Jan. 22
OHIO:
Ohio Leaders Call for Changes in Execution Law
In the wake of the controversial execution of Dennis McGuire, there are new
efforts to halt the death penalty in Ohio.
State Senator Edna Brown (D-Toledo) said she plans to introduce legislation to
abolished the death penalty in Ohio. State Representative Bob Hagan
(D-Youngstown) is introducing a bill that would require the governor and state
prison chief to be personally present during future executions.
The American Civil Liberties Union asked the governor to immediately stop
executions with a moratorium.
Gov. John Kasich's spokesperson suggested that complying with the request would
be unlikely.
"The governor supports the death penalty and the procedure is under review just
as it is reviewed after every execution," Kasich's spokesperson stated.
The Ohio Department of Rehabilitation and Correction confirmed a review of the
execution process would be conducted, as is protocol.
A spokesperson said there is no timetable for the completion of this review,
and that it would be premature to make a comment about it before that time.
The recent execution was the first in the country to be performed using an
experimental cocktail of lethal drugs. McGuire's death reportedly took about 20
minutes, during which the convicted rapist and murderer showed an obvious
struggle.
Critics said the execution was unconstitutional in that it was "cruel and
unusual." McGuire's family members have said they plan to file a federal
lawsuit against the state.
(source: Fox news)
********
Drugs used in botched Ohio execution came from unregulated manufacturers
In the face of numerous manufacturers' refusal to produce drugs used in
executions, many US states, in efforts to continue the grisly ordeal of capital
punishment, have begun relying on chemicals formulated in unregulated
compounding facilities.
The botched execution of 53-year old Ohio death row inmate Dennis McGuire last
week allowed many to see the results of using such drugs. The prisoner, given a
dose of the sedative midazolam and the painkiller hydromorphone - 2 drugs
previously involved only in the euthanizing of animals - writhed in agony for
nearly 25 minutes before being pronounced dead. In the aftermath of this
spectacle, many questioned the constitutionality of the methods that are being
increasingly used in state executions.
"They're engaging basically in acts of desperation," stated Deborah Denno, a
law professor at Fordham University, adding, "The states are under enormous
pressure to continue with the death penalty." Denno further explained that the
compounding facilities, which nominally fall under the regulation of states,
have been able to skirt oversight by presenting themselves as minor hubs,
rather than major drug-production facilities. "They act like large-scale
pharmaceutical companies while hiding behind small-scale pharmacy licenses,"
she stated.
The 2-drug combination tried on McGuire was an experimental mixture purchased
from an unnamed compounding facility specializing in the creation of customized
drugs intended for the specialized needs of patients. The danger of these
unregulated facilities was demonstrated in 2012 when a massive meningitis
outbreak was traced to unsafe conditions at a compounding facility in
Massachusetts. That outbreak killed 64 people and infected several hundred
others, many of whom had only sought relief for neck pains and other mild
conditions. (See "The meningitis outbreak and health care for profit ").
Prior to its administration of the 2-drug dosage, the state of Ohio had engaged
in a single-drug procedure involving pentobarbital, a sedative. That drug was
used on Michael Lee Wilson 2 weeks ago. Wilson was quoted as saying "I feel my
whole body burning" when given the drug.
Traditionally, states have relied on a 3-drug combination in lethal injection
procedures, preferring the mixture of potassium chloride, pancuronium bromide
and pentobarbital. However, as pharmaceutical companies have increasingly
attempted to distance themselves from the barbaric procedure, states still
carrying out the death penalty have faced increasing difficulty in obtaining
reliable drugs for executions.
Missouri, which is set to execute inmate Herbert Smulls on January 29th, has
been asked by the inmate's attorneys to delay the state killing on the grounds
that the drugs involved, distributed by an unlicensed Oklahoma-based
compounding plant, were believed to be "expired [and] unsafe." Smulls would be
the 3rd prisoner executed in the state in as many months, as well as the 2nd to
die through the administration of an untested drug combination produced at such
a facility. According to the Death Penalty Information Center, 6 states have
turned to the unregulated facilities in recent years.
As a means of shielding themselves from political fallout, states have taken to
enforcing secrecy laws, protecting the identity of the firms that produce their
lethal chemicals. "Once that compounding pharmacy's identity is revealed, how
will the Department of Corrections ever get another compounding pharmacy to
sell to us?" said Missouri Assistant Attorney General Sabrina Graham in a
statement to National Public Radio last summer.
Tony Rothert of the American Civil Liberties Union, which has launched a
lawsuit in the state of Missouri in order to obtain the identity of the drug
manufacturer, said, "The state has gone to great lengths to hide what it is
doing and to be secretive about what it is doing. So it's not surprising that
there's something there that the state was trying to cover up." He added, "When
you violate Missouri law to carry out Missouri law, that seems contradictory."
The dangers of untested mixtures on prisoners are many. In Missouri alone, the
state's Board of Pharmacy has found 20 percent of all the drugs produced at
compounding plants to be substandard. According to Meagan McCracken of the
Death Penalty Clinic at University of California, Berkeley, "If the 1st drug
does not in fact deeply anesthetize the prisoner...then he or she could be
conscious and aware of being both paralyzed and able to experience pain and the
experience of cardiac arrest."
This danger is increased in the case of the drug midazolam, which has
increasingly been turned to in medical practices as a safe alternative to
barbiturates, making its application in lethal injections dubious. Joel Zivot,
an assistant professor of anesthesiology at Emory University in Florida,
criticized his home state in an article in USA Today last month, saying, "How
Florida granted itself expertise in the use of midazolam, now repurposed as a
chemical used to kill, is known only to Florida."
(source: World Socialist WebSite)
*****************
Death Penalty Brings More Costs than Benefits
Ohio is one of 32 states that allow the death penalty, and the United States is
the only Western country where the practice is legal. One would think that,
under those circumstances, U.S. and Ohio officials would act rather carefully
about how the state kills people.
Think again.
On Jan. 16, Ohio took 26 minutes to kill convicted killer and rapist Dennis
McGuire with a new cocktail of drugs that had never been tried before in the
United States. It remains unclear whether the drugs were to blame for what
appeared to be a slow, agonizing death for McGuire - who clearly struggled,
snorting and gasping during the process - but it's somewhat troubling that the
state was so willing to try out the new drugs when the results are still so
unclear.
Of course, no one - at least, no one I know - feels sorry for McGuire. In fact,
it really shouldn't need to be said that my heart does not go out to the man
who killed and raped a pregnant woman. But getting dragged down into such
personal issues is where the conversation typically goes with the death
penalty, which makes it difficult to hold a serious conversation about how the
government executes criminals.
The real issue at play is much larger. It's about the entire criminal justice
system. Should the state and public use the criminal justice system - a tool
meant for rehabilitation and public safety - for vengeance and retribution as
well? Is that really the most efficient use of tax dollars?
Or as Martin Luther King Jr. put it when asked about the death penalty, "Since
the purpose of jailing a criminal is that of reformation rather than
retribution - improving him rather than paying him back for some crime that he
has done - it is highly inconsistent to take the life of a criminal. How can he
improve if his life is taken?"
The sentiment is backed by the experiences of other countries: By focusing more
on rehabilitation and treatment - sometimes in institutions that look like
4-star hotels - Nordic countries manage to hold down prison re-entry and crime
rates and save money on imprisonment.
Meanwhile, the United States keeps more prisoners per capita than any other
country and holds one of the highest prison re-entry rates in the world,
costing taxpayers billions of dollars each year.
But even if one disagrees with King's take and simply supports the death
penalty for the legitimate public safety cause - to forever keep a criminal
away from the greater public - then life imprisonment without parole is clearly
a better option.
For one, numerous studies found it's actually more expensive for the state to
kill someone than keep them locked up for life.
It might seem counterintuitive, but just consider the extensive jury selections
and lengthy appeals death penalty cases require.
Those costly checks aren't really up for debate, either. Even within a society
that accepts capital punishment, most Americans understand the state can't
afford to kill innocent people. Doing so would violate the entire premise of
the criminal justice system; it would actually turn the system into the
criminal elements it seeks to fight.
The saved money from simply imprisoning people for life could go a long way to
actually stopping abhorrent crimes like McGuire's. If the criminal justice
system can save money by not killing people, those funds can be redirected to
actual crime fighting. That would, presumably, prevent more crime than spending
so many resources just to kill a handful of criminals each year.
It's understandable for Ohioans to morally wrestle with the death penalty.
After someone rapes and kills a pregnant woman, it's difficult not to feel some
sort of anger or even hatred toward his crimes. It's hard to imagine such a
terrible person sitting in a cell for the rest of his life on the public
dollar.
In that sense, it's easy and emotionally satisfying to talk about strapping
dynamite on convicted killers or bringing back firing squads to hand out
executions, as some talk-radio hosts and commenters did following McGuire's
execution.
But Americans should be more careful with assuming guilt and allowing their
governments to kill people. In a world where the federal government is looking
more and more like an incompetent version of Big Brother, it's important to
note the potential for abuses and miscalculations before society allows the
grueling, torturous execution of any person, regardless of the obscenity of his
or her crimes.
And if the philosophical arguments don't hit home, it's still significant that
in many cases repealing the death penalty could actually save the taxpayer
money.
(source: citybeat.com)
KANSAS:
Death Penalty Hearings Continued At Statehouse
The Kansas Senate Judiciary Committee continued its hearing on a proposal to do
away with the state's death penalty.
They began hearing testimony last week on the bill which would replace capital
punishment with a sentence of life in prison with no parole.
Proponents of abolishing the Kansas death penalty point to its inconsistencies
and the high number of minorities facing death.
"Give deep thought to the fact that number one, if there is a person put to
death there is no recourse for that person. So Senator King and others I pray
you get it right," Rev. Ben Scott.
Kansas hasn't put a person to death since 1965. No one has been executed since
the sentence.
(source: WIBW News)
MISSOURI:
As questions linger about Missouri's shadowy lethal-injection protocol, the
state is days away from killing another inmate
At 10:52 p.m. December 11, the Missouri Department of Corrections executed
Allen Nicklasson with a single, lethal drug dripped into the convicted
murderer's veins.
Just before the dose was administered, Missouri Attorney General Chris Koster
issued a statement to the media saying that "the highest court in the nation
has removed the last restriction to carrying out the lawfully imposed
punishment of Allen Nicklasson."
Except, for the 2nd time last year, that wasn't quite the case.
"Missouri put Nicklasson to death before the federal courts had a final say on
whether doing so violated the federal constitution," said Judge Kermit Bye, of
the 8th U.S. Circuit Court of Appeals, in a December 20 opinion.
Bye, a federal appellate-court judge since 1999, said the 11 judges on the 8th
Circuit had not yet voted on Nicklasson's request for a stay of his execution.
Missouri put Nicklasson to death before his due process had been fully
resolved.
A death-row inmate's gauntlet of appeals often takes years, and Nicklasson's
run through the courts was no exception. He was sentenced to death in 1996.
Death-penalty proponents say the appeals process is expensive and drags out the
suffering of victims' families. But that process is designed to safeguard
against the possibility of an innocent person suffering an irreversible fate -
and to ensure that the death penalty is administered properly.
There was no question of innocence in Nicklasson's case. He had admitted to
shooting Excelsior Springs businessman Richard Drummond in the middle of a 1994
crime spree, after Drummond offered to help Nicklasson and Dennis Skillicorn
with their broken-down car. Rather, Nicklasson's attorneys were trying to
figure out where Missouri would obtain the drug it intended to use on him. Is
that drug, they wanted to know, suitable to kill a prisoner with a right to
avoid a painful death? Nicklasson died before he got those answers.
So did serial killer Joseph Franklin. When Franklin was executed November 20,
he, too, was still awaiting a final ruling from a judge on whether his
attorneys could learn more about Missouri's death-penalty protocol.
"I think that because they didn't let the courts do what they were supposed to
do, it undermines the authority of the court," says Rita Linhardt, board
chairwoman for Missourians for Alternatives to the Death Penalty. "It's setting
Missouri above the law that the court isn't allowed to do what it's allowed to
do."
Bye's opinion has attracted newfound skepticism of Missouri's whack-a-mole
execution methods.
State Rep. Jay Barnes, a Republican from Jefferson City, called for a hearing
before the Missouri House committee on Government Oversight and Accountability
over whether the state is affording condemned prisoners their due process
before their executions. "Regardless of what anyone thinks of the death
penalty, everyone should agree that it must be carried out according to the
requirements of the Constitution and the laws of our state," he said in a
January 13 statement.
That hearing was canceled when George Lombardi, director of the Missouri
Department of Corrections, declined to testify.
Rep. John Rizzo, a House Democrat from Kansas City, has called for a 1-year
moratorium on Missouri's death penalty while the Legislature studies the
Department of Corrections' actions.
But that scrutiny hasn't slowed the Department of Corrections. Herbert Smulls
is the next death-row prisoner set to die. His execution is scheduled for
January 29.
"The trend nationwide is away from executions, and Missouri is jumping into
this full force," Linhardt says.
Missouri officials are staying quiet publicly. The Department of Corrections,
Koster's office and Gov. Jay Nixon's office have all either declined or ignored
The Pitch's requests for comment on Bye's decision and other questions about
Missouri's death-penalty practices.
Ahead of Smulls' execution, though, a lawsuit is under way in the U.S. District
Court in Kansas City, as well as in the 8th Circuit in St. Louis. Attorneys for
several condemned prisoners are asking those courts to cast light on Missouri's
shadowy death-penalty methods.
So far, lawyers suing the state believe that Missouri has purchased its
lethal-injection drug from a compounding pharmacy in Oklahoma that is not
licensed to do business in Missouri.
The state of Missouri, responding to an open-records request, disclosed a
heavily redacted copy of a license from the pharmacy from which it obtained
pentobarbital. 2 things not redacted were the date upon which the license was
issued (November 16, 2012) and the fee paid for the license ($255).
The Pitch obtained from the Oklahoma Board of Pharmacy a list of licenses
processed on that date.
Three Oklahoma pharmacies on that day received the type of license and the
specific combination of permits shown on the redacted license released by
Missouri, and made the $255 payments. One was Pharmcare in Hydro; another was
Economy Pharmacy in Muskogee; the third was the Apothecary Shoppe in Tulsa.
The Pitch called pharmacy technicians at all three businesses and asked if they
performed sterile injectable compounding, a method through which compounding
pharmacies make drugs suitable for injections. Technicians at Pharmcare and at
Economy Pharmacy said they did not; a pharmacy clerk at Apothecary Shoppe said
the company did.
The Pitch reached Apothecary Shoppe CEO Deril Lees on January 20. When asked if
the pharmacy had ever supplied Missouri with pentobarbital or had a contract
with Missouri, Lees said no.
"There are serious questions about the integrity of the pharmacy," says Tony
Rothert, legal director of the American Civil Liberties Union of Missouri. "If
you wanted to buy a drug from an [unlicensed] out-of-state pharmacy for a
controlled substance, you'd be put in jail."
Compounding pharmacies, unlike conventional drug makers, exist outside the
reach of the stringent federal regulatory framework. They operate in the murky
"gray market" of the pharmaceutical industry ??? theirs is not an illegal black
market but one in which a product's origins are untraceable and beyond the
watch of the U.S. Food and Drug Administration. It's often difficult to
determine in advance the potency of a compounding pharmacy's product or whether
it's contaminated or impure.
In 2011, the Missouri Board of Pharmacy tested 158 compounded drugs from
various pharmacies. It found that 17 % failed its potency test.
Why does anyone care where the Department of Corrections gets its drugs? The
primary concern is whether condemned inmates suffer painful and
unconstitutional deaths by lethal injection - something that has almost surely
happened in Missouri.
--------------------------------------------------------------------------------
Missouri's 1st lethal-injection machine was designed by a Nazi sympathizer.
Fred Leuchter was the only bidder in 1990, after Missouri resumed the death
penalty in 1989 and needed a device to administer fatal drugs. He had no formal
training in medicine or engineering, but that didn't stop him from advertising
his invention as an effective means of capital punishment at a time when
previous methods were falling out of favor.
The Constitution protects Americans from cruel and unusual punishment, and by
the 1970s and 1980s, electrocuting or gassing inmates to death was widely
considered problematic. In 1928, photojournalist Tom Howard sneaked a camera
into New York's Sing Sing Prison and snapped a photo of Ruth Snyder at the
moment she received a fatal jolt of electricity. Howard's grotesque document of
Snyder - hooded and strapped to the electric chair - ran on the front page of
the next day's New York Daily News and gave the world a glimpse of
state-sanctioned death.
After that came consistent reports of inmates screaming as currents ran through
their bodies and of the odor of burning flesh. Florida dispensed with its
electric chair after the 1999 execution of Allen Lee Davis, who witnesses said
convulsed and bled while being electrocuted. The Florida Supreme Court later
released troubling photos of Davis that showed what was under his hood when
prison officials lifted it: a bloodied face mashed against the leather strap
meant to keep his head still.
The gas chamber didn't make a suitable replacement; inhaling cyanide gas proved
to be a painful way for some inmates to die.
Lethal injection, first used by Texas in 1982, was proposed as humane and
painless. An inmate would receive a drug and drift off into a medically induced
slumber, as though waiting to have a molar pulled. Some death-penalty critics
opposed lethal injection because they didn't want Americans to have the
illusion that state-sanctioned death was a clean procedure.
The lethal-injection machine that Missouri bought from Leuchter was designed to
pump 3 drugs into an inmate: one to knock him out, another to paralyze him, and
the last to end his life.
Everybody but the Missouri Department of Corrections had written off Leuchter,
whose credibility was shredded when he offered his testimony in support of
anti-Semite Ernst Z???ndel in 1988. Z???ndel was on trial that year in Canada,
where it is illegal to antagonize ethnic and racial groups with bogus
information. He had published Richard Verrall's pamphlet "Did Six Million
Really Die?" that questioned whether Jews were exterminated by Nazi Germany
before and during World War II.
Leuchter was one of the chief experts testifying on Zundel's behalf, presenting
so-called evidence denying the Holocaust. The minimal scientific veneer of his
testimony was undercut when his phony engineering credentials were exposed, and
Leuchter was charged in Massachusetts in 1990 for running an unlicensed
engineering practice. A New York Times article about Leuchter's legal troubles
reported that an anesthesiologist in Illinois had testified that Leuchter's
lethal-injection protocol would "paralyze inmates and cause them intense pain
before they died."
Missouri ultimately canceled its contract with Leuchter but pushed on with a
similar 3-drug protocol, despite experts' misgivings about whether a method
that presented itself as antiseptic and painless was actually an excruciating
way to die.
The 1st drug to enter an inmate's veins was sodium thiopental, a fast-acting
anesthetic commonly used in outpatient surgeries to induce unconsciousness.
It's not as strong as general anesthesia, though, and is prone to wearing off.
The next drug was Pavulon, which paralyzes muscles. Finally, potassium chloride
was used to stop the inmate's heart.
But questions persisted about inmates receiving enough of the sodium
thiopental. Without an adequate dose, death would be painful, and expression of
that pain would be impossible because of the paralyzing Pavulon.
Carol Weihrer, a Virginia resident, became the spokeswoman for what is now
called anesthetic awareness when the sodium thiopental she was given for an eye
surgery in 1998 wore off before her doctors completed the procedure. She sent
written testimony to the Pennsylvania House of Representatives in 2005 that
described her experience.
"I remember the intense pulling on my eye, the spine-chilling instructions of
the surgeon to the resident to 'cut deeper here, pull harder, no pull harder,
you really have to pull.' I remember fighting with every ounce of energy and
thought process I had to let the surgical team know I was awake," she recalled.
Sean O'Brien, a University of Missouri-Kansas City School of Law professor and
frequent legal counsel to death-penalty inmates, says he first became
interested in the potentially painful effects of lethal injection when Missouri
executed Emmitt Foster in 1995.
In those days, Department of Corrections personnel involved in the execution
would shout "foxfire one" when the 1st drug began its flow to the inmate,
"foxfire 2" when the next drug was pushed, and "foxfire three" when the fatal
drug began its course. "Checkmate" was the word when the inmate was pronounced
dead.
O'Brien says when the first drug reached Foster, the inmate started coughing
and twitching. Something seemed amiss. Prison officials closed the curtain to
the window that allowed witnesses to observe the execution.
A prison official realized that a strap was restricting the flow of drugs to
the rest of Foster's body. The band was removed, and Foster took 30 minutes to
die.
The April 16, 2005, edition of the weekly medical journal The Lancet analyzed
autopsy and toxicology reports of 49 executed inmates. It found that 43 of them
had received doses of sodium thiopental lower than the standard for surgery,
and that 21 had received such a low dose that they could have been aware of
what was happening to them.
"That is: those being executed may have been awake," the report's abstract
reads. "Of course, because they were paralyzed, no one could tell. It would be
a cruel way to die: awake, paralyzed, unable to move, to breathe, while
potassium burned through your veins."
The same report pointed out that the American Veterinary Medical Association
and 19 states ban the use of drugs such as sodium thiopental in the killing of
animals. In other words, the drugs that can be used in a state-sanctioned
execution of a human are in some places deemed unsuitable to put down a dog
with an untreatable case of heartworm.
The Lancet article came out a month ahead of Vernon Brown's scheduled execution
in Missouri. His lawyers used the journal's findings as the basis to ask the
state how much sodium thiopental it planned to use in Brown's execution. But
Missouri fought Brown's attorneys in court, ultimately killing Brown without
having to tell him how much of a drug they were going to give him.
The concern was well-founded. The following year, it was discovered that a
doctor who had assisted in 54 Missouri executions was dyslexic and, according
to his testimony, had improvised the dosages.
Missouri corrections officials couldn't keep the doctor from testifying in
front of a federal judge, but they succeeded in obscuring his name from the
public record.
A federal judge in Kansas City was furious about the doctor's testimony and
lamented that Missouri lacked a written protocol for its lethal injections. He
ruled that the state needed to come up with a better lethal-injection method
and to stop using the doctor in question.
Despite the state's secrecy, reporters with the St. Louis Post-Dispatch figured
out that the dyslexic doctor was Alan Doerhoff, a physician who had been
reprimanded by the Missouri Board of Registration for the Healing Arts for
trying to hide the fact that he had been sued for malpractice.
Missouri's embarrassment over the Doerhoff affair slowed the state's
death-penalty pipeline. The state didn't execute another prisoner until Dennis
Skillicorn, in 2009.
Missouri's capital-punishment methods returned to the international limelight
in 2013, when the state prepared to execute Joseph Franklin. He was an admitted
mass murderer, but his case attracted attention from someone he didn't kill.
Larry Flynt, the pornography magnate who doubles as a free-speech proponent and
anti-death-penalty activist, has been in a wheelchair since 1978. That was when
Franklin, a white supremacist who took exception to Flynt's Hustler magazine
showing photo spreads of interracial sex, shot Flynt and a lawyer in Georgia.
Flynt and the American Civil Liberties Union sued to find out which medical
personnel were participating in executing Missouri's condemned.
Doctors are supposed to save lives and are thus prohibited by virtually all
professional codes of conduct from helping with an execution.
Flynt's lawsuit didn't stop Franklin's execution. But it was the European Union
that temporarily stalled Missouri's death penalty.
Missouri had dispensed with the old three-drug method and was planning to kill
Franklin with a drug called propofol.
Propofol, used as a relaxant and an anesthetic, is coveted by hospitals and
doctors in the United States. It's manufactured mostly in Germany, where
capital punishment is illegal. When the Germans caught wind of Missouri's plans
to use propofol, the European Union threatened to stop exporting the drug to
the United States.
Several medical associations expressed annoyance at the prospect of a propofol
shortage if the state pressed on with the drug for Franklin's execution. That
got Missouri Gov. Jay Nixon's attention. He delayed the execution until the
state could figure out another way to kill Nicklasson.
Some states' use of federally approved drugs against the wishes of their
manufacturers has resulted in something of a shortage of drugs that have other
legitimate medical functions.
Joel Zivot, a medical director and an anesthesiologist at Emory University
School of Medicine in Atlanta, wrote in a December 16 editorial published in
Ohio's Lancaster Eagle-Gazette that drug maker Hospira stopped producing sodium
thiopental in protest of states using the drug in executions. This left him
without access to the medicine: "States may choose to execute their citizens,
but when they employ lethal injection, they are not practicing medicine. They
are usurping the tools and arts of the medical trade and propagating a
fiction."
With propofol out of the picture, the Missouri Department of Corrections
changed its execution protocol several times in the weeks leading up to
Franklin's execution, a move that frustrated attorneys representing Franklin
and other inmates.
On October 18, the state proposed using pentobarbital. On November 15, it
changed the execution recipe again, five days before Franklin was scheduled to
die. That left little time for lawyers to investigate what the drug was and
where Missouri was getting it. Franklin's attorneys made a motion before the
U.S. District Court in Kansas City to stay his execution, but he died November
20, before a judge could get to that motion.
The shell game that preceded Franklin's execution, coupled with Missouri's
secrecy over how it plans to carry out future executions, is the subject of
intense litigation in the U.S. District Court in Kansas City ??? just days
before Herbert Smulls is scheduled to die.
--------------------------------------------------------------------------------
Modern capital-punishment laws have typically kept the identity of the
executioner secret. The stigma attached to ending someone else's life, even in
a state-sanctioned execution, has enabled governments to justify obscuring an
executioner's name from public view.
Until 2010, Utah used a firing squad for some of its executions. The custom
called for five rifle shooters to aim at the prisoner. One of the five guns was
loaded with the rough equivalent of a blank cartridge to ease each shooter's
conscience; each man could doubt whether he had fired one of the lethal shots.
Missouri laws also keep secret the names of members of the state's execution
team, which includes not only the person who administers the fatal dose but
also those who assist that person. Missouri officials have tried to expand that
cloak to include the pharmacy that makes the execution drug and the pharmacist
who writes a prescription for the fatal dose. Attempts by attorneys for
death-row prisoners to learn the whereabouts of the state's drug supplier were
met throughout 2013 by resistance from the Missouri Attorney General's Office
and the Department of Corrections, which insisted that Missouri law allowed
corrections officials to keep the drug supplier secret as part of the execution
team.
Toward the end of 2013, state officials deployed the "state secret" privilege
to convince federal judges to affirm the shield around the death team. It's a
legal concept normally used in matters of national security, intelligence
gathering, and budgets for federal organizations such as the National Security
Agency and the Central Intelligence Agency.
That led to a December 12 teleconference among U.S. District Judge Nanette
Laughery and attorneys for both prisoners and Missouri officials. Joseph Luby,
a lawyer with Kansas City's Death Penalty Litigation Clinic, reminded Laughery
of his legal team's Catch-22.
"The only scientific expert that is present in this case says that we actually
do have a need to know who it is that is supplying these drugs, who has
compounded them, so that we have an idea of what it is that the state is
administering and seeking to administer in the future," Luby said, according to
a transcript of the conversation. "Otherwise, we don't know where the active
pharmaceutical ingredient comes from, how it was manufactured, the
circumstances under which it was compounded, what impurities might exist and
what hazards are involved in administering it."
The scientific expert whom Luby referenced was Larry Sasich, chairman of the
pharmacy practice at the Lake Erie College of Osteopathic Medicine in
Pennsylvania and adviser to the Food and Drug Administration commissioner.
Sasich offered a lengthy affidavit outlining the potential hazards of
compounded drugs: "The potential harm associated with the use of such
contaminated or sub-potent drugs is extremely high. Consumers who use
compounded drugs do so at their own risk."
Andrew Bailey, a lawyer representing the Missouri Department of Corrections,
reiterated the need for secrecy to protect the safety of those involved with an
execution. He cited the slaying of a former Missouri Department of Corrections
official a year ago.
He didn't name the victim, but he was likely talking about Tom Clements, the
longtime Department of Corrections director who took the same position in
Colorado in 2011. He was killed at his home in March 2013 by a man who
investigators believe was a white supremacist and may have been carrying out an
assassination.
But Clements' identity and responsibilities were widely known. The issue of
secrecy wasn't a factor in his death.
Bailey pressed on, saying that disclosing the identity of the drug supplier
would have no effect on whether the state could carry out an appropriate
execution.
"The director [Lombardi] has stated that he will not use chemicals that aren't
pure, potent and sterile and the director's administered two successful
executions at this point," Bailey said.
Laughery didn't find the state's position persuasive. She rejected both the
state-secrets argument and the notion that Missouri law required that the
pharmacy remain secret.
"The balance clearly weighs in favor of revealing the information to the
plaintiffs [prisoners] because it's impossible for the plaintiffs to meet the
burden of proof established by the courts in the absence of those elements,"
Laughery said. She ordered the Missouri Department of Corrections to hand over
information about its drug supplier, the pharmacist writing the prescription,
and the lab reports about the drug to Luby and to Cheryl Pilate, a Kansas City
lawyer who is part of the death-row-inmate legal team.
The information was supposed to go to Luby and Pilate and no one else.
Missouri officials tried to get Laughery to change her mind on December 16, but
she didn't and instead reiterated that Missouri must release its drug-supplier
records.
Pilate on December 16 sent several e-mails to Department of Corrections
lawyers, asking for the information she was expecting. She sat before her
computer until midnight, waiting for information that never came.
Attorneys for Missouri kept resisting disclosure while trying to get the 8th
Circuit to reverse Laughery's decision.
In an odd twist, Missouri officials did send their information to Laughery's
office. And in an odder twist, Laughery sent the information to Pilate and Luby
on December 28, not knowing that, the day before, the 8th Circuit had said to
hold off.
Once Laughery realized that a higher court had intervened, she told Pilate and
Luby to sit tight with any knowledge they had gleaned from her disclosure. On
December 30, she held another teleconference with all of the lawyers involved.
She told Pilate and Luby not to act on anything they had learned from the
Department of Corrections' file and to scrub any record of it from their files
and computers.
That left attorneys representing condemned prisoners with knowledge of a key
piece of information - the identity of a pharmacy they fought in court for more
than a year to discover - but unable to investigate it further.
Laughery recused herself from the case on December 30.
"We have a pharmacy in Oklahoma that is manufacturing chemicals and importing
them into Missouri in violation of Missouri and federal law and possibly in
violation of the intellectual rights of pentobarbital's manufacturer," says
UMKC's O'Brien.
Meanwhile, the tortured legal proceedings over whether prisoners are allowed to
know where Missouri's death-penalty drugs comes from is in limbo while a new
judge, former Kansas City U.S. Attorney Beth Phillips, gets up to speed. A
trial is scheduled for June 16.
That leaves unresolved the fate of Herbert Smulls. Will his attorneys persuade
the state or federal judges to delay his January 29 execution while the
peculiarities surrounding Missouri's death penalty get sorted out? Will
Missouri give federal judges enough time to figure it out?
At least one appellate judge may stand in Missouri's way.
Judge Kermit Bye wrote in a biting December 20 opinion: "Missouri's ... current
practice of using shadow pharmacies hidden behind the hangman's hood, copycat
pharmaceuticals, numerous last-minute changes to its execution protocol and
finally, its act of proceeding with an execution before the federal courts had
completed their review of an active request for a stay has committed this judge
to subjecting the state's future implementation of the penalty of death to
intense judicial scrutiny, for the sake of death-row inmates involved as well
as adversaries and advocates for capital punishment alike."
(source: The Pitch)
***************
Department of Corrections will not testify Tuesday about executions
There will be no revelations in a legislative committee hearing today about how
Missouri carries out executions.
Representative Jay Barnes (R-Jefferson City) says the Department of
Corrections' Director George Lombardi is not going to testify before the House
Committee on Government Oversight and Accountability, which Barnes chairs. The
Committee is scheduled to hold a hearing to take testimony regarding the death
penalty from the Department today.
House Speaker Tim Jones (R-Eureka) asked Barnes to hold hearings on the issue
in light of questions regarding the Department's procurement of execution drugs
and how it determines whether a condemned man has exhausted all of his appeals.
Barnes says he had a lengthy telephone discussion Monday with someone "above
Corrections," who informed him that Lombardi would not testify on Tuesday. The
reason for the refusal is not being stated publicly.
Without Lombardi, Barnes says he won't take testimony.
"Every investigation this committee has done has involved testimony from both
sides of an issue or occurrence. I want to keep it that way and want to ensure
that when there's a hearing that the Department of Corrections testifies as
well as, potentially, people on the other side of the issue."
Barnes says he has been assured that Lombardi will testify to the Committee at
another time, but says it's disappointing that it won't be happening today.
"Regardless of where you stand on the death penalty, everyone should agree that
it ought to be carried out with respect for our Constitution and the rule of
law. These issues are not going away and the Committee is looking forward to
exploring them at a future date."
Barnes says as long as he believes an agreement can be reached to have Lombardi
testify at a later date he won't attempt to use a subpoena to make that happen,
but says if the director continues to refuse to appear it would be appropriate
to consider a subpoena.
He says the Committee will still meet Tuesday but it will be an organizational
meeting only. No testimony will be taken.
(source: Missourinet)
*******************
Mo. death-row inmate: State improperly stored drug
Missouri's prison system is improperly storing expired doses of a new lethal
injection drug provided by an Oklahoma pharmacy not licensed to do business in
Missouri, attorneys for a death row inmate facing execution this month said in
a complaint filed Friday.
Attorneys for Herbert Smulls have asked the Oklahoma State Board of Pharmacy to
recall an "expired, unsafe" batch of the sedative pentobarbital provided to
Missouri by an unidentified Oklahoma compounding pharmacy. The complaint says
the pharmacy gave erroneous instructions to store the drug at room temperature,
a violation of accepted pharmaceutical standards.
Defense attorney Cheryl Pilate said David Dormire, a top Missouri Department of
Corrections official who oversees its 21 prisons, testified in a Wednesday
deposition that he is keeping the compounded pentobarbital in his office until
Smull's scheduled Jan. 29 execution. Industry standards say such drugs should
only be used within 24 to 48 hours when kept at room temperature, Pilate said.
Smulls was convicted of killing a St. Louis County jeweler in 1991.
"They are dangerously indifferent to widely recognized and accepted standards
for the proper storage of compounded drugs," Pilate said.
Department director George Lombardi and a spokesman for the Missouri Department
Corrections did not immediately respond to interview requests. Calls to the
Oklahoma regulatory agency were directed to a compliance officer who is out of
the office until next week.
Missouri switched to its 1-drug execution method late last year and has since
killed 2 inmates. The complaint filed Friday includes Missouri state records
showing the pentobarbital given to both inmates had expired 8 to 10 days
earlier.
The compounding pharmacy's identity is blacked out of the documents obtained by
Smulls' attorney under state public records laws and through legal proceedings.
Missouri says the pharmacy is a member of the execution team protected under
state privacy laws. Other states have taken similar positions, in part because
of backlash against the drug makers by anti-death penalty advocates.
Missouri and other states had used a 3-drug execution method for decades, but
pharmaceutical companies recently stopped selling those drugs to prisons.
Several states now get their execution drugs from compounding pharmacies, which
custom mix drugs for individual clients. Unlike typical pharmaceutical firms,
compounding pharmacies are not regulated by the U.S. Food and Drug
Administration, though they are subject to state regulations.
Missouri's rocky efforts to renew capital punishment continue to be
scrutinized. A Democratic state lawmaker says he plans to file legislation to
place a 1-year moratorium on executions and create an oversight commission to
further study the state's use of capital punishment. The Republican state
auditor last week announced a new review of the Missouri Department of
Corrections, though officials emphasized it was not triggered by recent
developments.
In Ohio, the Thursday execution of Dennis McGuire took nearly 30 minutes as he
gasped and struggled for breath during a 10-minute stretch. That execution also
relied on a new drug protocol - intravenous doses of the sedative midazolam and
the painkiller hydromorphone - being used for the 1st time after the state's
supply of pentobarbital ran out.
(source: Associated Press)
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