April 22, 2014
Lawyers for a Missouri death row inmate on Tuesday were seeking to halt his execution over concerns about the state’s secret lethal injection drugs a day after an Oklahoma court stopped two executions there over similar issues.
William Rousan, 57, is scheduled for execution at 12.01am CST on Wednesday. Rousan was convicted of murdering 62-year-old Grace Lewis and her 67-year-old husband, Charles Lewis, in 1993 in a plot to steal the farm couple’s cattle.
Attorneys for Rousan have argued that Missouri’s secret execution drugs could cause undue suffering. The eighth US circuit court of appeals on Monday rejected Rousan’s appeal, and the case was headed to the US supreme court.
The action follows a decision issued on Monday by the Oklahoma supreme court that halted the executions of Clayton Lockett, scheduled for Tuesday, and Charles Warner, scheduled for April 29. The court said the inmates had the right to have an opportunity to challenge the secrecy over the drugs Oklahoma intends to use to put them to death.
Lawyers for death row inmates in several states have raised a series of arguments against the use of compounded drugs for executions. Many states have turned to the lightly regulated compounding pharmacies for supplies because makers of drugs traditionally used in lethal injections have largely stopped making them available for executions.
But the lawyers argue that drugs obtained for lethal injections from compounding pharmacies could lead to undue suffering, which would amount to cruel and unusual punishment in violation of the US constitution. They also say they should have information about the legitimacy of the supplier, and details about the purity and potency of the drugs.
Prison officials have rejected those arguments and have been refusing to reveal where they are getting the drugs.
But Louisiana and Ohio this year have seen executions delayed because of concerns about suffering that might be caused by untraditional drug supplies. The family of one inmate executed in Ohio in January has filed suit against the state because, according to some witnesses, he took an unusually long time to die and appeared to be in pain.
Last year, Missouri started classifying compounding pharmacies as part of its execution team and said the identities of the pharmacies were thus shielded from public disclosure.
April 10, 2014
NASHVILLE, Tenn. (AP) – The Senate has voted to allow the state to electrocute death row inmates if lethal injection drugs cannot be obtained.
The measure sponsored by Sen. Ken Yager passed on a 23-3 vote on Wednesday.
The Harriman Republican said current law allows the state to use its alternate execution method only when lethal injection drugs are not legally available. But Yager said there was no provision for what do if there was a shortage of those drugs.
The state’s lethal injection protocol uses a sedative commonly used to euthanize animals, but states are exhausting supplies.
The state’s last electrocution was in 2007. The companion bill is awaiting a House floor vote.
A plan to bring back the electric chair is making its way through the Tennessee legislature, though some lawmakers have voiced uneasiness about returning to an execution method the state largely had abandoned.
A House committee approved a bill Tuesday morning that would make electrocution the state’s method for killing inmates sentenced to death if lethal injection were declared unconstitutional or the drugs needed to carry it out were unavailable. But a handful of members said they have reservations about the electric chair, which the state has used only once since 1960.
“It seems barbaric to me,” said state Rep. Darren Jernigan, D-Nashville. “I’d rather go with the gas chamber, myself. … The electric chair bothers me.”
Tennessee switched to lethal injection when it brought back the death penalty in the 1990s, but lawmakers gave inmates the option of choosing the electric chair for crimes committed before Jan. 1, 1999. One inmate, Daryl Keith Holton, was electrocuted in 2007.
In recent years, lethal injection has come under scrutiny. Death penalty opponents have pressed manufacturers to stop making available the drugs used in lethal injections, and courts have begun to weigh whether the method really produces the painless death that supporters claim. That has led state officials to reconsider electrocution, which the attorney general said last month never has been found unconstitutional.
State officials nonetheless expect House Bill 2476 would be challenged in court if it were to pass. Jernigan, sighing heavily, spelled out why, describing the damage electrocution does to the body. But state Rep. Dennis Powers, the Jacksboro Republican who filed the bill, stood by the measure.
“What seems barbaric is someone that’s been on death row 29 years,” he said. “This is really not about the death penalty. The death penalty is already the law in Tennessee. This is about how we do it.”
Jernigan responded by noting that some states allow death by firing squad. State Rep. Kent Williams, I-Elizabethton, said that method did not phase him either.
“That’d be the easiest way to go,” he said, adding, “I don’t know why we got away from hanging.”
“We’re wanting to make sure that these people on death row go ahead and get the just sentence that they deserve,” Powers replied. But some members still weren’t convinced.
“I just kind of feel that some kind of injection is a more humane way … than it is, I think, to just fry somebody,” said state Rep. Johnny Shaw, D-Bolivar.
“Our job is not to judge. Our job is to arrange the meeting between the (defendant) and the creator, for him to judge,” Powers said.
HB 2476 now heads to the House Finance Committee and could be voted on by the full House of Representatives by the end of the legislative session. The state Senate is scheduled to vote on companion legislation, Senate Bill 2580, on Wednesday.
march 19, 2014
Texas has obtained a new batch of the drugs it uses to execute death row inmates, allowing the state to continue carrying out death sentences once its existing supply expires at the end of the month.
But correction officials will not say where they bought the drugs, arguing that information must be kept secret to protect the safety of its new supplier. In interviews with the Associated Press, officials with the Texas Department of Criminal Justice also refused to say whether providing anonymity to its new supplier of the sedative pentobarbital was a condition of its purchase.
The decision to keep details about the drugs and their source secret puts the agency at odds with past rulings of the state attorney general’s office, which has said the state’s open records law requires the agency to disclose specifics about the drugs it uses to carry out lethal injections.
“We are not disclosing the identity of the pharmacy because of previous, specific threats of serious physical harm made against businesses and their employees that have provided drugs used in the lethal injection process,” said Texas Department of Criminal Justice spokesman Jason Clark.
The dispute in the state that executes more inmates than any other comes as major drugmakers, many based in Europe, have stopped selling pentobarbital and other substances used in lethal injections to US corrections agencies because they oppose the death penalty.
Until obtaining its new supply from the unknown provider, Texas only had enough pentobarbital to continue carrying out executions through the end of March. The announcement comes a day after Oklahoma postponed two executions for a month because it had run out of its own supply of drugs.
Such legal challenges have grown more common as the drug shortages have forced several states to change their execution protocols and buy drugs from alternate suppliers, including compounding pharmacies that are not as heavily regulated by the US Food and Drug Administration as more conventional pharmacies.
Texas prison records examined by the AP show the state also has a supply of the painkiller hydromorphone and sedative midazolam, the drugs chosen earlier this year by Ohio to conduct its executions when they lost access to pentobarbital.
But in their first use in January, Ohio inmate Dennis McGuire made gasp-like snoring sounds for several minutes during his 26-minute execution. His family later sued, alleging their use was cruel and inhuman.
Alan Futrell, an attorney for convicted murderer Tommy Sells, whose scheduled 3 April execution would make him the first to be put to death with Texas’ new drug supply, said the issue could become fodder for legal attempts to delay his client’s sentence. “This might be good stuff,” he said. “And the roads are getting very short here.”
But Richard Dieter, executive director of the Washington DC-based Death Penalty Information Center, an anti-capital punishment organization, said it was doubtful that Texas would get to a point where a lack of drugs led officials to fully suspend capital punishment. “There are a lot of drugs, and Texas can be creative in finding some,” he said.
Texas’ current inventory of pentobarbital, the sedative it has used in lethal injections since 2012, will expire 1 April. The state has scheduled executions for six inmates, including one set for Wednesday evening and another next week.
Those two will be put to death with the previous stockpile purchased last year from a suburban Houston compounding pharmacy, Clark said. The new batch of drugs presumably would be used for three Texas inmates set to die in April, including Sells, and one in May.
Sixteen convicted killers were executed in Texas last year, more than in any other state. Two inmates already have been executed this year, bringing the total to 510 since capital punishment in Texas resumed in 1982. The total accounts for nearly one-third of all the executions in the US since a 1976 supreme court ruling allowed capital punishment to resume.
The AP filed an open records request in February seeking details about the drugs Texas planned to use to carry out executions. The AP received the documents on Tuesday, but in following up with Clark about their contents, he said they were moot as the state had secured the new batch of pentobarbital.
Clark then refused to provide more details about the drugs, including how much the state has purchased and from where, and when the new drugs expire. He also refused to say whether the drugs would need to be returned if the attorney general’s office rules the provider must be disclosed. “I’m unable to discuss any of the specifics. Other states have kept that information confidential,” he said.
Policies in some states, like Missouri and Oklahoma, keep the identities of drug suppliers secret, citing privacy concerns.
Clark, in refusing AP’s request to answer any specific questions about the new batch of drugs, said after prison officials identified the suburban Houston compounding pharmacy that provided its existing supply of pentobarbital, that pharmacy was targeted for protests by death penalty opponents. It sought to have Texas return the pentobarbital it manufactured, and prison officials refused.
Texas law does not specifically spell out whether officials can refuse to make the name of drug suppliers public, but Texas attorney general Greg Abbott’s office has on three occasions rejected arguments by the agency that disclosing that information would put the drug supply and manufacturers at risk.
In a 2012 opinion, his office rejected the argument that disclosing the inventory would allow others to figure out the state’s suppliers, dismissing the same kind of security concerns raised this week.
“Upon review, while we acknowledge the department’s concerns, we find you have not established disclosure of the responsive information would create a substantial threat of physical harm to any individual,” assistant attorney general Sean Opperman wrote.
Clark said the prison agency planned to ask Abbott to reconsider the issue. “We’re not in conflict with the law,” Clark said. “We plan to seek an AG’s opinion, which is appropriate in a situation like this, and the AG’s office will determine whether it’s releasable.”
When contacted by the AP and made aware of prisons department’s refusal to name the drug supplier, Abbott spokeswoman Lauren Bean said the attorney general would consider the request once it’s received.
march 18, 2014
Oklahoma delays 2 executions because of drug shortage
An appeals court in Oklahoma on Tuesday postponed the execution of a convicted murderer slated for Thursday because the state has run out of lethal injection drugs. A second prisoner’s death sentence slated for next week was also delayed.
The case is the latest in a growing controversy nationwide over the use of lethal injection for executions. Sources for the necessary drugs have dried up, and states with death penalties are scrambling to find more.
The state attorney general’s office conceded in court documents Monday that state executioners have run out of pentobarbital, a necessary barbiturate used in the execution process. The state lawyers may have to find another combination of drugs to carry out the executions.
Four members of the five-judge appellate panel on Tuesday ordered that both executions be delayed.
(Source: USA Today)
march 5, 2014
Delaware has 17 condemned prisoners facing the death penalty, but no means of executing any of them.
Like other states, Delaware prison officials have found it difficult to get the drugs used in lethal injections because major manufacturers several years ago began prohibiting the use of their products in executions out of ethical concerns and fearing the unwanted publicity.
As a result, supplies of two of the three drugs used in Delaware executions have expired, according to records obtained by the Associated Press under the Freedom of Information Act. Moreover, prison officials aren’t even trying to get the necessary drugs.
“These drugs can be costly, and these drugs have a shelf life,” correction department commissioner Robert Coupe said. “There is also the challenge of navigating the marketplace because of the attention that this type of purchase gets.”
The source of the drugs is moving to the forefront of the death penalty debate, as lawyers and death penalty opponents seek to find out which companies are providing the drugs. Compounding pharmacies — which custom-mix prescription drugs for doctors and patients — seemed like the answer, but some of them are starting to back away, too.
As a result, many of the 32 states that allow the death penalty are having difficulty not only in restocking supplies, but in trying to find what alternative drugs might be available and changing their execution protocols accordingly.
“It’s not just the shortage or the inability to find the drug. It’s the inability to make a final determination of what their whole protocol should be and get that approved,” said Richard Dieter, executive director of the Washington, DC-based Death Penalty Information Center.
The result, according to Dieter, has been a de facto moratorium on executions in some states, such as Arkansas and California. Virginia lawmakers considered legislation this year allowing the state to use the electric chair if lethal injection drugs were not available. In Mississippi, lawyers for a condemned woman sued the department of correction this week, asking for more information about the procurement and expiration dates of lethal injection drugs.
“No state has said ‘We’re ending the death penalty, we can’t find the drugs.’ … It’s more of a hold on executions rather than backing out of the whole process,” said Dieter, adding that it’s hard to pin down a number for how many states have had drugs expire.
Delaware prison officials have taken a wait-and-see approach, in part because no execution dates are expected to be set in the next six months.
“We are watching and learning and listening from those news reports as to what options would be available for us to explore if we get an execution schedule,” Coupe said.
Coupe believes the agency could find the necessary drugs if an execution date is set.
The last person put to death in Delaware was convicted killer Shannon Johnson, who was executed in April 2012 after waiving his appeals. The state used pentobarbital as the initial sedative before administering two other drugs.
A bill to repeal the death penalty in Delaware cleared the Democrat-led Senate by a single vote last year, even after the chief sponsor removed a provision that would have spared the lives of the 17 inmates awaiting execution. The measure later stalled in a House committee, with majority Democrats acknowledging there were not enough votes.
Currently, Delaware prison officials have only one of the necessary lethal injection drugs on hand, according to records obtained by the AP. The prison agency initially refused to provide the records in response to a July 2013 FOIA request.
“The DOC’s contacts with any person or entity regarding the supply, manufacture, prescription or compounding of drugs used in the execution of a death sentence should be a confidential state and trade secret under FOIA,” deputy attorney general Catherine Damavandi wrote in October 2013. “Given the controversy surrounding administration of the death penalty, the need for confidentiality to protect the identities of persons or entities who may supply the DOC with lethal injection drugs is obvious.”
The AP appealed the records denial to the attorney general’s office, which ordered the agency to supply them, just as it had done in 2011 in response to the agency’s denial of a previous FOIA request.
Under Delaware’s current execution protocol, a condemned inmate is rendered unconscious by a sedative or anesthetic before receiving fatal and potentially painful doses of two paralytic drugs, pancuronium bromide and potassium chloride. Delaware used sodium thiopental as the initial drug before its sole U.S. manufacturer stopped making it in 2009. The state then began using pentobarbital.
Records show that the correction department obtained 50 vials of potassium chloride from Cardinal Health in February 2013, replacing 51 vials that expired that same month. The current supply of potassium chloride, enough for four executions, expires in October.
Meanwhile, supplies of the other two drugs, pancuronium bromide and pentobarbital, expired in July 2012 and September 2013, respectively.
Dieter said he was not aware of any state that had considered using expired drugs. Such a move could be fraught with trouble, and likely would result in claims of cruel and unusual punishment.
“You need something that’s effective as an anesthetic, and if its 90 percent effective, you might have partial consciousness, partial awareness,” he said. “If it’s past its expiration date, there are just no guarantees. It might work, it might not.”
Facing an impending shortage of pentobarbital, Delaware officials turned to West-Ward Pharmaceuticals of Eatontown, NJ, in April 2013 to try to obtain a similar barbiturate, phenobarbital. The prison agency’s former bureau chief for management services exchanged emails with West-Ward’s regional sales manager over a week, but the phenobarbital was never obtained.
Similarly, the agency was unsuccessful in trying to obtain pancuronium bromide from Cardinal Health.
“I can’t seem to get anyone from Cardinal to call me back or respond to my messages,” former DOC bureau chief Kim Wheatley wrote in a July 2013 email to a Cardinal representative. “Not sure what is going on, but I have most recently been told that the item that was on backorder for us is no longer on backorder and in fact was blocked for our purchase from the very beginning.”
The Cardinal representative responded three days later, telling Wheatley, “unfortunately, both Teva and Hospira continue to have this item on backorder with no ETA.”
Cardinal Health said in a statement it follows manufacturers’ instructions regarding restrictions on the distribution of their products.
West-Ward’s parent company, Hikma Pharmaceuticals, said it was notified last year about the potential misuse of phenobarbital for executions in Arkansas.
“As we strongly object to the use of our products for capital punishment, once alerted to the potential misuse, we took action,” Hikma vice president Susan Ringdal said in an email.
february 21, 2014
Virginia’s Department of Corrections has approved the use of a new drug as part of its lethal injection protocol, amid difficulties carrying out executions.
Midazolam is one of the two drugs used in an Ohio execution that took 24 minutes and led to a lawsuit from the family of the inmate, who allege his prolonged death amounted to cruel and unusual punishment.
Used in surgery to calm patients and induce sleepiness, midazolam will serve as an alternative first drug in Virginia’s three-drug protocol, according to the department. It will stand in for pentobarbital or thiopental sodium, drugs that states across the country have found difficult to acquire as manufacturers have started refusing to sell their products for use in executions.
Records show that Virginia’s Department of Corrections purchased several doses last fall of both drugs used in the Ohio execution, midazolam and hydromorphone. Use of the second drug has not yet been approved in the state, nor has the department announced a switch from a three-drug to a two-drug protocol.
“There are no plans to move to the two-drug protocol used in Ohio,” said Lisa E. Kinney, spokeswoman for the Department of Corrections.
Officials in Virginia have told lawmakers that they cannot find reliable supplies of the drugs they need to carry out executions — leading to an aborted attempt in the state legislature this year to use the electric chair as a backup when lethal injection is unavailable.
The state’s supply of all the drugs currently authorized for use in executions will expire in the spring of 2015.
Virginia has executed 110 inmates since the death penalty was reinstated in the 1970s and is second only to Texas in overall executions. There are currently eight inmates currently on death row in the state.
february 7, 2014
RICHMOND, Va (WVIR) – Lawmakers in the state legislature have killed a controversial death penalty bill – at least until next year.
Due to a nationwide shortage of lethal injection drugs, the bill filed in the state Senate proposed using electrocution as Virginia’s secondary means of execution. The bill was met with fierce opposition by some who view electrocution as archaic, but sponsor Bill Carrico says it’s about justice.
“What about the victims and their families? What about the cruel and unusual punishment that took place there? Does anybody even think about that?” said 40th District Senator Bill Carrico (R).
“It’s quite inhumane, and Virginia would be the only state where a death row prisoner could be forced to be electrocuted,” said 31st District Senator Barbara Favola (D).
The Senate voted 21 to 19, mostly along party lines to send the bill back to committee, effectively killing it for the year.
Americans have developed a nearly insatiable appetite for morbid details about crime, as any number of docudramas, Netflix series and Hollywood movies attest.
There is 1 notable exception: executions. Here, we’d just rather not know too much about current practices. Better to just think of prisoners quietly going to sleep, permanently.
The blind eye we turn to techniques of execution is giving cover to disturbing changes with lethal injection. The drugs that have traditionally been used to create the deadly “cocktail” administered to the condemned are becoming harder to get. Major manufacturers are declining to supply them for executions, and that has led states to seek other options.
That raises questions about how effective the lethal drugs will be. At least 1 execution appears to have been botched. In January, an inmate in Ohio was seen gasping for more than 10 minutes during his execution. He took 25 minutes to die. The state had infused him with a new cocktail of drugs not previously used in executions.
States have been forced to turn to relatively lightly regulated “compounding pharmacies,” companies that manufacture drugs usually for specific patient uses. And they’d rather you not ask for details. Death row inmates and their attorneys, on the other hand, are keenly interested in how an approaching execution is going to be carried out. Will it be humane and painless or cruel and unusual?
Lawyers for Herbert Smulls, a convicted murderer in Missouri, challenged the compound drug he was due to be given, but the Supreme Court overturned his stay of execution. A district court had ruled that Missouri had made it “impossible” for Smulls “to discover the information necessary to meet his burden.” In other words, he was condemned to die and there was nothing that attorneys could do because of the secrecy.
Smulls was executed Wednesday.
Missouri, which has put 3 men to death in 3 months, continues shrouding significant details about where the drugs are manufactured and tested. In December, a judge at the 8th U.S. Circuit of Appeals wrote a scathing ruling terming Missouri’s actions as “using shadow pharmacies hidden behind the hangman’s hood.”
States have long taken measures to protect the identities of guards and medical personnel directly involved with carrying out death penalty convictions. That is a sensible protection. But Missouri claims the pharmacy and the testing lab providing the drugs are also part of the unnamed “execution team.”
That’s a stretch. And the reasoning is less about protecting the firm and more about protecting the state’s death penalty from scrutiny.
The states really are in a bind. European manufacturers no longer want to be involved in the U.S. market for killing people. So they have cut off exports of their products to U.S. prisons.
First, sodium thiopental, a key to a long-used lethal injection cocktail became unavailable. Next, the anesthetic propofol was no longer available. At one point, Missouri was in a rush to use up its supply before the supply reached its expiration date.
Next, the state decided to switch to pentobarbital. So, along with many of the more than 30 states that have the death penalty, Missouri is jumping to find new drugs, chasing down new ways to manufacture them.
Information emerged that at least some of Missouri’s lethal drug supply was tested by an Oklahoma analytical lab that had approved medicine from a Massachusetts pharmacy responsible for a meningitis outbreak that killed 64 people.
For those who glibly see no problem here, remember that the U.S. Constitution protects its citizens from “cruel and unusual punishment.” But attorneys for death row inmates are finding they can’t legally test whether a new compounded drug meets that standard because key information is being withheld. Besides, we citizens have a right to know how the death penalty is carried out.
All of this adds to the growing case against the death penalty, showing it as a costly and irrational part of the criminal justice system. We know the threat of it is not a deterrent. We know it is far more costly to litigate than seeking sentences for life with no parole. We know extensive appeals are excruciating for the families of murder victims. And we know that some of society’s most unrepentant, violent killers somehow escape it.
And now we’ve got states going to extremes to find the drugs – and hide information about how they got then – just to continue the killing.
ABOUT THE WRITER Mary Sanchez is an opinion-page columnist for The Kansas City Star
(source: Fresno Bee)
RICHMOND, VA (WWBT)
While states across the country are running low on lethal injection drugs, Virginia’s stockpile has expired, and electrocutions could return.
A proposal is now headed to the Virginia Senate, a bill that would make electrocutions the default method of capital punishment if lethal injections are not available.
The Commonwealth’s supply of lethal injection drugs expired Nov. 30, 2013, and eight people are currently on Virginia’s death row. There are no executions scheduled, largely because of the lengthy appeal process.
But in an interview Friday, Virginia ACLU Executive Director Claire Guthrie Gastañaga said the debate now unfolding in Richmond could worsen problems already inherent with capital punishment.
“We have people in Virginia still in jeopardy of being executed for being innocent,” Gastañaga said. “And they’re up there debating how we should kill people, not whether we should kill people.”
A companion bill has already passed the Virginia House of Delegates in a 64-32 vote, with more than half of delegates from the Richmond area supporting the proposal.
In an email from the Virginia Department of Corrections, Director of Communications Lisa E. Kinney said the Department is now exploring options to purchase new lethal injection drugs. Other parts of the country are currently facing a shortage, partly because European companies hesitant to have their drugs used for executions.
“[Virginia’] drugs have come from a domestic company,” Kinney said. “The Department has no position on the pending bills.”
Questions on whether forced electrocutions are humane will continue take center stage if the proposed legislation heads to Governor Terry McAuliffe’s desk. But in a phone interview Friday, the patron of the Senate bill, Sen. Bill Carrico (R-Grayson) said gruesome tales of electrocution are often exaggerated.
“We see nothing to the extent of the horror stories of the Green Mile, the movies people watch,” Carrico said.
Proponents of the electric chair also point to the 25 minutes an Ohio man took to die, with a new combination of lethal injection drugs.
“When people start seeing that these drugs are not becoming exactly effective, it is a more inhumane way to do it than electrocution,” Carrico said. “And what about the victims’ families? Many of them could never see their loved ones again because of these heinous crimes. We need to think about them.”
Carrico’s proposal, Senate Bill 607, is expected to receive a full Senate vote next week