Lethal Injection

One Year After Botched Execution, Many States Still Haven't Resumed Executions

On July 23, 2014, Arizona's execution of Joseph Wood was botched, taking nearly two hours from the time the state began injecting him with lethal drugs until he was finally pronounced dead. Witnesses reported that Wood gasped more than 640 times during the course of the execution, and an official report later revealed that he was injected with 15 doses of the execution drugs. Michael Kiefer, a reporter for the Arizona Republic, who witnessed Wood's execution, described it, saying, "He gulped like a fish on land. The movement was like a piston: The mouth opened, the chest rose, the stomach convulsed." Arizona used a combination of midazolam, the drug recently reviewed by the Supreme Court in Glossip v. Gross, and hyrdromorphone, a narcotic. Wood's lawyer, Dale Baich, describing the execution, said "The experiement failed." The same drug protocol had been used in Ohio's botched execution of Dennis McGuire earlier in 2014 and witnesses to an October 2014 execution by Florida using midazolam reported that the death took longer than usual. In the year since Wood's execution, Arizona has not carried out any executions as a stay issued by a federal judge remains in place. In that time, Oklahoma and Florida have used midazolam in a total of three executions, with Charles Warner in Oklahoma saying "My body is on fire." Both states temporarily put executions on hold while the Supreme Court review was underway, but indicate they intend to resume executions now that the use of midazolam has been upheld. An Oklahoma federal court has scheduled a trial for 2016 on Oklahoma's use of midazolam. All other executions since Wood's have used a one-drug protocol of pentobarbital, likely obtained from compounding pharmacies, since the primary manufacturer of the drug opposes its use in executions. Ohio delayed all executions until at least 2016 to review executions procedures, and executions in Tennessee are on hold because of legal challenges to its lethal injection protocols. Georgia is conducting an investigation into problems with execution drugs and has not set new execution dates as a result.

Louisiana Executions on Hold Until State Addresses Lethal Injection Issues

A federal judge in Louisiana has delayed five executions until at least July 2016 as state officials struggle to determine how to conduct executions using lethal injection. Christopher Sepulvado, a death row inmate whose execution has been rescheduled several times over the last two years, is challenging the constitutionality of Louisiana's execution method. The Department of Corrections requested that a hearing related to Sepulvado's challenge be put on hold because, "it would be a waste of resources and time to litigate this matter at present," because of ongoing developments relating to the availability of lethal injection drugs. Louisiana does not currently have an execution protocol. Its last protocol, however, was the same as that used in Arizona's botched execution of Joseph Wood: a combination of hydromorphone and midazolam. The state allegedly lied to a hospital in order to obtain one of the drugs in 2014, telling a pharmacist that the drug was needed for "a medical patient," not an execution. The Department of Corrections' last known supply of the execution drugs has now expired.

Supreme Court Narrowly Upholds Use of Lethal Injection Drug

On June 29, the U.S. Supreme Court held (5-4) in Glossip v. Gross that Oklahoma inmates "failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment." Three inmates on Oklahoma's death row had challenged the state's use of midazolam as the first drug in a three-drug protocol, saying that it "fails to render a person insensate to pain." In a narrow decision written by Justice Samuel Alito, the Court deferred to a District Court ruling upholding the use of midazolam. Justice Alito said that, in order to prevail, the inmates would have had to identify a "known and available alternative method" that has a lower risk of pain. The decision will allow states that use midazolam, including Oklahoma, to resume executions, though they can still consider alternatives. In a sweeping dissenting opinion raising deep concerns about the death penalty itself, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution....Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use."

NEW VOICES: American Society of Health-System Pharmacists Opposes Participation in Executions

In a press release on June 9, the American Society of Health-System Pharmacists (ASHP) announced its policy affirming "that pharmacists, as healthcare providers who are dedicated to achieving optimal health outcomes and preserving life, should not participate in capital punishment." ASHP represents 40,000 members, including pharmacists who serve as patient-care providers in acute and ambulatory settings. The organization also includes student pharmacists and pharmacy technicians. The policy was approved by the organization’s chief policy-making body, the House of Delegates, during ASHP’s Summer Meetings this week in Denver. “This policy makes it clear that ASHP opposes pharmacists’ participation in capital punishment,” said ASHP Chief Executive Officer Paul W. Abramowitz, Pharm.D., Sc.D. (Hon.), FASHP. “We are proud that our members as patient care providers who are dedicated to achieving optimal health outcomes have taken this strong, ethical stance.”

Missouri Execution Clouded by Concerns About Mental Illness and Lethal Injection

On June 9, Richard Strong was executed in Missouri, despite the fact that four Justices of the Supreme Court would have granted him a stay and despite evidence that he suffered from severe mental illness. A broad challenge to Missouri's secretive lethal injection process (Zink v. Lombardi) has yet to be resolved, and Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to stay Strong's execution because of that challenge. However, five votes are needed to stay an execution. In addition, Strong's original trial counsel failed to adequately explore his mental illness and the mental problems in his family. After a fuller investigation, Strong was diagnosed with major Axis I illnesses, including: Major Depression, Obsessive-Compulsive Disorder (OCD), Post-Traumatic Stress Disorder (PTSD) and Schizotypal Personality Disorder, and Dissociative Identity Disorder. Strong's counsel asked the Supreme Court to spare his life because society's standards of decency have turned away from executing people with such severe mental problems. Strong was convicted of murdering his wife and two-year-old daughter in a brutal manner. He acknowledged the crime but could not understand why he did it. Another child was left untouched. Now 14 years old, she pleaded for mercy for her father. Gov. Jay Nixon denied clemency.

Tennessee Supreme Court Contemplates Electric Chair Appeal on 25th Anniversary of Botched Florida Electrocution

The week of the 25th anniversary of Florida's gruesome botched electric chair execution of Jesse Tafero (pictured), the Tennessee Supreme Court began hearing a challenge to the administration of a state law that would resurrect the use of that State's electric chair if lethal injection drugs are unavailable. On May 6, 2015, the Tennessee justices heard argument on death-row inmates' right to know which method of execution will be used in their cases.  The Justices voiced concerns about the secrecy that the law allows to shield the execution process and the decision about which method to use. "How are the defendants supposed to know?" Justice Cornelia A. Clark asked, offering a hypothetical situation in which an inmate expects to be executed by lethal injection until he sees the electric chair set up in the execution chamber. Deputy Attorney General Jennifer Smith argued that execution by electric chair is "just not going to happen," but Chief Justice Sharon Lee said that the inmates' evidence regarding the unavailability of execution drugs suggests, "execution (by the electric chair) is very probable."  On May 4, 1990, witnesses to Tafero's execution reported that a problem with Florida's electric chair caused foot-high flames to shoot from Tafero's head. Current had to be applied three times because the first two shocks failed to kill him.

NEW VOICES: Citing Innocence, Misconduct, Creator of Lethal Injection Protocol Calls Death Penalty "Problematic"

Dr. Jay Chapman, the Oklahoma medical examiner who created the three-drug lethal injection protocol that was used from 1982 to 2010, recently told The Guardian that he has doubts about the death penalty.“I am ambivalent about the death penalty – there have been so many incidents of prosecutorial misconduct, or DNA testing that has proved a prisoner’s innocence. It’s problematic," Chapman said. He said he believed lethal injection would be a more humane method of execution, "At that time we put animals to death more humanely than we did human beings – so the idea of using medical drugs seemed a much better alternative.” He found it odd that his name has become so closely associated with lethal injection, saying, “This wasn’t my field, and it wasn’t my purpose in life – I’m a forensic pathologist and my main purpose was to set up a medical examiner’s system for Oklahoma, which is what I did.” Ultimately, concerns about wrongful convictions have given him qualms about capital punishment: “I’ve done autopsies for 50 years and I know what people are capable of doing to others. There are some criminals who have no redeeming features and who will never be rehabilitated – in those cases I would support the death penalty. But I’ve also seen the misconduct that can occur, and the problem is: how do you sort out one from the other?”

Supreme Court Hears Challenge to Oklahoma's Lethal Injection Protocol

On April 29, the U.S. Supreme Court heard oral argument in Glossip v. Gross, a case challenging the use of midazolam in lethal injections. Midazolam was used as the first drug in three botched executions in 2014, including the execution of Clayton Lockett in Oklahoma exactly one year ago. Prisoners on Oklahoma's death row argued that midazolam should not be used in executions because it could not reliably anesthesize the prisoner to prevent him or her from experiencing extreme pain when the second and third drugs in Oklahoma's execution protocol were injected. The Justices questioned both sides intensely, with the more conservative justices generally favoring the state's arguments and the more liberal justices favoring the prisoners' arguments. Justice Elena Kagan compared the effects of potassium chloride, the third execution drug, to being burned alive, saying, "Suppose that we said we’re going to burn you at the stake, but before we do, we’re going to use an anesthetic of completely unknown properties and unknown effects." Conservatives on the Court criticized the case as a veiled attacked on the death penalty itself. The Court is expected to decide the case before the current term ends in June. 

Pages