April 7
TEXAS:
The death row killers who refused to die quietly and had to be gassed out of
their cells then strapped down during execution----Former crime reporter
Michelle Lyons, who witnessed nearly 300 executions in Texas, US, reveals the
desperate acts of death row prisoners who refused to accept their fate
After spending years or often decades locked up in a tiny cell for 23 hours a
day, most Death Row inmates go willingly to their executions. However, some
refuse to die quietly - with officers forced to gas them out of cells, strap up
their heads and even give chase across prison grounds.
Michelle Lyons, who has witnessed nearly 300 executions in Texas, US,
exclusively tells Sun Online how certain inmates "fight like hell" in their
last moments.
On most occasions, Michelle watched from the witness area, with the killers
already on the gurney - the stretcher where they'd be given a lethal injection.
Seven prisoners once tried to escape from the Row in Huntsville - with one
shoving magazines and newspapers under his clothes to help him roll over
razor-wire fences.
Others have had to be gassed out of their cells with Mace-like spray, while one
killer even stole a key to a set of handcuffs, which he spat out with his dying
breath.
"I could tell immediately when I went into the witness room if they had
fought," recalls 43-year-old Michelle, a former crime reporter and prison
spokeswoman.
Michelle Lyons, 43, witnessed nearly 300 executions over 12 years
"Inmates would have five restraints on them - on each of their arms, each of
their legs and their torso - but those who had fought had more restraints on
their head.
"One inmate even said, 'I'm not going to walk so you'll have to carry me' - so
they did."
Murderer Ponchai Wilkerson, the son of a retired police officer, is among those
who fought to live.
Wilkerson, who shot dead a jewellery shop worker in Houston nearly 30 years
ago, tried to escape from the Row on Thanksgiving night 1998 along with 6 other
prisoners.
Dressed in prison garb dyed black with markers, the group carefully placed
cushions and sheets in their beds before leaving their cells for dinner and
hiding in a recreation yard.
Later that night, they used a hacksaw to cut a hole in the fence and scaled the
roof. They then sprinted for freedom, but were spotted by officers who opened
fire.
One inmate said 'you'll have to carry me' - so they did
Wilkerson surrendered during the shooting, but escaped from his prison cell 2
years later and took a female officer hostage, while armed with a sharpened
piece of metal.
Fortunately, the guard was later released unharmed.
However, Wilkerson's resistance to death didn't end there - on the day of his
execution, he had to be gassed out of his cell.
"He fought and they did have to gas him," recalls Michelle, who worked as a
reporter for The Huntsville Item newspaper and as a Texas Department of
Criminal Justice spokeswoman.
And even with his last breath, the killer proved defiant.
'His final breath was the moment this key came out his mouth'
Michelle says: "His execution was so unnerving because when he was making his
last statement he was murmuring something.
"He was moving his mouth in a strange way. He timed it just right so his final
breath was the moment this key came out of his mouth and rested on his chin."
Chillingly, the key was to a set of handcuffs.
"It was believed he had planned to try to escape but he hadn't anticipated
being restrained with 2 sets," says the mum, who lives in Huntsville and has
penned a book about her life as an execution witness, called Death Row: The
Final Minutes.
"He had the key for one set but not the other."
Wilkerson was declared dead at 6.24pm on March 14, 2000, after spitting out the
inch-and-a-half key at the Huntsville Unit execution chamber.
'He sunk like a rock in the river'
While he had surrendered during the attempted death row breakout 2 years
earlier, one of his fellow prisoners - Latino murderer Martin Gurule - had not.
Gurule, the only 1 of the 7-strong group to keep going, stuffed magazines and
newspapers under his clothing so he could roll over 2 razor-wire security
fences.
Inmate Martin Gurule successfully escaped from prison, but ended up drowning in
a river "The fences have these sharp razor blades," Michelle explains.
"He had wrapped himself in magazines and newspapers so he wouldn't get cut up."
Although Gurule successfully made it out of the Ellis Unit's grounds with
bullets flying around him, his makeshift 'suit of armour' turned out to be his
downfall.
A week after the escape, he was found drowned in a river.
"He was still wrapped up when he jumped in the river - he sunk like a rock,"
says Michelle.
The murderer had died - but not in the way the state had planned.
Banging his head until the end
Another Death Row inmate who fought in his final days was Gary Graham, who was
17 when he was sentenced to die for murdering a man outside a supermarket.
Gary Graham, who became a "media darling", is pictured on death Rrw in 1998
During his time behind bars, Graham drew support from the public and
celebrities, with many claiming he was innocent of his crime. Actress Bianca
Jagger and civil rights activist Rev Al Sharpton were among the witnesses at
his June 2000 execution.
"He had became a media darling," says Michelle.
"He had vowed he was going to fight and he did."
She adds: "When we came into the witness area he had been banging his head."
Kept in a cage to stop fighting
Killer Emerson Rudd, who was 18 when he shot dead a restaurant manager during a
robbery, also proved difficult to get to the gurney.
Prison guards even put him in a cage to stop him from fighting. Like Wilkerson,
he had to be gassed from his cell, with the spray leaving his skin "red raw".
She says of the gas: "It makes it hard to breathe - officers would have masks
on to protect themselves. Inmates are given warnings before the gas is used."
Offering up his arm without hesitation
She also, surprisingly, says inmates "barely ever fight" as they prepare to
die.
On 2 occasions, Michelle, who has a 14-year-old daughter, watched the
executions from within the IV room, where an anonymous medically-trained team
would administer the lethal drugs.
Which US states have the death penalty?
TEXAS is not the only US state with the death penalty.
Capital punishment is legal in a total of 30 states.
These are: Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia,
Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana,
Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon,
Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia
and Wyoming.
During one of these events, she watched through one-way glass as the inmate
calmly walked into the death chamber, hopped on the gurney and held his arms
out wide.
Within seconds, he had been strapped into a crucifix position by a tie-down
team and fitted with IV lines, ready to carry a deadly cocktail of drugs
through his veins.
Before long, he was dead, given the ultimate punishment for his horrific crime.
Michelle writes in her book that it "troubled me so much seeing the inmate walk
unrestrained to the gurney, hopping up there and offering his arms with no
hesitation".
Personal tragedy
Michelle witnessed her last execution in 2012 and now works in legal marketing.
While she felt no sympathy for some inmates, she says she had a harder time
with other executions where she felt the prisoner wouldn't re-offend if they
were released.
"I felt guilty - but it's easy to feel that way because they hadn't killed
anyone I loved," she says.
But in 2016, Michelle was dealt her own heartbreak when her teen stepdaughter
Kristine was shot dead.
Kristine, 17, was gunned down in the car park of a California shopping centre,
with her killer, Cameron Frazier, later locked up for life for her murder.
Michelle feels the death penalty would have been the appropriate punishment for
him.
"I really understood how one single crime could undo so many lives," she tells
us.
"My marriage to Kristine's father ended the year after, and her mum's life of
course was undone. Her siblings had a very difficult time. One act of violence
shattered so many lives."
Death Row: The Final Minutes: My life as an execution witness in America’s most
infamous prison by Michelle Lyons is available to buy on Amazon.
(source: thesun.co.uk)
MISSISSIPPI:
Mississippi man on trial for killing a baby
An Itawamba County man is being charged in the death of a 4-month-old baby
girl.
The woman who was babysitting the infant, tells autorities she left her alone
with 35-year-old Ricky Dale Junior to go to the store.
When she returned, she says the child was unresponsive.
If convicted, Dale Junior could get the death penalty.
(source: WJTV news)
USA:
Death penalty repeal sweeping across states as both parties get on board----"I
think with the death penalty, we've crossed the tipping point on the question
of innocence," one expert said.
New Hampshire state Rep. Renny Cushing opposed the death penalty before his
father was murdered more than 30 years ago. He opposed it still in 2011, when
his brother-in-law was shot and killed in Tennessee.
And in early March, he took to the House floor to encourage his colleagues to
support his bill to abolish capital punishment in his home state — the
bipartisan fruit of about six years of work in the Legislature, the Democratic
lawmaker said, and one that comes 21 years since he sponsored his first piece
of legislation aimed at repeal.
"To me, it was hanging on to my values as a victim," Cushing, 66, told NBC News
of his decadeslong effort.
"I know that in the aftermath of murder, having a ritual killing by government
employees of an incapacitated prisoner doesn’t do anything to bring either my
father or my brother-in-law back," he added. "It just really fills another
coffin and widens the pain."
Repeal efforts such as Cushing's are gathering steam in state legislatures
across the country, mostly in places where the death penalty has been seldom
issued in recent years, Robert Dunham, executive director of the Death Penalty
Information Center, said, as lawmakers in both parties increasingly embrace
change.
New Hampshire, where one person remains on death row, is just one of at least
15 states to take steps toward ending capital punishment so far this
legislative session, according to the DPIC. That includes California, the state
with the nation's largest death row of 737 people, where Democratic Gov. Gavin
Newsom placed a moratorium on the state's death penalty in early March.
Already, 20 states and the District of Columbia have outlawed capital
punishment, while three other states have a governor-issued moratorium.
"I think with the death penalty, we've crossed the tipping point on the
question of innocence," Dunham said of the uptick in state-level repeal
efforts. "Every person who looks at the facts in good faith agrees that people
who are innocent are at risk of being sentenced to death and being executed."
Lawmakers and criminal justice reform advocates who have led the push for
repeal say it's an ineffective, medieval form of punishment that wastes
taxpayer dollars, ensnares innocent people, discriminates against minorities
and the poor while also violating moral or religious codes. Those opposed to
such efforts argue that the death penalty is an effective deterrent to crime,
necessary for public safety — and is the only punishment appropriate for the
most heinous offenses.
In Colorado, where a bill to end the state's use of the death penalty died last
Tuesday in the state Senate, all three of the men on death row are from the
same county. Colorado state Sen. Angela Williams, D-Denver, said that capital
punishment discriminates not only by race, but also by place.
"The three men on death row are all African American. They all went to the same
high school. They’re all from Arapahoe County. All of their cases were
prosecuted in the 18th Judicial District," Williams said in an interview prior
to the bill being withdrawn from consideration. "As an African American woman
who has worked on criminal justice reforms in the past, I am greatly concerned
about the inequity of this application in Colorado."
Still, divisions remain. Despite Democrats holding a majority in both the state
Senate and House, it was unclear if there would have been enough votes for the
repeal to pass, according The Denver Post. Those opposed to the proposal
accused those in favor of rushing the process. And on Tuesday, one of the
bill's co-sponsors announced to the general assembly through tears that she was
withdrawing the bill from consideration.
Prior to the bill being withdrawn, Dunham had pointed to Colorado as an example
of the increasingly bipartisan nature of the debate surrounding the repeal of
the death penalty.
"Just looking at Colorado, which has a Democratic majority," Dunham said. "If
this were a partisan issue, then that vote would have been rammed through
already, but there are Democrats who are opposed to repeal."
Those Democrats who oppose it include state Rep. Tom Sullivan, D-Arapahoe 37,
who lost his son in the mass shooting in Aurora in 2012, and state Sen. Rhonda
Fields, D-Arapahoe 29, whose son and his fiancée were murdered in 2005. 2 of 3
men on death row in the state are there in connection to the killings.
Fields proposed that Colorado voters — not its lawmakers — decide whether or
not to abolish the death penalty. "I believe we should trust Colorado voters to
have the final say on such an important matter," she tweeted March 11.
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said
he supports the death penalty and has worked on cases supporting the rights of
victims since the mid-1980s. He also believes that public opinion should be
taken into account on this matter, particularly in California after a 2016
ballot poll indicated that the majority of voters supported the death penalty.
Repeal "was on the ballot and the people voted on it and the people made their
decision,” Scheidegger said of the recent moratorium issued by Newsom. "The
governor is spitting in the face of democracy to misuse the clemency power to
effectively repeal a law. He has a constitutional duty to see that the law is
faithfully executed and he is in gross violation of that duty."
Colorado state Sen. John Cooke, R-Weld 13, said that as a former sheriff,
preserving the option of capital punishment is necessary. "You see the things
that people do to other people, there’s just pure evil out there. Those people
need to pay the ultimate price for what they've done," Cooke, who opposed the
repeal bill's advancement, said.
In Washington state, where Democrats have the majority in both chambers of the
legislature, prospects for repeal appear brighter. After the state Supreme
Court's unanimous vote in October 2018 against capital punishment, in which the
justices said it was "imposed in an arbitrary and racially biased manner," a
bill ending its use passed the state Senate earlier this year. The House
Committee for Public Safety voted to advance the bill April 1, and the full
House is expected to vote on it in the coming weeks. Gov. Jay Inslee, who is
running for the 2020 Democratic presidential nomination, said that he would
sign the bill, according to The Associated Press.
Hannah Cox, the national manager of Conservatives Concerned About the Death
Penalty, said that while the issue of repealing the death penalty was once a
partisan one, that's changing.
It "was virtually unheard of in 2012 for a Republican lawmaker to sponsor
repeal," Cox said. This year, ten states have had Republican-sponsored
legislation aimed at doing away with capital punishment, according to her
grassroots advocacy group. That includes Georgia, where the bipartisan House
Bill 702 was introduced on March 28 backed by the Ways and Means committee
chairman and boasting 2 other GOP co-sponsors.
“Times are different. People are just recognizing the flaws in the criminal
justice system and I think viewpoints are really, really different than they
were in the '90s on this issue," Cox said.
Cushing noted that in New Hampshire, "there’s wide, broad bipartisan support
for repeal of the death penalty.”
"The legislation in New Hampshire has always been bipartisan and it is this
year again. The past 2 years, Republicans have taken the lead," he added.
His bill passed the state House with a vote of 279-88 and Cushing expects it to
be considered by the full Senate soon. Though Republican Gov. Chris Sununu has
vowed to veto it — just like he rejected almost identical legislation last year
— Cushing said he thinks the strong show of support in the House bodes well for
the possibility of overriding a veto, which would need a 2/3 majority from both
legislative chambers to pass.
"We'll see," he said.
(source: NBC News)
*********************
Let clergy be present during executions
So the clergy-in-the-death-chamber saga continues, each chapter stranger than
the one before. Let’s connect the dots.
In February, to general condemnation (including my own), the U.S. Supreme Court
allowed the execution of a Muslim inmate in Alabama who had been denied the
presence of an imam in the death chamber, even though a Christian inmate could
have had clergy present.
After the outcry, in late March the justices switched their position, agreeing
to stay the execution of a Buddhist inmate in Texas who has been denied the
presence of a Buddhist priest in the death chamber, even though a Christian
inmate could have clergy present.
Then, after scratching its head for about 12 seconds, Texas hit upon perhaps
the worst possible solution: Let’s not allow anybody to have clergy present in
the death chamber. Then nobody’s being discriminated against.
The idea is so absurd that it sounds like a constitutional law final
examination question — one most students could hit out of the park. The state
is about to kill a man. Let’s imagine, for the sake of argument, that the
condemned man deserves it.
His last request on this earth is for the consolation of his faith in his final
moments. Someone to pray with, to comfort him as his eyes close for the last
time and he crosses into the great unknown. And the state’s answer amounts to:
“Gentlemen, you can’t pray in here! This is the death room!”
Such a policy represents the very definition of cruel and unusual punishment.
The state of Texas is practically begging to be sued; and the litigation will
surely drag on; and if the courts are sensible, in the end this particular
practice will not be permitted.
Now, those who are of a mind might decide to blame Justice Brett Kavanaugh, who
actually suggested this possibility in his separate opinion concurring in last
month’s grant of stay.
The problem, wrote Kavanaugh, is that things can go wrong, as they do in other
“medical procedures.” OK. Chilling but true. Here’s his solution: “States
therefore have a strong interest in tightly controlling access to an execution
room in order to ensure that the execution occurs without any complications,
distractions, or disruptions. The solution to that concern would be to allow
religious advisers only into the viewing room.”
Well, let’s break this down. If you’re going to have executions, you’re going
to have security problems, so of course not everybody can get into the death
chamber. But before we decide that the obvious solution is that no inmate will
be allowed a spiritual adviser at his side as his eyes close for the last time,
we might at least want to compile a list of all the episodes in which
executions have been disrupted by clergy of any faith.
I suspect that the number will be arbitrarily close to zero.
The short of the matter is that Kavanaugh is mistaken. Spiritual solace is not
the state’s to regulate, and clergy confined to the viewing room can’t play the
same role as clergy nearer by. The religious leader who comforts the criminal
facing death is like Kipling’s “Thousandth Man,” who stays by your side to the
gallows’ foot. Putting a wall between prisoner and comforter is what a
civilized society should strive to avoid.
Implementing this approach won’t be easy. Chaplains who work on death row are
trained in the awful technology of capital punishment, and know how to comfort
without getting in the way. At minimum the state should train chaplains from
more faith communities — certainly from the major ones. If it proves necessary
to bring in an outsider, the state should have procedures in place to do so
safely.
A state might object that training more chaplains will prove costly. Yet the
problem arises only because the state has decided that some people deserve to
die. Reasonable people can disagree over whether the state is right about that,
but there’s no particular reason that capital punishment has to be cheap.
Certainly depriving the condemned man of spiritual comfort in his final moments
is the worst way to save a buck.
(source: Opinion; Stephen Carter is a Bloomberg Opinion
columnist----postandcourier.com)
*****************
When It Comes to the Death Penalty, the Supreme Court Legalized Torture Long
Ago
Months before the U.S. Supreme Court sparked fresh outrage over the death
penalty by upholding the planned execution of a man who risks drowning in his
own blood, Justice Stephen Breyer invited Missouri Solicitor General D. John
Sauer to consider the matter “as a person rather than a lawyer.”
It was November 2018. Oral arguments in Bucklew v. Precythe were about halfway
done. The issue at hand: Russell Bucklew, condemned to die for a murder and
rape committed in 1996, suffered from a rare medical condition called cavernous
hemangioma. Blood-filled tumors in his throat, neck, and mouth made it
difficult for him to breathe — at night he slept at a 45 degree angle to avoid
choking. If subjected to a lethal injection, experts warned, the tumors could
rupture, causing a gruesome death. To avoid this fate — and as required by law
when challenging a state’s execution protocol — Bucklew chose a different way
to die: nitrogen gas, currently allowed in Missouri and three other states. But
his proposal was rejected without a trial or hearing.
The courts conceded that Bucklew may well suffer under lethal injection, but
found “no basis to conclude that Bucklew’s risk of severe pain would be
substantially reduced by use of nitrogen hypoxia instead.” But a dissenting
judge on the 8th Circuit Court of Appeals was not convinced. There were too
many lingering questions. Would Bucklew be lying flat during the execution —
and would his airway would be blocked as a result? How much pain would he
experience if subjected to Missouri’s 1-drug pentobarbital protocol versus
nitrogen gas? The state’s medical expert claimed that the pentobarbital would
render him immune very quickly. Bucklew’s expert disagreed.
Then there were unsettling questions brought up in the 1st half of the oral
argument. Shielded by Missouri’s secrecy law, the state would not disclose the
identities of anyone involved in carrying out the execution. So there was no
way to know their qualifications — or their preparedness should something go
wrong. The last time Missouri was poised to execute Bucklew, his attorney told
the justices, the execution team “got a one-page summary of his condition. … It
didn’t mention the tumor in his throat. It did not indicate any breathing
issues.”
With so many lingering uncertainties, Breyer suggested to Sauer, it seemed
logical to do more fact-finding. “Go back and hold a full hearing on it,” he
said. Present the evidence and consider the alternatives. “Why not?”
Untried and Untested
One answer is that’s just not how the death penalty works. Medical
practitioners may gather all information to ensure a risky procedure goes
smoothly, but lethal injection is only designed to look clinical. The end goal,
after all, is death. Besides, prosecutors aren’t the people who will be faced
with killing a man strapped to a gurney. They have different priorities.
“First, the state of Missouri has a compelling interest in seeing this just and
lawful sentence is carried out as quickly as possible,” Sauer told Breyer. To
send the case back for further inquiry “would interject yet more delay before
the execution of a sentence that’s been in place for 22 years now.” Plus, there
was a problem with Bucklew’s chosen alternative. “At this time, no protocol
exists for execution by nitrogen hypoxia. No state has ever tried it.” In its
2008 ruling in Baze v. Rees, Sauer argued, the court said repeatedly “that an
alternative method of execution that is untried and untested, that no state has
ever used, that no study supports showing its efficacy, is not an alternative
that’s reasonable.”
For anyone who has paid attention to the controversies over lethal injection in
the past decade, this argument was specious at best. It was a distortion of
Baze, for one. (In that decision, which rejected a challenge to the country’s
prevailing execution protocol, Chief Justice John Roberts wrote that it did not
violate the Eighth Amendment to deny condemned prisoners the option of “untried
and untested” alternatives to lethal injection — not that new alternatives
should never be an option at all.)
But more to the point, “untried and untested” has been the name of the game for
years when it comes to executions. After Baze, states strayed wildly from the
3-drug protocol upheld by the court, swapping out old drugs with products never
before used in lethal injection. 1-drug, 2-drug, and 3-drug combinations were
tried and discarded across the country, with a series of botched executions
generating revulsion and controversy along the way.
Death penalty opponents have decried these executions as human “experiments.”
But Dr. Joel Zivot, a veteran anesthesiologist and the expert in the Bucklew
case, argues that it is actually worse than that. An experiment is a scientific
inquiry; the testing of a hypothesis based on some kind of foundation. The
states’ approach to lethal injection has been far more reckless and cruel.
Calling it an experiment, Zivot said, “gives credibility where no credibility
is deserved.” State-Sanctioned Torture
The chaos over lethal injection eventually led to the case that is the
precursor to Bucklew, and which is critical to understanding it: Glossip v.
Gross, decided in 2015. Following the gruesome 2014 execution of Clayton
Lockett in Oklahoma, a man named Charles Warner, who was next in line to die,
sought an injunction in district court, protesting the “ever-changing array of
untried drugs of unknown provenance.” The courts denied the challenge — Neil
Gorsuch, a 10th Circuit judge at the time, was among those who rejected his
petition — and Warner was executed in January 2015. Witnesses reported his last
words were “my body is on fire.” Just days after his death, however, the
Supreme Court granted certiorari in the challenge to Oklahoma’s execution
protocol, with a man named Richard Glossip replacing Warner as the named
plaintiff.
The drug at the center of the case was midazolam. Experts insisted the sedative
was incapable of rendering a person insensate to the pain associated with
lethal injection. But that didn’t seem to trouble conservatives on the court.
“Because some risk of pain is inherent in any method of execution, we have held
that the Constitution does not require the avoidance of all risk of pain,”
Justice Samuel Alito reasoned in Glossip. “After all, while most humans wish to
die a painless death, many do not have that good fortune.”
Glossip was a travesty. The oral arguments were spiteful and tense; Alito and
and then-Justice Antonin Scalia blamed anti-death penalty activists for making
it impossible for states to acquire reliable execution drugs, making clear that
they would settle for a lesser alternative. The 5-4 decision sanctioned an
execution protocol that was rooted in junk science and peddled by a state that
would be revealed to have misled the court. Most devastating, Glossip imposed a
grim new requirement that would make it nearly impossible to challenge lethal
injection: People on death row now had to offer an alternative way for the
state to kill them.
This “second prong” of Glossip, as it is known in legal terms, put a major
burden on the condemned and their attorneys. It also put medical experts in an
ethical quandary; few would be willing to overtly endorse a method of execution
as a reasonable alternative. As death penalty lawyers lost case after case, new
evidence emerged that states had been quietly torturing people to death on the
gurney. It came to light at a trial over Tennessee’s lethal injection protocol
last summer, where a slew of witnesses testified to disturbing scenes during
executions using midazolam. Their descriptions were backed up by a pathologist
who had reviewed every available autopsy of people executed with the drug and
found evidence of pulmonary edema, a buildup of fluid in the lungs, indicating
that the condemned had drowned in their own fluids. A federal judge in Ohio was
so disturbed by this evidence earlier this year, he issued a ruling decrying
midazolam executions as akin to waterboarding — a finding that led the newly
elected governor to put scheduled executions on hold.
It is against this backdrop that the Supreme Court handed down its
controversial 5-4 decision in Bucklew earlier this week. In his opinion,
Gorsuch reiterated what Alito wrote in Glossip, that the Constitution “does not
guarantee a prisoner a painless death — something that of course, isn’t
guaranteed to many people, including most victims of capital crimes.” Only
executions that were deliberately cruel would be considered unconstitutional.
Gorsuch’s opinion sparked shock and indignation. Commentators called it
“bloodthirsty,” “medieval,” and “immoral,” a guarantee that more people will
die “in agonizing pain.” Legal analysts warned that it dismantled the “evolving
standards of decency” framework that has been so fundamental to Eighth
Amendment jurisprudence, while marking “the start of a new, brutal era in
American capital punishment.”
In truth, it is hard to know how Bucklew might impact Eighth Amendment law
beyond death penalty cases. And on this front, it would be hard to do more
damage than has already been done. Neither Baze nor Glossip had much to say
about “evolving standards of decency.” Both rulings upheld methods of lethal
injection — once seen as advanced and enlightened — at the very moment they
were being revealed to be just as cruel as its predecessors. Although the
Supreme Court has curtailed the execution of vulnerable populations — juvenile
defendants, people with mental disabilities — it has always given
constitutional cover to even the most grotesque executions. While the ruling in
Bucklew is certainly callous and cruel, it is also a reminder of how little
most Americans have paid attention to what states have been doing in their
name. For the people on death row, the court legalized torture long ago.
Build Your Own Gas Chamber
So why did Bucklew strike a nerve? For one, it was one of the first death
penalty rulings handed down by the new Supreme Court bench. For those seeking
clues on just how cruel the new conservative court might be going forward,
Bucklew certainly gives reason for alarm.
Bucklew only made it to oral argument in the first place because of the bench
as it existed on March 20, 2018 — the day Missouri planned to kill him. To win
a stay of execution, five Supreme Court justices must vote in favor — Roberts,
Gorsuch, Alito, and Clarence Thomas all voted against. (Then-Justice Anthony
Kennedy, the longtime swing voter in death penalty cases, voted in favor.) A
few weeks later, the justices agreed to consider Bucklew’s claim that executing
him would violate the Constitution.
But in the intervening months, Kennedy left the court and was replaced by Brett
Kavanaugh. Bucklew would be his first death penalty case. To his credit,
Kavanaugh asked some key questions during the oral argument last fall, pushing
Missouri’s solicitor general to answer whether there was any constitutional
limit to the suffering imposed by an execution method in the absence of a
viable alternative. (“So you’re saying that even if the method imposes
gruesome, brutal pain, you can still go forward?” Kavanaugh asked. Yes, Sauer
said, unless the punishment was seen as “superadding terror, pain, or
disgrace.”) But ultimately, Kavanaugh fell in line with his right-wing
colleagues.
For those in the trenches of lethal injection litigation, there is plenty to
hate about Bucklew. But it is hardly a shock. “It’s disappointing that the
court seems to be wedded to this idea that defendants have this obligation to
endorse methods of execution,” said Tennessee Federal Public Defender Kelley
Henry, calling Bucklew “an additional tie on our hands.”
At the same time, Henry said, “the court did clear up a dispute in the lower
courts.” Until Bucklew, it was unclear whether Glossip required the condemned
to propose alternatives that were already on the books in their respective
states. Bucklew held that any existing execution method that petitioners
believed could reduce the risk of pain is on the table. In the
through-the-looking-glass world of lethal injection litigation, this is what
passes as progress.
Henry points out the double standard that exists among the justices over
“untried and untested” execution methods. (“It seems to me that if you have a
method that no state has ever used, that that danger is magnified,” Roberts
mused at oral arguments last fall.) “If the state wants to experiment on its
own, that’s fine,” Henry says. “But if we want to say that the state’s method
is unconstitutional,” and propose an alternative method, “we have this
additional burden of proof.”
Indeed, one of the most gratuitous sections of Gorsuch’s opinion is a portion
criticizing Bucklew’s “bare bones proposal” of using nitrogen gas to kill him.
Among the “essential questions” Bucklew failed to address: “how nitrogen gas
should be administered (using a gas chamber, a tent, a hood, a mask, or some
other delivery device); in what concentration (pure nitrogen or some other
mixture of gases); how quickly and for how long it should be introduced; or how
the State might ensure the safety of the execution team, including protecting
them against the risk of gas leaks.”
To Zivot, the alternative method requirement was already bad enough. Now “the
question is, are you therefore asking Bucklew to build his own gas chamber? And
then ‘with how many bricks?,’ I suppose, and ‘what kind of chair?,’ and ‘where
would the nitrogen go?’ And then he would have to conduct some sort of test, I
guess, with volunteers, and try them out and see perhaps a randomized
prospective trial comparing, say, lethal injection to nitrogen hypoxia or some
such thing. Obviously it’s absurd.”
There is an additional irony in Gorsuch’s insistence on a better blueprint for
executions. Like its historical predecessors, lethal injection was never the
subject of rigorous study by the states that have adopted it. From its
invention in the 1970s, the design was merely copied from one state to the
next, with prison officials tasked with choosing drugs and figuring out doses.
In recent years, states have relied on increasingly dubious sources, seeking
out compounding pharmacies to acquire drugs, while occasionally breaking
federal law. To ward off scrutiny, states have passed measures to keep secret
their sources, claiming that intimidation by anti-death penalty zealots creates
a security risk. Missouri is no exception. Although it has escaped the
controversies over midazolam, having never adopted it, the state chose its
current drug protocol the same way as others have: based on availability rather
than its efficacy. In an exposé published last year, BuzzFeed News uncovered
the identity of the pharmacy that sold the drugs used in Missouri’s executions
going back to 2014, a compounding pharmacy “based in the suburbs of St. Louis
that has been repeatedly found to engage in hazardous pharmaceutical procedures
and whose cofounder has been accused of regularly ordering prescription
medications for himself without a doctor’s prescription.” Under its “cloak and
dagger” drug procurement process, prison officials attended “a clandestine
meeting with a company representative, exchanging an envelope full of cash for
vials of pentobarbital.”
A Last Gasp for the Death Penalty? There may be another reason the ruling in
Bucklew was so widely condemned. The death penalty is on the decline. Public
support has fallen to historic lows. Despite a president who fantasizes about
executing drug dealers, a stance against the death penalty is no longer seen as
a liability among his opponents in the 2020 election. For the first time in
decades, it is the default position among Democratic candidates.
It may also be that Bucklew, despite being guilty of horrible crimes, is
indisputably vulnerable to the agony and torture of lethal injection in a way
that others are not. If Missouri law allows executions by nitrogen gas, it
seems senseless not to try to grant his request. Bucklew was not challenging
all pentobarbital executions, after all. He was merely asking to avoid the
certainty of a tortuous death for himself. As Breyer might put it, “Why not?”
Because it “invites pleading games,” writes Gorsuch, in one of the most callous
parts of his opinion. If the court granted relief to Bucklew, soon others would
be trying the same thing. Gorsuch may be relatively new to the Supreme Court
bench, but he has made clear that he is tired of lethal injection challenges —
or as he casts them, “tools to interpose unjustified delay.” If Bucklew teaches
us anything, it is that the death penalty’s many cruelties will never be ended
by the same court that sanctioned it for generations. If Americans truly care
about the torture committed in their name, they must stop looking to judges who
can only think like lawyers and not as people.
(source: theintercept.com)
*****************
The death penalty is antiquated, unfair, and expensive
The death-penalty, state sanctioned execution, capital punishment or whatever
you want to call it, is a relic of the past and should be done away with in
America, as it has been in 100 countries around the world. It is unfair because
it is not applied equally to blacks and whites, nor is it applied equally to
the rich and poor. There are not many rich people being executed—none to my
knowledge. It is unjust because over the years, at least 160 individuals have
been released from death-row, many of them exonerated by DNA findings after
spending decades on death row. That is wrong and unacceptable in a nation built
on equal treatment under the law.
There is no doubt that innocent men have been executed, which is a tragedy, and
more than enough reason to stop all executions in America. The United States is
the only western country that still has the death-penalty. It is certainly not
a deterrent, which is what the proponents often say. It’s just not true.
There are almost 2800 people on death row in America, and many of them have
been there for decades. The business of capital punishment is lucrative because
of the automatic appeals that are in place, which can cost millions of dollars.
It is cheaper to give a defendant life without parole than it is to give them
the death penalty, which sounds crazy, but it is true. Death penalty cases are
more expensive than regular cases because all the judges, lawyers, and other
court personnel must devote more time into getting the case ready, trying the
case and reviewing the multitude of issues surrounding the case, given the fact
that a life is at stake.
The fact is that death-penalty cases can take a long time to come to conclusion
after the initial trial because of extended post-trial proceedings, which are
called habeas corpus, that require enormous sums of time and money for a couple
of reasons: The procedure consists of a long review of the entire case, and the
government usually pays for both sides, because felonious defendants are mostly
indigent and can’t pay the fees, which result in these cases costing millions
of dollars per case. It is an enormous cost to the taxpayers, who are footing
the bill.
It is understandable that the victim’s families want vengeance—an eye for an
eye and a tooth for tooth, but at the end of the day, it’s not going to bring
back their loved ones. Although I have never been a proponent of the
death-penalty, I find myself empathizing with families who have lost loved
ones, because some of these crimes are so heinous, but then I think that
killing is too good for the perpetrator. It’s too easy to just stick a needle
in someone’s arm and let them go to sleep. It may bring some form of closure to
the family, but then I come back to the conclusion that spending life in prison
is the more effective punishment—living every day knowing that you will never
see the light of day outside of the prison walls, and knowing that you will die
and be buried in the prison cemetery is something that an offender has to live
with every day. They ought to be made to suffer. That is real punishment.
Then, there is the problem with race and the death-penalty. Studies have shown
that the race of the victim and the race of the perpetrator plays a big part in
who lives and who dies, and that should never be the case. Blacks are more
likely to be given the death penalty if the victim is white and whites are more
likely to be given jail time, not even life, if the victim is black. It is just
a microcosm of the racial dynamics that has existed in America for hundreds of
years. It shouldn’t matter what color the victim or the perpetrator is, but
everyone knows that it does, which exposes a serious flaw in the death penalty
laws in America.
Since the death penalty was reinstated in 1976, more than 1400 individuals have
been executed. During that time, 156 people have been exonerated from death row
after they have been found to be innocent. That is an astonishing number that
should send a chill through all Americans who believe that America is a just
nation. This shows that mistakes have been made, and these mistakes have led to
the undeniable truth that some innocent people have been executed. For this
reason alone, capital punishment should be done away with.
At the end of the day, the death penalty, state sanctioned killing, capital
punishment, or whatever you want to call it, is an antiquated, unfair, unjust
and costly form of punishment. Recent studies have found that death penalty
cases cost taxpayers 1.5 million dollars on average, while life sentences cost
taxpayers half that amount, which is a surprising fact for many Americans to
wrap their arms around. It is wasteful and taxpayers should not have to bear
these ever-increasing costs. Life in prison should be life in prison, with no
chance of parole. That would avoid even the chance that innocent people will be
executed by the state. Jack Aurora, an expert on death penalty cases, asks this
question: “Shouldn’t the state be equally concerned about time and money? Life
sentences without parole would serve us much better, but we are fixated on a
process that drains government resources. And to what advantage?” And that’s my
take.
(source: Opinion, Prentiss Smith, Shreveport Times)
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