy provision to its regular resolution calling for a moratorium on executions, saying that transparency was essential to assess whether countries were administering their death penalty laws in compliance with international human rights standards. In September 2017, the death-penalty moratorium resolution adopted by the U.N. Committee on Human Rights again emphasized the link between transparency and respect for human rights. At an October 2017 event at U.N. Headquarters in New York commemorating World Day Against the Death Penalty, the Secretary-General said "[f]ull and accurate data is vital to policy-makers, civil society and the general public. It is fundamental to the debate around the death penalty and its impact.” Execution secrecy, he said, "undermines that debate." Secrecy has been implicated in recent execution botches and questionable execution practices across the United States, In May 2016, an Oklahoma grand jury found that “paranoia” on the part of prison officials about keeping execution information secret had “caused administrators to blatantly violate their own policies,” contributing to the botched execution of Clayton Lockett, the execution of Charles Warner with an unauthorized execution drug, and the aborted attempt to execute Richard Glossip. In Missouri, prosecutors affirmatively used the state's secrecy provisions to prevent prisoners from obtaining evidence that the out-of-state compounding pharmacy from which the state was illegally obtaining drugs had committed 1,892 violations of pharmacy health and safety regulations. Gilmour singled out for criticism Arkansas’s rush to execute eight prisoners in an eleven-day span in April before its supply of the drug midazolam expired. “I’ve heard various arguments, absurd arguments for executing and some rather obscene arguments for executing,” Gilmour said, “but I don’t really think I’ve heard many more obscene ones or absurd ones than the fact that the drugs for executing had reached their sell-by date.” As part of an international human rights efforts to end the secret trade in lethal-injection drugs, the U.N. Office of the High Commissioner for Human Rights has supported a multi-national initiative called the Alliance for Torture-Free Trade. "I think it’d be a step forward in civilization to block this trade, and luckily there are some major drug companies who are refusing to allow their drugs to be used in instances of execution,” Gilmour said.

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."

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