July 12
TEXAS----impending execution
Death Watch: Faith in Executions----Religious beliefs barred a potential juror
from Christopher Young's trial. Did that cause his sentencing?
Possible religious discrimination might grant a Texas death row inmate another
trial. Christopher Young filed an application for relief with the Texas Court
of Criminal Appeals on July 2, arguing that the discrimination against a
potential juror, based on her church affiliation, tainted his original trial.
Young was 21 when he shot and killed Hasmukh Patel during an attempted robbery
of a gas station. Before his trial, a woman was struck from the jury based
"solely" on her affiliation with a Baptist church where "some members"
ministered to prisoners, because the prosecution believed this could imply that
she favored the defendant. Today, Young's counsel claims the potential juror's
personal beliefs were never questioned, which was allowed under Casarez v.
State, where the CCA held that peremptory challenges made on the basis of a
potential juror's religious affiliation do not violate the 14th Amendment's
Equal Protection Clause.
The latest appeal, however, was granted in light of 2011's Devoe v. State, when
the CCA ruled that Casarez should be read as only "challenges made on the basis
of personal religious belief are permissible." Young's lawyer Jeff Newberry
said "the whole case hinges on the 2011 decision being the new law." The
Alliance Defending Freedom, a public interest organization that protects First
Amendment rights, along with a group of 23 "Faith Leaders," have filed amicus
briefs in support of Young's request for a new trial. According to one, if the
court upholds its original decision, it will "essentially create a rule that
says it is permissible for the citizens of Texas to be discriminated against in
the courtroom for freely exercising their right to affiliate with a particular
church."
Young's attorneys also filed a clemency petition with the Texas Board of
Pardons and Paroles on June 25, referencing Thomas Whitaker, who received
clemency in February ("Justice for Whom?" Feb. 16). That outcome has inspired
more Texas lawyers to seek clemency for their death row clients, but Newberry
believes the similarities between his client's case and Whitaker's set Young's
apart. As Whitaker's father asked the state to spare his son's life, Patel's
son Mitesh has asked the state to spare Young's.
The petition states Mitesh told Young's counsel that "boys who lose their
fathers traumatically have a 50-50 shot of being successful despite that
trauma. Mitesh was; Chris was not." (Young was a child when his own father was
murdered.) Now, Mitesh wants Young's sentence commuted so that Young can be a
"father to his daughters." The petition asks the board to focus on the
"important facts." Aside from Mitesh's plea, it states Young "is truly
remorseful," and that his life has "positive value, both as a father and as a
former gang member who can counsel other inmates." Newberry expects the board
to vote on Young's case on Friday, July 13.
The U.S. Supreme Court denied Young's last appeal in January. If rulings
continue in the state's favor, Young will be executed on Tuesday, July 17.
Already, Texas has executed 7 inmates this year, with another 6 scheduled
before November.
(source: Austin Chronicle)
FLORIDA:
Man, 66, could still face death penalty if convicted in cold case
murder----James Leon Jackson charged in 1984 rape and murder of 10-year-old
Tammy Welch
Despite his age and infirmity, a 66-year-old man could still face the death
penalty in the cold case murder of a 10-year-old girl -- if he is convicted.
James Leon Jackson is charged in the 1984 rape and murder of Tammy Welch.
Jackson was considered a suspect all along but wasn't charged until 2013.
In 2016, Jackson's lawyers filed a motion to block the state attorney's office
from seeking the death penalty, per the U.S. Supreme Court's Hurst ruling.
At a hearing Tuesday, the judge denied that motion.
Other motions to preclude the death penalty are pending, and Jackson???s
lawyers now want a psychiatric evaluation done.
Jackson's trial is set for the end of the month.
(source: WJXT news)
*****************
After 20 years on death row, wrongly imprisoned man starts new life in Tampa
An Ohio man found not guilty after spending 20 years on death row is relocating
to Tampa through an organization that helps the recently exonerated rejoin
society.
When he was exonerated and released after 20 years in prison, he struggled to
rejoin society. Now, thanks to the Sunny Center, he will get the fresh start he
was dreaming of.
Derek Jamison's life was stolen at just 23-years-old. He was sentenced to death
for a murder he didn't commit.
"It was hell," Jamison said. "On earth."
Jamison was sentenced to death in 1985, charged with the robbery and murder of
a bartender at a restaurant in Cincinnati, Ohio. Jamison says an acquaintance
who carried out the robbery lied to police, telling them Jamison was his
accomplice.
Now, DNA evidence has set him free.
His years behind bars, however, will be difficult to forget.
"I wasn't just suffering," Jamison said. "My family was suffering with me."
He was forced to grieve the deaths of multiple family members while in prison,
including his mother's. He got the news from a prison guard.
"The only thing I could think about was my mom laying in that morgue," Jamison
said. "This is the things I would think about. I know what killed my mom. The
death penalty didn't kill me, but it destroyed my family."
Even though he was released in 2005, his struggles have continued. For the last
13 years, he's been struggling to find a permanent place to live and way to
make a living.
Now he will be the 1st person to be part of a pilot program helping recent
exonerees find a place to stay and make a living.
Thanks to the Ireland-based Sunny Center, Jamison was able to pack up his
belongings and his pooch, Lucky and move into a new home in Tampa.
"We try to help them reorganize their life," Exoneree Support Coordinator
Dorothy Bort said. "Learn life skills that they were never able to learn."
Bort is now spear-heading the new Exoneree Housing pilot program, exclusive to
Tampa, which helps finds housing for recent exonerees.
Jamison is the program's 1st member.
He's now making it his mission to help free the wrongfully accused and help
them reclaim a life once stolen.
"By them helping me, I can help other exonerees," Jamison said. "And other
people because that's what I do."
Jamison is set to receive compensation from the State of Ohio for his wrongful
imprisonment but this lawsuit is still pending.
He says the biggest issue for recent exonerees is having money when they first
get out. He hopes to create a compensation fund for people just like him.
(source: Fox News)
ALABAMA:
Inmate Requests Derail Midazolam Litigation
A lawsuit challenging Alabama's lethal injection process took an unexpected
turn yesterday. 8 of the inmate plaintiffs asked to be put to death instead by
the state's newly-approved execution method - inhaling nitrogen gas.
Both the Alabama attorney general's office and lawyers for inmates submitted a
joint motion to dismiss the litigation yesterday. Lawyers say the inmates'
claims challenging Alabama's use of midazolam in executions as inhumane are now
moot, since their pending executions will now be carried out by use of
nitrogen.
Executive director of the Death Penalty Information Center Robert Dunham says
it may take some time before inmates see a nitrogen-equipped death chamber in
Alabama. Dunham says it will take time for the state to put an approved
protocol in place and, because Alabama will likely be the first state to use
the method, that will bring additional legal challenges.
Breathing nitrogen causes oxygen depletion in the blood stream. Previously,
Alabama carried out its executions by lethal injection and by electrocution.
Alabama is the 3rd state to authorize executions by nitrogen hypoxia, but no
state has yet used nitrogen in an execution.
(source: Alabama Public Radio)
OHIO:
Ohio prosecutor calls for firing squad as method of execution
A county prosecutor in Ohio said the state should shoot execute condemned
inmates with firing squad, since appeals over lethal injection drugs "take too
damn long."
Hamilton County Prosecutor Joe Deters told WLWT he's frustrated by the appeals
by inmates sentenced to death as he discussed a stay of execution request for
convicted killer Robert Van Hook, which was later denied. Van Hook is scheduled
to be executed next Wednesday for a 1985 murder.
Deters said Ohioans need to recognize capital punishment for what it is.
"This game that they constantly play is so frustrating," said Deters. "We had
an electric chair that worked just fine. People need to understand, we are
killing someone, OK? This is not supposed to be a pleasant experience. They are
being executed."
The prosecutor pointed out critics - but not the courts - thought the electric
chair was "too cruel," so the state moved to lethal injection, which is now
said to be cruel, as well.
"So, as far as I'm concerned, bring back the firing squad. It's constitutional
and just end it right now," Deters said in the interview.
Utah currently uses a firing squad as a method of carrying out capital
punishment.
(source: WTHR news)
TENNESSEE----impending execution
Death penalty argument swirls as TN set to execute convicted murderer,
rapist----The death penalty argument is a complicated one, and it's going on
right now in Tennessee.
Tennessee's 1st execution in almost a decade is now scheduled for next month.
59-year-old Billy Ray Irick is set to die August 9th.
He raped and killed a 7-year-old girl in Knox County 33 years ago.
He is 1 of 60 people currently on death row.
The Tennessee Department of Correction says it has the necessary drugs to carry
out a lethal injection.
Wednesday, a judge in Nevada delayed a lethal injection there because 1 of the
drug's manufacturers says it doesn't want its product used for executions.
Tennessee uses that same drug.
To compare the 2 sides of the death penalty argument, former Tennessee Supreme
Court Justice Gary Wade goes back to the Bible.
"The Bibical reference in Exodus--An eye for an eye, and a tooth for a tooth,"
Wade said. "And then in the new testament for Christians, the turn the other
cheek in the Sermon on the Mount by Jesus."
He says it's an argument that stretches back hundreds of years, long before TN
became a state.
"Many of the historical executions would not meet constitutional muster today,"
Wade said.
514 people have been put to death in Tennessee.
The last was Cecil Johnson in 2009.
Wade says repeated court hearings can delay an execution, and that's happened
in this state.
"They begin with the trial and end with the appeal to the Tennessee Supreme
Court," Wade said. "And then within a year, there's a post conviction review
again beginning in the trial courts and going through the court of criminal
appeals and ultimately the Supreme Court. And that simply takes some time"
Then, the whole process repeats in the federal court system.
The Death Penalty Information Center says Tennessee would use 3 drugs to
execute Irick: Midazolam, Vecuronium bromide, and potassium chloride.
In theory, the 1st drug makes the person unconscious, the 2nd drug stops their
lungs, and the 3rd drug stops their heart.
Wednesday, Midazolam's manufacturer, Alvogen, successfully delayed an execution
in Nevada by challenging the use of the drug.
That could happen here.
Wade says if the lethal injection isn't available, the state will use the
electric chair.
"Today, absent intervention by the governor or a midnight appeal with some kind
of merit to it to the Tennessee Supreme Court or the United States Supreme
Court, Billy Ray Irick will be executed on the date set," Wade said.
The Tennessee Department of Correction says it can't comment on the lethal
injection protocol because the trial discussing the injection is going on now.
(source: WBIR news)
********************
Execution witnesses: Condemned writhed, grimaced when lethal drugs entered
their bodies
Inmates executed with a controversial cocktail of drugs opened their eyes,
thrashed against their restraints and grimaced after getting a dose meant to
render them unconscious before they died, according to several witnesses in a
trial challenging Tennessee's lethal injection protocol.
The challenge is led by 33 inmates on Tennessee's death row, who sued the state
in Davidson County Chancery Court, saying the drugs the state plan to use would
lead to unconstitutional suffering. The resulting trial is moving at breakneck
speed, as lawyers hope to have a decision before Billy Ray Irlick???s scheduled
execution on Aug. 9.
The Tennessee inmates, who are represented by federal public defenders and
other attorneys, say the reactions of the executed inmates in other states are
evidence that the controversial drug midazolam, which is part of Tennessee's
3-drug lethal injection cocktail, fails to render people unconscious and
subjects them to torturous pain before they die.
Several defense attorneys who had witnessed their clients executed using the
drug midazolam testified Wednesday, many of them describing similar scenes.
Christine Freeman, a federal defender and director of Alabama Post-Conviction
Relief Project, saw convicted killer Torrey McNabb executed in October. She
described him grimacing and raising his arm up well after midazolam had been
administered.
"His brow was furrowed, his lips were kind of tightened," Freeman said. "It was
very sudden. It was very dramatic."
The challenge is led by 33 inmates on Tennessee's death row, who sued the state
in Davidson County Chancery Court. Nashville Tennessean
Federal public defender Eric Motylinski said his client, convicted killer
Kenneth Williams, moaned, writhed and made choking sounds before he died by
lethal injection in 2017 in Arkansas.
"He was rising up from the gurney repeatedly, rhythmically and violently, sort
of hitting up against the straps," Motylinski said. "I cared about Mr.
Williams, and if the state had to kill him I would have hoped that they could
have done it in a way that he didn't suffer."
State attorneys have argued Tennessee's planned lethal injection cocktail is
appropriate and does not amount to torture, including "unnecessary cruelty,
terror, pain or disgrace, such as being disemboweled in public, burned alive,
beheaded."
Attorneys for the state said Tennessee's protocol calls for a version of the
drug called a compound, which was different from the protocols described in
most of the testimony Wednesday. Compounded medications are put together by
special pharmacists using the drug's raw materials.
Tennessee argues compounding is the only way the state can get the drug, citing
a campaign from death penalty opponents to stop companies from supplying drugs
for executions. They say the compound drug will still function as intended, and
that Tennessee's protocol is similar to methods that have been upheld as proper
by the U.S. Supreme Court.
Attorneys for the death row inmates disagree; they note every compounded drug
is slightly different, so there's no effective way to predict how the drug will
perform. In a court hearing before the start of the trial, 1 attorney likened
obtaining the compounded midazolam to "getting black market drugs for an
execution."
The maker of midazolam, Alvogen, filed a lawsuit Tuesday against the state of
Nevada in an attempt to stop officials from using the drug in an execution,
according to the Las Vegas Review-Journal. In a statement to The Tennessean,
Alvogen spokesman Halldor Kristmannsson said the company "objects to the use of
its midazolam product being acquired fraudulently for an improper purpose."
Kristmannsson clarified obtaining the drug for use in an execution amounts to
an improper purpose, in the view of Alvogen. But the company has "no position"
on compounded midazolam, Kristmannsson said.
Both the Tennessee Department of Correction and attorneys for the death row
inmates plan to call as witnesses physicians who have differing opinions on
midazolam's efficacy.
Chancellor Ellen Hobbs Lyle is presiding over the case and is expected to make
a ruling at the trial's conclusion.
(source: The Tennessean)
ARKANSAS:
The state's struggle to shroud execution process in secrecy
Gov. Asa Hutchinson yesterday said he backed a law change to increase secrecy
of drugs used in executions. The reason is to avoid identifying sources of
drugs because manufacturers don't want their drugs used for killings.
Arkansas is having difficulties obtaining execution drugs except by illicit
means. That's OK with the Arkansas Supreme Court which has found ways around 2
separate court rulings - 1 controversial because death penalty foe Judge
Wendell Griffen made it, the other by Judge Alice Gray - in favor of drug
distributors that objected to use of drugs in executions. The Supreme Court has
ruled, however, that the law currently allows some release of manufacturer
information that can lead to tracing the source of killing drugs.
Note that a court challenge is underway in Nevada similar to the one waged in
Arkansas by a drug company objecting to use of its product in an execution
there. Nevada follows the same 3-drug protocol that Arkansas uses.
Alvogen says it doesn't want its product used in "botched" executions. It said
in court documents that Nevada prison officials illegally obtained the sedative
midazolam and demanded that it be returned and not used in Dozier's execution.
"Midazolam is not approved for use in such an application," the document said,
adding uses of midazolam in other states "have been extremely controversial and
have led to widespread concern that prisoners have been exposed to cruel and
unusual treatment."
Arkansas won't say how it obtained drugs but the drug distributor that sued
them accused them of dishonest means. What's a little lying to enable state
killing?
(source: Max Brantley, Arkansas Times)
UTAH:
Prosecutors to Seek Death Penalty in Toddler's Death
Prosecutors will seek the death penalty against a Utah couple accused of
taunting their malnourished 3-year-old daughter with food before she died.
The state filed the notice Tuesday in the case of 25-year-old Miller Costello
and 23-year-old Brenda Emile.
The Ogden couple is accused of recording cellphone videos of themselves
taunting Angelina Costello as her condition worsened before her July 2017
death.
Both have pleaded not guilty to aggravated murder charges.
Emile's attorney Martin Gravis has also argued there was no definitive evidence
to suggest she caused the girl's death. A judge, though, disagreed and pointed
to an allegation that Emile used makeup to conceal the girl's burns, bruises
and cuts.
If the couple is convicted, prosecutors would push for capital punishment in a
separate sentencing hearing.
(source: The Associated Press)
ARIZONA----death sentence overturned
Court reduces death sentence in killing where defense 'utterly
failed'----Michael Ray White was sentenced to die by lethal injection for the
1987 murder of a Bagdad man, but a federal appeals court overturned that
sentence because of failings of his defense attorneys.
A federal appeals court Wednesday reversed the death sentence given to a
Prescott man for the 1987 murder of his lover's husband in an alleged scheme to
collect on the victim's insurance policy.
A 3-judge panel of the 9th U.S. Circuit Court of Appeals said that Michael Ray
White's lawyer failed to challenge the state's claim that White shot David
Johnson for monetary gain. And the court said the attorney "utterly failed" to
investigate problems in White's life that could have argued against imposition
of the death penalty.
The court said there was "compelling evidence" that White committed the crime
"out of love" for his girlfriend, Susan, "rather than financial gain."
"This was a relatively weak case for imposition of the death penalty," said the
opinion by Circuit Judge Jacqueline H. Nguyen.
"Even the trial prosecutors believed that the death penalty was inappropriate
because this was a 'run-of-the-mill' case, Susan was the 'mastermind' behind
the murder, and White succumbed to pressure from her to commit the crime,"
Nguyen wrote.
Susan Minter was living with her future husband, David Johnson, in early 1987
when she and White began their affair after the 2 met at a Prescott nursing
home where they were both working. They moved to Michigan for several months
before returning in October to Arizona where Minter married Johnson.
In November, Susan began contacting insurance companies about a life insurance
policy on her new husband, asking one insurer about the "time frame on life
insurance" and "when you can receive monies," according to court documents.
About that time, the ruling said, White confided to his estranged wife and to
another friend that "Susan wants me to kill her husband. I don't know what I'm
going to do."
But White bought a .357 Magnum at a pawn shop that month, and when his wife
confronted him about missed child-support payments, he told her not to worry
because he would be getting $100,000 from Susan.
On Dec. 12, White shot Johnson in the chin and lower back outside Johnson's
house in Bagdad. Susan was in the house at the time, according to Arizona
Department of Corrections documents, but locked Johnson out as he called for
help.
Later testimony said the gunshot wounds were not fatal and if it weren't for
medical "carelessness" at the hospital where Johnson was taken, he would not
have died.
Susan first tried to blame her ex-husband, but police quickly focused on her
and White. When he was arrested Dec. 18, White still had an empty box of
bullets, a holster, a ski mask and a bag of potatoes - the gunman used a potato
as a makeshift silencer on the gun - in his car. Susan was arrested Dec. 23.
They were tried separately and both were convicted of murder and conspiracy.
But while she received 2 sentences of 25 years to life, White was sentenced to
death.
Even the original prosecutor believed that the death penalty was "not
appropriate" for White, testifying in a later appeal that he thought Susan was
"the instigator" and "the brains" behind the murder. But he was told that it
was Yavapai County Attorney's Office policy to ask for death where aggravating
circumstances, such as monetary gain, were present.
That was the only aggravating factor in the case, and White's attorney
presented no mitigating factors.
But the appeals court said there was ample evidence of many mitigating factors.
White suffered from Graves' disease and its psychological effects, had a
troubled childhood and low intellectual functioning, and had no criminal record
at the time of the murder. Afterward, he claimed repeatedly that the Department
of Corrections was monitoring his brain through "listening devices," according
to court documents.
His attorneys failed to investigate those factors, however, and when later
attorneys tried to investigate them on appeal, their requests were often
rejected by the courts. A mitigation expert in one of White's later appeals
said that in his 2 decades handling death penalty mitigation, he had never
before seen a case in which a mental health professional was not appointed to
review the case.
"There is a reasonable likelihood that White would have received a different
sentence if counsel had investigated and presented mitigating evidence," Nguyen
wrote.
The appellate court ordered the state to give White a new sentencing hearing or
to vacate the death sentence and impose a lesser sentence.
Attorneys in the case did not immediately respond to requests for comment.
(source: Cronkite News)
NEVADA:
Nevada Postpones Planned Execution Using Fentanyl
Convicted murderer Scott Dozier has clearly and repeatedly stated that he wants
to be executed.
The planned execution, using a 3-drug cocktail, had been set for Wednesday
evening at Ely State Prison in Nevada. Experts say it would be the first time
the opioid fentanyl was used in a U.S. execution.
However, a pharmaceutical company filed a lawsuit Tuesday against the Nevada
State Department of Corrections over plans to use one of its drugs, midazolam,
in the execution. And on Wednesday, Clark County District Judge Elizabeth
Gonzalez "disallowed the use of the drug," effectively putting the execution on
hold, The Associated Press reported.
Department of Corrections Public Information Officer Brooke Santina said in an
emailed statement that Dozier's execution "will not take place until further
notice."
Alvogen, the pharmaceutical company, said in a statement that it "does not
condone the use of any of its drug products, including midazolam, for use in
state sponsored executions." It also said it "does not accept direct orders
from prison systems or departments of correction."
That's why it is accusing Nevada of illegitimately acquiring the midazolam it
planned to use to execute Dozier. Santina said she could not comment on that
accusation.
This is the 2nd lawsuit of its kind in the U.S. from a pharmaceutical company,
according to the Death Penalty Information Center, which tracks data about the
death penalty and has criticized the way capital punishment is administered in
America.
Many states are having difficulty obtaining the drugs for lethal injection
cocktails, as manufacturers increasingly object to having their drugs used in
this way. And Nevada is no exception.
"The state issued 247 requests for proposals on Sept. 2 after its stockpile of
at least one drug used in executions had expired. Not one response was
received," according to a 2016 report in the Las Vegas Review-Journal.
"What we're seeing from the drug companies is rather than simply protesting
that the drugs have been improperly obtained, they're going into court to try
to protect their corporate interests and to try to protect the integrity of
their medicines," Death Penalty Information Center Executive Director Robert
Dunham said in an interview.
He added: "If you're saying that the death penalty is necessary as a tool of
law enforcement, what kind of message are you sending if you are breaking the
law or deliberately deceiving companies and breaching contracts in order to
carry out the law?"
The ACLU has also filed a lawsuit this month seeking records related to the
state's execution protocol.
Dozier's execution would have been the first in Nevada since 2006, according to
the AP. It's been postponed before. He had been scheduled to be executed in
November 2017, then a stay of execution was issued over concerns about another
drug in the protocol.
"I don't want to die," he told The Marshall Project days after the execution
was stayed in 2017. "I just would rather be dead than do this."
Dozier was sentenced to death over the first-degree murder in 2002 of Jeremiah
Miller, whose dismembered body was found in a trash bin in Las Vegas.
Now, Dozier is what is known as a "volunteer," or a death row inmate who has
abandoned further appeals. As he told the Marshall Project: "I think it's just
time for me to pay the price."
The fact that he is not putting up a legal contest to the never-before-used
method of his execution, a protocol made up of midazolam, fentanyl and
cisatracurium, means that "there is nobody in the court system who is
vindicating the public interest" about whether it is legal and constitutional,
said Dunham.
The synthetic opioid fentanyl is a drug at the center of the U.S. opioid
crisis.
"It's somewhat ironic that at the same time that the Justice Department and
states are talking about how dangerous fentanyl is, and how it's created a
national public health emergency, that states are now turning to it as a
supposedly safe way of killing prisoners," Dunham added.
In an interview that aired Tuesday on VICE News Tonight on HBO, Dozier appeared
enthusiastic about the prospect of being executed using fentanyl.
"I think it's awesome. I mean, it's killing people all over the place," Dozier
told the program. "You guys get pharmaceutical grade fentanyl and just bang me
up man."
David Juurlink, an expert in toxicology at the University of Toronto, told NPR
that the role of fentanyl in this protocol is to sedate a person and stop their
breathing. This 3-drug cocktail, he said, "sounds like a genuinely lethal
regimen that I would imagine would be associated with very little discomfort."
"An individual with a decent intravenous line who is given a large amount of
fentanyl intravenously would literally, within seconds, become unconscious and
their breathing would slow," he said. And though it is part of a 3-drug
protocol, Juurlink added that fentanyl could be powerful enough to work on its
own. He added that the death penalty makes him uneasy.
With this execution up in the air, it's not clear what Nevada plans to do now.
It's an increasingly common issue around the country.
"We've seen them look for different drugs. We've seen them look for different
methods. We've seen them consider abolishing the death penalty," said Dunham.
"They've gone in all those different directions. And I think that as it becomes
clearer and clearer that the use of lethal injection is going to involve
breaking the law or breaking contracts and risking torturous executions, states
that want to carry out executions are more likely to be looking for other
options."
(source: npr.org)
********************
Nevada Execution Is Blocked After Drugmaker Sues
Nevada's execution of a man convicted of murder was halted on Wednesday, after
the manufacturer of 1 of the drugs that was to be used in the lethal injection
argued that the state had obtained its product illicitly.
A district court judge issued a temporary restraining order preventing Nevada
officials from using the drug in the execution. It was the 1st time that a
pharmaceutical manufacturer has been able to stop an execution - at least
temporarily. It is likely to intensify the battle between officials in
death-penalty states and drugmakers that object to their products being used to
kill inmates.
Nevada had planned to use 3 drugs in the execution of Scott Dozier, who has
been on death row since 2007: 1 as a sedative, 1 to paralyze him, and the
powerful synthetic opioid fentanyl to help kill him. The execution would have
been the 1st to use fentanyl, which kills thousands of Americans every year and
is at the forefront of the nation's overdose crisis.
The potential use of commonly abused narcotics like fentanyl in executions has
alarmed human-rights organizations. They fear that prison officials in
death-penalty states, facing objections from pharmaceutical companies, will
turn to the black market to obtain those narcotics, bolstering trafficking
networks at the same time authorities are desperately trying to curb them.
But the drug that led to the postponement of the execution on Wednesday was not
fentanyl but midazolam, the sedative in the 3-drug cocktail, whose use in
executions has been bitterly disputed for different reasons. Judge Elizabeth
Gonzalez of the Clark County District Court issued the restraining order.
Alvogen, the drug's manufacturer, had sued to block its use, saying Nevada
obtained the drug under false pretenses because the company did not want it to
be acquired for use in capital punishment. Alvogen said it would suffer
"immediate and irreparable harm" if the medication were used for such purposes.
State officials bought the drug from a wholesale distributor, Cardinal Health,
but did so without disclosing that it was to be used in an execution and not
for a therapeutic purpose, according to Alvogen's lawyers.
The plaintiffs said Nevada officials had also instructed Cardinal Health to
ship the drug to a state office in Las Vegas instead of to the state prison in
Ely, Nev., more than 200 miles away, where the death chamber is. This was done,
they said, "to further the implication that the midazolam was for a legitimate
medical purpose."
Nevada had also planned to use a paralytic drug, cisatracurium besylate, whose
maker, Sandoz, also tried to stop it from being used in the execution.
The state said it would not proceed with the execution Wednesday night if
officials were not allowed to use midazolam. If Nevada were permanently
prevented from using the medication, it would have to find another combination
of drugs to execute Mr. Dozier.
Judge Gonzalez's ruling was hailed by human rights groups and anti-death
penalty activists.
"This ruling affirms that the makers of medicines have a right to decide how
their products are used," said Maya Foa, the director of Reprieve, a
human-rights organization based in London. "These lawsuits exposed how Nevada
ignored drug-safety laws designed to protect the public and used subterfuge to
undermine private contracts."
In a statement issued after the ruling, the Nevada Department of Corrections
said the execution "has been postponed."
Critics had warned that Mr. Dozier could endure a prolonged and excruciating
death. The midazolam, they said, was likely not to render him fully
unconscious, and when the fentanyl was injected, he would have to endure the
sensation of suffocation. High doses of fentanyl kill by severely depressing
the respiratory system.
The 3rd drug to be injected - the paralytic agent - would have prevented Mr.
Dozier from writhing on the gurney or showing any outward signs of pain, even
as he suffered an agonizing death, the critics added. They argued that the
paralytic could potentially mask the suffering involved in a botched execution.
But Mr. Dozier said he was fine with all of that. He has waived appeals of his
death sentence and told the judge in his case that he wanted to die, even if he
suffered in the process.
In an interview this week with The Las Vegas Review-Journal, Mr. Dozier, 47,
said his desire to be executed hadn't waned even after learning that the state
intended to use an experimental drug protocol.
"Life in prison isn't a life," Mr. Dozier told the newspaper. "This isn't
living, man. It's just surviving."
He added: "If people say they're going to kill me, get to it."
(source: New York Times)
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