Capital punishment

What’s the Future of the Death Penalty in America?


Two recent high-profile cases have once again highlighted America’s complex relationship with the death penalty. In Colorado, a jury declined to impose the death penalty on theater shooter James Holmes. And in Connecticut, whose legislature had recently abolished capital punishment prospectively, the state supreme court held that the Connecticut constitution barred the execution of those whose offenses had preceded that legislative change.
Both cases contributed to the ongoing national capital punishment debate. Some openly wondered whether the availability of the death penalty in Colorado still has any practical meaning, if jurors couldn’t be convinced to impose it on someone like Holmes. And the Connecticut court’s opinion included an extensive discussion of the various trends taking shape across the country. It’s clear that the question of the future of capital punishment in America remains a lively one. (Full disclosure: I’m a criminal defense attorney, and my practice includes capital cases, including one that is currently pending.)
It’s not hard to understand why this debate generates such strong feelings on both sides. Although my work has been on the defense side, anyone involved in the justice system gets a first-hand look at the heinous nature of violent crime. Crime scene and autopsy photos, and the visible emotions on the faces of the family members who attend every hearing, are constant reminders of the horrific harms that human beings can inflict on one another and the irreparable damage caused to those left behind.
On the other hand, some believe that regardless of the circumstances it’s simply unacceptable for the state to take the life of one of its citizens. Others who can accept capital punishment in theory question whether our existing system is sufficiently reliable to support that penalty (a concern I’ve come to share based on my time in that system).
With such powerful motivations on both sides and the highest of stakes involved, it shouldn’t be surprising that this is such a passionate debate. And one development that’s significantly affected the course of capital punishment in America is the fact that death penalty opponents have been extremely effective in making it increasingly difficult to actually secure and impose a death sentence.
First, they’ve devoted an extraordinary amount of effort and resources to training defense lawyers at the trial level to avoid death sentences for their clients. (Colorado, where the Holmes trial took place, is a national center for this type of education; the “Colorado Method” of jury selection is a staple of capital defense training.)
And of course, an initial death penalty determination doesn’t end the matter. There are several layers of appellate review through a series of courts, and cases involving death sentences get extra appellate scrutiny. The actual legal rules are more demanding, and those rules may be applied in an especially exacting way–particularly if some of the judges along the way have their own reservations about capital punishment. The result is that death-penalty cases are regularly reversed and sent back for new trials or sentencing proceedings. For example, in Oregon, where my practice is based, the State is about to take its fourth shot at securing a death sentence for serial killer Dayton Leroy Rogers; Rogers was convicted back in 1989 and has been sentenced to death 3 times, with the Oregon Supreme Court ordering resentencing each time.
Finally, even if a death sentence survives all of this review, it still has to be imposed, and this is no mere formality–again, partly because of the efforts of abolitionists, who have made it difficult for companies to supply the chemicals needed for executions. The result is that even some states with large numbers of prisoners on death row virtually never actually execute anyone. In recent years, several governors have gone as far as declaring moratoria on executions in their states, in some cases formalizing what had already been the rule in practice.
All this means that it takes a lot of political will to actually carry the process to its end and execute someone–a point illustrated by some intriguing facts cited in the Connecticut court’s opinion. Apparently, the vast majority of American executions are concentrated within a small band of states–in 2014, for example, Texas, Missouri, Florida and Oklahoma collectively accounted for approximately 90 % of the nation’s 35 executions, and similar concentrations within small subsets of states appear across broader time periods. Presumably, these are the states where legislators, prosecutors and others not only believe strongly in the death penalty themselves, but understand that their constituencies share that belief and will support them in the face of vigorous opposition.
So what’s the future of the death penalty in America? I don’t see it going away at the national level. Abolitionists have fought for decades to have the Supreme Court declare capital punishment categorically unconstitutional, but although they’ve come close at times and clearly have the ears of some current justices, I don’t expect that the Court will ever go that far–at least not anytime soon. So I expect that capital punishment will remain constitutionally permissible, and that those states with steadfast support will continue imposing it.
Meanwhile, those states whose residents are more ambivalent about the death penalty may increasingly reconsider whether a capital punishment regime is worth the immense costs, burdens and endless litigation required to keep it in place–especially given the increasingly significant possibility that even a defendant sentenced to death may never actually be executed. These questions may be mulled over by legislatures, governors, prosecutors, and others. (A judge in Kentucky, for example, recently forbade the state from seeking the death penalty in a murder case based on her apparent conclusion that that penalty would never actually be imposed, so that the enormously increased costs and burdens compared to a non-capital case would end up being wasted.) And through it all, Americans of goodwill will continue to debate the questions of whether and when the ultimate penalty should be imposed.
Source: Huffington Post, Kevin Sali, August 29, 2015. Mr. Sali is a criminal defense attorney in Portland, Oregon, USA.
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Nebraska death penalty repeal on hold


Supporters of retaining the death penalty in Nebraska turned in thousands more signatures than necessary on Wednesday to suspend the repeal and place the issue before voters.
Nebraskans for the Death Penalty turned in petitions containing 166,692 signatures. Leaders of the group called that a surprisingly large number and said it signaled that voters in the 2016 general election will retain the ultimate penalty for the most heinous murders, reversing the repeal enacted by the State Legislature this spring.
A lot of senators will find out that their constituents have a different view, I really believe that,” said State Sen. Mike Groene of North Platte, a death penalty supporter who circulated petitions.
Opponents of the death penalty, meanwhile, said that they expect Nebraska voters to come to the same conclusion as 30 of the state’s 49 state lawmakers. Voters will learn that the risks of executing innocent people, the “tremendous waste” of taxpayer dollars and the hurdles in obtaining the necessary drugs have made the death penalty immoral, unjust and unworkable, said the Rev. Stephen Griffith of Nebraskans for Alternatives to the Death Penalty.
“Just like the legislators they elected, we believe the more Nebraskans learn about the failures of capital punishment, the more they will be inclined to get rid of it,” said Griffith, the group’s new executive director.
The pro-death penalty group formed in June and launched its petition drive just after state lawmakers overrode Gov. Pete Ricketts’ veto and repealed the death penalty.
The vote drew national attention as Nebraska became the first conservative state since North Dakota in 1973 to do away with the death penalty. Currently, 31 states have capital punishment.
But the victory by death penalty opponents in Nebraska now appears to be in jeopardy.
The pro-capital punishment group turned in nearly 3 times as many signatures as is necessary to place the issue on the ballot: 5 % of the state’s registered voters, about 57,000 signatures. The drive must also meet that 5 % threshold in 38 of the state’s 93 counties.
But Nebraskans for the Death Penalty also appears to have a comfortable cushion to suspend the repeal of the death penalty until voters decide its fate at the ballot box.
To do that, the drive needed to submit valid signatures of 10 percent of the state’s voters, or about 114,000 signatures.
Typically, 15 % to 25 % of signatures are invalidated, either because a signer wasn’t registered to vote or for other technical reasons. Even if 25 % of the signatures were disqualified, the drive would still have 125,000 valid signatures, more than enough to suspend the repeal.
State Treasurer Don Stenberg, a former attorney general who was an honorary co-chairman of the pro-death penalty group, said there was “a lot of significance” to collecting so many signatures.
“It’s reflective of the tremendous support that Nebraskans have in keeping the death penalty,” Stenberg said.
He was one of several supporters of capital punishment who spoke at an afternoon press conference, staged in front of an 8-foot-high wall of boxes holding petitions gathered by the group’s nearly 600 paid and volunteer circulators. Signatures were collected in all 93 counties.
Officials in the counties are expected to take more than a month to count and validate the signatures.
Stenberg, as well as the Attorney General’s Office, both said the signatures are presumed valid when they are turned in, until the count proves otherwise.
So, they said, the repeal of the death penalty – which was scheduled to go into effect on Sunday – is on hold until the count is completed.
“There will be some uncertainty in the law,” Stenberg said. But, he added, “It’s not unusual to have uncertainty in the law.”
Nebraska lacks the necessary drugs to carry out an execution via its only legal means, lethal injection. But Stenberg, who as attorney general presided over the state’s last 3 executions in the 1990s, said that if the state obtains the necessary drugs, there’s nothing preventing current Attorney General Doug Peterson from asking for execution dates for the 10 men on death row.
Peterson, on Wednesday, said he was reviewing the cases.
The State Supreme Court would have to approve any requests for execution dates. It’s unclear if the court would do that while a referendum on the issue is pending and after the Legislature voted to repeal the death penalty.
One of the senators who voted for the repeal, Bob Krist of Omaha, said death penalty supporters will need a lot more support to overturn the repeal in the 2016 election.
He said the referendum should not be about vengeance but “justice and fiscal conservatism.” Krist said the state has spent millions and only executed 3 people in the last 6 decades.
He also questioned if the drive collected most of its signatures from Omaha and Lincoln, or from areas like Norfolk and Falls City, where there have been horrible murders and support for capital punishment is higher.
“So here we go. Game on,” Krist said.
Officials with Nebraskans for the Death Penalty said they collected enough signatures to qualify the issue for the ballot in the 1st month, then used a last-minute push to qualify the measure in the necessary 38 counties.
Chris Peterson, the drive’s spokesman, said the group expects to spend about $800,000 to $900,000 on its petition-gathering effort, which included hiring hundreds of paid circulators and an Arizona consulting company.
That spending, he said, is comparable to what a group spent last year to get an initiative petition on the ballot to increase the state’s minimum wage. Nebraskans for Better Wages turned in 134,899 signatures after a 60-day drive.
Ricketts and his family were among the prime financiers for the pro-death penalty drive. The Republican governor contributed $200,000 in the first 2 months, and his father, TD Ameritrade founder Joe Ricketts, gave $100,000.
Officials with the pro-death penalty group said that petition signers overwhelmingly said they deserved a chance to vote on the issue.
“It’s too important of an issue to be left to the give-and-take of politics,” said Groene.
Vivian Tuttle of Ewing, whose daughter Evonne was 1 of 5 people slain during an attempted robbery at a Norfolk bank in 2002, said she put 8,000 miles on her car seeking support for the referendum drive.
“Wherever I went, people said ‘I want to help do this,'” Tuttle said.
The last time a referendum petition appeared on the ballot was in 2006, when voters were asked whether to overturn a law mandating the consolidation of Class I school districts.
Source: lexch.com, August 29, 2015

High court won’t rehear death penalty case


The Supreme Court refused Friday to reconsider the death-row appeals of 3 Oklahoma prisoners whose pending executions by lethal injection were upheld by the justices in June.
Without comment, the court denied a petition filed by the prisoners’ lawyers that would have turned the case into one testing the overall constitutionality of the death penalty.
The justices ruled 5-4 on June 29 that Oklahoma can use the sedative midazolam as part of a 3-drug lethal injection protocol, despite contentions that it may not render prisoners completely unconscious and incapable of feeling pain. The court’s majority said the inmates failed to suggest any better alternative.
But the decision included a sweeping dissent from Justices Stephen Breyer and Ruth Bader Ginsburg that questioned whether capital punishment is no longer constitutional. The 2 liberal justices cited scores of death-row exonerations, racial and geographic disparities, decades-long delays between sentencing and executions and a trend away from capital punishment in courts and states.
Breyer, who wrote the dissent, urged the court to hear a case in the near future on whether the death penalty violates the Constitution’s prohibition against cruel and unusual punishment. The court ruled that way in 1972, resulting in a 4-year moratorium on executions, but reversed itself in 1976.
“It would be appropriate for the court to use this case to address the constitutionality of the death penalty, because the outcome will turn not on facts specific to any single litigant, but on circumstances common to the administration of the death penalty,” attorneys for death-row inmates Richard Glossip, John Grant and Benjamin Cole said.
A similar effort was mounted in early July by Missouri prisoner David Zink, but the Supreme Court refused to delay his execution, and he was put to death July 14. Barring a last-minute reprieve, Glossip is scheduled to die Sept. 16, with Grant and Cole to follow later this year.
A more likely candidate for the Supreme Court to consider whether the death penalty is constitutional will come before the U.S. Court of Appeals for the 9th Circuit on Monday. In that case, a federal district judge already has declared California’s death penalty unconstitutional because of long delays, inadequate funding for defense lawyers, and the lack of a lethal injection protocol.
The June Supreme Court case concerned the specific drug used by Oklahoma and some other states to sedate prisoners before lethal drugs are administered. While Florida has used midazolam with apparent success, three executions in Arizona, Ohio and Oklahoma resulted in condemned prisoners gasping and writhing on their gurneys.
The high court’s 5-member conservative majority ruled that states may continue to uses midazolam because the defendants could not suggest an alternative – a burden that the court’s 4 liberal members criticized in a dissent written by Justice Sonia Sotomayor.
Source: USA Today, August 28, 201

Gov. Pete Ricketts confident executions will happen for men on death row


 

LINCOLN — If Nebraska succeeds in importing the $54,400 in lethal injection drugs it ordered from India, Gov. Pete Ricketts said Thursday he’s confident he won’t need to seek a refund.
During an interview Thursday on “The Bottom Line,” The World-Herald’s Internet radio broadcast, the governor was asked what happens to the state funds if the death penalty repeal ultimately remains in effect. Death penalty supporters are collecting signatures in an effort to let voters decide the fate of capital punishment in 2016.
“Would we then be able to sell it back to the people who sold it to us?” host Mike’l Severe asked. “Would we get our money back?”
The governor, a major contributor to the petition drive, said the state will need the drugs for the 10 men on death row, regardless of the drive’s outcome.
More coverage of capital punishment in Nebraska
“The Legislature actually doesn’t have the authority to go back and change sentences that have already occurred,” he said. “We’re still working under the premise that we’re going to continue to carry out the sentences for the inmates we have.”
State Sen. Ernie Chambers of Omaha, the chief sponsor of the law, has said that while the Legislature cannot change the death sentences of those already on death row, the repeal removed the statutory means for conducting an execution. That, he has said, leaves the death row inmates with a sentence that can’t be carried out.
The state has not yet imported the drugs it bought in May from a broker in India. An official with the U.S. Food and Drug Administration has said one of the two drugs Nebraska purchased can’t legally be imported.
Ricketts said Thursday that state officials remain in discussions with the Drug Enforcement Administration to get the drugs shipped. He offered no timeline, however, on when the drugs could arrive.
A DEA official has said the agency is working in tandem with the FDA on the issue, suggesting Nebraska would not be able to use one federal agency to go around another.
The governor repeated his stance that the death penalty is a necessary policy for public safety. In particular, he said he believes it’s important to protect law enforcement and correctional officers who work with inmates serving life terms.
“That’s why I feel so strongly the folks in Nebraska should have a chance to vote on it,” he said.
The governor also was asked about a new “re-employment” program being launched by the Nebraska Department of Labor with his support. The program seeks to get unemployed people back to work as quickly as possible.

A key part of the program requires those seeking unemployment benefits to meet with a jobs coach so they can post a résumé online. That résumé could then be searched by Nebraska employers seeking to fill vacancies.

“In a state where we have a 2.6 percent unemployment rate, we’re really working hard to make sure we can do the best job possible to connect people who are looking for jobs with the companies that have them,” he said.

Ricketts, a former executive with TD Ameritrade, often discussed how he would work to make government function more like a business if he were elected. On Thursday, he said he is requiring his department heads to set goals and devise methods for measuring progress toward the goals.

For example, he mentioned the common complaints of long hold times when citizens call into AccessNebraska, the call center for public benefits. The Department of Health and Human Services, which operates the program, now keeps monthly statistics on hold times.

“If we don’t have any measurements, how can we hold people accountable?” the governor said.

How It Feels To Kill 62 People


When it comes to capital punishment, we already know the fiscal cost: studies have found that a death sentence is up to ten times more expensive than life without parole, often at a cost of around $300 million per head.

But what about the moral cost?

The death penalty is often justified on the grounds that it brings peace to the families of victims; that the act of ending a life may mark an end to their pain. But for those who impose the death penalty, the truth about the emotional trauma of killing another human being belies this logic.

“You can’t tell me I can take the life of people and go home and be normal. If I had known what I’d have to go through as an executioner, I wouldn’t have done it. It took a lot out of me to do it.”

These are the words of Jerry Givens, former state executioner for the Virginia Department of Corrections. Givens executed 62 people over 17 years in a state that ranks third in the nation for number of executions. The emotional toll of his former job is something he can’t escape. “You have to transform yourself into that person that will take a life. Every time an execution was announced, it meant that I had to prepare myself mentally to kill.”

Confessions of an Executioner

It’s rare to find a former executioner willing to speak openly about their experiences. The nature of the job causes many to conceal their real occupation like a shameful secret. But Givens is one of the few executioners who speaks candidly about his past career, and he provides a unique insight into a world that few people ever venture into.

It’s clear from speaking to Givens that he is a compassionate man. He talks often of being able to look past the crime to see the human being underneath. “We degrade people and call them animals,” he told ThinkProgress. “But when I worked on death row, I didn’t see that animal. I saw a human being. When you call people an animal and treat them like that, that’s the behavior they’ll show you. But they can also show you that they’re not like that; that everybody can change.”

An executioner seems a curious job for a person to whom empathy comes easily. How did this compassionate man become an enforcer of the death penalty? What did it take for him to kill another human being? For Givens, it was a steadfast faith in the justice system. This faith meant that doubts were suppressed and fears were tolerated. Any gnawing unease was overpowered by the notion that it must be the right thing to do – it was state-certified, after all.

“I always ask myself, would I have agreed to participate in executions if I knew then what I do now?” Steve J. Martin, an execution witness for the Texas Department of Corrections, told ThinkProgress. “We do these things that we would normally never be involved in because they’re sanctioned by the government. And then we start walking through them in a mechanical fashion. We become detached. We lose our humanity.”

Givens agrees. “The people who pass these bills, they don’t have to do it. The people who do the executions, they’re the ones who suffer through it,” he said.

ptsd-graphic-final

Flashbacks, nightmares and other post-traumatic stress related symptoms are frequently seen in prison wardens, executioners, and corrections officers, according to the National Coalition to Abolish the Death Penalty. Research has shown that 31% of prison staff who carry out executions will suffer from PTSD. This is an unusually high proportion; for Iraq war veterans, the same statistic is 20%.

Deliberately killing another human being goes against all normal societal standards, and many individuals must go to unusual and harmful measures to accomplish such an act. A 2005 Stanford University psychology study by Michael Osofsky highlighted the tactics employed by prison staff to absolve themselves from feelings of guilt and despondency.

“Individuals must morally disengage in order to perform actions and behaviors that run opposite to individual values and personal moral standards,” Osofsky explained in the study. “Capital punishment is an example of this type of moral dilemma, where everyday people are forced to perform the legal and state-sanctioned action of ending the life of another human being, which poses an inherent moral conflict to human values.”

For many people involved in enforcing the death penalty, the subsequent trauma would never dissipate. California Governor Edmund Brown was responsible for deciding whether death sentences would ensue or be commuted to life without parole. Though he granted clemency to 23 out of his 59 cases, the weight of these decisions still overwhelms him.

“The longer I live, the larger loom those 59 decisions about justice and mercy that I had to make as governor,” Brown said. “It was an ultimate power over the lives of others that no person or government should have. And looking back over their names and files now, I realize that each decision took something out of me that nothing – not family or work or hope for the future – has ever been able to replace.”

Needless to say, the enforcers of the death penalty aren’t the only ones to suffer. Fully accepting the imminent end to your life, against your will and at the hands of another is a bizarre reality that many prisoners just couldn’t face, as Givens recounts.

“This one guy…was sort of moderately retarded. He’d ordered McDonald’s and a chocolate nut sundae for his last meal. But he couldn’t swallow it. So he said to me, ‘I can’t finish it so I’ll put it in the fridge for tomorrow.’ Here he is, three hours away for being executed and he’s thinking about putting his sundae away for tomorrow. But there was no tomorrow for him. He hadn’t realized this was his last day.”

Givens’ experiences in the death chamber have led him to campaign for the abolition of capital punishment, even driving him to write a book, Confessions of an Executioner. His motivation is deep-seated. “There are things I want the public to know that they don’t. I need to expose things that should be exposed. I don’t want to leave anyone in the dark, because America is still putting innocent people on death row. And people don’t know about it. People don’t understand.”

A Lethal Dose

The botched execution of Clayton Lockett in Oklahoma last year is one example of the realities of the death penalty, which Givens believes all people should know about. “He strained and struggled violently, his body twisting, his head reaching up from the gurney,” journalist Katie Fretland wrote. “Sixteen minutes after the execution began, Lockett said “Man,” and the blinds were lowered… It would be a full 43 minutes after the drug was administered before Lockett died – and only after he had thrashed on the gurney, writhing and groaning.”

Lockett was killed using a new combination of experimental drugs and the consequences were nightmarish. The doctor was sprayed with blood when an artery was hit; Lockett was in “some pain” as he was pricked at least 16 times in the attempts to find a vein; the scene was described by prison wardens as “a bloody mess” and the prisoner’s multiple attempts to talk like something from “a horror movie.”

The emotional repercussions of this blood-splattered scene were harrowing. Witnesses to the execution spoke of their distress and recounted not being able to sleep for days after. It is the quiet nature of lethal injections that is their selling point, after all –- state-sanctioned homicides veiled with a clinical serenity. As Givens knows all too well, no one wants to see actual blood spilled, or face the unwelcome reminder that, murderer or not, there is a human being dying in front of them.

After Europe blocked sales of the lethal drug sodium thiopental to the United States, the Department of Corrections were forced to look elsewhere for such a powerful anaesthetic. But global pharmaceutical companies didn’t like the idea of their drugs being used to kill people, and so drugs were sourced, purchased, but then again quickly blocked. Soon, the departments of corrections hit a wall. There were simply no anaesthetics strong enough.

But there were other drugs. Not anaesthetics, but sedatives like midazolam, usually administered in conjunction with an anaesthetic to relax a patient. Despite the warnings that midazolam is simply not powerful enough to produce the same coma-like state as sodium thiopental – a state absolutely necessary to ensure the subject feels no pain and the execution is ‘humane’ – midazolam became the drug of choice and the fatal experimentations began.

This unyielding desire to purchase and use barely-tested lethal drugs on prisoners doesn’t surprise Givens. “The criminal justice system is corrupted and we don’t want to own up to it. They think they can get any drugs they want. Where they got so much power from, I don’t know. The drugs should be disclosed to the lawyer and to the condemned – he should know what he’s going to die from.”

As many expected, the first midazolam executions were riddled with red flags. Pastor Laurence Hummer’s account of the execution of Dennis McGuire is just one of them: “His stomach swelled up in an unusual way. He struggled and gasped audibly for air. I was aghast. Over 11 minutes or more he was gasping for breath, his fists clenched the entire time. His gasps could be heard through the glass wall that separated us. There is no question in my mind that Dennis McGuire suffered greatly over many minutes. I consider that inhumane.”

Despite these reports, midazolam was recommended for use by the Oklahoma Department of Corrections, and correctional facilities across the country jumped aboard. Last week, despite significant condemnation the
<href=”#ixzz3edvb5k66″>Supreme Court rejected the idea that midazolam is a cruel and unusual punishment and sanctioned its use, clearing the way for deferred executions to ensue.

“The drugs they’re using, who approved it? What doctor approved it?” asks Givens. “You can’t judge pain. You can’t measure the pain that a person is going through, physical or psychological. The guy receiving the drug can’t tell you, because he’s gone. You’ve never died before, so you can’t say. Even myself, I don’t know. I can’t tell you what a guy on the other end is feeling when I’m pushing drugs into his body.”

The Baseline of Morality

The botched executions didn’t end in Oklahoma. Sentenced to death in Arizona for a 1989 double murder, in July 2014 Joseph Wood took two hours to die. Journalist Mauricio Marin had never witnessed an execution before; prison staff had told him the process “lasts about 10 minutes” and would be “very clinical”. Instead:

“I saw a man who was supposed to be dead, coughing – or choking, possibly even gasping for air. What seemed like an eternity passed… Finally, the warden pronounced the killer dead, at 3:49 pm, one hour and 57 minutes after the execution began. I thought: Is this how long it’s supposed to take a man to die?”

Republican Senator John McCain was outspoken in terming Wood’s protracted execution as“torture”, but the governor of Arizona Jan Brewer disagreed. “Wood died in a lawful manner and by eyewitness and medical accounts he did not suffer,” she said. “This is in stark comparison to the gruesome, vicious suffering that he inflicted on his two victims.”

The argument that a convict’s crime was so heinous that it negates any qualms about their execution is popular with death penalty supporters. The incongruity of using the actions of a convicted killer to determine the baseline for what’s morally acceptable is not lost on Givens, who views this as a dire expression of our most base and ugly thirst for revenge.

“It is revenge – you can’t put it any other way,” he said. “We want revenge and we want it right away. Death is going to occur anyway, but we’re so impatient we have to execute someone. That’s the mentality people have. America was built on killing and there’s hatred in our hearts. But it shouldn’t be that way.”

While most supporters of the death penalty refute the idea that it’s about revenge, District Attorney Dale Cox -– responsible for one third of the death sentences in Louisiana since 2011 -– readily agrees. “I’m a believer that the death penalty serves society’s interest in revenge. I know it’s a hard word to say and people run from it, but I don’t run from it because I think there is a very strong societal interest,” Cox recently told a local reporter. “I think we need to kill more people.”

A death sentence is also no quick way to closure, as Bill and Denise Richard, parents of the 8-year-old boy killed in the Boston Marathon bombings took pains to point out. Publishing a personal appeal in the Boston Globe titled ‘To end the anguish, drop the death penalty,’ the Richards implored prosecutors to sentence Dzhokhar Tsaernev to life without parole instead of death.

“The continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives,” they wrote. “We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.”

The Richards are not alone. Marietta Jaeger, whose seven-year-old daughter was kidnapped and murdered by a mentally ill man, requested that prosecutors seek a mandatory life sentence instead of the death penalty. Jaeger has been vocal in her opposition to capital punishment,asserting that in reality, the death penalty only creates more grieving families and turns the victims into that which they deplore – people who kill people:

“To say that the death of another person would be just retribution is to insult the immeasurable worth of our loved ones. That kind of justice would only dehumanize and degrade us because it legitimates an animal instinct for gut-level, blood-thirsty revenge. My daughter was such a gift that to kill someone in her name would have been to violate the goodness of her life; the idea is offensive and repulsive to me.”

Where To Go From Here

Studies have shown time and again that the death penalty is no deterrent for criminals and in fact, states with the death penalty have much higher murder rates than states without. Capital punishment is used unduly against non-whites (a disproportionate 55% of death row inmates are people of color) and the awareness of judicial incompetence and racial bias is felt keenly by Jerry Givens.

Givens recalled the case of Earl Washington Jr., a 22-year-old black man wrongfully convicted of rape and murder, as one example that made him lose faith in the justice system. Washington’s execution was stayed nine days before Givens was scheduled to kill him. Years later, new DNA evidence led Virginia’s governor to pardon Washington, who was released in 2001.

“I knew the system was corrupted when we exonerated Earl Washington Jr. from death row. Days later, I would have executed him,” Givens said. “You have two types of people on death row: the guilty and the innocent. And when you have the guilty and the innocent, you shouldn’t have death row.”

But even if the law has not yet caught up, attitudes are starting to change on the death penalty. Support for the death penalty is at historic lows, and abolitionists remain optimistic even after the most recent Supreme Court ruling.

“We have to look at the big picture,” Givens explained. “Everyone on Earth has a death day: you, me, everyone. We can’t stop death, but we can stop killing…We have to think about the generation that’s coming up. We can’t let them go through what we had to go through. We tried it; we tried it, and it didn’t work. Now let’s get them going in a different direction from us.”

 

A global view of America’s relationship with capital punishment


China. Iran. Saudi Arabia. Iraq. The United States of America.
What you just read is, according to Amnesty International, a list of the countries that executed the largest numbers of prisoners in 2014.
While the U.S. Supreme Court was making huge news last month with its decisions on Obamacare and same-sex marriage, it also issued a ruling on another hot-button issue: capital punishment. The question before the court was a narrow one, whether Oklahoma’s lethal injection procedure constituted cruel and unusual punishment. By a 5-4 vote, the court said no.
But the opinions released June 28 reflected a bitter controversy within the court about capital punishment that coincides with polling indicating a decline in support for it among Americans.
The arguments for and against capital punishment (the mistakes, the question of deterrence, unequal application, etc.) are well established.
But the Amnesty report released earlier this year helps put that controversy into a global context. Simply put, the United States is part of a relatively small minority of countries – 22 in 2014 – that still impose capital punishment. And it’s fair to say that many Americans wouldn’t normally choose the company the U.S. is keeping on that list. For a number of years now, the United States has been the only country in the Americas to execute anyone at all.
The office of the U.N. high commissioner for human rights, says 160 U.N. members have either abolished capital punishment or are not executing anyone. And Secretary-General Ban Ki-moon says, “The death penalty has no place in the 21st century.” The European Union makes abolishing capital punishment a precondition for membership.
Amnesty, which keeps careful numbers on capital cases globally, acknowledges that in many countries, the figures are not public and it is hard to know how many people actually were executed. That is certainly true of China, which executes far more people than any other country. Amnesty thinks there were several thousand executions there last year, but China considers the figure a state secret. There were at least 289 in Iran, 90 in Saudi Arabia, 61 in Iraq and 35 in the U.S.
The next 5 were Sudan (at least 23), Yemen (22), Egypt (15), Somalia (14) and Jordan (11). Also not very inspiring company.
While the number of known executions worldwide fell last year, substantially more people were actually sentenced to death, Amnesty says. That’s mostly due to large numbers in Nigeria and Egypt. Nigeria is battling the Boko Haram extremist group, and Egypt has been conducting mass trials of members of the Muslim Brotherhood, which had formed the previously government. But death sentences and executions are not the same thing.
Just because you’ve banned or suspended capital punishment doesn’t mean your country is a paragon of virtue, of course. And in those that do conduct executions, not all cases are equally clear. Few Americans would probably go along with the decision of Iranian authorities last year to execute a woman who stabbed a man during a sexual assault.
It’s also worth comparing the death sentence Dzhokar Tsarnaev received last month for the Boston Marathon bombings, which killed 3 people, with the sentence Norway imposed on right-wing extremist Anders Behring Breivik for a much deadlier act of terrorism – a bombing and shooting spree that killed 77 people in 2011.
Breivik famously complained about bad video games in the prison where he is serving 21 years. If that term seems incredibly light by U.S. standards, it can be extended indefinitely if authorities determine that he still poses a threat to society.
Then, there was Indonesia’s decision to execute drug offenders in response to what its new president says is a “national emergency” of drug abuse. 8 – Nigerian, Brazilian and Australian citizens, as well as one Indonesian – were shot by a firing squad in late April despite international appeals to spare their lives.
President Joko Widodo’s decision to go ahead with executions in drug cases appears politically popular with Indonesians.
But overall, capital punishment seems to be one of those issues where public attitudes don’t necessarily influence government policy.
Take these numbers from Russia. Russia suspended executions in the 1990s. However, a large majority still favored imposing capital punishment for a variety of offensives (The numbers are a few years old now, but are unlikely to have changed a great deal). The biggest percentage favored permitting execution in cases of sexual offenses against teenagers. Only about a quarter of those polled were in favor of keeping the moratorium or banning capital punishment altogether.
Then, there’s Britain, which hasn’t executed anyone for more than 1/2 a century – since 1964.
Still, Amnesty International said, polls indicated that as recently as 5 years ago, a bare majority – 51 % – favored the use of capital punishment. By last year, that figure had fallen to 45 %.
July 10, 2015

 

The 20 Best Lines From the Supreme Court Dissent Calling to End the Death Penalty


The case before the Supreme Court concerned a specific question: Was a certain sort of capital punishment via lethal injection constitutional? In a decision issued Monday morning, the four conservative justices plus swing vote Justice Anthony Kennedy said yes, and Justice Sonia Sotomayor wrote a dissenting opinion for the court’s liberals taking the opposite position. But in a stinging dissent of his own, Justice Stephen Breyer, who was joined by Justice Ruth Bader Ginsburg, went much further: He called for abolishing the death penalty, contending that capital punishment, as it is currently practiced, violates the Constitution. His opinion was methodically argued and chockfull of research (on exonerations, various disparities in the application of the death sentence, and more). Breyer, who in 2008 sided with the court majority in upholding the use of lethal injections in Kentucky, noted that his own experience overseeing capital punishment cases has led him to a forceful and passionate position: The death penalty must go.

Here are the best passages from his opinion.

In 1976, the Court thought that the constitutional in­firmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those con­stitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.

I shall describe each of these considerations, emphasiz­ing changes that have occurred during the past four dec­ades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to be­lieve that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual pun­ishmen[t].” U. S. Const., Amdt. 8.

*   *   *

[R]esearchers have found convincing evidence that, in the past three decades, innocent people have been executed.

*   *   *

[T]he evidence that the death penalty has been wrongly imposed (whether or not it was carried out), is striking. As of 2002, this Court used the word “disturb­ing” to describe the number of instances in which individ­uals had been sentenced to death but later exonerated. At that time, there was evidence of approximately 60 exonerations in capital cases….Since 2002, the number of exonerations in capital cases has risen to 115……Last year, in 2014, six death row inmates were exonerated based on actual innocence. All had been imprisoned for more than 30 years (and one for almost 40 years) at the time of their exonerations.

*   *   *

[T]he crimes at issue in capital cases are typically horren­dous murders, and thus accompanied by intense community pressure on police, prosecutors, and jurors to secure a conviction. This pressure creates a greater likelihood of convicting the wrong person.

*   *   *

[R]esearchers estimate that about 4% of those sentenced to death are actually innocent.

*   *   *

[B]etween 1973 and 1995, courts identified prejudicial errors in 68% of the capital cases before them.

*   *   *

This research and these figures are likely controversial. Full briefing would allow us to scrutinize them with more care. But, at a minimum, they suggest a serious problem of reliability. They suggest that there are too many in­stances in which courts sentence defendants to death without complying with the necessary procedures; and they suggest that, in a significant number of cases, the death sentence is imposed on a person who did not commit the crime….Unlike 40 years ago, we now have plausible evidence of unreliability that (perhaps due to DNA evidence) is stronger than the evidence we had before. In sum, there is significantly more research-based evidence today indicating that courts sentence to death individuals who may well be actually innocent or whose convictions (in the law’s view) do not warrant the death penalty’s application.

*   *   *

Thus, whether one looks at research indicating that irrelevant or improper factors—such as race, gender, local geography, and resources—do significantly determine who receives the death penalty, or whether one looks at re­search indicating that proper factors—such as “egregious­ness”—do not determine who receives the death penalty, the legal conclusion must be the same: The research strongly suggests that the death penalty is imposed arbitrarily.

*   *   *

The studies bear out my own view, reached after consid­ering thousands of death penalty cases and last-minute petitions over the course of more than 20 years. I see discrepancies for which I can find no rational explanations… Why does one defendant who committed a single-victim murder receive the death pen­alty (due to aggravators of a prior felony conviction and an after-the-fact robbery), while another defendant does not, despite having kidnapped, raped, and murdered a young mother while leaving her infant baby to die at the scene of the crime…Why does one defendant who committed a single-victim murder receive the death penalty (due to aggravators of a prior felony conviction and acting recklessly with a gun), while another defendant does not, despite having committed a “triple murder” by killing a young man and his pregnant wife?… For that matter, why does one defendant who participated in a single-victim murder-for-hire scheme (plus an after-the­ fact robbery) receive the death penalty, while another defendant does not, despite having stabbed his wife 60 times and killed his 6-year-old daughter and 3-year-old son while they slept?… In each instance, the sentences compared were imposed in the same State at about the same time.

The question raised by these examples (and the many more I could give but do not), as well as by the research to which I have referred, is the same question Justice Stew­art, Justice Powell, and others raised over the course of several decades: The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?

*   *   *

[N]early all death penalty States keep death row inmates in isolation for 22 or more hours per day….This occurs even though the ABA has suggested that death row inmates be housed in conditions similar to the general population, and the United Nations Special Rapporteur on Torture has called for a global ban on solitary confinement longer than 15 days…  And it is well documented that such prolonged solitary confinement produces numerous deleterious harms. See, e.g., Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime & Delinquency 124, 130 (2003) (cataloging studies finding that solitary confinement can cause prisoners to experience “anxiety, panic, rage, loss of control, paranoia, hallucinations, and self-mutilations,” among many other symptoms)

*   *   *

The dehumanizing effect of solitary confinement is aggravated by uncertainty as to whether a death sentence will in fact be carried out. In 1890, this Court recognized that, “when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it.”… The Court was there describing a delay of a mere four weeks. In the past century and a quarter, little has changed in this respect— except for duration. Today we must describe delays measured, not in weeks, but in decades.

*   *   *

The second constitutional difficulty resulting from lengthy delays is that those delays undermine the death penalty’s penological rationale, perhaps irreparably so. The rationale for capital punishment, as for any punishment, classically rests upon society’s need to secure deter­rence, incapacitation, retribution, or rehabilitation. Capital punishment by definition does not rehabilitate. It does, of course, incapacitate the offender. But the major alternative to capital punishment—namely, life in prison without possibility of parole—also incapacitates.

*   *   *

Recently, the National Research Council (whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine) reviewed 30 years of empirical evidence and concluded that it was insufficient to establish a deterrent effect and thus should “not be used to inform” discussion about the deterrent value of the death penalty.

*   *   *

Sometimes the community believes that an execution could provide closure. Nevertheless, the delays and low probability of execution must play some role in any calculation that leads a community to insist on death as retribution. As I have already suggested, they may well attenuate the community’s interest in retribution to the point where it cannot by itself amount to a significant justification for the death penalty…. In any event, I believe that whatever interest in retribution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole (a sentence that every State now permits.

*   *   *

The upshot is that lengthy delays both aggravate the cruelty of the death penalty and undermine its jurisprudential rationale. And this Court has said that, if the death penalty does not fulfill the goals of deterrence or retribution, “it is nothing more than the purposeless and needless imposition of pain and suffering and hence an unconstitutional punishment.”

*   *   *

And that fact creates a dilemma: A death penalty sys­tem that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capi­tal punishment and significantly undermine the rationale for imposing a sentence of death in the first place…(one of the primary causes of the delay is the States’ “failure to apply constitutionally sufficient procedures at the time of initial [conviction or] sentenc­ing”). But a death penalty system that minimizes delays would undermine the legal system’s efforts to secure relia­bility and procedural fairness.

In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both. And that simple fact, demonstrated convincingly over the past 40 years, strongly supports the claim that the death pen­alty violates the Eighth Amendment.

*   *   *
The Eighth Amendment forbids punishments that are cruel and unusual. Last year, in 2014, only seven States carried out an execution. Perhaps more importantly, in the last two decades, the imposition and implementation of the death penalty have increasingly become unusual.

*   *   *

[I]f we look to States, in more than 60% there is effectively no death penalty, in an additional 18% an execution is rare and unusual, and 6%, i.e., three States, account for 80% of all executions. If we look to population, about 66% of the Nation lives in a State that has not carried out an execution in the last three years. And if we look to counties, in 86% there is effectively no death penalty. It seems fair to say that it is now unusual to find capital punishment in the United States, at least when we consider the Nation as a whole.

*   *   *

I recognize a strong counterargument that favors consti­tutionality. We are a court. Why should we not leave the matter up to the people acting democratically through legislatures? The Constitution foresees a country that will make most important decisions democratically. Most nations that have abandoned the death penalty have done so through legislation, not judicial decision. And legisla­tors, unlike judges, are free to take account of matters such as monetary costs, which I do not claim are relevant here….

The answer is that the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quin­tessentially judicial matters. They concern the infliction— indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual.

*   *   *

I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.

BOOKS – NEWS 2015


BOOKS: “The Death Penalty: A Worldwide Perspective”The Death Penalty: A Worldwide Perspective by Roger Hood and Carolyn Hoyle, now in its Fifth Edition, is “widely regarded as the leading authority on the death penalty in its international context.” The book explores the movement toward worldwide abolition of the death penalty, with an emphasis on international human right principles. It discusses issues including arbitrariness, innocence, and deterrence. Paul Craig, Professor of English Law at Oxford University, said of the fourth edition, “Its rigorous scholarship and the breadth of its coverage are hugely impressive features; its claim to ‘worldwide’ coverage is no idle boast. This can fairly lay claim to being the closest thing to a definitive source-book on this important subject.”

Jeanne Bishop has written a new book about her life and spiritual journey after her sister was murdered in Illinois in 1990. Change of Heart: Justice, Mercy, and Making Peace with My Sister’s Killer tells Bishop’s personal story of grief, loss, and of her eventual efforts to confront and reconcile with her sister’s killer. She also addresses larger issues of capital punishment, life sentences for juvenile offenders, and restorative justice. Former Illinois Governor George Ryan said of the book, “When I commuted the death sentences of everyone on Illinois’s death row, I expressed the hope that we could open our hearts and provide something for victims’ families other than the hope of revenge. I quoted Abraham Lincoln: ‘I have always found that mercy bears richer fruits than strict justice.’ Jeanne Bishop’s compelling book tells the story of how devotion to her faith took her face-to-face with her sister’s killer …. She reminds us of a core truth: that our criminal justice system cannot be just without mercy.”

BOOKS: “Examining Wrongful Convictions”A new book, Examining Wrongful Convictions:

Stepping Back, Moving Forward, explores the causes and related issues behind the many wrongful convictions in the U.S. Compiled and edited by four criminal justice professors from the State University of New York, the text draws from U.S. and international sources. Prof. Dan Simon of the University of Southern California said, ”This book offers the most comprehensive and insightful treatment of wrongful convictions to date,” noting that it delves into topics such as the wars on drugs and crime, the culture of punitiveness, and racial animus, as they relate to mistakes in the justice system. The editors note that, “[The] essential premise of this book is that much of value can be learned by ‘stepping back’ from the traditional focus on the direct or immediate causes and consequences of wrongful convictions,” with the hope of moving forward by “probing for the root causes of miscarriages of justice.”

BOOKS: Imprisoned by the Past: Warren McCleskey and the American Death PenaltyA new book by Prof. Jeffrey Kirchmeier of the City University of New York examines the recent history of race and the death penalty in the U.S. The book uses the story of a Georgia death row inmate named Warren McCleskey, whose challenge to the state’s death penalty went all the way to the Supreme Court. In 1987 the Court held (5-4) that his statistical evidence showing that Georgia’s system of capital punishment was applied in a racially disproportionate way was insufficient to overturn his death sentence. McCleskey was eventually executed. The book connects this individual case to the broader issue of racial bias in the American death penalty. Bryan Stevenson, Executive Director of the Equal Justice Initiative, said of the book,”No legal decision in the last half of the 20th century characterized America’s continuing failure to confront its history of racial inequality more than the McCleskey decision. Jeff Kirchmeier’s welcomed and insightful book brings much needed context and perspective to this critically important issue. Compelling and thoughtful, this book is a must read for those trying to understand America’s death penalty and its sordid relationship to our failure to overcome three centuries of racial injustice.”

 

Should the United States Stop Using the Death Penalty?


april 8, 2014

Room for Debate recently asked if the death penalty is dying in the United States, and if that is a bad thing. After all, 18 states already outlaw capital punishment, with New Hampshire possibly becoming the 19th. Last year the United States executed 39 people, down from its post-1976 peak of 98 executions in 1999.

Should the United States stop using the death penalty?

In “Rare and Decreasing,” Richard Dieter writes about why he thinks the death penalty “is becoming largely irrelevant in American society and may not last another 10 years.”

When the U.S. Supreme Court considers whether a punishment is cruel and unusual, they examine it in terms of current standards of decency. The Court looks to the number of states using the punishment, and whether its use is frequent or declining. In 2005, for example, the court struck down the death penalty for juvenile offenders because most states did not allow it, and its use was rare and decreasing even where it was allowed.

The court is likely to apply the same analysis to the death penalty itself. Eighteen states have already ended capital punishment and the governors of three other states have halted executions. New Hampshire and Delaware may soon be added to the list of abolition states. Moreover, the use of the death penalty in states that retain it is decreasing. If the death penalty is being used by only a small number of states, and if there is a clear national trend away from capital punishment, the Supreme Court could find that it has become a cruel and unusual punishment under the Eighth Amendment.

On the other hand, Robert Blecker writes in “Punishment Needs to Be Punishment,” that the death penalty should continue to be an option for the worst offenders:

When pollsters seek the appropriate punishment for the worst of the worst – a man who rapes and tortures a child, a serial killer, a depraved mass murderer such as Timothy McVeigh, etc. – overwhelmingly the people choose death as deserved. Many who prefer life without parole wrongly imagine that sadistic or callous killers experience prison as a daily punishment worse than death. My thousands of hours inside maximum-security prisons these past 30 years contradict this: Inside prison, prisoners and officers alike reject punishment. “What a man did out there is none of my business. I only care how he behaves inside,” they declare. Inside prison, too often those who deserve it least suffer most. Vicious murderers who prey on the helpless and vulnerable, once captured, become perfectly well behaved “inmates.” Posing no future threat, they get transferred from maximum- to medium-security prisons where they can visit, hang out, watch sports and movies on color TV, play basketball and softball or read a good book, mostly all day every day.

If the U.S. Supreme Court wants to promote human dignity, if it really reflects the will of the people and not their leaders, the justices will constitutionally continue the punishment of death, allowing us to denounce our worst predators and at least declare our commitment to — although we rarely deliver — real justice.

Students: Read the entire Opinion piece, then tell us …

— Should the United States stop using the death penalty? Why?

— Do you have concerns about the fair application of the death penalty, or about the possibility of the criminal justice system executing an innocent person? Do you think capital punishment is “cruel and unusual punishment” and therefore prohibited by the Constitution?

— Do you think the death penalty serves a purpose, like deterring crime, providing relief for victims’ families or imparting “real justice?”

— Do you agree with Mr. Dieter that the death penalty is becoming “irrelevant” and “may not last another 10 years?”

(nytimes)

Europe’s moral stand has U.S. states running out of execution drugs, complicating capital punishment


February 19, 2014

BRUSSELS (AP) — There’s one big reason the United States has a dearth of execution drugs so acute that some states are considering solutions such as firing squads and gas chambers: Europe won’t allow the drugs to be exported because of its fierce hostility to capital punishment.

The phenomenon started nine years ago when the EU banned the export of products used for execution, citing its goal to be the “leading institutional actor and largest donor to the fight against the death penalty.” But beefed up European rules mean the results are being most strongly felt in the United States now, with shortages becoming chronic and gruesome executions making headlines.

In Ohio last month, Dennis McGuire took 26 minutes to die after a previously untested mix of chemicals began flowing into his body, gasping repeatedly as he lay on a gurney. On Jan. 9, Oklahoma inmate Michael Lee Wilson’s last words were: “I feel my whole body burning.”

The dilemma again grabbed national attention this week when an Oklahoma pharmacy agreed Monday to refrain from supplying an execution drug to the Missouri Department of Corrections for an upcoming lethal injection. Death row inmate Michael Taylor’s had argued in a lawsuit that recent executions involving the drug pentobarbital would likely cause “inhumane pain” — and, ahead of a hearing set for Tuesday, The Apothecary Shoppe said it would not provide the drug.

EU nations are notorious for disagreeing on just about everything when it comes to common policy, but they all strongly — and proudly — agree on one thing: abolishing capital punishment.

Europe saw totalitarian regimes abuse the death penalty as recently as the 20th century, and public opinion across the bloc is therefore staunchly opposed to it.The EU’s uncompromising stance has set off a cat-and-mouse game, with U.S. corrections departments devising new ways to carry out lethal injections only to hit updated export restrictions within months.

“Our political task is to push for an abolition of the death penalty, not facilitate its procedure,” said Barba Lochbihler, chairwoman of the European Parliament’s subcommittee on human rights.

Europe’s tough stance has caused U.S. states to start experimenting with new drug mixtures, even though convicts’ lawyers and activists argue they increase the risk of painful prolonged death and may violate the constitutional ban on cruel and unusual punishment.

In an upcoming execution in Louisiana, the state is set to follow Ohio’s example in using the untested drug cocktail used in McGuire’s execution. It changed its execution protocol last week to use Ohio’s two-drug combination because it could no longer procure pentobarbital, a powerful sedative.

The execution was scheduled for February, but was stayed pending a federal judge’s examination in April regarding whether the state can proceed with the plan to execute Christopher Sepulvado, convicted in the 1992 killing of his 6-year-old stepson.

In 2010, Louisiana switched from the established three-drug protocol to a one-drug pentobarbital lethal injection, but eventually that drug also became unavailable because of European pressure.“The lethal injection that they are using now in certain states has never been tested, verified, let alone been approved for executions,” said Maya Foa of Reprieve, a London-based charity fighting the death penalty. “This amounts to using humans as guinea pigs. No doctor would ever do that.”

Ohio prosecutors counter that condemned inmates are not entitled to a pain-free execution under the Constitution.

Even if the effect of the two drugs used by Ohio “presents some inherent risk of discomfort, that does not amount to cruel and unusual punishment,” Christopher Conomy, an assistant Ohio attorney general, argued in court documents last month.

The U.S. execution dilemma goes back to 2005, when the EU restricted exports of goods “for the purpose of capital punishment or for the purpose of torture.” That ban includes items such as electric chairs and lethal injection systems.

The drug shortage then started biting in 2010 when Hospira Inc., the sole U.S. manufacturer of sodium thiopental, a sedative that is part of the normal three-drug mixture, stopped production. A few months later, Hospira dropped plans to produce it in Italy because the government there asked for guarantees that it would never be used in executions.

States in 2011 switched to pentobarbital, but Denmark-based Lundbeck Inc., the drug’s only U.S.-licensed maker, faced a public backlash and quickly said it would put the medication off-limits for capital punishment through a tightly controlled distribution system.Fearing for their reputation, the companies never wanted to see their drugs used in executions.

As U.S. authorities started looking for other sources, Britain went ahead and restricted exports of sodium thiopental and other drugs at the end of 2010.

“This move underlines this government’s … moral opposition to the death penalty in all circumstances,” Business Secretary Vince Cable said then.

Germany’s government also urged pharmaceutical companies to stop exports, and the country’s three firms selling sodium thiopental promised not to sell to U.S. prison authorities.

The EU then updated its export regulation in late 2011 to ban the sale of eight drugs — including pentobarbital and sodium thiopental — if the purpose is to use them in lethal injections.

That produced a flurry of action in the United States. In May 2012 Missouri announced it would switch to using the anesthetic propofol, infamous for its role in Michael Jackson’s overdose death. But propofol, too, was manufactured in Europe, by Germany’s Fresenius Kabi.Missouri’s plan prompted an outcry across Europe and the EU threatened to restrict propofol exports. That in turn provoked a medical outcry in the U.S. because propofol is used in about 95 percent of surgical procedures requiring an anesthetic, according to the American Society of Anesthesiologists.

Pharmaceutical companies around the globe have been loath to see their drugs used in executions because the market is tiny and promises close to no financial gain, while potentially exposing them to costly bad PR.

In the United States, there is a variety of reason no U.S. manufacturer will supply execution drugs, from the desire to avoid lawsuits to the makers’ own opposition to the use of such drugs in capital punishment.

Fresenius Kabi, whose slogan is “caring for life,” swiftly moved to introduce a stringent distribution control to prevent sales to U.S. prisons. Another manufacturer, Germany’s B. Braun, immediately followed suit.

In October 2012 Missouri Governor Jay Nixon expressed indignation, saying state and federal court systems, not European politicians, should decide death penalty policy. Still, a month later he backtracked and halted what was to have been the first U.S. execution using propofol.Missouri and other states have since also resorted to custom-made batches of drugs, while refusing to divulge which pharmacy produced them — as in the case being heard Tuesday.

The secrecy has led to new lawsuits, not least after safety concerns over such drugs arose in 2012 after contaminated injections from a Massachusetts facility caused a meningitis outbreak that killed 64 people and sickened hundreds.

An attorney for McGuire’s family supported the European position.

“I think it’s right for the (pharmaceutical) companies to draw a line when people are using the drugs for the wrong purposes,” said Jon Paul Rion.

In principle, there are a number of painkillers, sedatives and paralyzing agents that can kill if administered in high doses. But switching drugs will invite new lawsuits and could involve drawn-out bureaucratic or legislative delays — in addition to doubts about how quickly and mercifully these drugs can kill.

“Such botched executions go some way to debunking the myth that lethal injection is a humane way to kill someone,” said Reprieve’s Foa.

When Europeans criticize the U.S., they frequently cite the inequality of health care and the continued use of capital punishment.

Europe has seen autocratic or totalitarian regimes corrupting justice throughout the 20th century with people being executed for political reasons or without fair trial, resulting in strong opposition to the death penalty after World War II. Western Germany forbade capital punishment after the war, just as Italy did. France, which gave the world the word guillotine, decapitated only a few people after WW II amid increasing public opposition.

“There will be no lasting peace either in the heart of individuals or in social customs until death is outlawed,” French Literature Nobel Prize winner Albert Camus wrote in 1957 in an influential essay.

France’s last execution now dates back almost 40 years. In Eastern Europe, the death penalty was abolished after the collapse of the Soviet Union.

An international AP poll in 2007 found that about 70 percent of those surveyed in the U.S. favor the death penalty for people convicted of murder. In Germany, Italy and Spain only about 30 percent did so.

Overall, experts say Europe’s judicial system is more oriented toward rehabilitation, not punishment. That is also reflected in drastically lower incarceration rates: Across the EU, about 130 people per 100,000 inhabitants are behind bars compared to 920 in the U.S, according to EU and U.S. Justice Department figures.

The death penalty has been abolished or suspended in all developed economies, except for the U.S. and Japan. Execution rankings have routinely shown the U.S. in the unusual company of China, Iran, Saudi-Arabia, Iraq and Pakistan.Vietnam has faced a similar dilemma to the United States, finding it difficult to import execution drugs from Europe since it switched from firing squads to lethal injection in 2011 on humanitarian grounds.

The anti-capital punishment camp has also gained ground in the U.S.

The number of U.S. executions has declined in recent years — from a peak of 98 in 1999 to 39 last year. Some states have abolished the death penalty, and those that carry on find executions increasingly difficult to conduct because of the drug scarcity and doubts about how well they work.

Public support for capital punishment also appears to be retreating. Last year, 60 percent of Americans polled said they favor the death penalty for convicted murderers, the lowest level measured since 1972, according to Gallup.

To counter the drug shortages lawmakers in some death penalty states — Missouri, Virginia and Wyoming — are now considering bringing back execution methods such as firing squads, electrocutions and gas chambers.

There are still about 3,000 inmates on death row.

AP writers Melinda Deslatte in Baton Rouge, La., and Andrew Welsh-Huggins in Columbus, Ohio, contributed to this report.