June 14
NEBRASKA:
Nebraska's reliance on 3-drug formula makes lethal injections more difficult
The only prisoner who left death row in the 6 years since Nebraska made lethal
injection its method of execution died of natural causes.
Over the same time span, Texas has executed 87 convicted murderers via lethal
injection.
The Nebraska Legislature's recent vote to repeal the death penalty has touched
off a scramble to do what couldn't be done over the past half-dozen years.
While petition circulators collect signatures with the goal of reinstating
capital punishment, the state's top elected officials try to replace expired
death drugs so they can execute the 10 men on death row.
Regardless of how the political drama unfolds, a question remains as to why a
lethal injection execution has proved so difficult in Nebraska while Texas
averages more than 1 a month.
To find the answer, start with the drugs.
Nebraska still relies on the same 3-drug protocol written into regulations when
lawmakers passed the lethal injection law in 2009. Sodium thiopental puts the
inmate under, while pancuronium bromide triggers paralysis and potassium
chloride stops the heart.
That's 2 drugs too many, said Kent Scheidegger, a California attorney who has
written scholarly articles in defense of capital punishment.
"The single-drug method using pentobarbital works just fine," said Scheidegger,
legal director of the Criminal Justice Legal Foundation in Sacramento. "Texas
has done it dozens of times."
Though nearly all death penalty states once employed the same drug cocktail
used by Nebraska, pentobarbital has become a drug of choice in 14 death
chambers, including the one in Huntsville, Texas.
The drug is a barbiturate sometimes used as a seizure treatment that can put
the user to sleep. Obviously, too much produces more than unconsciousness.
"Pentobarbital is how veterinarians put animals to sleep every day in America,"
Scheidegger said. "It's not painful, and it's not difficult."
Sodium thiopental produces the same effect, which is why it's the 1st drug
administered in Nebraska's lethal protocol. If administered properly, it is
supposed to knock out the inmate so he doesn???t feel the effects of the second
drug, which causes suffocation, and the third drug, which causes a painful
burning sensation before triggering cardiac arrest.
The degree of pain felt by the inmate matters, because the Eighth Amendment of
the U.S. Constitution prohibits cruel and unusual punishment. The standard
adopted by the courts says the inmate must not experience unnecessary pain.
The author of Nebraska's lethal injection law had constitutional standards in
mind when he settled on the three-drug formula. Then-Sen. Mike Flood of Norfolk
was well aware of a 2008 case, Baze v. Rees, in which the U.S. Supreme Court
upheld Kentucky's lethal injection procedure using the same 3 drugs.
Nebraska switched to lethal injection later than other states and did so only
after the State Supreme Court declared electrocution unconstitutional in 2008.
That keystone ruling took place 11 years after Robert Williams was the last
person to die in Nebraska's electric chair.
The same 3-drug protocol that Nebraska settled upon had been around since 1978,
when Oklahoma became the 1st state to adopt lethal injection. But by the time
Nebraska was ready to carry out a lethal injection, supplies of death drugs
were becoming tighter - none more so than sodium thiopental. The only domestic
manufacturer of the drug stopped making it in 2010.
"The anti-death penalty movement has put a lot of pressure on drug
manufacturers," said Dudley Sharp, a pro-death penalty researcher in Texas. The
European Union eventually banned its sale for execution, which forced Nebraska
to go to a drug broker in India.
The 1st supply of sodium thiopental bought from the broker had to be
relinquished to federal agents because the state lacked an importer's license.
With a 2nd supply imported through the broker, the state tried to schedule
executions for death row inmates Carey Dean Moore and Michael Ryan. Attorneys
for the men fought off the attempts by raising credible accusations that the
broker had acted unethically in obtaining the drugs from a Swiss manufacturer
that didn't want them used for executions.
The 2nd shipment of sodium thiopental, along with Nebraska's supply of the
paralyzing agent pancuronium bromide, have since expired.
Prison officials recently purchased new supplies of each drug from the same
Indian broker, but it remains uncertain if they will succeed in importing the
drugs. The U.S. Food and Drug Administration has said that the sodium
thiopental cannot come into the country.
Texas ran into the same trouble securing supplies for its 3-drug protocol, so
in 2012 it switched to a 1-drug procedure using pentobarbital. Texas has since
carried out 43 1-drug executions.
Why hasn???t Nebraska followed the 1-drug path?
For one thing, it's easier to change lethal injection protocols in Texas than
in Nebraska.
Laws in both states grant their prison directors authority to decide what drugs
to use, but in Texas, the director's decision requires no public disclosure or
oversight from any governing board.
In Nebraska, the protocol is spelled out in the rules and regulations of the
State Department of Correctional Services. Changing the drugs in the protocol
would require a public hearing, but not legislative approval. Former Attorney
General Jon Bruning has said such a change could be accomplished in roughly 3
months.
Corrections Department Director Scott Frakes has no plans to change the
protocol at this time, department spokesman James Foster said Friday.
Former Sen. Flood, who strongly supports the death penalty, said he and other
lawmakers intended to preserve a degree of transparency in an execution system
that other states have chosen to shroud in secrecy.
"I wouldn't want to take due process out of the death penalty," Flood said last
week. "It has to operate in the open, transparent light of day. That's the most
serious step the state can take as far as a sanction for criminal behavior."
Nonetheless, switching to a single drug provides no assurance that Nebraska
would be able to obtain supplies of it. The sole manufacturer of injectable
pentobarbital announced in 2011 that it would refuse to sell the drug for
executions.
To address the problem, Texas has been getting its pentobarbital from what are
called compounding pharmacies. While such pharmacies don???t manufacture drugs,
they can mix, combine or alter the ingredients of a drug to produce a custom
medication.
Most compounding pharmacies are regulated by states rather than the federal
Food and Drug Administration. But that lack of federal oversight also raises
questions about the purity and potency of small-batch lethal substances, and
whether compounded drugs played a role in some botched executions.
Still, potential problems have not prevented South Dakota, Missouri, Oklahoma
and other states from joining Texas in obtaining compounded drugs for
executions. But there have been cases in which compounding pharmacies have
stopped supplying execution drugs after their identities became known,
apparently concerned over a public relations backlash.
Again, it???s why states such as Texas use secrecy laws to hide the sourcing of
their drugs. But lawyers for condemned inmates fight for disclosure, saying
their clients have a right to know that the drug that???s intended to kill them
has the correct potency or ingredients.
Nebraska officials wouldn't be able to guarantee anonymity to compounding
pharmacies, which could make it even harder for the state to find a supplier.
Late last year, Bruning, the outgoing attorney general, said working with other
states to have execution drugs compounded should be explored. But he said the
sentencing miscalculation scandal that had engulfed the Department of
Correctional Services distracted him from making progress on that front.
In 2013, Colorado???s prison director sent letters to all 97 of the state's
compounding pharmacists seeking sodium thiopental to carry out an execution. If
Nebraska officials have recently made similar requests, Joni Cover with the
Nebraska Pharmacists Association said she hasn???t heard of it.
Earlier this year the International Academy of Compounding Pharmacists and the
American Pharmacists Association issued statements to discourage their members
from preparing lethal injection drugs.
The drug scramble has forced corrections departments to turn to other classes
of barbiturates, such as midazolam. But use of that drug in the botched
execution of Clayton Lockett last year in Oklahoma led to a legal challenge
heard this year by the U.S. Supreme Court over what death row inmates called
"experimental executions."
The execution was halted when the prisoner began to writhe and gasp after he
had already been declared unconscious, and called out "Oh, man," according to
witnesses.
The court's highly anticipated opinion in Glossip v. Gross is expected before
the term concludes at the end of this month.
Eric Berger, who has extensively researched and written about lethal injection
as an associate professor at the University of Nebraska College of Law, said
changing to a 1-drug method might provide a temporary fix to Nebraska's
problems. But despite what some proponents say about one-drug procedures, they
have resulted in botched executions as well, Berger said.
"There are a lot of potential problems the state would have to work through
with a new protocol. It isn't something that would happen easily or quickly,"
said Berger, who isn't philosophically opposed to the death penalty but
considers it a failed policy in the United States.
Nebraska Attorney General Doug Peterson has said that regardless of what
happens with the referendum on the death penalty, the repeal should not apply
to the 10 men currently on death row. He plans to seek a ruling on that matter
from the Nebraska Supreme Court.
Attorney Jerry Soucie helped prevent the execution of Michael Ryan, who spent
30 years on death row before dying May 24, reportedly of cancer. Soucie said he
thinks no execution will take place unless voters reinstate the death penalty,
which won't happen sooner than late next year.
"The notion the Nebraska Supreme Court would be clamoring to execute anybody
before that whole ballot issue ran its course is putting politics ahead of
reality," Soucie said.
In the meantime, Nebraska isn't any closer to carrying out a lethal injection.
* * *
NEBRASKA'S LETHAL INJECTION PROCEDURES
Location
Execution chamber of State Penitentiary in Lincoln
3-drug protocol ----Sodium thiopental, an anesthetic, administered 1st
----Pancuronium bromide, which causes paralysis, administered next
----Potassium chloride, which stops the heart, administered last
Execution team
State's execution team, which oversees and carries out capital punishment,
consists of:
Prison director
Follows orders from Nebraska Supreme Court directing enforcement of death
sentence; is present for execution; directs injection of all drugs; summons
coroner to pronounce death
Warden
Checks to ensure inmate is unconscious after injection of 1st drug, sodium
thiopental; if necessary, an additional dose is given to ensure inmate is
unconscious before other 2 drugs are injected
Escort team
Takes inmate to execution chamber and secures inmate to table
Staff communicator
Maintains written record of execution, beginning when inmate is delivered to
execution chamber; also communicates with representatives of Nebraska
Department of Justice
2-member IV team, both of whom must be trained as EMTs
Examines inmate at least 48 hours before execution date to determine
appropriate veins for IV placement; on execution day, team establishes IV line
to administer lethal substances, attaches heart monitor to condemned inmate and
injects the drugs upon order of prison director
(source: omaha.com)
******************************
' Will Nebraska???s Death Penalty Come Back?
In a sensible, humane move last month, Nebraska lawmakers abolished the state's
death penalty by a 30-to-19 vote that crossed party lines and overrode a veto
by Gov. Pete Ricketts. These lawmakers aren't renegades; an April poll by the
American Civil Liberties Union of Nebraska found that 58 % of Nebraskans
supported alternatives to the death penalty, like life without parole.
Now comes the counterattack.
A new group called Nebraskans for the Death Penalty has started a petition
drive, supported by Mr. Ricketts, to put the issue directly before voters in
2016. Last week, they got the support of the Nebraska Sheriffs' Association,
which claimed, as Mr. Ricketts has, that public safety depends on the state's
ability to kill certain inmates.
To put the proposed referendum on the ballot, death penalty supporters have
about 3 months to get signatures from 5 % of registered voters, or about 58,000
Nebraskans. If they can get 10 percent, state law will put the ban on hold
until the voters have a chance to weigh in. Whether the effort succeeds will
depend in large part on how much money death penalty supporters can muster;
paying people to go door to door asking tens of thousands of voters for their
signatures doesn't come cheap.
In addition to supporting the referendum, Mr. Ricketts is insisting that he
still has the legal authority to execute the 10 people remaining on Nebraska's
death row, on the grounds that the Legislature cannot alter an existing
sentence. Lawmakers, however, say they have eliminated all executions. Whatever
the courts may decide on this question, it remains unclear whether the state
even has the means to carry out these killings.
Like most death penalty states, Nebraska has struggled for years to obtain
lethal-injection drugs. In 2011, after European drugmakers refused to sell
their drugs for use in killing people, the state tried to sneak them in through
a middleman in India. When a Swiss manufacturer found out and demanded the
drugs' return, Nebraska said no. In May, Mr. Ricketts said a new batch of drugs
had been purchased - again, reportedly, from an Indian supplier, for $54,400, a
batch large enough to kill 300 people. But 1 of those drugs, sodium thiopental,
has not been approved by the Food and Drug Administration, and it is illegal to
import it into the United States. The agency is under order from the federal
appeals court in Washington to seize any new shipments of it. As a lawyer who
argued that case put it, if the state wanted to get the drug, it would have to
"smuggle it in in someone's backpack."
That sums up the state of the modern death penalty: a shady undertaking that
depends on subterfuge and secrecy, lest the American people learn what is
really going on.
In contrast, the votes of the Nebraska Legislature show that when lawmakers
across the political spectrum can have an open, honest and informed debate on
the issue, capital punishment is quickly exposed for the immoral, ineffective,
arbitrary and costly practice that it is.
(source: Editorial, New York Times)
ARIZONA:
Murder victim's light still shines after 23 years
Time darkens it.
We shine a light on a tragedy and it stays there for a little while, but we
move on, we need to move one, the horrors of the day occur one after next after
the next. We show as much sympathy as we can, as much empathy as we can, but we
move on.
We forget. We need to forget.
And so we'll forget, again, a young woman named Angela Brosso.
(In fact, that voice inside your head already is saying, "Who?" And that's
okay.)
Regular folks like us have memory lapse after memory lapse. It's not our job to
remember.
But local police and prosecutors, working from one generation to the next,
don't forget.
Twenty-three years ago Angela Brosso's mother told me that her murdered
daughter, Angie, was "a force." She said that when Angela entered a room it was
"like a light going on."
The story of Angela's death was the biggest story in town for weeks. The media
shined our big spotlight everything about the case.
But time darkened it. For us, anyway.
Not for police. Not for prosecutors.
Earlier this year authorities arrested Bryan Patrick Miller for the murders of
Brosso, who was 22 when she was killed, and Melanie Bernas, only 17.
Brosso went out for a bicycle ride in late 1992. Her torso was found later near
25th Avenue and Cactus Road. Her head was discovered in the Arizona Canal.
It's impossible to imagine the horror she went through or the horror her
parents have lived with all these years.
Bernas's body was found in a canal about a year after Brosso's murder.
I kept up with Angela's family on an off for the first couple of years after
her murder, but not so much after that. Other tragedies come along, and keep
coming along.
Besides, it seemed as if investigators would never solve the case.
But technology improved, and officials say they linked Miller to the crimes
through DNA evidence.
That's good news for the victims' families, but it doesn't end things.
Prosecutors have decided to seek the death penalty. That complicates the trial
process. Among other things it means Miller will have to be mentally evaluated.
Which takes time. And so it has been decided that his trial won't take place
until late April 2017.
That's a long while from now, and 25 years after Brosso was murdered.
Angela would be in her mid-40s today. She was only beginning her career with a
Valley tech company when she was killed. She had a boyfriend. She had a future.
All of that will come up in the trial a couple of years from now.
In the meantime, chances are we'll forget about her. Again.
But we'll be reminded about her, again, by the prosecutors and the police.
And by Angela herself, who has not allowed time to completely darken her
memory.
As her mother told me about Angie all those years ago, "She changed the nature
of a room when she entered it. And it's true, you know? She really did. She was
like a light going on. So funny. And witty. That's what we'll miss. That
light."
It's still there.
In 2017, when the trial of Bryan Patrick Miller finally gets underway, it will
shine.
(source: Column, EJ Montini, Arizona Republic)
CALIFORNIA:
Confront reality and end death penalty charade
California has 750 people on death row
The state has executed 13 people since it reinstated capital punishment
Elected officials should lead by acknowledging the system is beyond repair
California authorities paid $10,000 in legal fees to the Criminal Justice Legal
Foundation earlier this month when they settled a death penalty-related
lawsuit. It was the latest insult inflicted by leaders who won't publicly admit
that capital punishment is an abject failure, and end it.
The $10,000 is a pittance, compared to the hundreds of millions California
taxpayers have spent on endless death sentence appeals, and to ensure that the
750 people on death row receive adequate health and mental health care, and are
housed in quarters that meet constitutional standards against cruel and unusual
punishment.
At some point, and we hope that point is soon, California's elected leaders
must admit that the system cannot be repaired. On this point, they would follow
Nebraska, where legislators in that Republican state last month banned capital
punishment.
Gov. Jerry Brown is a moral opponent of the death penalty. Lt. Gov. Gavin
Newsom, the 1 declared candidate to replace Brown in 2018, opposes capital
punishment, too, and was the 1 statewide official who publicly supported a 2012
failed initiative that sought to end the death penalty.
State law constrains governors from commuting sentences single-handedly. A
majority of the California Supreme Court would need to agree, if the person has
been convicted multiple times. Brown has appointed 3 of the 7 justices.
Attorney General Kamala Harris says she is an opponent, too. But Harris is
appealing a judge's ruling that the capital punishment system in California is
unconstitutional because it is so dysfunctional.
"As for the random few for whom execution does become a reality, they will have
languished for so long on death row that their execution will serve no
retributive or deterrent purpose and will be arbitrary," U.S. District Judge
Cormac J. Carney wrote last year.
The state's failure to acknowledge reality came into focus again when
California settled a suit in which the Criminal Justice Legal Foundation sought
to force the state to develop a single-drug protocol for dispatching condemned
people. This came 9 years after a federal judge in San Jose found that
California's choice of lethal drugs was unconstitutional.
As part of the settlement, the state will await a U.S. Supreme Court decision
expected to be issued soon that likely will determine the legality of
Oklahoma's execution drugs of choice. By terms of the settlement, the state
will then come up with a solution within four months. But, of course, death
penalty opponents will do what they are morally compelled to do: sue.
Litigation will drag on.
Michael Rushford of the Criminal Justice Legal Foundation told a member of The
Sacramento Bee's editorial board that executions could resume by fall 2016.
Death penalty advocates have been making similar claims since the 1970s when
the California Legislature overrode a Brown veto and reinstated capital
punishment, after the state Supreme Court had struck down the death penalty as
unconstitutional.
In 1992, after Robert Alton Harris became the first person in a generation to
be put to death, death penalty proponents and abolitionists predicted the gas
chamber would receive regular use.
After Harris' execution, Rep. Tom McClintock, R-Elk Grove, then an assemblyman,
carried legislation to give inmates the choice of lethal injection. That was
supposed to end appeals based on the cruelty of the execution method.
California has put 13 men to death since reinstating the death penalty, plus a
14th who was sentenced to death here but executed in Missouri for crimes there.
It hasn't executed anyone since 2006.
Another 66 condemned inmates have died of natural causes; 24 have committed
suicide; and 11 succumbed to other causes, including drug overdoses, in
cellblocks that are supposed to be highly secure. An $835,000 execution chamber
completed in 2010 has never been used.
People on death row have committed horrible murders. Each should die in prison.
But California's elected leaders and the electorate must face reality. The
death penalty has not worked, and never will.
(source: Editorial, Sacramento Bee)
USA:
Debating the death penalty
Re: "The case for the death penalty," June 7 Mike Rosen column.
Mike Rosen has it wrong on the death penalty. He calls for "retribution" -
a.k.a. vengeance - without considering 2 major costs.
According to a recent article in Time, it costs 6 to 8 times more money to put
someone to death than to put them away for life. I???d rather have good roads.
It hurts the survivors, who are victims, because of the prolonged trials and
appeals, when they have to revisit the loss of their loved ones. I'd rather
spare them the suffering.
Many who get the death penalty actually end up dying of old age, in prison,
while awaiting the actual execution. So what is the point?
Tim Haley, Colorado Springs
--------------------------------------------------------------------------------
I am a senior citizen who has seen vast changes in our legal position on the
death penalty.
Nathan Dunlap has been in prison for more than 20 years after murdering 4
people in an Aurora family restaurant. James Holmes may see the same fate for
murdering 12 in an Aurora theater. In our country, there are many more
criminals on death row at taxpayer expense.
How much are taxpayers willing to pay for the ills of convicted criminals?
Taxes can be used for constructive purposes like support of education,
restoring infrastructure in our state, aiding social and developmental causes
and helping the less fortunate. There are so many worthwhile causes and needs;
wasting time and money on criminals is a disgrace we can no longer afford.
David Prok, Parker
--------------------------------------------------------------------------------
Regarding the argument that a death sentence is even more "expensive" than life
imprisonment, that is due to our seemingly endless appeal process. In my
opinion, there needs to be a limit - in terms of both time and number of
appeals - after which the penalty is carried out.
Barbara Vetter, Broomfield
(source for all: Letteres to the Editor, Denver Post)
****************
Actor Mike Farrell sees death penalty as nation's 'failure'
Although best known for his role on the television series "M*A*S*H," Mike
Farrell also has a longer history as an activist for human rights and against
the death penalty.
He came to Oregon to talk about those passions with opponents of the state's
death penalty.
"We are doing great harm to ourselves," Farrell said in an interview before he
spoke at the annual dinner of Oregonians for Alternatives to the Death Penalty.
"We put ourselves in partnership with people we despise. We claim that the
Chinese, the Saudis and the Iranians are doing wrong in what they are doing
with human rights, and yet we continue to do the same thing.
"It sets us up for a great fall. I love this country and I do not want to see
it fail that way."
Farrell said that while more than 100 nations have abolished the death penalty
or do not use it, the United States is among the 60 that still do. Among them
are China, Iran, Pakistan and Saudi Arabia, which with the United States
accounted for 88 % of all executions last year, according to the Death Penalty
Information Center.
Farrell is the president of Death Penalty Focus, based in San Francisco. His
wife, Shelley Fabares, is on its advisory board.
Origins of activism
Near the end of his 8 seasons on "M*A*S*H," in which he played Korean War-era
Army surgeon B.J. Hunnicutt, Farrell was asked by Tennessee minister Joe Ingle
to lend his voice against the death penalty.
A U.S. Supreme Court decision in 1976 cleared the way for states to resume
executions - Gary Gilmore in Utah was the 1st in 1977 - under specified
conditions. Ingle said he feared an onslaught of executions.
"He said he needed help from somebody who had the possibility of getting press
attention because of the issue???s visibility - and I qualified," Farrell said.
Farrell had already been active in human rights advocacy while he was a member
of the "M*A*S*H" cast from 1975 to 1983. He joined the show in its 4th season.
He had spoken out against human rights abuses in Central America, where the
United States supplied military aid, and in Southeast Asia. He also traveled to
those areas.
"There are certain things I believe, and you run into issues," he said. "When
they come up and I feel I can be effective in dealing with them, I try to do
it."
Farrell, who's 76, interweaved descriptions of his activism with his acting
career in a 2007 autobiography, "Just Call Me Mike."
"When I first got involved, our position (against the death penalty) was a
lonely one," he said. "It was the tough-on-crime years. It was hard to get a
crows, hard to get anyone who would talk with you."
He identified 2 important boosts to the cause. One was the 1995 movie "Dead Man
Walking," based on the book by Sister Helen Prejean. Susan Sarandon won an
Academy Award for her portrayal. The other was a gathering of 3 dozen
death-penalty exonerees coinciding with the 1999 opening of the Center on
Wrongful Convictions at Northwestern University law school in Chicago.
"As a result, people began to become much more aware of problems within the
system," he said.
A long time coming
Farrell said change takes persistence and patience.
Back in 1994, he spoke at a news conference in Lincoln, Neb., on behalf of
Harold "Wili" Otey, who was executed for a 1977 murder Otey said he did not
commit. But recently, Nebraska's 1-chamber Legislature abolished the death
penalty by overriding the governor's veto, although its supporters hope to
compel a statewide referendum.
Farrell said 1 of Nebraska's death penalty's foes, then and now, is Ernie
Chambers, a black state senator from Omaha.
"As Ernie???s effort has demonstrated, you stay at it. Not only do people's
minds change, circumstances change," he said.
Nebraska became the 19th state to do away with the death penalty.
Farrell said the issue transcends partisan, ideological or even moral divides.
He said an increasing number, notably political and religious conservatives,
see it as unworkable and expensive compared with the alternative of life in
prison without parole.
"It is counterintuitive and hard for people to grasp, but it's true in every
state," he said. "So as these cases attract people's attention, they become
more open to this discussion."
(source: pamplinmemdia.com)
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