New Report: Oklahoma Misleads the Supreme Court

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Wednesday May 13, 2015 · 10:45 AM PDT

2015/05/13 · 10:45

What drove Oklahoma to use the controversial drug midazolam in lethal injection executions?

That was a key point of debate two weeks ago, when the U.S. Supreme Court heard oral argument in Glossip v. Gross, a case addressing whether the drug midazolam--a drug implicated in several botched executions last year--is constitutional.

One of Oklahoma's arguments, echoed by Justices Alito and Scalia during oral argument, has been that anti-death penalty activists have made other drugs unavailable. As supposed proof of this, Oklahoma presented in its brief a letter about a compounding pharmacy refusing to provide to the state pentobarbital it had previously provided.

But a new report by BuzzFeed calls the veracity of this evidence into question.

In an investigation released today, BuzzFeed reporter Chris McDaniel finds that "Oklahoma heavily redacted a letter that was sent to the Texas Department of Criminal Justice -- but told the high court that it was actually sent to the Oklahoma Department of Corrections."

From the report:

In Oklahoma's brief, they state that the source of pentobarbital stopped supplying the drug to the state because the source faced "intense pressure" to stop.
As proof of their claim, Oklahomaâs lawyers presented a heavily redacted letter they claim was sent to "ODOC"--the Oklahoma Department of Corrections.
But according to the pharmacy that wrote that letter, that never happened.

In a statement to Buzzfeed, the compounding pharmacy flat-out denies ever providing execution drugs to Oklahoma, and says, "stating Woodlands pharmacy supplied execution drugs to Oklahoma would be âan act of libel and/or slander."

Here's where the letter actually comes from:

The Woodlands letter was actually sent to the Texas Department of Criminal Justice; an unredacted version of the letter was filed in federal court in Arizona in a lawsuit challenging that state's execution protocol. In that letter, Woodlands asks Texas to return pentobarbital that it sent, saying it had believed their relationship "would be kept on the 'down low.'"

Will Glossip play out differently now we know that one of the state's key arguments was supported by a gross misrepresentation of its evidence? We'll see when the Court issues its decision in June.

Law Profs: SCOTUS Should Focus on Risky Execution Drug, Not Activists

jscornejo

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Friday May 08, 2015 · 7:43 AM PDT

2015/05/08 · 07:43

Last week, the U.S. Supreme Court heard a lethal injection case from Oklahoma, Glossip v. Gross, which focused on a challenge to a specific drug, midazolam. The case centers on whether midazolam, a drug which has been used in multiple botched executions, can protect prisoners from cruel and unusual suffering during executions, given its inherent limitations as a drug.

At oral argument, however, some Justices pursued a line of questioning that went beyond the fact that midazolam has no pain-relieving effects and isn't FDA-approved for use as a stand-alone anesthetic. Justices Scalia, Alito and Kennedy wondered aloud if their ruling inGlossip should consider midazolam's use against the alleged backdrop of anti-death penalty activists preventing "better" drugs from being available.

A new opinion editorial in today's Washington Post powerfully argues that it should not. In "What Justices Alito and Scalia Overlooked on the Death Penalty," Harvard Law professor Charles Ogletree and University of North Carolina Law professor Robert Smith argue that the issues raised about death penalty activists and drug shortages have no bearing on the core issue in the case:

"The fact that some pharmaceutical companies do not want to sell execution drugs to state corrections departments tells us nothing about whether Midazolam presents an intolerable risk that Richard Glossip will endure gratuitous suffering if the drug is used to render him unconscious."

The piece goes on to argue that even in the unlikely event that "some loosely defined group of 'death penalty abolitionists' coerced billion dollar, multinational pharmaceutical corporations into doing anything not in their self-interest," it's crucial to remember that the Petitioners in the case had no hand in those hypothetical events:

"But even if you accept the premise that “death penalty abolitionists” convinced Big Pharma to stop selling lethal injection drugs, it doesn’t change the fact that Glossip is not an activist member of the death penalty “abolitionist movement,” nor did he directly or indirectly lobby pharmaceutical companies to stop selling lethal injection drugs. As a condemned prisoner, he lives in nearly complete isolation on Oklahoma’s death row. He did not waive, and the Court should not ignore, his right to be free from gratuitous suffering based on the activities of some unnamed political activists whom he presumably doesn’t even know."

As "What Justices Alito and Scalia Overlooked on the Death Penalty" argues, Glossip v. Gross presents an important question of whether midazolam will cause pain and suffering in lethal injection executions which would violate the Eighth Amendment's prohibition on cruel and unusual punishment. Other considerations about perceived factors influencing the lethal injection drug supply simply aren't relevant.

SCOTUS Should Find Okla. Execution Drug Protocol Unconstitutional, Say Anesthesiologist and Law Prof

jscornejo

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Wednesday April 29, 2015 · 12:55 PM PDT

2015/04/29 · 12:55

Today, the U.S. Supreme Court heard oral arguments in Glossip v. Gross, a case challenging whether the drug midazolam is suitable for use in lethal injection executions. Glossip, which examines Oklahoma’s lethal injection protocol, marks the “second time in seven years that the Court has reviewed a three-drug, lethal injection procedure,” the last case being Baze v. Rees (2008).

What makes this three-drug cocktail different from the one the Court reviewed before? Today in The New Republic, an anesthesiologist and law professor provide clarity.

Dr. David Waisel, a professor at Harvard Medical School, and Paul Litton, a professor at the University of Missouri Law School, explain how the protocols differ, and why it matters:

The significant difference between the procedure approved by the Court in Baze and the protocol currently facing scrutiny is the first drug. In the old procedure, Kentucky first administered a barbiturate, sodium thiopental, to produce a “deep comalike unconsciousness,” thereby preventing the terror and extreme pain that would otherwise be caused by the subsequent drugs. Barbiturates, when used correctly, induce a deep general anesthesia in which patients do not feel pain. The Court in Baze acknowledged that, without a “proper dose of [the barbiturate] that would render the prisoner unconscious,” the protocol would be unconstitutional. But the Court found that Kentucky’s procedure included adequate safeguards to ensure delivery of a proper dose of the sodium thiopental and therefore upheld the procedure.

And how the substitution of midazolam for the first drug renders Oklahoma’s drug protocol unconstitutional:

Midazolam is a benzodiazepine drug. Its primary clinical use is to provide anxiolysis, amnesia, and sedation. It is not used clinically to induce the type of deep, general anesthesia needed to withstand painful stimuli, and we have good reason to doubt that midazolam, regardless of the size of the dose administered, can reliably produce the “deep comalike unconsciousness” that is necessary to prevent the unconstitutional pain and suffering caused by the potassium chloride in a three-drug lethal injection execution.

The pair ends the piece with an important and often overlooked point: lethal injection is distinct from the death penalty issue—wherever you stand on the death penalty, midazolam, which has been used in several botched executions in the past year, simply doesn’t work like it’s supposed to in lethal injection executions:

Whether it is rational or ethical to have capital punishment is a question for a different day. Permitting preordained, unnecessary, and excruciating pain and suffering—based on the use of a drug that cannot perform as needed to protect against the harm that the next two drugs unquestionably will cause—assaults prisoners’ dignity and demeans us all. It's also unconstitutional.

Why states could be botching executions we’ll never know about

jscornejo

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Wednesday April 29, 2015 · 12:52 PM PDT

2015/04/29 · 12:52

Imagine your entire body feels like it’s on fire, but you’re unable to move, scream, or indicate you’re in discomfort in any way. The idea may sound farfetched, but it’s the gruesome reality of some states’ execution protocols.

Writes Dr. Michael Lewis, an anesthesiologist, in today’s Tampa Tribune:

Today, the U.S. Supreme Court will hear the case of Glossip v. Gross from Oklahoma, which challenges the use of the anti-anxiety medication midazolam as a sole anesthetic in lethal injection executions.
Although the safety and efficacy of midazolam is the subject of the U.S. Supreme Court case, it’s the next drug in Florida’s protocol that concerns me most: the paralytic which prevents the prisoner from showing distress.

Dr. Lewis goes onto say that the use of a paralytic doesn’t ease the suffering of the condemned or cause death. Instead, it’s administered only to “[mask] pain and suffering…making it nearly impossible to know if the execution is going as planned.”

This is important to Glossip v. Gross because it debunks Oklahoma’s argument that Florida uses midazolam successfully in executions:

[Oklahoma's] characterization is inaccurate and misleading. America’s first execution using midazolam was that of William Happ in Florida in October 2013. It was an unusual event, taking about twice as long as previous executions had. Media witnesses noticed that Happ took longer to lose consciousness and that they saw more body movement than in previous lethal injections.
Happ’s execution displayed problems consistent with all the other midazolam botches — the drug is simply not able to provide a level of unconsciousness, at any dose, that pain can’t break through. More importantly, “Florida’s impressive track record” of midazolam executions without incident rests entirely upon the use of a drug in lethal injections that is terrifying — a paralytic agent that prevents us from knowing what the prisoner is experiencing.

So from a lethal injection perspective, midazolam may have potentially caused a number of unrecognized botched executions. As Dr. Lewis puts it:

Under the sheet, on the gurney, through the witness window, Florida’s executions may have looked uneventful. Peaceful, even.
But due to Florida’s choice to administer paralytics that mask the prisoners’ reactions to the drugs they are given, no one will ever know.

Pharmacologist: Oklahoma Can’t Square Its Lethal Injection Protocol with Science

jscornejo

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Thursday April 23, 2015 · 7:50 AM PDT

2015/04/23 · 07:50

Last week, Oklahoma state officials drew the criticism of two former attorneys general for their hasty selection of midazolam for the state's lethal injection protocol. Now Oklahoma’s choice of midazolam is coming under fire from another direction: pharmacologists, experts in the effects of drugs on the human body.

Dr. Ellen M. Unterwald, a professor of pharmacology at the Temple University School of Medicine, writes in ACSblog that Oklahoma’s use of midazolam makes no sense from a scientific perspective:

Imagine a hospital administering a drug protocol devised without consideration of its scientific properties, selected by individuals without medical training. It’s unthinkable, but in the state of Oklahoma, prison officials without any pharmaceutical or medical training selected a combination of drugs to cause death. They elected to use midazolam as the first drug in the state’s three-drug lethal injection protocol despite the fact that there is overwhelming scientific consensus, including among pharmacologists like myself, that midazolam is incapable of inducing a deep, coma-like unconsciousness characteristic of general anesthesia and required for a humane and constitutional execution.

Dr. Unterwald explains the science behind why midazolam, which has been used in several botched executions in the last year alone, was a poor choice:

Midazolam relaxes a patient, relieves anxiety, and induces drowsiness prior to the administration of a different drug that achieves the deep unconsciousness of anesthesia. But midazolam alone cannot produce and maintain general anesthesia, even at an excessive dose. The reason for this is referred to as the “ceiling effect” of the benzodiazepine response. As the dose of benzodiazepine increases, the biological response to the drug reaches a plateau or “ceiling” before general anesthesia can be obtained. Increasing the dose of the benzodiazepine beyond this plateau will not increase its effectiveness as an anesthetic agent.

So what does this mean for the upcoming U.S. Supreme Court case Glossip v. Gross, a case challenging the use of midazolam in executions? Dr. Unterwald writes:

As a pharmacologist who studies drugs, I strongly believe the Supreme Court should prevent Oklahoma from using midazolam in lethal injection executions, and encourage states to base lethal injection protocols on all available scientific knowledge and research.

Former Attorneys General: Oklahoma's Lethal Injection Process Flawed

jscornejo

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Friday April 17, 2015 · 7:32 AM PDT

2015/04/17 · 07:32

In early 2014, Oklahoma state officials needed a new execution drug cocktail. Here’s how they went about finding one:

[T]he lawyers searched the internet for ideas. They called some of their colleagues in other states for their views. In the end, [they] decided to use the anti-anxiety drug midazolam, which had never before been used in an Oklahoma execution. The total sum of time the state took to adopt a new form of execution was just four days.

Was this enough due diligence in choosing a new execution protocol? For former Attorneys General Mark Earley (R-VA) and Jim Petro (D-OH), the answer is clear: No.

In an op-ed published yesterday, the former AGs criticize lawyers with the Oklahoma Department of Corrections and Oklahoma Attorney General’s Office for their hasty selection of midazolam, which resulted in the botched execution of Clayton Lockett. Lockett took over 40 minutes to die while he “writhed, strained, mumbled, and tried to rise off the gurney.”

“As former state attorneys general, the most solemn duty we perform is our oversight of the government’s carrying out of the punishments determined by the people of our state,” they write. Yet the AGs argue that any serious consideration of midazolam by Oklahoma state officials would have revealed it was a bad choice:

If Oklahoma officials had engaged in proper deliberation and study—and if they had consulted with medical experts—they would have quickly ruled out the use of midazolam as the first crucial drug in the state's three-drug formula. Doctors may prescribe midazalom to ease the anxiety of pre-operative patients. However, the medical and scientific consensus is that it is not a drug that should ever be used as anesthesia during an operation. Midazolam has no pain-relieving qualities. It also has a ceiling effect, above which additional dosing has no additional effect. Thus, no amount of midazolam will produce anesthesia or coma.

The former AGs argue this is important because “the first drug must act as an anesthetic capable of rendering the person unconscious in order for the execution to even be considered a legal or constitutional act.”

Midazolam’s suitability for use in executions will soon be decided by the U.S. Supreme Court in Glossip v. Gross, but the AG’s end their op-ed by saying we never should have even gotten to this point:

As former elected state officials, we understand the political pressure to avoid delays in carrying out punishments. But such pressures can never trump our primary responsibility to ensure that such punishments are lawful. Any state using midazolam to execute prisoners fails this important balancing test, including Oklahoma.

An Opportunity For Justice: Gov. Kitzhaber should commute the sentences of death row prisoners

jscornejo

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Tuesday February 17, 2015 · 12:33 PM PST

2015/02/17 · 12:33

Oregon's four-term Governor John Kitzhaber has the power to do an urgently needed act of justice today: commute the death sentences of Oregon's 34 men and one woman before he leaves office. According to a poll done by the Oregonian, 73% of Oregonians would support such a commutation.

In a powerful op-ed posted today to the Huffington Post, Harvard Law professor Charles Ogletree makes the case for Governor Kitzhaber to commute the sentences, noting that throughout his tenure, Governor Kitzhaber has proven himself a leader on the issue of capital punishment. According to Professor Ogletree:

The people who occupy death row tend to be people who suffer from serious mental illness, intellectual impairments, torturous childhood abuse, and other extreme disadvantage. Often times these individuals do not receive adequate legal representation; and, in states across the nation, innocent men and women emerge from the ranks of the condemned.
Recognizing these shortcomings, Governor Kitzhaber declared a moratorium on the death penalty back in 2011. He labeled the State's practice of imposing death sentences "neither fair nor just" and concluded that a "compromised and inequitable" capital punishment system is not befitting of Oregon. Nothing has changed and nothing will: the death penalty in Oregon is too broken to fix.

Adding his voice to the growing chorus of prominent individuals calling for commutation, Frank Thompson, a retired prison superintendent who conducted the only two executions that have taken place in Oregon in the past 53 years, published this op-ed in today's Statesman-Journal:

The death penalty in Oregon comes at a high cost to our state in both human and fiscal resources. I call on Gov. Kitzhaber to convert 35 death sentences to life without the possibility of release before he leaves office at mid-morning on Wednesday.
Based on my experiences as a correctional professional, capital punishment is a failed public policy – especially in Oregon where we have funded a death penalty system for over 30 years, yet only put to death two inmates who volunteered themselves for execution by abandoning their appeals. No other corrections program exemplifies such a complete failure rate.

As Professor Ogletree observes, commuting the death sentences of Oregon’s death row prisoners before leaving office would uphold Governor’s Kitzhaber’s core values:

In his resignation letter, Governor Kitzhaber told us that he was proud to not have presided over any executions. Yet, as Governor, he presided over a state that has sentenced people to death under the same unjust system that led him to impose the moratorium.

Governor Kitzhaber should do right by his own values and the values of a majority of Oregonians. He should commute the death sentences of prisoners on his state's death row and send a clear message: Oregon’s death penalty is too broken to fix.

Science-schmience, Georgia just wants to execute this intellectually disabled man

jscornejo

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Wednesday January 21, 2015 · 1:17 PM PST

2015/01/21 · 13:17

Here’s a riddle: Unless the Georgia Board of Pardons and Paroles or the U.S. Supreme Court steps in, Warren Hill will be executed on January 27th in Georgia. Yet if Hill lived in any other state, he would be safe from execution. How could that be?

The answer is that Hill is a person with intellectual disability—a category of people the U.S. Supreme Court has banned from the death penalty—but Georgia’s unscientific standard for proving his disability prevents him from the protection he’d have in any other death row state.

It’s undisputed that Hill has had intellectual disability his entire life. All seven doctors who have examined him agree, even those hired by the State. Two Georgia Courts, one in 2002 and another in 2012, have also found Hill to be a person with intellectual disability by a preponderance of the evidence.

Yet unlike every other death row state, which uses a “preponderance of the evidence” standard, Georgia requires proof “beyond a reasonable doubt,” the heaviest burden of proof in the law. This is significant because there’s a clear consensus that it’s virtually impossible to prove one’s intellectual disability beyond a reasonable doubt in a capital case. Not only does this fly in the face of science, but it tragically results in the execution of persons with intellectual disability.

Hill’s case has galvanized a wide range of supporters, both in Georgia and nationwide, particularly those in the intellectual disability community. The Georgia Council on Developmental Disabilities, All About Developmental Disabilities, the Arc of Georgia, the Arc, and the largest national group for intellectual disability rights, the American Association on Intellectual and Developmental Disabilities (AAIDD), all oppose Hill’s execution.

President Jimmy Carter and Rosalyn Carter have called for clemency in Mr. Hill’s case, as has the family of the victim, specifically citing Hill’s intellectual disability. Several members of Mr. Hill's original jury have stated under oath that life without parole is the appropriate sentence; they say they would not have given him the death penalty at trial if life without parole had been an option. A poll even found that a majority of Georgians do not support executing a person with intellectual disability like Hill.

The will of U.S. Supreme Court and Georgians is clear: in this country, we do not execute persons with intellectual disability. Yet if the Court or the Georgia Board of Pardons and Paroles does not step in, that is exactly what will happen on Tuesday.

You can sign a letter in support of clemency for Warren Hill and learn more about the case at www.SaveWarrenHill.com.

jscornejo

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Wednesday January 07, 2015 · 9:48 AM PST

2015/01/07 · 09:48

A new infographic shows that the trend away from capital punishment usage in states continued in 2014, demonstrating a growing national consensus against use of the death penalty:

Tell TX: Executing Mentally Ill Scott Panetti Would Cross the Line of Common Decency

jscornejo

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Wednesday November 12, 2014 · 10:22 AM PST

2014/11/12 · 10:22

This is the enduring image of Scott Panetti, a severely mentally ill man on death row in Texas: a paranoid schizophrenic wearing a TV-Western cowboy costume; on trial for his life; insisting on defending himself without counsel; attempting to subpoena the Pope, John F. Kennedy, and Jesus Christ; and raising an insanity defense. At one point, he cross-examined his own alter-ego, Sarge, answering his own questions on-stand, in a different voice.

Mr. Panetti’s pro se performance was an abomination and his trial was a mockery of the criminal justice system. But if Texas has its way, Mr. Panetti will be executed on December 3, 2014.

Believing that the execution of Scott Panetti would cross a moral line, a diverse group of unlikely allies from across the political spectrum, including mental health professionals and organizations, faith leaders, conservatives, legal experts, and former prosecutors are banding together to urge Governor Rick Perry to stop Panetti’s execution.

You can add your name to the effort to stop Mr. Panetti’s execution here.

As this powerful documentary shows, Panetti first showed signs of mental illness over 14 years before the offense for which he was sentenced to death. Doctors repeatedly diagnosed him with chronic schizophrenia and schizoaffective disorder, and his condition continued to deteriorate.

In 1986, he developed the delusion that he was engaged in spiritual warfare with Satan. As he grew obsessed with the idea the devil was in the house, he began trying to exorcise it, at one point burying his furniture in his backyard because he believed it was possessed. Two years before his crime, he was involuntary committed for homicidal behavior and was found to be suffering from delusions and psychotic religiosity. But the mental health system failed him, and, in the grips of his severe illness, he committed a terrible crime against his family members.

Today, Panetti suffers from a fixed delusion that Satan is working through the state of Texas to kill him in order to stop him from preaching Christ’s word. He has no rational understanding of the actual relationship between his crime and the punishment he now faces.

Our society and the courts have reached a consensus that executing the mentally ill serves no purpose if prisoner has no rational understanding of the reason for his punishment. Panetti unquestionably falls into this category, yet the Courts have refused to intervene. His execution would be a miserable spectacle and a moral outrage.

Join the public outcry against the execution of the severely mentally ill. Sign and share the Change.org petition demanding Governor Rick Perry stop Panetti’s execution.

For more information about the case, visit texasdefender.org/scott-panetti

Sentenced to death and later found innocent, one man seeks to bring his story to the big screen

jscornejo

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Wednesday October 22, 2014 · 1:37 PM PDT

2014/10/22 · 13:37

Convicted of murder and sentenced to death, yet innocent. This hell is unimaginable to most people, but it was all too real for Kirk Bloodsworth.

Bloodsworth spent eight years in prison, including two on death row, before becoming the first U.S. prisoner exonerated through DNA testing for a capital conviction. Now Bloodsworth is seeking to share his harrowing story through a full-length documentary.

While the project, titled Bloodsworth: An Innocent Man, is still in its funding stages, the film’s latest trailer is engrossing enough on its own. Bloodsworth describes the ineptitude of his trial lawyer and how the murder he was convicted of shook his community. He also recounts the moment his life completely changed:

“It was August 9, at about 2:45 in the morning. I was staying at my cousin’s house; my first wife and I were having problems. I hear this big “BOOM BOOM BOOM” at the door. It was the Baltimore County police. They arrested me for the first degree murder of Dawn Hamilton. I was wearing silk running shorts, no shoes, no shirt. And they bought me out in a police car, and that was the last time I saw Cambridge, Maryland for eight years, ten months and nineteen days.”

At the end of the trailer, Gregory Bayne, the film’s director and producer, calls Bloodsworth’s case “mind-blowing and maddening,” continuing:

“[W]hat I found most compelling about Kirk is that this is an individual that essentially had his life shaped by a crime he had nothing to do with. Yet 30 years later, he’s dedicated his life to ensuring that what happened to him, doesn’t happen to others.
“Over the course of the past three years, I’ve had a number of people say to me that Kirk’s is a story that must be told and should be seen.”

Count me as one of those people. If you agree too, pitch in to the film’s Kickstarter campaign to help ensure that happens. As the death penalty in the U.S. comes under increasing scrutiny and becomes more controversial, America needs to hear Kirk’s story.

Texas Wants to Execute This Insane Man: Will SCOTUS Step In?

jscornejo

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Monday September 22, 2014 · 8:11 AM PDT

2014/09/22 · 08:11

Ron Honberg of the National Association of Mental Illness begins his recent op-ed for the National Law Journal describing a situation so strange that one assumes it is fiction:

A person diagnosed with paranoid schizophrenia is accused of murdering his in-laws. He insists on defending himself without counsel and wears a TV-Western cowboy costume while on trial for his life. He attempts to subpoena the Pope, John F. Kennedy and Jesus Christ. He rambles incomprehensibly, scares the jurors by pointing an imaginary rifle at them, and he believes the judge is a devil worshiper.

Yet this case is all too real. The trial was allowed to go forward and Scott Panetti, the person with extreme mental illness described above, was sentenced to death by the State of Texas.

Years later, attorneys for Panetti argued that mental illness made him unfit for execution, taking his case all the way up to the U.S. Supreme Court in Panetti v. Quarterman (2007). Panetti won his case, which was sent back to the lower courts for reconsideration.

One might think that winning at the Supreme Court might have been enough to save Panetti from death row, but Honberg says Panetti’s attorneys are now asking the Court to hear his case again.

As Honberg explains:

The Supreme Court explicitly recognized that the views of mental health experts would be critical in further proceedings in Panetti's case. Yet, in spite of the court's directive, the Fifth Circuit and the district court ignored the diagnostic features and clinical realities of [Panetti’s] long-standing psychotic disorder.

The whole op-ed is worth a read. By the end, one can’t help but wonder: How in the world can somebody so obviously mentally ill still be considered sane enough to be executed?

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