Jan. 29
USA:
US death-row inmates could face firing squad
With lethal-injection drugs in short supply in America, some death penalty
states are considering bringing back relics of the past - firing squads, the
electric chair and the gas chamber.
Most states abandoned such methods more than a generation ago in a bid to make
capital punishment more palatable to the public and to a judiciary worried
about inflicting "cruel and unusual" punishments in breach of the constitution.
But to some elected representatives, the drug shortages and recent legal
challenges are beginning to make lethal injection too vulnerable to sustain.
"This isn't an attempt to time-warp back into the wild, wild West or anything
like that," said Missouri representative Rick Brattin, who recently proposed
the firing squad option. "It's just that I foresee a problem, and I'm trying to
come up with a solution that will be the most humane yet most economical."
Mr Brattin, a Republican, said questions about the injection drugs would end up
in court, delaying executions and forcing states to examine alternatives. It's
not fair, he said, for relatives of murder victims to wait years to see justice
done.
A Wyoming politician proposed a bill to allow the firing squad and Missouri's
attorney-general and a state representative have suggested rebuilding its gas
chamber. And a Virginia politician wants to make electrocution an option if
lethal-injection drugs aren't available.
US states began moving to lethal injection in the 1980s in the belief that
powerful sedatives and heart-stopping drugs would replace sickening spectacles
with a more clinical affair while limiting an inmate's pain.
The total number of US executions has dipped from 98 in 1999 to 39 last year.
Some states have eschewed the death penalty entirely.
In recent years, European drug companies have stopped selling the lethal
chemicals to US prisons on moral grounds.
At least 2 recent executions have also raised concerns about the drugs'
effectiveness. Last week, Ohio inmate Dennis McGuire took 26 minutes to die by
injection, gasping as he lay with his mouth opening and closing. And on 9
January, Oklahoma inmate Michael Lee Wilson's horrific last words were: "I feel
my whole body burning."
Missouri threw out its three-drug lethal injection after it could no longer
obtain the drugs. State officials altered the method in 2012 to use propofol,
the drug that killed pop star Michael Jackson.
The European Union then threatened to impose export limits on propofol if it
were to be used in executions, jeopardising the supply of an anaesthetic needed
by US hospitals.
The state then announced it had switched to a form of pentobarbital made by a
compounding pharmacy. Missouri won't name the provider. Missouri has carried
out 2 executions using pentobarbital - Joseph Paul Franklin in November and
Allen Nicklasson in December. Neither inmate showed outward signs of suffering,
but the secrecy of the process resulted in a lawsuit and an inquiry.
Michael Campbell, assistant professor of criminal justice at the University of
Missouri-St Louis, said some politicians simply don't believe convicted
murderers deserve any mercy.
"Many are trying to tap into a more populist theme that those who do terrible
things deserve to have terrible things happen to them," he said.
And Richard Dieter, executive director of the Death Penalty Information Centre
in Washington, cautioned: "These ideas would jeopardise the death penalty
because, I think, the public reaction would be revulsion."
(source: The Scotsman)
****************
The Supreme Court's Responsibility for Recent Death Penalty Mishaps
The execution rate in the United States has declined in the last 2 decades, but
what the late Justice Harry Blackmun famously called "the machinery of death"
remains deeply flawed. Two recent controversial executions illustrate how
capital punishment continues to defy attempts at civilizing.
A Torturous Lethal Injection
Some methods of execution that are now regarded as horrific were first
introduced as efforts to decrease the suffering of the condemned during the
process by which the state deliberately takes his life. The guillotine and the
electric chair were each, in their day, considered humane. In more recent
times, lethal injection has become the supposedly humane method of choice.
In principle, lethal injection could make death relatively painless. People
euthanizing a suffering family pet or, in jurisdictions that permit
physician-assisted suicide, hastening their own deaths, routinely choose a
lethal dose of barbiturate to ease the passage. But execution at the hands of
the state by lethal injection typically involves a "cocktail" of 3 chemicals,
rather than a large dose of sedative. As a consequence, it holds the potential
for horrific mishaps. If the paralytic chemical takes effect but the anesthetic
does not, the condemned may experience excruciating pain but appear outwardly
placid, as the paralytic prevents him from showing what is happening. (The same
problem has sometimes plagued anesthesia during surgery.)
Citing the risk of a botched execution, 2 death-row inmates challenged
Kentucky's use of the 3-drug cocktail as a violation of the Eighth Amendment's
prohibition on cruel and unusual punishment. In the 2008 case of Baze v. Rees,
the Supreme Court rejected the challenge.
As a technical matter, the High Court's ruling in Baze held only that there was
insufficient evidence to show that the standard lethal injection cocktail was
being administered in a way that posed an unacceptable risk of inflicting pain
that would violate the Eighth Amendment. In theory, therefore, the case left
open the possibility that, in some other, future case, such a showing could be
made.
In actual operation, however, a Supreme Court ruling that the evidence against
some practice does not suffice to invalidate that practice typically has the
consequence of validating that practice against other evidence as well. And
thus it was with lethal injections. Since Baze, it has been widely assumed that
lethal injection is legally permissible.
A recent execution in Ohio should, but probably will not, cause courts around
the country to reexamine their assumptions about the constitutionality of
lethal injection. It took Dennis McGuire nearly half an hour to die from the
lethal injection administered to him. During that time, according to one highly
credible eyewitness, McGuire struggled and gasped, suffering what his family
described as torture.
Why did McGuire's execution go so badly? A superficial assessment might lead to
the conclusion that it was because the state used an untested combination of 2
chemicals, rather than the standard 3-drug cocktail approved in Baze. But Ohio
abandoned the 3-drug cocktail after prison authorities bungled its
administration in a 2009 case, thereby vindicating the position that the
Supreme Court rejected in Baze.
Thus, although lethal injection is, in theory, a humane method of execution, in
fact it carries serious risks. It turns out that prison officials killing a
person who does not want to die face challenges that doctors and veterinarians
performing euthanasia do not.
An Execution in Violation of International Law
The torturous execution of Dennis McGuire was not the only illegal
administration of the death penalty in recent weeks. Last week, Texas executed
Mexican national Edgar Tamayo over the objections of the government of Mexico
and U.S. Secretary of State John Kerry. Their pleas to Texas Governor Rick
Perry and to the Supreme Court fell on deaf ears.
Yet there was no doubt that the execution of Tamayo violated international law.
In 2004, the International Court of Justice (ICJ) ruled in the Avena case that
the United States violated the rights of 51 Mexicans when they were arrested,
tried, convicted, and sentenced without first being notified of their right to
consult with their nation's consular representatives. The ICJ said that in
failing to provide such notice, the U.S. breached the Vienna Convention on
Consular Relations - and that state law could not be invoked in these
particular cases to treat the Mexicans' Vienna Convention claims as defaulted.
Tamayo was one of the Mexican nationals whose rights were vindicated in Avena,
but the ICJ victory has been for naught. In 2 subsequent decisions, the U.S.
Supreme Court effectively treated Avena as a dead letter.
First, in the 2006 case of Sanchez-Llamas v. Oregon, the Court held that while
the ICJ ruling in Avena was entitled to "respectful consideration" in the U.S.
courts, it was not binding domestically. The Court majority then went on to
disagree with the ICJ, allowing states to treat the failure to raise Vienna
Convention objections in accordance with state procedural rules as forfeiting
claims.
To its credit, the Administration of President George W. Bush attempted to give
the Avena ruling domestic effect, ordering state courts to treat it as binding.
But the Supreme Court then struck again in the 2008 case of Medellin v. Texas.
There, the Court ruled that, absent explicit authorization in a statute or
treaty, the President had no power to impose such a duty on the states.
The bottom line here has been a kind of shadow obligation. Every time a state
of the United States executes a foreign national whose Vienna Convention rights
were violated, it thereby violates international law. But because the Supreme
Court has frustrated efforts to give domestic effect to the treaty obligation,
states can put the United States in breach of international law without facing
legal consequences.
A Causal Hypothesis: The Supreme Court Is Tired of Death Penalty
"Technicalities"
Given the accumulating evidence that execution by lethal injection cannot be
reliably carried out without creating a substantial risk of inflicting what
amounts to torture, the Supreme Court should reexamine Baze v. Rees. And given
the increasing isolation of the United States in the world community as a
result of its flouting of the ICJ, the Supreme Court or Congress should
overturn Sanchez-Llamas and/or Medellin. But that does not mean that anything
will, in fact, change.
Why not? One can never be sure about how or why people do or do not change
their minds about such weighty matters as the death penalty, but I have a
hypothesis. Even as the country has increasingly become concerned about the
execution of people who are in fact innocent, and even as the Supreme Court has
continued to place some limits on who may be executed, the Court's conservative
majority remains skeptical of those death penalty claims that they view as
raising "technicalities."
Most of the lawyers who are active in the death penalty defense bar are
abolitionists: they favor elimination of the death penalty in its entirety.
When such lawyers argue that some particular method of execution is
unconstitutionally cruel, they lack credibility with some Justices because,
after all, these lawyers believe that every method of execution is
unconstitutional. They are using the method-of-execution claim
opportunistically.
The same phenomenon may also be at work in the context of Vienna Convention
rights. States and localities routinely violate the Vienna Convention, partly
due to inadequate police training, and partly due to the fact that it is not
always clear to an arresting officer that a suspect is a foreign national who
is entitled to receive Vienna Convention notification. Nonetheless, foreign
governments do not typically protest Vienna Convention violations, unless the
death penalty results. As a consequence, Justices and others may view the
protests that do get lodged as using the breach of the right to consular
notification opportunistically. The real reason for the protests, in this view,
is that the protesting countries dislike the death penalty: The U.S. is
virtually unique in the democratic world in retaining capital punishment.
Yet even if I have correctly identified a causal explanation for the Supreme
Court's hostility to certain sorts of claims against the death penalty, that
still does not amount to a justification for such hostility. So what if lawyers
and countries use the law opportunistically? The law is the law, and if the law
is best construed to forbid lethal injection, or to forbid execution of foreign
nationals who were denied their Vienna Convention rights, then the motives of
the people making the claims should not matter. It should be enough for them to
point to torturous executions and breaches of international treaty obligations.
(source: verdict.justia.com)
**************
Some states consider reviving old-fashioned executions
With lethal-injection drugs in short supply and new questions looming about
their effectiveness, lawmakers in some death penalty states are considering
bringing back relics of a more gruesome past: firing squads, electrocutions and
gas chambers.
Most states abandoned those execution methods more than a generation ago in a
bid to make capital punishment more palatable to the public and to a judicial
system worried about inflicting cruel and unusual punishments that violate the
Constitution.
But to some elected officials, the drug shortages and recent legal challenges
are beginning to make lethal injection seem too vulnerable to complications.
"This isn't an attempt to time-warp back into the 1850s or the wild, wild West
or anything like that," said Missouri state Rep. Rick Brattin, who this month
proposed making firing squads an option for executions. "It's just that I
foresee a problem, and I'm trying to come up with a solution that will be the
most humane yet most economical for our state."
Brattin, a Republican, said questions about the injection drugs are sure to end
up in court, delaying executions and forcing states to examine alternatives.
It's not fair, he said, for relatives of murder victims to wait years, even
decades, to see justice served while lawmakers and judges debate execution
methods.
Like Brattin, a Wyoming lawmaker this month offered a bill allowing the firing
squad. Missouri's attorney general and a state lawmaker have raised the notion
of rebuilding the state's gas chamber. And a Virginia lawmaker wants to make
electrocution an option if lethal-injection drugs are not available.
If adopted, those measures could return states to the more harrowing imagery of
previous decades, when inmates were hanged, electrocuted or shot to death by
marksmen.
States began moving to lethal injection in the 1980s in the belief that
powerful sedatives and heart-stopping drugs would replace the violent
spectacles with a more clinical affair while limiting, if not eliminating, an
inmate's pain.
The total number of U.S. executions has declined - from a peak of 98 in 1999 to
39 last year. Some states have turned away from the death penalty entirely.
Many have cases tied up in court. And those that carry on with executions find
them increasingly difficult to conduct because of the scarcity of drugs and
doubts about how well they work.
European drug makers have stopped selling the lethal chemicals to prisons
because they do not want their products used to kill.
At least 2 recent executions are also raising concerns about the drugs'
effectiveness. Last week, Ohio inmate Dennis McGuire took 26 minutes to die by
injection, gasping repeatedly as he lay on a gurney with his mouth opening and
closing. And on Jan. 9, Oklahoma inmate Michael Lee Wilson's final words were,
"I feel my whole body burning."
Missouri threw out its 3-drug lethal injection procedure after it could no
longer obtain the drugs. State officials altered the method in 2012 to use
propofol, which was found in the system of pop star Michael Jackson after he
died of an overdose in 2009.
The anti-death penalty European Union threatened to impose export limits on
propofol if it were used in an execution, jeopardizing the supply of a common
anesthetic needed by hospitals across the nation. In October, Gov. Jay Nixon
stayed the execution of serial killer Joseph Paul Franklin and ordered the
Missouri Department of Corrections to find a new drug.
Days later, the state announced it had switched to a form of pentobarbital made
by a compounding pharmacy. Like other states, Missouri has refused to divulge
where the drug comes from or who makes it.
Missouri has carried out 2 executions using pentobarbital - Franklin in
November and Allen Nicklasson in December. Neither inmate showed outward signs
of suffering, but the secrecy of the process resulted in a lawsuit and a
legislative inquiry.
Michael Campbell, assistant professor of criminal justice at the University of
Missouri-St. Louis, said some lawmakers simply don't believe convicted
murderers deserve any mercy.
"Many of these politicians are trying to tap into a more populist theme that
those who do terrible things deserve to have terrible things happen to them,"
Campbell said.
Richard Dieter, executive director of the Death Penalty Information Center in
Washington, D.C., cautioned that there could be a backlash.
"These ideas would jeopardize the death penalty because, I think, the public
reaction would be revulsion, at least from many quarters," Dieter said.
Some states already provide alternatives to lethal injection. Condemned
prisoners may choose the electric chair in eight states: Alabama, Arkansas,
Florida, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia. An inmate
named Robert Gleason Jr. was the most recent to die by electrocution, in
Virginia in January 2013.
Missouri and Wyoming allow for gas-chamber executions, and Arizona does if the
crime occurred before Nov. 23, 1992, and the inmate chooses that option instead
of lethal injection. Missouri no longer has a gas chamber, but Attorney General
Chris Koster, a Democrat, and Missouri state Sen. Kurt Schaefer, a Republican,
last year suggested possibility rebuilding one. So far, there is no bill to do
so.
Delaware, New Hampshire and Washington state still allow inmates to choose
hanging. The last hanging in the U.S. was Billy Bailey in Delaware in 1996. 2
prisoners in Washington state have chosen to be hanged since the 1990s -
Westley Allan Dodd in 1993 and Charles Rodman Campbell in 1994.
In recent years, there have been three civilian firing squad executions in the
U.S., all in Utah. Gary Gilmore uttered his famous final words, "Let's do it,"
on Jan. 17, 1977, before his execution, which ended a 10-year unofficial
moratorium on the death penalty across the country.
Convicted killers John Albert Taylor in 1996 and Ronnie Lee Gardner in 2010
were also put to death by firing squad.
Utah is phasing out its use, but the firing squad remains an option there for
inmates sentenced prior to May 3, 2004.
Oklahoma maintains the firing squad as an option, but only if lethal injection
and electrocution are deemed unconstitutional.
In Wyoming, Republican state Sen. Bruce Burns said death by firing squad would
be far less expensive than building a gas chamber. Wyoming has only 1 inmate on
death row, 68-year-old convicted killer Dale Wayne Eaton. The state has not
executed anyone in 22 years.
Jackson Miller, a Republican in the Virginia House of Delegates, is sponsoring
a bill that would allow for electrocution if lethal injection drugs are not
available.
Miller said he would prefer that the state have easy access to the drugs needed
for lethal injections. "But I also believe that the process of the justice
system needs to be fulfilled."
(source: TC Palm)
**********
Death Penalty's Latest Mutation: Experimenting on Human Beings
As we welcomed 2014, I was heartened to see a report by the Death Penalty
Information Center that offered some hope that maybe, just maybe, we are
becoming a more civilized people. According to the report, "With 39 executions
in 2013, this year marks only the 2nd time in nearly 2 decades that the United
States executed less than 40 people." The report went on to note that "the
number of states with capital punishment laws dropped to 32 this year, as
Maryland became the 18th abolition state." 2 states, Texas and, yes, Florida
were responsible for 59 % of all executions nationwide (Florida put 7 inmates
to death in 2013 and has already notched its 1st execution of 2014).
In the press release that accompanied the report, the Center noted that the
decline in executions was largely due to the increasing difficulty states are
having in obtaining lethal injection drugs. For one thing, drug manufacturers
in the European Union, where capital punishment is banned, are refusing to
export their products for use in executions, and that has forced death-penalty
states to pursue a grim search through lightly regulated compounding pharmacies
for the right cocktail of drugs to end the lives of the condemned.
In Ohio, a mere 2 weeks into the year, the search for a suitable lethal
concoction had a hideous outcome. According to witnesses, while chemicals
coursed through his veins, convicted killer Dennis McGuire "gasped and snorted
for roughly 26 minutes" before he was pronounced dead. There is no way to know
whether or how much McGuire suffered, but the episode refocused attention on
whether there is any such thing as a humane execution.
Legal filings challenging Ohio's use of untested drugs had warned that McGuire,
who raped and stabbed to death a pregnant young woman in 1989, might struggle
for oxygen for many minutes before dying. To which an Ohio prosecutor
responded: "You're not entitled to a pain-free execution." Judge Gregory Frost
apparently agreed, and permitted the execution to proceed, saying, "Ohio is
free to innovate and to evolve its procedures for administering capital
punishment."
Then, earlier this week, a federal district judge in Missouri, Beth Phillips,
denied a stay of execution for an inmate named Herbert Smulls, who was also
challenging the use of a drug cocktail from a compounding pharmacy in
neighboring Oklahoma. Phillips ruled that Smulls had failed to prove that the
pentobarbital from the unnamed pharmacy would cause him to suffer, though she
expressed concern that Smulls's lawyers had not been given enough time to
investigate the pharmacy's credentials.
So, while the trend in 2013 was away from state-sponsored executions, judges in
Ohio and Missouri rang in the New Year by ruling that it was okay for the state
to experiment on live human beings, and if there is some pain and suffering,
well, maybe that's what the bastards deserve. Except that the infliction of
pain, intentional or not, while it may not be unusual, is certainly cruel, and
therefore unconstitutional.
Like abortion and gun rights, the debate over capital punishment is always
emotional, and how could it be otherwise? For every convicted murderer there is
a victim or victims, killed sometimes savagely and grotesquely. And there are
grieving family members, struggling with wrenching loss while also contending,
usually for the 1st time in their lives, with a rage that knows no
bounds???that the killer of their son, daughter, wife or husband could live on
for years or decades seems itself grotesque. The urge for revenge is
understandable, and eminently human.
According to the Boston Globe, the mother of a young woman killed in the Boston
Marathon bombing is "a longtime opponent of the death penalty, [but] she has
been rethinking her position in recent weeks. 'Under the circumstances, an eye
for an eye feels appropriate,' she said." While prosecutors of murder cases
(including U.S. Attorney General Eric Holder, in the Boston case) often solicit
the views of victims' families in murder cases, the decision to seek the death
penalty simply can't be justified either by society's or individuals' desire
for revenge. Were that the case, we could issue baseball bats to family members
and let them beat the convict to death in the town square.
But, getting back to the study by the Death Penalty Information Center, I think
there is something else at work here as we come to terms with unequal
applications of the law and, most of all, the stark fact of 143 death row
exonerations since 1973. With the possible exception of Texas's Rick Perry, for
whom Texas's executions are an applause line, governors are human beings, and
for most people killing other human beings does not come easily. Governors, who
are nearly always the final executioners, must be getting queasy as they survey
a landscape of fallible juries, incompetent lawyers, the often willful
misconduct of police officers and the imperfect nature of evidence. Immersed as
we are in an ongoing debate about the limits of government power, the power of
government to kill its own citizens - no matter how despicable some of those
citizens may be - is a power too many. Winning an election by appearing to be
more cold-blooded than your opponent is, at the very least, unseemly and, at
worst, obscene.
In May, Colorado Governor John Hickenlooper issued an indefinite reprieve, not
clemency, to Nathan Dunlap, who was convicted of killing 4 people in a
restaurant in 1993. Hickenlooper's act was not a defense of Dunlap, it was a
condemnation of the death penalty. "It is a legitimate question," he said,
"whether we as a state should be taking lives."
The mother of one of Dunlap's victims accused Hickenlooper of taking "the
cowardly way out," but, in her grief, she couldn't be more mistaken. Having
suggested earlier in the year that he'd veto a bill that would have ended
executions in his state, when confronted with the reality of ordering the death
of another human being, Hickenlooper responded bravely. Here's hoping that
bravery visits more state houses across the country in 2014.
(source: Steve Robinson, flaglerlive.com)
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