The StandDown Texas Project

Notes From the Texas Legislature

"Bill to reduce wrongful convictions passes House," is the title of the AP report by Jay Root, via the Fort Worth Star-Telegram.  The legislation is HB 215.

The Texas House, aiming to reduce the number of wrongful convictions, approved legislation Wednesday that would require law enforcement agencies to begin standardizing the way eyewitnesses identify criminal suspects.

The unanimously approved bill would require police to adopt written policies to determine how they conduct photographic or live lineups. Agencies would be encouraged, but not required, to develop blind procedures whereby the person administering a live lineup doesn't know who the suspect is. Judges still would be given wide discretion on what evidence to admit in court.

Rep. Pete Gallego, D-Alpine, said he sponsored the bill to cut down on the leading cause of wrongful convictions. Misidentification of suspects by eyewitnesses is responsible for 75 percent of the convictions overturned by DNA evidence, according to The Innocence Project, a non-profit working to free wrongfully incarcerated people.

"What it attempts to do is standardize how these things are done, and provide model polices, because a lot of people don't know how to do it, and to proactively look for ways to do a better job at lineups," Gallego said.

And:

The bill grows out of recommendations from the Timothy Cole Advisory Panel on Wrongful Convictions, named after the first Texan to be posthumously exonerated of a crime by DNA testing. Cole was wrongly convicted of a rape he did not commit in 1986 and died of complications from asthma in 1999 while serving his 25-year sentence.

The legislation faces another perfunctory vote in the House and is expected to move to the Senate as early as Thursday. If passed, it would apply to lineups conducted after Sept. 1, 2012.

The Austin American-Statesman's Postcard blog has, "Death-penalty trigger increase gets OK," posted by Mike Ward.

Legislation that would raise the age from 6 to 10 for which a child killer can be charged with the death penalty was approved this morning by the Texas Senate.

Senate Bill 377 by state Sen. Joan Huffman, R-Houston, would bring Texas closer in line with other states, most of which have age 12 as the age-based trigger for capital murder charges.

If victims are under that age, a murderer can be more readily charged with capital murder.

For several years, Texas has had the youngest age — at 6.

To be clear, this is a death penalty expansion bill. Currently, a person can be charged with capital murder if the victim is six years of age or younger.  This expands death penalty eligibility to killing a child age 10 or below.

In her Houston Chronicle column, Peggy Fikac writes, "Confirmation process may favor one Bradley."

One Bradley’s loss may be another one’s gain.

It looks like speak-his-mind prosecutor John Bradley’s appointment as head of the Forensic Science Commission will end with this legislative session.

But Bradley’s brother, the equally blunt David Bradley, may benefit if Senate Democrats also block State Board of Education Chair Gail Lowe’s appointment.

What’s more, if Gov. Rick Perry were to name David Bradley to replace Lowe after this regular session ends, senators might not get a chance to weigh in on the appointment until the 2013 regular session (barring a special session).

Perry’s appointments of Lowe and John Bradley are in trouble because a two-thirds Senate vote is needed to confirm nominees. There are 19 Senate Republicans and 12 Democrats.

A couple of Republicans have joined Democrats in opposing John Bradley. Senate Nominations Chair Bob Deuell, R-Greenville, said all the Republicans would vote for Lowe. But that’s not enough. Without a Senate vote, the appointees’ terms end when the session does in May.

David Bradley, a State Board of Education member from Beaumont, is a possible Lowe replacement. He’s a leader of conservatives who’ve made controversial social studies changes that even a conservative group said exaggerates biblical influence. Bradley once tried to insert President Barack Obama’s middle name, Hussein, in a reference to him in history standards.

Earlier coverage of the Texas eyewitness identification legislation and the John Bradley nomination, at the links.

More on Pentobarbital Maker Lundbeck

"AP Exclusive: Danes won’t block execution drug," is the report via Google News.  It's also available from the Las Vegas Sun and Ohio.com.

A Danish company that unwittingly has become a key supplier of an execution drug in the U.S. says it's not going to withdraw or restrict it, even though it objects to the chemical being "misused" for capital punishment.

Lundbeck A/S is doing "all we can" to dissuade U.S. states from using pentobarbital for lethal injections, but won't pull it from the U.S. market, CEO Ulf Wiinberg told The Associated Press on Wednesday.

Pentobarbital is a sedative with a range of medical uses, including treatment of epileptic seizures. It also is used to euthanize animals.

"Financially speaking this is not an important product for us and we thought about whether we should withdraw it and the reaction we got from doctors was that they didn't want us to withdraw the product," Wiinberg said at the drug maker's annual shareholders meeting in Copenhagen.

As the only company making the drug, Lundbeck found itself in an awkward position as death penalty states started switching to pentobarbital for lethal injections to replace another chemical that's no longer readily available.

Pentobarbital has already been used to execute prisoners in Ohio and Oklahoma. The first execution in Texas using pentobarbital is scheduled for next week. Mississippi and Arizona are also considering switching to pentobarbital for lethal injections.

"One of our products is being misused," Wiinberg said. "When we heard about this, we went out and took a very clear position, saying we are against the misuse of our product and that we, as an organization, made it clear that we are against death penalty."

Lundbeck A/S has written letters to prison authorities in U.S. states asking them not to use pentobarbital for lethal injections, but to no avail so far.

The company is now coming under pressure from human rights groups opposed to the death penalty to take stronger action, such as rewriting distribution contracts with clauses prohibiting sales of pentobarbital to U.S. prisons.

Lundbeck rejected that idea, saying it would be impossible for distributors to follow up on how every vial is used. Lundbeck says it sells about 50 million doses of pentobarbital a year.

Nathan Koppel's WSJ Law blog post, "Danish Maker of Execution Drug Will Not Block Sales to Prisons," noted in the previous post, has more on the Lundbeck statement.

Some death-penalty opponents have hoped that Lundbeck, the Danish maker of the sedative pentobarbital, would take steps to block its drug from being distributed to prisons, which increasingly are using it for executions.

Lundbeck, after all, has repeatedly and fervently said that it opposes the use of  pentobarbital in executions, even sending letters to prison officials asking them to cease at once.

Anti-death penalty advocates have lobbied the company to go a step further and to rewrite its contracts with drug distributors to include language prohibiting distributors from selling pentobarbital to prisons for executions.

The company considered this idea “very seriously” but ultimately decided that it can not effectively block distribution to prisons, Lundbeck CEO Ulf Wiinberg told the Law Blog in an interview.

“We have explored the idea and don’t think it would make any difference,” Wiinberg said.

Drug distributors, he said, do business with thousands of customers. Given that wide network of end users, Wiinberg said, it is “not realistic” to expect a distributor to ensure that pentobarbital would not be misused in executions — and to be responsible if it was misused.

“When this situation happened, we took a strong public position against the way the drug has been used” by prisons, he said. “We have gone to end users and said it’s not an approved use. . . We will continue to object to the misuse of our product.”

Earlier coverage of Lundbeck's position is at the link.

Additional Coverage of Texas Lethal Drug Purchases

The letter to Attorney General Eric Holder, an appendix of exhibits, and the letter to DPS are available in Adobe .pdf format.

Today's Dallas Morning News reports, "Lawyers accuse Texas of illegally purchasing execution drugs."  It's written by Matthew Huisman.

In letters to the Texas Department of Public Safety and Attorney General Eric Holder, attorneys Maurie Levin and Sandra Babcock accuse the state of providing false information to a Drug Enforcement Administration database used to monitor the sale and use of controlled substances.

According to Levin and Babcock, the agency has been purchasing execution drugs using a registration number assigned to the Huntsville Unit Hospital, which closed in 1983. Registration numbers must be renewed every three years.

“As far as we can tell, they are breaking state and federal law,” Levin said. “The laws exist for a reason and they should not be exempt from them.”

Jason Clark, spokesman for the Department of Criminal Justice, contends the agency did nothing wrong.

“We are still reviewing the allegations but are confident that we have not violated any state or federal law,” Clark said in a written statement. “We will cooperate fully with any investigation.”

Raul Reyes , spokesman for the University of Texas Medical Branch said that the institution operates 112 outpatient facilities in Texas prisons, including the Huntsville unit, but said they don’t order, possess or distribute any of the drugs used in executions.

The letter contends that the drugs are “neither kept by a pharmacy, hospital or clinic, nor dispensed by an authorized practitioner.” A purchase order invoice names Warden James Jones as the recipient.

At the Wall Street Journal Law blog, Nathan Koppel posts, "Danish Maker of Execution Drug Will Not Block Sales to Prisons."

In other news, University of Texas law school professor Maurie Levin today wrote a letter to Attorney General Eric Holder claiming that the Texas prison system has likely violated federal law by purchasing drugs with a Drug Enforcement Administration registration number assigned to a hospital that has been closed since 1983.  Levin asks Holder in the letter to investigate Texas. (Click here to see the letter.)

The Texas Department of Criminal Justice did not return a request for comment.

More on Lundbeck in the next post.

The AP post is, "Lawyers for 2 death row inmates question legality of Texas prisons’ lethal drugs acquisition," is via the Washington Post.

Attorneys for two Texas death row inmates say state officials have been buying lethal-injection drugs using a long-closed prison hospital’s federal registration number.

The lawyers represent inmates Cleve Foster and Humberto Leal. Foster is set to die next week and Leal in July.

In letters sent Wednesday to the U.S. attorney general and Texas public safety director, attorneys Maurie Levin and Sandra Babcock allege the Texas Department of Criminal Justice has violated federal law for more than 25 years.

They’ve asked for an investigation into whether a federal Drug Enforcement Agency number for the Huntsville Unit Hospital has been used to acquire drugs for executions. They say the hospital closed in 1983.

"Texas illegally obtaining lethal drugs: lawyers," is the AFP report, via Google News.

The lawyers of two Texas death row inmates asked Attorney General Eric Holder Wednesday to open an investigation on the state's alleged illegal purchases of lethal injection drugs.

In a letter made public by the lawyers, they said they had uncovered official documents through a Freedom of Information Act request that "leads us to believe that the Texas Department of Criminal Justice has violated the federal Controlled Substances Act."

According to the lawyers, the state has purchased for the past 25 years controlled substances used in lethal injections by using a Drug Enforcement Administration registration number for the the Huntsville Unit Hospital, which has been closed since 1983.

The Texas execution chamber is located in the same city.

"As a result, we believe that TDCJ is unlawfully in possession of and unlawfully dispensing controlled substances," the lawyers said.

Prison authorities did not immediately respond to AFP's requests for comment.

Attorneys for condemned convicts Cleve Foster and Humberto Leal noted that the products used by correctional authorities to carry out executions were "neither kept by a pharmacy, hospital or clinic, nor dispensed by an authorized practitioner through a prescription or otherwise."

Rather, they were kept inside the state's Huntsville unit where executions take place by TDCJ staff, rather than officials legally authorized to be in possession of the drugs.

"Given these potential violations of federal law and the resulting impact on the legality of the executions imminently contemplated, we respectfully urge you to direct appropriate agencies within your department to conduct a prompt and thorough investigation of these issues," the lawyers wrote.

 Mike Ward has updated his Austin American-Statesman report, "Complaint says execution drugs being procured illegally."

Prison officials denied any wrongdoing. "We will cooperate fully with any investigation," said Jason Clark, a corrections system spokesman in Huntsville. "We are still reviewing the allegations but are confident that we have not violated any state or federal law."

Maurie Levin , an Austin attorney who represents Foster, said prison officials' own paperwork calls the process into question.

"Federal and state laws governing the purchase, possession and transfer of controlled substances exist to guard against diversion, and ensure the efficacy and lawful use of these drugs," she said. "For TDCJ to have misrepresented for 25 years the information the DEA relies upon to assess the legitimacy of these drugs reflects a profound disregard for protocol and the law."

If an investigation confirms that the prison system violated the law, Levin said the DEA may revoke or suspend the violator's registration to possess controlled substances and require that all controlled substances held by the prison system be delivered to the DEA.

"The fact that it is a law enforcement institution that is breaking the law should not shield them from the consequences," Levin said in a statement. "An institution charged with keeping the law should be held, at least, to the same standard as every other entity or individual, especially when the process involves the taking of a life. Any indication that they are violating the law is cause for alarm and immediate action."

Brandi Grissom's Texas Tribune post, "Lawyers Allege Texas Illegally Obtains Death Drugs," has also been updated.

TDCJ spokesman Jason Clark said the agency would cooperate fully with any investigation. “We are still reviewing the allegations, but are confident that we have not violated any state or federal law,” he said.

Lawyers for two Texas death row inmates today asked state and federal law enforcement to investigate whether prison officials illegally obtained death penalty drugs the state used in nearly all of its 466 executions by using the Drug Enforcement Agency registration number of a long-closed facility.

The DEA registration number that the Texas Department of Criminal Justice uses to a obtain drugs used for lethal injection is issued to the Huntsville Unit Hospital. That hospital, built in 1935, used to be the main medical facility for inmates. But during state reforms to prison health care, the Huntsville Unit Hospital was replaced in 1983 with a facility at the University of Texas Medical Branch in Galveston.

At the Austin Chronicle, Jordan Smith posts, "TDCJ Violating Federal Drug Laws?"

According to lawyers for condemned inmate Cleve Foster, the Texas Department of Criminal Justice has been illegally purchasing lethal injection drugs. According to the attorneys, Maurie Levin of UT School of Law, and Sandra Babcock of Northwestern University School of Law, the state's prison agency has been purchasing controlled substances – including drugs used for lethal injections – under the Drug Enforcement Administration registration certificate assigned to an entity that hasn't existed for nearly 30 years. "[A]s a result, we believe that TDCJ is unlawfully in possession of an unlawfully dispensing controlled substances," the lawyers wrote in a letter to U.S. Attorney General Eric Holder.

The problem, it appears, is that TDCJ has been purchasing controlled substances under a registration number assigned to the system's Huntsville Unit Hospital, which, it turns out, has been closed since 1983. TDCJ medical services are provided by the UTMB, and although the med system has "numerous DEA registration numbers, none of them is actually registered to either the Huntsville Unit," which has been purchasing the drugs, or to the address listed on the registration. "DEA Registration numbers must be renewed every three years," write the lawyers, who are representing Foster, scheduled to be executed April 5. "Assuming the DEA registration number used by TDCJ last month to purchase controlled substances was one originally issued to the Huntsville Unit Hospital, TDCJ has failed, on information and belief, to advice the DEA for the past twenty-eight years of the fact that the Huntsville Unit Hospital no longer exists," and that what actually exists at that location is a prison unit with a warden that is "purchasing and dispensing controlled substances" with a number "registered to a nonexistent entity."

Uh-oh. That doesn't sound so good. And neither does this: According to the lawyers, it appears that the drugs aren't being kept at a pharmacy or by a DEA-registered handler. "At no point is an appropriately licensed or authorized practitioner involved in the dispensing process, and at no point is a prescription written to transfer the controlled substances to a member of the execution team," the lawyers write.

Earlier coverage of Texas' lethal injection drugs begins at the link.  Attorney Levin is also challenging the process in Texas' switch to pentobarbital, as noted at the link.

Did TDCJ Obtain Execution Drugs Illegally

Mike Ward posts, "Complaint: Texas illegally acquiring lethal drugs," at the Austin American-Statesman.

In a new challenge to Texas’ execution procedure, two condemned convicts complained to federal and state today alleging that state prison officials have been illegally obtaining the prescription drugs used in executions.

In a complaint delivered to U.S. Attorney General Eric Holder and Steve McCraw, director of the Texas Department of Public Safety, Cleve Foster and Humberto Leal contended that a DEA registration number used to purchase the three execution drugs is registered to a non-existent hospital — in possible violation of state and federal law.

A prescription written by a doctor is needed to obtain prescription drugs under federal and state law.

“The DEA registration number used by TDCJ was … obtained and/or retained through false pretenses,” because it is registered to the Huntsville Unit Hospital, which has been closed since approximately 1983, the complaint states.

Attorneys for Foster and Leal asked the Department of Justice and DPS to investigate TDCJ’s potential violations and “take appropriate steps if TDCJ has violated federal (or state) law.”

The letter to Holder further alleges that the controlled substances used by TDCJ to carry out executions “are neither kept by a pharmacy, hospital, or clinic, nor dispensed by an authorized practitioner through a prescription.”

Instead, the complaint alleges, the drugs are kept by prison officials, who are not authorized by law to possess or distribute controlled substances.

Brandi Grissom posts, "Lawyers Allege Texas Illegally Obtains Death Drugs," at the Texas Tribune.

Lawyers for two Texas death row inmates today asked state and federal law enforcement to investigate whether prison officials illegally obtained death penalty drugs the state used in nearly all of its 466 executions by using the Drug Enforcement Agency registration number of a long-closed facility.

The DEA registration number that the Texas Department of Criminal Justice uses to a obtain drugs used for lethal injection is issued to the Huntsville Unit Hospital. That hospital, built in 1935, used to be the main medical facility for inmates. But during state reforms to prison health care, the Huntsville Unit Hospital was replaced in 1983 with a facility at the University of Texas Medical Branch in Galveston.

"For TDCJ to have misrepresented for 25 years the information the DEA relies upon to assess the legitimacy of these drugs reflects a profound disregard for protocol and the law,” said Maurie Levin, an attorney for two death row inmates who are suing the state over its recent decision to change its lethal injection protocol. The inmates ague that the TDCJ violated state transparency laws when it decided to change one of the drugs used in the state's three-drug lethal injection cocktail.

The letter to Attorney General Eric Holder, an appendix of exhibits, and the letter to DPS are available in Adobe .pdf format.

Earlier Texas lethal injection coverage begins at the link.

Texas House Committee Hears Death Penalty Bills

"Bill to ban death penalty doomed, but supporters undeterred," is the title of Karen Brooks' report for the Dallas Morning News.

If there is one proposal that is already on death row in the staunchly conservative Legislature, it’s the bill to abolish the death penalty.

But that didn’t stop the lively discussion on the issue in a House committee Tuesday.

“We need to end the death penalty. Not sit around and think about it,” said Gratia Winship, an Austinite whose friend, Michael Cahill, was murdered in the 1970s.

After years of being shut out of the discussion, Winship and others like her gave lawmakers hours of testimony on bills that would mostly chip away at, or do away with, the death penalty.

Among them were measures to create a moratorium, limit testimony that can be allowed in a death penalty case, and require confessions to be recorded on video. Two bills would abolish the death penalty altogether.

One would expand the death penalty to include people who kill while under a restraining order.

Death penalty opponents are not a popular lot in Texas, which has far more executions than any other state. When former state prisons director Charles Terrell of Dallas called for a moratorium, his name was stripped off the Livingston Death Row unit.

And:

Rep. Pete Gallego, D-Alpine, was undeterred by the idea that his hours-long hearing on an unpopular bill was unnecessary because “democracy is never a waste of time,” he said

And, he argued, recent cases of people who were wrongfully convicted could have opened some minds.

“I don’t think there’s a large number who would say in good faith that the justice system hasn’t made mistakes,” Gallego said.

The AP report is, "Texas House panel considers death penalty bills," by Sommer Ingram.  It's via the Houston Chronicle.

A Texas lawmaker wants to suspend executions in the nation's most active death penalty state and create a commission to study whether the process needs to be fixed.

A state House committee heard testimony Tuesday on a bill by Rep. Harold Dutton, D-Houston, that would create the Texas Capital Punishment Commission and establish a two-year moratorium on executions while the commission completes its study.

And:

Dutton's bill was just one of several bills the committee left pending to change the state death penalty and alter procedures in capital felony cases.

Dutton and Rep. Borris Miles, D-Houston, are working to amend a state law that has prompted nationwide criticism.

A Texas statute known as the law of parties allows a person to be held liable for a murder as a co-conspirator and possibly face the death penalty even if they didn't physically commit the crime.

The bills would allow co-defendants to have separate trials in death penalty cases. Dutton's bill would prohibit death sentences in such cases.

Family members and friends of Texans convicted under the law testified before the committee, pleading with lawmakers to fundamentally change the statute that unfairly sent their loved ones to death row.

The statute caught lawmakers' attention in 2007 when the case of Kenneth Foster spurred national outrage and a massive grassroots effort to prove his innocence.

Dave Montgomery writes, "Bill calls for two-year moratorium on executions in Texas," for the Fort Worth Star-Telegram.  An abbreviated version is available from McClatchy DC.

Clarence Brandley spent 10 years on Death Row for the slaying of a 16-year-old girl, a crime he didn't commit. Now, more than two decades after being cleared, the former custodian hopes to convince Texas lawmakers that it's time to abolish the death penalty in Texas -- or least impose a moratorium on executions.

"To me, it's just a tool that prosecutors use to enhance their political careers," he said.

And:

Former Gov. Mark White, who oversaw 19 executions while he was in office from 1983 to 1987, endorsed the moratorium in a letter to the committee. White, a Democrat who has previously raised questions about the death penalty, said he believes that the review is needed to deflect "the possibility of our justice system executing an innocent individual."

Charles Terrell, former chairman of the Texas Criminal Justice Department, also supports the moratorium and investigative commission, calling Dutton's bill a "matter of common sense."

"Texas does not need to be executing innocent people, and what harm does a moratorium do?" he said. He noted that Death Row inmates "would not be released from prison while the study is done."

More than 40 exonerations in Texas -- including several of Death Row inmates -- have fueled efforts to abolish or suspend the death penalty.

Opponents also cite the high-profile case of Cameron Todd Willingham, who was executed in 2004 after a Corsicana jury convicted him of killing his three daughters in a house fire.

Several fire experts have said that the arson investigation was based on outmoded science, raising the possibility that the fire may have been accidental. The Texas Forensic Science Commission is reported to be nearly finished with an inquiry into the case.

The bills were left pending in the House Criminal Jurisprudence Committee.

More Lethal Injection News

In Nebraska, the Lincoln Journal Star reports, "Lawyer questions legality of purchase of lethal injection drug from Indian company."  It's written by Kevin O'Hanlon.

A lawyer for death-row inmate Carey Dean Moore is challenging the legality of Nebraska's purchase of one of three lethal injection drugs from an Indian company and questioning whether the state even bought the right drug.

The state said it recently paid $2,056 to Kayem Pharmaceutical Pvt. Ltd. for 500 grams of sodium thiopental. The drug has been in short supply since last year. And the only U.S. manufacturer of the drug, Hospira Inc., is ending production because of death-penalty opposition overseas.

Jerry Soucie, an attorney with the Nebraska Commission on Public Advocacy, has filed a motion with the Nebraska Supreme Court challenging the purchase.

Kayem completed a federal "Certificate of Origin" dated Dec. 8, 2010, stating that the drug shipped to the Nebraska Department of Correctional Services was "Thiopentone ... thiosol sodium" manufactured by Neon Laboratories Ltd. of Mumbai, India.

But the state's lethal injection protocol calls for using "sodium thiopental."

It appears, Soucie said, that the state might have bought a generic version of sodium thiopental.

"The state's own attachment to the motion for an execution date does NOT allow for the use of 'thiopentone' or 'thiosol sodium' as the first of the drugs in the lethal execution cocktail," Soucie said in a motion to the high court asking for a hearing on the matter.

He said federal law requires that before a new drug is used in the United States, the manufacturer must file an application with the Food and Drug Administration outlining the drug's safety, composition and manufacturing process, among other things.

To market a generic drug in the United States, a manufacturer must file an application showing that the FDA previously has approved the active ingredients of its generic product, among other things.

Soucie said he could find no evidence that Kayem or Neon Laboratories did either.

In addition, Soucie said he can find no evidence that Kayem or Neon Laboratories are registered with the Drug Enforcement Administration and authorized to deliver controlled substances to the United States.

He said the DEA registration held by the Corrections Department does not authorize it to directly import drugs from a foreign supplier.

The DEA recently seized Georgia's entire supply of sodium thiopental, which defense attorneys say came from a questionable British supplier. The DEA said there were questions about how it was imported.

Corrections officials in Nebraska have refused to comment on the purchase. The attorney general's office declined to comment but said in court papers that Soucie should not be allowed to ask for a hearing now that the high court has been asked to set an execution date for Moore.

In Arizona, the AP report is, "Another Arizona inmate to die next week after injection drug concerns can’t spare murderer."  It's via the Washington Post.

Last-minute legal wrangling over an execution drug ended with a killer’s last breaths Tuesday, as officials prepared to repeat the procedure next week in what will be Arizona’s last use of a controversial three-drug lethal injection method.

Daniel Wayne Cook, 49, is scheduled to die April 5 in the same room at the Florence state prison where Eric John King was executed Tuesday morning. Cook’s attorneys are also fighting the use of the knockout drug sodium thiopental, even though similar arguments failed to stop or delay King’s execution for killing two men in a 1989 Phoenix convenience store robbery.

Cook’s attorney, Michael Meehan, has appealed to the 9th U.S. Circuit Court of Appeals in San Francisco after a lower court dismissed a civil rights lawsuit over the use of the sedative.

Meehan also is asking the U.S. Supreme Court to review a lower court’s decision not to review Cook’s case based on recently diagnosed post-traumatic stress disorder and brain dysfunction. Cook also is scheduled for a state clemency hearing Thursday.

The civil rights lawsuit argues that the Department of Corrections listed the sodium thiopental as being for “animals (food processing),” not humans, when it was imported from Great Britain. Meehan also argues that the drug could be ineffective, which could cause his client pain.

Arizona Attorney General Tom Horne has said the mislabeling was the result of a clerical error.

King’s lawyer, Michael Burke, made similar arguments to no avail before watching his 47-year-old client breathe heavily for several seconds and appear to go to sleep.

Corrections Director Charles Ryan announced that King was declared dead at 10:22 a.m., 13 minutes after a medical staff member walked into the death chamber and confirmed that King had been sedated.

Burke said later there was no way to know whether King was in pain after being injected with sodium thiopental — the first of the three drugs. A second drug paralyzed King before potassium chloride was injected to stop his heart, so if the sedative didn’t work through the entire procedure, King could have been in extreme pain without any way to show it.

“You’d have no way of knowing if he was in pain or not,” Burke said. “As an observer, he closed his eyes and took some breaths, and I didn’t see him move after. It doesn’t really give me any solace.”

The Arizona Supreme Court declined to stay King’s execution based on arguments over the drugs, and the U.S. Supreme Court refused to intervene. Yet, Robin Konrad, another of Cook’s attorneys, said her client has a strong case “and the courts should take a close look at this issue.”

“What is important here is lack of transparency by the state,” Konrad said. “For six months, we have been asking for information about how the drug was imported. As more information comes out, more questions are raised about the state’s candor and the process it used to import the drug.”

"Arizona executes man for deadly 1989 armed robbery," is the title of Michael Kiefer's Arizona Republic report.

Eric John King was executed Tuesday for the 1989 murders of two men at a Phoenix convenience store during a robbery that netted less than $73.

It was the second execution in five months; another is scheduled for next week, and the Arizona Attorney General's Office has asked the state Supreme Court for execution dates for three more death-row inmates in coming months.

On Monday night, King, 47, had a last meal of fried catfish, collard greens, candied yams, cornbread, chocolate cake with ice cream, and cream soda before he was moved from his cell on death row to the death house.

When the curtains opened onto the execution chamber at 10 a.m. Tuesday, he smiled to someone he recognized in the small witness gallery in a way that two witnesses to the execution described as meaning, "It's all right."

Then, the witnesses said, when asked if he had any last words, King boomed out a simple "no."

By 10:08 a.m., his eyes closed, his mouth gaped open, and a doctor who entered the chamber determined that he was fully sedated. At 10:22, he was pronounced dead.

Earlier coverage from Nebraska and Arizona, at the links.

Letter From Europe

That's the heading of Raymond Bonner's European reports for the New York Times.  Today, he writes, "Drug Company in Cross Hairs of Death Penalty Opponents."

Virtually all European countries ban capital punishment, and the European Union has been a leader in the effort to ban it worldwide. But that has not stopped European companies from contributing to the active death penalty machine in the United States through the supply of drugs used in lethal injections.

A Danish pharmaceutical company, Lundbeck, has become the latest to supply a drug to U.S. death penalty states — Ohio used it to put a man to death two weeks ago, and Texas is planning to use it in an execution scheduled for April 5.

That has put the medium-size company in the cross hairs of death penalty opponents. In the last six months, these forces have succeeded in stopping Italian and British companies from exporting lethal injection drugs to the United States.

A Lundbeck spokesman said the company was shocked when it learned recently that its drug, pentobarbital, was being used in executions. “This is fully against what we stand for,” the spokesman, Anders Schroll, said by telephone. “We are in the business of improving people’s lives.” He said that the drug had legitimate uses in controlling epilepsy and that the company had no control over how the drugs were used once the company sold them to its distributors in the United States.

Reprieve, a human rights organization in Britain, has led the campaign to stop European companies from selling lethal injection drugs to the United States. It called Lundbeck’s position “extremely disappointing.”

And:

Lundbeck’s pentobarbital has been sold to Ohio, Oklahoma, Mississippi and Texas, said Mr. Schroll, the company spokesman.

Earlier this month, representatives from Reprieve and a prominent U.S. death penalty lawyer, Joseph Margulies, met with Lundbeck officials. They asked the company to put a provision into their contracts with their U.S. distributors that the drug could not be resold to any state for execution purposes. Mr. Schroll said the distributors would not sign such restrictive contracts.

Sales of pentobarbital in the United States account for less than 1 percent of the company’s total revenues, Mr. Scholl said. Given that, Mr. Margulies countered: “They should not allow their modest profit from the drug to make them complicit in capital punishment.”

Mr. Schroll said that the company was in a very uncomfortable situation. Most of Lundbeck’s employees are against the death penalty, he said. Denmark itself has not had a civilian execution since 1882.

Earlier coverage of Lundbeck and its drug pentobarbital, in the posts:

• News Coverage of Texas Lethal Injection Litigation
• Arizona to Switch to Single-Drug Lethal Injection
• Ohio Execution
• An Update on Lethal Injection Drugs
• Drugmaker Requests Pentobarbital Not Be Used for Executions
• Oklahoma Prepares for Substitute Drug Execution

Related posts, in the lethal injection index.

News Coverage of Texas Lethal Injection Litigation

The petition in Foster v. TDCJ is available in Adobe .pdf format.

Brandi Grissom posts, "Death Row Inmates Sue Over Lethal Injection Drug," at the Texas Tribune.

TDCJ decided on March 16 that it would use pentobarbital in executions. Texas and other states were forced to find a substitute for sodium thiopental when the only American producer of it, Illinois-based Hospira Inc., announced in January it would stop selling the drug. Hospira had planned to manufacture the drug in an Italian plant, but authorities in that country wanted a guarantee that the drug would not be used in executions. 

Texas officials decided to follow the lead of Oklahoma and use pentobarbital in the lethal injection protocol. TDCJ spokeswoman Michelle Lyons said this morning that officials are still reviewing the inmates' case.

The lawsuit filed today in Travis County District Court seeks a declaration that Texas' new execution protocol is void because it doesn't comply with the  Administrative Procedure Act. When TDCJ officials failed to notify the public or to allow for a comment period about the change, lawyers for the inmates argue that the agency violated the act. "In its rush to execute Mr. Foster, Texas has violated the law and circumvented the open government process,” Levin said in a statement announcing the lawsuit.

"Lawsuit: Void Texas’ new execution procedure," by Mike Ward for the Austin American-Statesman.

Texas’ new procedure for executing condemned murderers should be invalidated because prison officials did not comply with state law in adopting it, two condemned murderers alleged this morning in a new lawsuit seeking to block their scheduled date with the death chamber.

In a suit filed in an Austin state court, attorneys for Cleve Foster and Humberto Leal contend that Texas’ new execution protocol — replacing sodium thiopental with pentobarbital as one of three drugs used in lethal injections — violated the state Administrative Procedures Act.

Reason: Officials with the Texas Department of Criminal Justice did not follow proper procedure in adopting the new protocol.

According to the suit, TDCJ announced on March 16 — less than three weeks before Foster’s scheduled execution — that it would change the drugs used. Foster is slated for execution on April 5.

The lawsuit contends that since November 2010, Foster made numerous public information requests and pleas for information regarding the drugs TDCJ planned to use to execute him, but prison officials delayed their response and made the decision to change drugs without required public input — or input from Foster and other condemned convicts.

And:

Court officials said no hearing has been set in the case.

If the Travis County court invalidates the change in drugs because state law was not followed, the state would be forced to resort to using the previous drug — which has become unavailable in the United States.

Leal, a Mexican citizen, is scheduled for execution on July 7.

Prison officials said they had no immediate comment on pending litigation. Some officials had earlier said they expected legal challenges when the execution drug was changed.

Some legal experts were critical of the process Texas used to change its lethal drug mix, as well.

“Lack of transparency and the problems that ensue from it constitute one of the largest challenges to ensuring constitutionally viable lethal injection procedures, said Deborah Denno, a law professor at Fordham University and a nationally recognized expert on the death penalty and injection.

“The State of Texas’s under-the-table method for dealing with a drug shortage is unacceptable and adds to the ongoing pattern of debacles the state has experienced since its first-ever lethal injection execution in 1982.”

The AP report, "Lawsuit says Texas execution drug change improper," is by Michael Graczyk, via the San Antonio Express-News.

Attorneys for two condemned Texas inmates filed suit Tuesday challenging the state's change of a drug that would be used in the lethal mixture to execute them.

Texas Department of Criminal Justice officials failed to comply with proper administrative procedures when they announced two weeks ago that pentobarbital — a drug used to euthanize animals — would replace sodium thiopental as one of three drugs used in executions, lawyers for condemned inmates Cleve Foster and Humberto Leal argued in a lawsuit in state district court in Austin.

A nationwide shortage of the sedative sodium thiopental is prompting the drug change.

Foster is set to die April 5 and would be the first Texas inmate to have pentobarbital used as part of the lethal injection. Leal has a July 7 execution date. They are among at least six inmates set to die over the next several months in the nation's most active death penalty state.

According to the lawsuit, the Texas prison agency violated the Texas Administrative Procedures Act, which requires notice and comment, before changing "behind closed doors" the procedure known as the execution protocol.

"I don't think there's any doubt they didn't comply," said Maurie Levin, a University of Texas law professor and one of the attorneys representing the inmates.

"We don't comment on pending litigation," Texas Department of Criminal Justice spokeswoman Michelle Lyons said.

The suit said under the Administrative Procedures Act, a Texas agency changing a rule must give at least 30 days' notice of its intent, must provide interested parties a reasonable opportunity to provide views or arguments regarding the rule change and must hold a public hearing on the change if at least 25 people or an association of more than 25 people request a hearing.

"TDCJ went to great efforts to shield its change in execution procedure from the light of day," the suit said. "Executions, and the manner in which we carry them out, are of unique public interest and importance — these are precisely the sort of policy decisions that should be aired in the light of day.

"There can be no dispute that the adoption of the new protocol did not include the public involvement that the Legislature expects an agency to invite and consider when exercising delegated rulemaking powers."

USA Today reports, "Texas death row inmates sue over execution drugs."  It's by Kevin Johnson.

Legal challenges to the way execution drugs are being selected and acquired for lethal injections across the U.S. are now targeting Texas, home to the country's busiest execution chamber.

Attorneys for two condemned inmates urged a state district court Tuesday to halt the executions because they say recent changes to the long-standing lethal injection protocol have been illegally shrouded in secrecy.

A national shortage of sodium thiopental, part of the three-drug cocktail used in lethal injections across the country, has triggered a scramble for execution drugs in Texas and several other states, leading to controversial changes in way death row prisoners are put to death.

One of the condemned inmates in Texas — convicted murderer Cleve Foster, who is scheduled to die April 5 — alleges in court documents that state officials failed to respond to "numerous pleas for information" about how he would be executed. The state acknowledged late last year that its supply of the sedative sodium thiopental was due to expire March 1.

Texas, which has executed 466 inmates since the reinstatement of the death penalty in 1976, announced March 15 that it was replacing sodium thiopental with pentobarbital, a drug used in euthanizing animals. Foster's death would mark the first change in execution drugs used by the state in more than 30 years.

Earlier coverage of the Texas lethal injection drug switch and litigation begins at the link.  There will be more lethal injection news in the next post.

Lawsuit Filed Over New Texas Lethal Injection Procedures

A news release has just been issued by attorneys for Cleve Foster, who has an April 5th exectuion date, "Lawsuit Seeks to Declare Texas’ Execution Protocol Void; Death Row Prisoners Claim State Circumvented Open Government Process in its Rush to Carry Out Execution Next Tuesday."

It's from Maurie Levin, Co-Counsel for Cleve Foster and Mr. Leal, and Adjunct Professor, The University of Texas School of Law Capital Punishment Center.

Today, attorneys for Cleve Foster and Humberto Leal filed suit in the Travis County District Court seeking a declaration that Texas' new execution protocol is void for failing to comply with the state's Administrative Procedure Act (APA).  The complaint asserts that the Texas Department of Criminal Justice (TDCJ) is subject to the APA when issuing rules and procedures for executions, and that TDCJ’s failure to follow the notice and comment provisions required by the APA violated state law.  The lawsuit seeks a declaratory judgment that TDCJ’s failure to comply with the APA’s rulemaking procedures in adopting the new protocol renders the protocol “invalid” and “void.”
 
On March 16, less than three weeks shy of Mr. Foster's scheduled execution, TDCJ announced it would replace sodium thiopental with pentobarbitol as the first of three drugs used in Texas’ execution procedure. The APA complaint states that since November 2010, Mr. Foster, who is scheduled for execution April 5, made numerous public information requests and pleas for information regarding the drugs TDCJ planned to use to execute him, but TDCJ officials  delayed their response and made the protocol change behind “closed doors,” thereby precluding input from the public or the inmates.
 
“Executions, and the manner in which we carry them out, are of unique public interest and importance, and precisely the sort of decisions and procedures that should be aired in the light of day,” said Maurie Levin, counsel for Mr. Foster.  “The requirements of transparency, deliberation, and accountability reflected in the APA are even more imperative when we are carrying out the ultimate act that Texas can take against one of its citizens. In its rush to execute  Mr. Foster, Texas has violated the law and  circumvented the open government process.”
 
If the Travis County Court declares the 2011 protocol void, TDCJ would be forced to resort to the previous, 2008 protocol, which states that sodium thiopental shall be used in executions. Mr. Foster is scheduled for execution on April 5. Mr. Leal, a Mexican national, is scheduled for execution on July 7.

The petition is available in Adobe .pdf format.

The release also includes a brief background on Cleve Foster case:

Cleve Foster was convicted and sentenced to death under Texas' law of parties for the 2003 murder of Nyanuer "Mary" Pal.  His codefendant, Sheldon Ward, was convicted and sentenced to death as the triggerman.  Mr. Ward, who died on death row of natural causes, gave four statements asserting that Mr. Foster was not involved in Ms. Pal's murder.   Mr. Foster was scheduled to be executed on January 11, 2011, but received a stay from the United States Supreme Court as the result of litigation raising questions about his innocence, and the ineffectiveness of appointed counsel in failing to adequately raise that issue.  The Supreme Court subsequently lifted that stay without comment on the merits and Mr. Foster is now scheduled for execution on April 5, 2011.

Earlier coverage of the Texas drug switch begins at the link.

In Ohio

Alan Johnson reports, "Past prisons chief urges clemency for condemned killer," in today's Columbus Dispatch.

Former Ohio prisons director Terry Collins and a Cincinnati civil-rights attorney are jointly urging Gov. John Kasich to spare the life of condemned killer Clarence Carter.

Carter, 49, is scheduled to be executed April 12 unless Kasich or the courts intervene. The Ohio Parole Board unanimously recommended against clemency for Carter.

A letter to Kasich jointly signed by Collins and attorney Alphonse Gerhardstein and obtained by The Dispatch said the death of inmate Johnny Allen resulted from a "jailhouse fight" with Carter in 1988 and does not warrant the death penalty.

"It is much more likely that this was an inmate fight that got tragically out of hand," Collins and Gerhardstein wrote. "Inmate-on-inmate violence in lockups is often pursued to establish oneself as fearsome and to deter others from threatening or attacking the inmate."

There is no evidence that Carter planned to kill Allen, they said. Although he had a hand-made prison knife, he did not use it. The prisoners fought for 25 minutes before guards intervened. The incident occurred Dec. 28, 1988, in the Hamilton County jail annex.

Collins is a veteran of three decades in the prison system who ran the Department of Rehabilitation and Correction for 31/2 years. After his retirement in January 2010, he revealed that he opposes capital punishment because, he said, it cannot be fairly administered, is expensive and offers no second chances. Collins witnessed 33 executions as a prison official.

More on former prisons director Collins and earlier news from Ohio, at the links.

Executions Scheduled in Alabama, Arizona

"Attorneys ask Ala. Supreme Court to stop execution of William Boyd scheduled for Thursday," is the AP report via the Republic.  An alternate version is available from the Birmingham News.

Attorneys for a 45-year-old inmate have asked the Alabama Supreme Court to stop his scheduled Thursday execution, in part because the jury recommended that the judge spare the man's life and sentence him to life in prison without the possibility of parole.

William Glenn Boyd was convicted of the 1986 shooting deaths of Fred and Evelyn Blackmon in Calhoun County.

The Alabama Supreme Court had not ruled by Monday evening on Boyd's request for a stay of execution.

Boyd is scheduled to die by lethal injection at Holman Prison in Atmore at 6 p.m. Thursday.

Defense attorneys say the execution should be stopped because the judge violated rules set out by the Alabama and U.S. Supreme Courts in sentencing Boyd to die despite the jury recommendation of life in prison.

"Mr. Boyd's death sentence is invalid because the trial court's override of the jury's verdict for life without parole did not comply with requirements of Alabama and federal law," the motion read.

The sentencing issue grows out of the 2002 Supreme Court case of Ring v. Arizona and the 2004 Supreme Court ruling in Schriro v. Summerlin, that Ring did not apply retroactivley.

Moving to Arizona, the AP reports, "Arizona to execute convicted murderer before state changes protocol to single-drug cocktail."  It's via the Washington Post.

An Arizona death-row inmate is set to be executed Tuesday for killing two people in a 1989 convenience store robbery, marking one of the state’s last lethal injections to use a three-drug cocktail after officials said they will switch to a single-drug method.

Eric John King, 47, was scheduled to die at 10 a.m. at the state prison in Florence. He has maintained his innocence since his arrest, and lawyers were still fighting to get his execution delayed.

The Arizona Supreme Court declined to stay his execution Monday after defense attorney Michael Burke argued that the state should wait until it enacts its new lethal injection protocol.

Corrections Director Charles Ryan announced Friday that Arizona will switch to using just one drug to allay any “perceived concerns” that sodium thiopental is ineffective, but that won’t start until after the scheduled executions of King and Daniel Wayne Cook on April 5.

Defense attorney Michael Burke had argued that the Department of Corrections may have engaged in fraud when it imported the sedative from Great Britain by listing it on forms as being for “animals (food processing),” not humans. Arizona Attorney General Tom Horne said the mislabeling resulted from a clerical error.

Arizona obtained the drug legally, and that’s why it has been able to avoid problems other states have had, Assistant Attorney General Kent Cattani has said. Georgia’s supply of sodium thiopental was seized by federal Drug Enforcement Administration agents on March 15 over questions about how it was obtained.

The drug is part of the three-drug lethal injection cocktail used by nearly all 34 death penalty states, but it became scarce last year after the sole U.S. manufacturer stopped making it.

Some states started obtaining sodium thiopental overseas, and lawyers have argued that potentially adulterated, counterfeit or ineffective doses could subject prisoners to extreme pain.

Texas and Oklahoma recently announced they are switching from sodium thiopental to pentobarbital in their three-drug protocol. Ohio has switched to using only pentobarbital for its executions, and Ryan said that’s the drug Arizona might start using.

Burke said Monday that he was asking the U.S. Supreme Court to review the state court’s denial of a stay, and a ruling was expected Tuesday morning.

Michael Kiefer writes, "Clemency denied for Arizona inmate set for execution today," for the Arizona Republic.

The Arizona Board of Executive Clemency on Monday unanimously rejected a request to reconsider a reprieve for Death Row inmate Eric John King, who is scheduled to die by lethal injection Tuesday in Florence.

Attorneys for King raised issues regarding last week's discovery that two of the drugs obtained for execution were listed on import documents as animal drugs. That information came out of responses to Freedom of Information requests to U.S. Customs and Border Protection received simultaneously by The Arizona Republic and the Federal Public Defender's Office last week.

Department of Corrections Director Charles Ryan met with The Republic on Friday to explain that the mislabeling that occurred three times on shipments a month apart was a clerical error made by an employee of a local import broker who struggled to fill out forms that the U.S. Food and Drug Administration presents to Customs to clear shipments.

Ryan also produced an e-mail from Robert Hornyan, president of Arizona Customs Brokers in Phoenix, in which Hornyan said when his "entry clerk filled out the FDA screen, he misclassified it. He put the letter L in the code instead of the letter C, which put it in the animal category instead of human."

But at Monday's hearing, attorney Michael Burke of the Federal Public Defender's Office gave a Power Point presentation of the computer-assisted form used in drug imports.

Burke showed various drop-down menus related to the drug sodium thiopental. The menu for the drug's use contains about 15 choices that are grouped and clearly marked for animal and human uses, described in phrases, and not by mere letters.

"It is highly unlikely that on three separate forms, the Department of Corrections made the exact same error," Burke said.

The Republic first became aware of Hornyan and his company in October, though Hornyan denied his company was involved in importing thiopental from England.

Earlier coverage from Arizona begins at the post.

Death Sentences and Executions 2010

Amnesty International has released its report Death Sentences and Executions 2010.  It's available in Adobe .pdf.  Additional graphics are also available.

"Amnesty: After hitting record low, number of countries executing convicts has inched back up," is the AP post, via the Washington Post.

The number of countries executing convicts rose to 23 in 2010, four more than the previous year, Amnesty International said in a report published Monday.

The year 2009 saw the lowest number of countries impose the death penalty since the 50-year-old rights organization began keeping statistics.

Despite the rise in 2010, the London-based group said momentum is still with those who are seeking to outlaw the practice, which it argues is cruel and degrading. An increasing number of countries have stripped capital punishment from their books, and fewer executions are being reported across the globe, the report said.

“Countries that use the death penalty are increasingly isolated following a decade of progress toward abolition,” Amnesty said in a statement. “A world free of the death penalty is not only possible, it is inevitable. The question is how long will it take.”

The West African nation of Gabon became the 96th nation to officially eschew the use of capital punishment in February 2010, and the number of such abolitionist countries have doubled in the past two decades, the group said.

In many countries that still carry out executions, the use of the death penalty has dropped. The United States executed 46 people in 2010, a fall from 2009, when 52 people were put to death. Amnesty noted that the 110 death sentences handed down in the United States in 2010 represent only about a third of the number handed down in the mid-1990s.

Globally, Amnesty reported that at least 527 executions were carried out in 2010, although that figure only represents a fraction of the death sentences thought to have been imposed worldwide.

China retained the title of the world’s biggest executioner, killing what Amnesty estimated were thousands of convicts. The group said it could not put a specific figure on the number of people sentenced to death there because the issue of executions in China is shrouded in secrecy.

"Executions down in 2010, rights groups says," by Adrian Croft at Reuters.

At least 527 people were executed around the world last year, down from 714 in 2009, although China is believed to have put to death thousands more, human rights group Amnesty International said on Monday.

It said Beijing was thought to have executed far more people than the rest of the world combined. Amnesty's tally does not include figures for China, which describes them as state secrets, the rights group said.

At least 23 countries carried out judicial executions in 2010, four more than the previous year, Amnesty said in its annual report on the death penalty, which it wants abolished.

China has scrapped the death penalty for 13 non-violent crimes including smuggling historic relics and tax fraud-related offenses, but capital punishment will still apply to 55 offences, Chinese news reports said last month.

"Amnesty International: Death penalty on decline, US in top 5," by Tom A. Peter for the Christian Science Monitor.

Around the world, the death penalty appears to be in decline. However, a new report by Amnesty International reveals that a handful of countries continue the practice.

China, Iran, North Korea, Yemen, and the United States lead the world in carrying out the most death sentences. And China is suspected of executing more people in 2010 than all other countries combined – although that number is uncertain because China does not disclose its death penalty information.

Although there has been a downward trend in executions, officials at Amnesty International have expressed concern over China’s reluctance to make its execution records public and a number of other countries who still issue death sentences for drug-related offenses.

“In spite of some setbacks, developments in 2010 brought us closer to global abolition,” said Salil Shetty, Amnesty International’s secretary general in an official press release. “For the third time and with more support than ever before, the UN General Assembly called for a global moratorium on executions. Any country that continues to execute is flying in the face of the fact that both human rights law and UN human rights bodies consistently hold that abolition should be the objective.”

"Death Penalty in 2010: Executing countries left isolated after decade of progress," is the AI news release announcing the report.

Countries which continue to use the death penalty are being left increasingly isolated following a decade of progress towards abolition, Amnesty International has said today in its new report Death Sentences and Executions in 2010.

A total of 31 countries abolished the death penalty in law or in practice during the last 10 years but China, Iran, Saudi Arabia, the USA and Yemen remain amongst the most frequent executioners, some in direct contradiction of international human rights law.

The total number of executions officially recorded by Amnesty International in 2010 went down from at least 714 people in 2009 to at least 527 in 2010, excluding China.

China is believed to have executed thousands in 2010 but continues to maintain its secrecy over its use of the death penalty.

“The minority of states that continue to systematically use the death penalty were responsible for thousands of executions in 2010, defying the global anti-death penalty trend,” said Salil Shetty, Amnesty International’s Secretary General.

Shetty posted, "The global movement to kill the death penalty," at the AI Livewire blog.

Related posts are in the report index.

An Update on the Troy Davis Case

"High court rejects appeal from Troy Davis," is the AP report via the Atlanta Journal-Constitution.

The Supreme Court has rejected an appeal from Georgia death row inmate Troy Davis, clearing the way for the state to resume planning for Davis' execution.

The justices on Monday refused to order the federal appeals court in Atlanta to examine Davis' case and they declined to do so themselves. In 2009, the high court ordered a federal judge to examine evidence Davis said would show he was innocent of the 1989 killing for which he has been sentenced to death.

But the judge decided last year that Davis had failed to clear his name.

At the moment, executions are on hold in Georgia after federal agents seized the state's supply of a key lethal injection drug.

The Supreme Court Order List is available in Adobe .pdf format.

Amnesty International USA has issued a statement, "Amnesty International Deeply Disappointed by Supreme Court’s Decision Rejecting Troy Davis Appeal."

Laura Moye, Amnesty International USA (AIUSA) death penalty abolition campaign director, issued the following statement in response to the U.S. Supreme Court’s decision today to reject Troy Davis’ appeal of the federal district court’s ruling that Davis did not prove his innocence:

“Amnesty International is extremely disappointed that the Supreme Court rejected Troy Davis’ appeal. It appears that the justice system is comfortable allowing someone to be executed when there are lingering doubts about guilt in the case. No objective person could confidently determine that Davis is guilty beyond a reasonable doubt from the evidence available now in his case. That leaves an ominous cloud hanging over an irreversible sentence such as the death penalty.

“Because there was no physical evidence linking Davis to the murder, nor was there physical evidence exonerating him, the case rested on a group of witnesses whose credibility was readily accepted for conviction, but so easily rejected in the appeals process.

“The Georgia Board of Pardons and Paroles, as the final fail-safe, has the opportunity to commute his sentence to life and prevent the possibility of executing an innocent person.”

Earlier coverage of the Troy Davis case begins at the link.

California's Death Penalty Doesn't Serve Justice

That's the title of Los Angeles Times commentary from Gil Garcetti, former Los Angeles District Attorney from 1992-2000.

Retired Superior Court Judge Donald A. McCartin expresses clear and persuasive reasons  why California should abolish the death penalty. I was the Los Angeles County district attorney for eight years and chief deputy district attorney for four years. During those years, I was responsible for my office's decision to seek the death penalty in dozens of cases. In each case, the facts were so horrific and compelling that I permitted the prosecutors to pursue the ultimate punishment. 
 
Part of a prosecutor’s responsibility is to seek justice and retribution for the victim of a murder. Of special concern throughout my 32 years as a prosecutor was the effect of a particular crime on the family and close friends of the victim. To me, those family members and friends also became victims of the crime.
 
Many of these victims were happy when my office sought the death penalty and if the jury returned a death verdict, a result that never came quickly. It was unusual for a capital case to be resolved within a year from the date of the original crime; two to three years was not uncommon. The living victims of a particular crime might think that a death verdict provides closure, but for most, there was no such closure. These victims instead faced years of torment thanks to the incredibly lengthy legal review process required for all cases in which the death penalty is imposed.

And:

California's death penalty does not and cannot function the way its supporters want it to. It is also an incredibly costly penalty, and the money would be far better spent keeping kids in school, keeping teachers and counselors in their schools and giving the juvenile justice system the resources it needs. Spending our tax dollars on actually preventing crimes, instead of pursuing death sentences after they've already been committed, will assure us we will have fewer victims such as Robin Samsoe.

Earlier coverage from California begins with McCartin's OpEd.

Arizona to Switch to Single-Drug Lethal Injection

"3-chemical process to be used twice more; Arizona plans to switch to single-drug executions," is the AP report written by Paul Davenport.  It's via the Arizona Daily Star.

Arizona plans to switch to using just one execution drug, dropping a three-drug protocol used since the 1990s, Corrections Director Charles Ryan said Friday.

Ryan told The Associated Press in an interview that the state would make the switch after two executions scheduled in the next two weeks.

The switch is in the works to "minimize or mitigate any perceived concerns that a three-drug protocol represents any type of concern or risk," he said.

Oklahoma, Ohio and Texas, the nation's busiest death penalty state, have switched to one drug, the sedative pentobarbital. Critics have said the three-drug protocol might result in an inmate being painfully suffocated if a knockout drug doesn't work.

Ryan said Arizona may use pentobarbital, the sedative used by the three states - Ohio, Oklahoma and Texas - that have switched to a one-drug protocol.

However, the state will still use the three-drug protocol for executions scheduled for Eric John King on Tuesday and Daniel Wayne Cook on April 5 "because it is the protocol that is recognized by the court now."

Also, Deputy Director Charles Flanagan said the switch is being made because of "perceived concerns."

"We don't have concerns. This is tried-and-true process," he said.

Arizona has used the three-drug protocol to execute 23 inmates since 1993, mostly recently Jeffrey Landrigan on Oct. 26.

Dale Baich, a lawyer for the federal Public Defender's Office for Arizona, said its lawyers would want to review the state's proposed new protocol.

An updated AP report notes, "Arizona killer's lawyers seek to delay execution amid drug change," via the Arizona Republic.

Lawyers for a death-row inmate have filed another motion seeking a stay from his scheduled execution next week, citing Arizona's plan to switch to a one-drug execution protocol.

The state announced Friday that it was changing from the three-drug cocktail, but only after the scheduled executions of Eric John King and another inmate April 5 "because it is the protocol that is recognized by the court now."

Federal public defenders for King said Saturday that the state should "wait until the (one-drug) process is in place rather than rush forward with the two scheduled executions."

Arizona has used the three-drug protocol to execute 23 inmates since 1993.

Friday evening, Michael Keifer posted, "Arizona: Execution drug mislabeled; use of substance may end soon," at the Arizona Republic and Tucson Citizen.

Arizona Department of Corrections Director Charles Ryan on Friday blamed clerical errors by employees of a local import broker and the U.S. Food and Drug Administration for misstating on federal documents that the agency was importing animal drugs to execute murderers.

In an exclusive interview, Ryan also told The Arizona Republic that after upcoming Arizona executions on Tuesday and April 5, the department will consider retooling the state’s lethal-injection method to use a single drug instead of the current three-drug method that depends on an anesthetic that is no longer available.

Ryan reacted to a Republic report Thursday about two drugs, sodium thiopental and pancuronium bromide, which were imported from England for an Arizona execution in October and for the two upcoming executions.

FDA documents that U.S. Customs and Border Protection use to approve imports stated that the drugs were for animal use, raising questions as to whether they were being carried out with animal drugs or if the imports had been misidentified.

“The chemicals employed in the execution, then and now, and what we possess, are only for the purpose of human consumption,” Ryan said. “It has nothing to do with animals.”

Ryan ordered an investigation into the misrepresentation Friday morning, and the private import broker retained by the department took responsibility for the drugs being misidentified. Ryan pointed out that correspondence between his department and the federal agencies clearly stated that the drugs were to be used for inmate executions.

And:

Some states with three-drug protocols have already switched to another barbiturate, pentobarbital, a drug similar to what is used to euthanize animals, as a substitute for thiopental.

Ohio uses a single drug to execute its death-row prisoners, and since thiopental became unavailable, switched to pentobarbital. The one-drug protocol sidesteps defense-attorney claims that the executed people could suffer the effects of the other drugs.

“After these two executions, we’re looking at going to another protocol,” Ryan said. “I’m thinking of a one-drug protocol. Or, if it remains a three-drug protocol, it would be substituting (thiopental) with another barbiturate.”

Earlier coverage from Arizona begins at the link.

Speaking Out for Transparency in Texas Execution Process

"Texans deserve the truth on death penalty policies," is the title of Joseph R. Larsen's OpEd in the Austin American-Statesman.  Larsen is an attorney with Sedgwick, Detert, Moran & Arnold in Houston, Texas, and the recipient  of the 2010 James Madison Award by the Freedom of Information Foundation of Texas.

As a long-time veteran of open government battles, I know the power that the state has to keep information from its citizens and make decisions behind closed doors. Sometimes, this power must be exercised. More often, it should not. For when the government acts in secret, and refuses to answer questions from the people it serves, democracy cannot function.

The only way to hold the government accountable is to hold the people who work for the state, for us, accountable. This is the very essence of limited government, the conservative ideal on which this country and this State were founded. Now recent events have made clear that Texas is making decisions behind closed doors about how it plans to carry out the taking of a human life.

For decades, Texas has used sodium thiopental, an anesthetic, in its lethal injection process. However, the last of Texas' supply expired on March 1, 2011. The Texas Department of Criminal Justice (TDCJ) announced last week that it will use a different drug, pentobarbitol, in its place. This announcement came just three weeks before the next scheduled execution, even though TDCJ has known since at least early January that its supply of sodium thiopental was going to expire.

Before the change in drugs, TDCJ stonewalled the public about its execution process -- it was only because of a court order that TDCJ revealed that its drug supply was about to expire. This should be no surprise - TDCJ has always made its decisions about how it carries out its executions behind closed doors. The lethal injection process was for years unwritten and unknown, carried out at midnight by anonymous executioners. Litigation in the Supreme Court eventually forced TDCJ to write down an "execution protocol." This, too, was done in secret, without comment or input from the public. It has now been changed, again (and again in secret), to incorporate a new drug that has been used to carry out an execution through lethal injection only three times before.

I personally feel that the death penalty is warranted for certain crimes. But, it is time for these decisions and processes to be made and established in the light of day. Not because you feel one way or another about the death penalty, but because to safeguard democracy, we have to care about open government.

And:

When Texas changes its death penalty protocol out of the public view -- and then attempts to hide the process by which the change was made – our employees are telling us that it's none of our business. This, of course, is the furthest thing from the truth: taking a citizen's life is a governmental responsibility far more awesome than a rate hike or a liquor license, and we the people have the right and the obligation to know all about it. When it comes to the most serious task entrusted to our government, it is frankly outrageous when our employees tell us it's none of our business.

TDCJ should not rush to carry out the next execution at the expense of an open process. This process – deciding how we are going to execute someone – is one that should be conducted in the light of day. This is one thing that we must be sure the government gets right.

Earlier coverage of the Texas lethal injection drug switch begins at the link

Jim Willett

Brandi Grissom posts, "Looking Back on a Life as a Death House Warden," at the Texas Tribune.

Jim Willett never hit anyone in his life, never even wanted to hurt anyone. But at the height of his career, the mild-mannered, white-haired man with reading glasses perched on the end of his nose was responsible for carrying out 89 executions.

“I think if I had my choice, growing up, I’d have been a farmer,” said the former warden of the state’s notoriously active death house.

Willett had not intended to spend the better part of his adult life working in Texas’ sprawling prison system. But the business student turned prison guard found a comfortable routine working for 30 years among his colleagues and wards in the Texas Department of Criminal Justice.

Even now, a decade into his retirement, the soft-spoken, grandfatherly figure has a job running the Texas Prison Museum, surrounded by mementos of lives spent behind razor wire, steel bars and thick brick walls. It has been a career less frightening and less dangerous than people imagine, Willett said, and more enjoyable than he had expected.

And:

Willett was promoted to assistant warden and spent more than a decade working at other Texas prisons. Then, in 1998, prison officials asked him to take on one of the highest-profile jobs in the system: senior warden back at the Walls. He declined, knowing what it would entail. “I didn’t want to deal with the executions,” he said.

The job meant a raise, and Willett said he could not reconcile getting paid more to put men to death. When officials called again, though, he capitulated.

“Somebody was going to have to deal with those inmates,” Willett said. “And I felt like those inmates couldn’t have anybody better to deal with than me.”

He oversaw one of the busiest periods in Texas’ death chamber. During the three-year period he was warden, he gave the go-ahead for 89 executions. Willett greeted the condemned when they arrived at the Walls, talked with them about how the process would work, asked about their last statements and tried to fulfill their final requests.

Later, after the inmates were strapped to the gurney and the needles were inserted, Willett stood by, awaiting a prearranged cue that they had finished their last statement. Then, he would give the signal to start the flow of lethal drugs. “It got easier, but it never got to a point I’d call easy,” he said.

After each one, Willett typed up all that had happened that day. “It turned out to be kind of a release,” he said. But he said he did not think about whether Texas should have the death penalty. “If the people of Texas want to have it,” he said, “I’m fine with it.”

Lethal Injection Fraud in Arizona?

"Execution-drug import papers raise questions," is the title of Michael Kiefer's report in today's Arizona Republic.  Here's an extended excerpt:

Three shipments of drugs imported by the Arizona Department of Corrections were represented to U.S. customs and Food and Drug Administration officials as being for use on animals despite being intended for use in inmate executions.

According to documents obtained by The Arizona Republic under the federal Freedom of Information Act, two batches of the anesthetic sodium thiopental and one batch of the paralytic-drug pancuronium bromide were brought into the country from Britain last September and October and were described on federal import paperwork as being for "Animal (Food Producing)."

Thiopental, a painkiller, is used in executions to sedate the condemned convict, while pancuronium bromide renders the convict unable to move. A third drug, potassium chloride, is then injected to stop the heart.

The source of thiopental has been a matter of legal and political controversy in several U.S. states and European countries.

Defense attorneys have raised questions about whether the drugs were legally obtained and whether they were certain to be effective. Thiopental is meant to render an inmate unable to feel suffering during an execution. If the painkiller is ineffective, they attorneys argue, the execution could be cruel and unusual punishment.

Arizona has two executions scheduled during the next two weeks in which the drug is supposed to be used, although legal challenges are in the works.

State Corrections Director Charles Ryan said in a written statement that the department's execution drugs were "procured lawfully" and that the department in dealings with FDA and customs "clearly stated that the purpose for acquiring these chemicals was to carry out an execution."

It was not immediately clear whether the drugs obtained were, in fact, manufactured for animal use, or if the nature of the drugs was misstated in FDA documents.

"If FDA becomes aware of incorrect information in a filing, the agency has many options which could include further investigations and, where appropriate, pursuing civil or criminal sanctions," FDA spokeswoman Shelly Burgess said.

Thiopental is used for veterinary anesthesia but not for animal euthanasia.

Dr. Tom Doherty, a veterinary anesthesiologist in Knoxville, Ky., said, "You can mix it up in any strength you wish. But it wouldn't be used in (human) clinical use if it's labeled for animals. That wouldn't be allowed."

Burgess said federal approval of veterinary drugs takes other factors into account, such as whether the drugs are to be used on animals that are food-producing and calculating effects on the environment given that animals usually urinate and defecate on the ground.

"Animals are not equivalent to small humans. There are great species differences, and it's not always a matter of dose," Burgess said. "So, if a drug is approved for animals, it does not mean that it is safe to use in a human and vice versa."

Thiopental has been virtually unavailable in the U.S. since last summer and has not been manufactured domestically since 2009. That prompted several state governments to look to import it.

At first, the FDA officially said that there were no legal means of importing it. But late last December, after at least five states had obtained and used foreign drugs for executions, the agency reversed its policy and said it would not police drugs used for lethal injection.

Attorneys in several states have sued the FDA over that policy. Last week, the U.S. Drug Enforcement Administration seized a thiopental supply from Georgia to investigate whether it had been legally imported. This week, attorneys in Arizona and Kentucky asked U.S. Attorney General Eric Holder to investigate supplies in their states.

A recent report from Great Britain indicates that there have been 12 adverse reactions to British-produced thiopental. Lawyers in several states maintain that it may not have worked efficiently in recent executions, claiming that at least three men died with their eyes still partly open, suggesting they were not fully sedated before the other chemicals were administered.

Documents released to The Republic by U.S. Customs and Border Protection on Thursday show that the Arizona execution drugs - which were used last October to execute Jeffrey Landrigan and are expected to be used over the next two weeks to execute two more prisoners here - were labeled in import papers as drugs for use on animals.

This afternoon, the AP has circulated "States look overseas for scarce execution drug."  It's available from the Washington Post as, "States beg, borrow and import scarce execution drug; Ga. is investigated."  It's by Greg Bluestein and datelined Atlanta;  AP writers Brett Barrouquere in Louisville, Ky., Kristin M. Hall in Nashville, Tenn., Paul Elias in San Francisco, Holbrook Mohr in Jackson, Miss., Jeannie Nuss in Little Rock, Ark., and Gregory Katz in London contributed to the report.

Prison officials around the country have been going to extraordinary — and in at least one case, legally questionable — lengths to obtain a scarce lethal-injection drug, securing it from middlemen in Britain and a manufacturer in India and borrowing it from other states to keep their executions on track, according to records reviewed by The Associated Press.

"You guys in AZ are life savers," California prisons official Scott Kernan emailed a counterpart in Arizona, with what may have been unintentional irony, in appreciation for 12 grams of the drug sent in September. "Buy you a beer next time I get that way."

The wheeling and dealing come amid a severe shortage of sodium thiopental, a sedative that is part of the three-drug lethal injection cocktail used by nearly all 34 death penalty states. The shortage started last year, after Hospira Inc., the sole U.S. manufacturer of the drug and the only sodium-thiopental maker approved by the Food and Drug Administration, stopped making it.

As supplies dwindled, at least six states — Arizona, Arkansas, California, Georgia, Nebraska and Tennessee — obtained sodium thiopental overseas, with several of them citing Georgia as the trailblazer.

Documents obtained through open-records requests show Georgia managed to execute inmates in September and January after getting the drug from Dream Pharma, a distributor that shares a building with a driving school in a gritty London neighborhood. Dream Pharma's owner has not returned several calls and emails for comment, and an AP reporter who visited the office last week was told the owner was not available.

Last week, however, the Drug Enforcement Administration seized Georgia's entire supply — effectively blocking the scheduling of any further executions — because of concerns over whether the state circumvented the law. "We had questions about how the drug was imported to the U.S.," agency spokesman Chuvalo Truesdell said, declining to elaborate.

Federal regulations require states to register with the DEA before importing a controlled substance and to notify the agency once they have it. John Bentivoglio, a former Justice Department attorney who represents a condemned Georgia inmate, said in a February letter that Georgia appears to have broken those rules, and that such violations mean "adulterated, counterfeit or otherwise ineffective" sodium thiopental could be used in executions, subjecting prisoners to extreme pain in violation of the constitutional ban on cruel and unusual punishment.

And:

The documents obtained by the AP show that authorities in Kentucky frantically reached out to more than two dozen other states, several companies and the federal Bureau of Prisons throughout 2010 in hopes of finding sodium thiopental. Kentucky even considered carrying out three executions in quick succession before the state's supply expired. Kentucky officials were getting rejected everywhere they turned.

"I am beginning to think drug companies and suppliers are not real happy to have to supply us for this use," Phil Parker, warden of the Kentucky State Penitentiary, wrote in a July email. He was right. Hospira has publicly objected to the use of its drugs in executions.

Kentucky finally bought 18 grams last month from a Georgia pharmacy.

Nebraska announced in January that it had acquired 500 grams from Kayem Pharmaceutics of India, the minimum amount available for sale. That is enough for nearly 170 executions; the state has a dozen men on death row.

Earlier coverage from Arizona begins at the link. 

Related posts are in the lethal injection index.  Relevant posts include:

• Call for DoJ Investigation in Georgia Drug Acquisition
• More on the British Import
• Lethal Injection Roundup
• Questions Surround British Drug Used in Georgia Execution
• UK Source of Drug Revealed
• The FDA and Lethal Injection Drugs

Second Thoughts of a 'Hanging Judge'

That's the title of an OpEd in today's Los Angeles Times, subtitled, "A death sentence in California rarely leads to an execution. Let's stop the charade."  It's by Donald A. McCartin, a retired California Superior Court judge.

In 1978, the first time Jerry Brown was governor of California, he appointed me to a judgeship in the Superior Court of Orange County. It was a gutsy move on his part, a liberal Democrat naming a right-wing Republican to the bench. I served there until 1993, after which I sat on assignment on death cases throughout California.

During that time, I presided over 10 murder cases in which I sentenced the convicted men to die. As a result, I became known as "the hanging judge of Orange County," an appellation that, I will confess, I accepted with some pride.

The 10 were deemed guilty of horrifying crimes by their peers, and in the jurors' view as well as mine they deserved to die at the hands of the state. However, as of today, not one of them has been executed (though one died in prison of natural causes).

I am deeply angered by the fact that our system of laws has become so complex and convoluted that it makes mockery of decisions I once believed promised resolution for the family members of victims.

That said, I have followed the development of legal thinking and understand why our nation's Supreme Court, in holding that "death is different," has required that special care be taken to safeguard the rights of those sentenced to death. Such wisdom protects our society from returning to the barbarism of the past. And though I find it discomfiting and to a significant degree embarrassing that appellate courts have found fault with some of my statements, acts or decisions, I can live with the fact that their findings arise out of an attempt to ensure that the process has been scrupulously fair before such a sentence is carried out.

I can live with it and, apparently, so can the men I condemned. The first one, Rodney James Alcala, whom I sentenced to die more than 30 years ago for kidnapping and killing 12-year-old Robin Samsoe, was, just last year, again sentenced to death for killing Samsoe and four other young women who, it has subsequently been determined, were his victims around the same time.

And:

I watch today as Gov. Brown wrestles with the massive debt that is suffocating our state and hear him say he doesn't want to "play games." But I cringe when I learn that not playing games amounts to cuts to kindergarten, cuts to universities, cuts to people with special needs — and I hear no mention of the simple cut that would save hundreds of millions of dollars, countless man-hours, unimaginable court time and years of emotional torture for victim's family members waiting for that magical sense of "closure" they've been falsely promised with death sentences that will never be carried out.

There is actually, I've come to realize, no such thing as "closure" when a loved one is taken. What family members must find is reconciliation with the reality of their loss, and that can begin the minute the perpetrator is sent to a prison he will never leave. But to ask them to endure the years of being dragged through the courts in pursuit of the ultimate punishment is a cruel lie.

It's time to stop playing the killing game. Let's use the hundreds of millions of dollars we'll save to protect some of those essential services now threatened with death. Let's stop asking people like me to lie to those victim's family members.

The governor doesn't have the power to end the death penalty by himself, but he can point the way. He could have a huge financial impact on California by following the lead of Illinois and commuting the sentences of the more than 700 men and women on California's death row to life without parole.

Related posts are in the cost and OpEd indexes.

Kentucky Moratorium Remains in Place

"Court upholds temporary ban on executions," is the title of Brett Barrouquere's AP report, via KY Post.

A ban on executions in Kentucky may stay in place while a judge decides if the state's lethal injection protocol is adequate, the Kentucky Supreme Court ruled Thursday.

The court, by a 5-2 vote, left in place a lower court's order temporarily barring executions while condemned inmate Gregory L. Wilson, 54, and other death row inmates challenge the state's execution protocol.

The decision means that Kentucky won't be able to carry out an execution, despite having recently purchased enough of a key drug to carry out three lethal injections.

Franklin Circuit Judge Phillip Shepherd issued the order in September as the state prepared to execute Wilson for the 1987 kidnapping, rape and murder of 36-year-old Debbie Pooley in northern Kentucky. Shepherd found the state lacked "adequate safeguards" to assess an inmate's mental state once an execution date has been set.

The high court said the best option right now is to let the case play out before Shepherd.

"We express no opinion on the merits of the Franklin Circuit Court on these issues," the court wrote in an opinion signed by Chief Justice John D. Minton.

Shepherd told attorneys Monday that he's considering a final opinion in the case.

At the time of Shepherd's initial ruling, Gov. Steve Beshear had an execution date set for Wilson and was weighing requests to set dates for inmates Ralph Baze and Robert Foley. The warrant for Wilson expired when he wasn't executed Sept. 16.

Attorney General Jack Conway's office said warrant requests for Baze and Foley are still active. Prosecutors had asked the high court to overturn Shepherd's decision.

The high court said because there are no active execution dates, there is no rush to consider Shepherd's decision before his final opinion.

"We certainly recognize that some view any delay in carrying out the death sentences of Wilson and other death row inmates as an injury and an injustice to the Commonwealth, but we also believe that granting the requested writ would not further Commonwealth's officers' efforts to meet obligations to comply with the law in administering the death penalty," the court wrote.

And:

Public defender David Barron, who represents Baze, said the decision shows Kentucky prematurely set execution dates while there were valid questions about the state's protocol.

"The court found that the public's interest is best served by allowing the lower court to decide if the regulations have been properly adopted," Barron said.

The decision marks at least the third time questions about Kentucky's execution protocol have stopped executions. The state's high court halted executions in 2004 in a case that the U.S. Supreme Court used to uphold the constitutionality of the three-drug lethal injection process. In November 2009, the state justices ordered Kentucky to readopt the lethal injection protocol because it wasn't properly put into place.

The Kentucky Supreme Court order in Conway v. Shepherd is in Adobe .pdf format.  Earlier lethal injection coverage from Kentucky begins at the link;

Juveniles in the Adult Criminal Justice System in Texas

That's the title of a new report by Michele Deitch of UT's LBJ School of Public Affairs.  Juveniles in the Adult Criminal Justice System in Texas is available in Adobe .pdf format.

This is from the news release announcing the report:

LBJ School Senior Lecturer Michele Deitch has published a new report titled Juveniles in the Adult Criminal Justice System in Texas (LBJ School of Public Affairs, 2011). The report provides a comprehensive look at Texas’s methods for dealing with the state’s most serious juvenile offenders. It gathers all available Texas data with respect to certified juveniles—those youth who are transferred to adult criminal court—and compares them to the population of determined sentence juveniles who are retained in the juvenile justice system. The report also compares the significant differences in programming and services for the two populations of juvenile offenders—those who get sent to adult jails and prisons, and those who receive placements in the Texas Youth Commission (TYC).

The report and its findings are especially timely during the Texas Legislature’s ongoing effort to reform and restructure the state’s juvenile justice system.

Among the report’s most significant findings about juveniles transferred to the adult system are these:

• Minimal differences exist between certified juveniles in the adult criminal justice system and determinate sentence juveniles in TYC, except for county of conviction.
• Certified juveniles do not represent the “worst of the worst”—they are neither more violent nor more persistent in their criminal behavior than those retained in juvenile court and sent to TYC.
• While the large majority of certified juveniles have committed violent offenses, only 17% have committed homicide.
• About 15% of juveniles transferred to adult court are charged with non-violent felonies, including state jail offenses.
• 72% of certified juveniles do not have a prior violent criminal history,
• 29% of certified juveniles are first-time offenders.
• 89% of certified juveniles have never been committed to TYC, indicating that most certified youth have never had the opportunity to benefit from effective rehabilitative programs in the juvenile justice system, such as TYC’s highly regarded Capital and Serious Violent Offenders Program, which has a 95% success rate.

The report also examines what happens when juveniles are housed in adult prisons and jails in Texas. National research shows that housing juveniles in adult prisons and jails compromises both public safety and the personal safety of the youth. Juveniles housed in adult prisons and jails face vastly higher risks of suicide, sexual assault, physical assault, and mental illness, and they have been shown to have a 100% higher risk of violent recidivism.

In Texas, juveniles as young as 14 who are certified as adults and awaiting trial are sent to adult county jails, where they can languish in isolation for periods of a year or more.

Brandi Grissom writes, "Report: Hundreds of Youths in Adult Prisons," for the Texas Tribune, today.

Texas judges, particularly in Harris County, are sending hundreds of adolescent, first-time violent offenders to state prison, a punishment lawmakers intended for youths considered the worst of the worst, according to a report set for release today.

“Adult jails and adult prisons are simply the wrong place to hold these kids,” says Michele Deitch, a professor at the University of Texas LBJ School of Public Affairs and author of the report "Juveniles in the Adult Criminal Justice System in Texas."

And:

From fiscal year 2005 to fiscal year 2010, Texas courts certified nearly 1,300 youths as adults. During that same time, about 860 youths received determinate sentences. According to the report, though, there was little difference in the criminality among youths sentenced to the adult system and those who were sent to youth facilities. In both cases, the majority committed a violent crime like aggravated robbery or sexual assault, and had one or no previous juvenile court cases.

In most cases, the obvious difference was where the offender was tried. Harris County courts certified twice as many juvenile offenders as adults as any other county over the four-year time period studied. Judges in Harris County certified 301 youths as adults. Dallas County, by comparison, certified 141 offenders as adults during the same time period.

The problem with sending so many youths to adult facilities, particularly those who are not repeat violent offenders, is that they are not designed to rehabilitate and educate adolescents, Deitch said. Youths who are sent to adult prisons, she said, have a 100 percent greater risk of committing future violent offenses, according to the Centers for Disease Control. They are also more likely to develop mental health problems in prison, to be physically and sexually assaulted and to commit suicide.

In 2009, Deitch issued, "From Time Out to Hard Time: Young Children in the Adult Criminal Justice System," noted in this post.  She was part of last month's Barbara Jordan forum.

Related posts are in the juvenile index.

New Book

Convicting the Innocent: Where Criminal Prosecutions Go Wrong is the title of a new book University of Virginia Law prof Brandon Garrett. 

A news release, "U.Va. Law Professor Brandon Garrett's Book Examines Wrongful Conviction," announces the publication.

False confessions, invalid forensic analysis, eyewitness misidentifications and other systemic flaws in the criminal justice system contributed to the wrongful conviction of the first 250 people exonerated by DNA tests, University of Virginia law professor Brandon Garrett writes in "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," published this spring by Harvard University Press.

Garrett began by studying the original criminal trial records of the 250 people who were convicted of series crimes and later exonerated. "The goal was to see what patterns there are," he said.

In a way, it would have been a comfort if the wrongful convictions had resulted from idiosyncratic mistakes or even corruption, Garrett said. That would suggest that false convictions are exceedingly rare, as nearly all police officers, prosecutors and judges conscientiously seek to convict the guilty and free the innocent, he said.

"What I found, though, was that the errors that repeated over and over again across the 250 cases were the result of bad barrels, and not a few bad apples. They resulted from unsound but systemic practices that allowed well-intentioned people to contribute to convicting the innocent," he said.

Those practices included the use of suggestive eyewitness identification procedures, flawed forensic analysis, coercive interrogations, shoddy investigative practices, cognitive bias and poor lawyering, he said.

What was particularly haunting about the cases, Garrett said, was that at the time, before the DNA tests proved the convict's innocence, many of the prosecutions appeared uncannily strong. For example, some cases included false confessions in which innocent suspects seemingly supplied police with details of a crime that police claimed could only be known by the perpetrator. The false confessions were typically the result of long, undocumented interrogations in which investigators may have planted details of the crime with the suspect, he said.

One case studied in the book was that of Earl Washington. On Jan. 20, 1984, Washington – defended for 40 minutes by a lawyer who had never tried a death penalty case – was found guilty of rape and murder and sentenced to death. After nine years on Virginia's death row, DNA testing cast doubt on his conviction and saved his life. However, he spent another eight years in prison before more sophisticated DNA technology proved his innocence and convicted the guilty man.

As a young lawyer in New York, Garrett said he saw the reality of such cases as Washington's and the others he analyzed. After law school, he worked at a firm in which Johnny Cochran was a partner, as were Peter Neufeld and Barry Scheck, the founders of the Innocence Project, an advocacy group that works to overturn wrongful convictions.

While there, Garrett was involved in representing a young soldier who had been charged with the rape of an elderly woman. The young man had been in a minor traffic accident near the scene of the crime shortly after it occurred.

"Detectives brought him in and interrogated him over many hours," Garrett said. "Ultimately he confessed, falsely, thinking that if he just parroted what they demanded that he say, he could finally go home. Instead, he was convicted by a jury and he spent 10 years in prison. DNA testing eventually proved his innocence."

Garrett's new book is an extension of previous studies he has done on the 250 cases. He wrote a groundbreaking study, "Judging Innocence," on the appeals and post-conviction process in cases in which the defendants were later cleared by DNA evidence, and later examined forensic analysis and confessions in that group of the wrongfully convicted.

Garrett began thinking about writing a book after the National Academy of Sciences asked him about the role forensic analysis played in those cases. He realized the only way to know for sure was to study the original trial transcripts. So he gathered more than 200 of them, with research support from the Law School and a two-year grant from the Open Society Institute. With the help of a team of student research assistants, he began meticulously reviewing the trials and coding their features.

Garrett fears that the types of errors that contributed to the convictions – unreliable witness testimony, forensic errors, false confessions – are not exclusive to cases in which DNA samples are available.

"What I saw in these 250 cases gave me grave concerns about the accuracy of other criminal cases in which DNA testing can't give us the answers," he said.

The criminal justice system is slow to reform, in part because it is fragmented and made up of so many investigative agencies and court systems at the local, state and federal level, he said.

"You have to remember that just because you don't get so many DNA exonerations in recent cases, for a wonderful reason – DNA testing is now routine before trial – it doesn't mean that the same problems with forensics, with confessions, with eyewitnesses, or with the adversary process itself aren't still serious ones," he said. 

Fortunately, he said, policymakers are increasingly taking very seriously the lessons that can be learned from the high-profile wrongful convictions that have come to light. In the last chapter of his new book, Garrett describes a criminal procedure revolution, as jurisdictions have begun to gradually adopt improved eyewitness identification procedures, mandatory interrogation recording requirements, forensic science reforms, innocence commissions and improved criminal discovery practices, among others. 

In part because the data may be of interest to researchers and policymakers, Garrett has also made available resources related to the book on a website hosted by U.Va.'s Law School.

Garrett's law school web page has several resources, including data and material from the book.

Related posts are in the books index.

Odessa American Editorial on Eyewitness ID Procedures

"Eyewitness standards a good idea," is the editorial in today's Odessa American.  It's a reprint of last week's Austin American-Statesman editorial.

We’d like to think the legislation would glide as easily through the House. That has proved difficult in previous years as it lacked a Republican champion and was seen by too many as being soft on crime.

Ellis has tried every session since 2005 to pass the bill. In 2009, it died before getting to the House floor. It’s different this session; the bill has garnered strategic support of veteran Dallas Republican Will Hartnett, who told The Dallas Morning News he plans to add his name to a companion bill in the House. That’s terrific. Rep. Pete Gallego, D-Alpine, is the lead sponsor.

“It’s true that Republican candidates often campaign on being tough on crime, and anything that could be perceived as softening law enforcement with regard to criminals can be subject to scrutiny in Republican circles,” Hartnett told the Morning News. “But my job in Austin is to do the best thing for justice, not necessarily what is politically best.”
He is right.

The national Innocence Project reports that incorrect witness identifications are the most common element in all wrongful convictions later overturned by DNA evidence. About 75 percent of the 266 DNA exonerations in the country were because of faulty eyewitness evidence, the group reports.

And:

Continuing with the same faulty system that essentially allows police departments to conduct shoddy lineups hurts everyone.

Such a system denies victims the justice they deserve, robs innocent people of their freedom and permits the real criminals to escape punishment and continue committing crimes against society.

Earlier coverage of the reform measure begins at the link; related posts are in the eyewitness identification category.

Waco's KXXV-TV reports, "Waco Police department model for bill to cut down wrongful convictions."  It's by Mark Wiggins.  Here's an extended excerpt:

The most common method of getting an identification from a witness has long been the "line-up," where a witness is asked to point out the suspect from a battery of side-by-side photos of various individuals.

Research into the way humans remember faces and visual details is raising questions over how effective such methods are at identifying the correct subject and not an innocent person.

Dr. Charles Weaver is a Professor of Psychology and Neuroscience at Baylor University whose expert testimony has been used to analyze eyewitness identification for over a decade.  Weaver says part of the problem with traditional lineups is that witnesses may be unintentionally influenced by factors other than their memory.

"We really store just a few bits and pieces of what happened, and then reconstruct a lot of the details," says Weaver.  "It's in the reconstruction that often times we'll get things wrong."

In 1999, the National Institute of Justice issued a study addressing that very problem, and listed a model set of parameters for conducting a more reliable lineup.  After a series of high-profile acquittals in Dallas that resulted from DNA evidence, many police departments updated their policies for photo line-ups.

The model policy is also the same one practiced by the Waco Police Department.  In order to minimize unintended influence over a witness, detectives unfamiliar with the case are assigned to conduct a "sequential presentation" of images. 

Before the presentation, witnesses are informed that the suspect may or may not be among the photos shown.  Photos are then shown one at a time, as opposed to all at once, to discourage making subconscious comparisons that aren't based on memory.

Waco Police spokesman Steve Anderson says the sequential presentation process raises the level of certainty that a witness must have before identifying a person as a criminal.

"It may be harder to pick out the person, but the last thing you want is to put an innocent person behind bars," says Anderson.

A new bill in the Texas Legislature would require every law enforcement agency in Texas to codify their eyewitness identification process.  Departments would have to either adapt a model like Waco's, or one that conforms to standards determined by the Bill Blackwood Law Enforcement Management Institute of Texas in Huntsville.

Eyewitness ID Reform Active in Florida

"Revamped photo lineup rules aim to end ID errors in Florida,"  is the report by John Torres and Jim Ash for Florida Today.

The kind of photo lineup that was used to send Crosley Green to death row in 1991 is exactly the kind of law enforcement tactic the Florida Innocence Commission would like to see eliminated.

The commission, which studies wrongful convictions, voted Monday to endorse a controversial bill that would set minimum standards for police lineups in the future.

The bill by Sen. Joe Negron, a commission member and powerful Republican from Port St. Lucie, would require police to use a third party unfamiliar with the case to administer photo lineups.

"I think it's our job to boldly transform how we do eyewitness identifications in the state of Florida," Negron said.

Green, 53, was arrested in 1989 and charged in the kidnapping and murder of Chip Flynn in Mims. He has claimed his innocence for more than 20 years and is seeking a new trial. He originally was sentenced to death but later was re-sentenced to life in prison. Green's trial attorney, Rob Parker, now a prosecutor, objected to the photo lineup, which he said was unfairly presented.

Green's photo was significantly darker and smaller than the other photos and was located in the middle of the top row.

Keith Harrison, a Washington D.C-based attorney working to win Green a new trial, said the photo lineup was akin to placing a bull's eye over Green's face.

The new photo lineup proposal also would require police to tell a witness that the lineup may or may not include a photo of the actual suspect. The idea is to reach a "double blind" standard that would prevent police from coaching the witness, subtly or not.

The commission voted 12-8 to endorse Negron's bill. Among those voting in favor were Leon CountyPublic Defender Nancy Daniels, Brevard Circuit Judge J. Preston Silvernail and Orange Chief Circuit Judge Belvin Perry, the commission chairman. The panel only has the power to recommend legislation, but its endorsement carries considerable weight.

The Orlando Sentinel reports, "Florida Innocence Commission to cops: Fix photo-lineup problems."  It's written by Rene Stutzman.

Florida's Innocence Commission on Monday made its first big decision: It voted to put its weight behind a bill that would force police agencies to make photo lineups more error-proof.

For a government meeting, it was a day of wild swings.

Would the commission order cops to make specific changes or let them follow a set of guidelines that they had drafted and were free to ignore?

Early in the day, commissioners were on track to adopt the mandates. Just before lunch, though, they changed direction, and then reversed course again in the afternoon when state Sen. Joe Negron, R-Palm Beach, walked into the room.

Last month, Negron introduced a bill that would require cops to make drastic changes in the way they conduct lineups. Its most controversial element: a requirement that photo lineups be shown to witnesses by someone who doesn't know which one is the suspect.

"This commission was set up to do something bold," Negron told commissioners. "I think it's our job to totally transform the way we do lineups in this state."

He gave a stirring firsthand account of defending a man who had been falsely convicted.

"There is a time and a place for everything," Negron said. "I would rather stop convicting innocent people by July of this year."

Commissioners then voted 12-8 in favor of his plan.

It was a surprising and bitter defeat for Florida law-enforcement agencies, which had worked for months to put together a hurry-up set of their own reforms — none of them mandatory but many similar to what Negron favors.

Earlier coverage of the Florida Innocence Commission begins at the link.  Related posts are in the eyewitness identification category.

Eyewitness ID Reform Moving Forward in Texas Legislature

Rick Casey's latest Houston Chronicle column is, "Eyewitness bill 'a good start,' but ..."

Brandon Garrett, a professor at the University of Virginia's School of Law, has a two-part message for Houston State Sen. Rodney Ellis.

The first part is that Ellis has made "a good start" with his bill to cut down the number of wrongful convictions in Texas by improving the way police obtain witness identifications. The bill passed the Senate Wednesday 30-0.

The second part is that unless we're careful, Ellis' bill could make things worse.

Garrett's book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, will be published next month by Harvard University Press. Garrett spent more than four years poring over the trial transcripts and other documents relating to the first 250 convicts cleared by DNA evidence. He wanted to find out what went wrong.

By far the greatest error — in 190 of the 250 cases - was misidentification of the suspect by eyewitnesses. The most important thing to understand about eyewitnesses, says Garrett, is that the memory is not only fallible but, more importantly, malleable.

Garrett was able to obtain trial transcripts in 161 of the 190 cases that involved erroneous eyewitness identifications. In 125 of those, or 78 percent, "there was evidence that police contaminated the eyewitness identifications."

In virtually all the cases, witnesses testified at trial that they were certain of their identifications.

But in 92 cases, more than half, they had expressed doubt at the time they first made the identifications.

Garrett says that in the vast majority of cases police don't intentionally "contaminate" the identifications.

"Sometimes you're trying to encourage rape victims who are reluctant to look at a lineup," he said this week. "Police may have no idea that they are making statements that can increase the confidence of a witness even if they are wrong."

And:

Ellis has been trying to pass this reform for years, and his bill is weakened by compromises sought by police and prosecutors.

The Legislature should pass it, and look closely at it again in two years.

"Establish eyewitness standards," is the Austin American-Statesman editorial.  It appeared in the Friday edition.

We certainly understand why Senate Bill 121, which would set statewide standards for eyewitness identification procedures in criminal investigations, is getting broad and bipartisan support. It would put in place standards to guide police departments in photo lineups or in-person lineups to make sure that those who committed crimes are held accountable.

In other words, the legislation would reduce the chances of witnesses fingering innocent people who are subsequently convicted on such evidence and sent to prison. That is a good thing that we all should get behind. The Texas Senate did that this week, voting unanimously to approve the legislation authored by Sen. Rodney Ellis, D-Houston. The bill was co-authored by Sen. John Carona, R-Dallas.

The bill was negotiated or endorsed by district attorneys, defense lawyers, members of the Texas Supreme Court, the Texas Court of Criminal Appeals, police departments and Gov. Rick Perry's office.

And:

At the Texas Legislature this month, we witnessed the painful stories of wrongly convicted defendants who endured prison for decades because witnesses falsely identified them as the culprits. Texas has 44 DNA exonerations, and 38 of those are largely or exclusively because of incorrect witness identifications.

That happened to Cornelius Dupree Jr., who was imprisoned at age 19 and spent 30 years in Texas' toughest prisons for a rape and robbery he didn't commit. He was ultimately cleared and released based on DNA tests. Had Dallas County not preserved evidence, Dupree still would be behind bars.

He urged Texas senators to approve the legislation, as did Cory Session, the brother of Timothy Cole, who served 13 years in prison for a rape he didn't commit and died in jail before he could be exonerated.

Session told lawmakers the bill would have prevented his brother from being incarcerated.

Earlier coverage of the legislation begins at the link.

More on Tim Cole's wrongful conviction and posthumous exoneration, here.  Earlier coverage of the Task Force on Indigent Defense, Texas Criminal Justice Integrity Unit, and the Timothy Cole Advisory Panel on Wrongful Convictions, at the links.

Perry Appointment to CCA

"Hispanic Houston judge named to Court of Criminal Appeals," by Christy Hoppe for the Dallas Morning News.

Gov. Rick Perry named Elsa Alcala to the Texas Court of Criminal Appeals to replace Charles Holcomb, who retired from the court.

Alcala is a justice of the First Court of Appeals in Harris County, and a former Houston district judge. Before becoming a judge, she served as an assistant district attorney, rising to chief felony prosecutor under fomer DA Johnny Holmes.

She was first appointed to her district judge position by then-Gov. George W. Bush and later elevated in 2002 by Perry to the intermediate court of appeals. She subsequently won election to that post in 2006.

Alcala will be the only Hispanic or minority to currently serve on the 9-member court that hears ultimate appeals in criminal cases.

The Texas Digest note is, "Pick made for criminal court," in the Austin American-Statesman.

Alcala, a Republican justice on the 1st Court of Appeals, will replace Charles Holcomb, who retired from the Texas Court of Criminal Appeals in December after reaching the state's mandatory retirement age for judges.

The Senate must approve Alcala's nomination, and she would face election in 2012.

The Cypress Times reports, "Gov Perry Appoints Alcala as Judge of the Court of Criminal Appeals."

Alcala received a bachelor's degree from Texas A&M University at Kingsville and a law degree from the University of Texas School of Law, and is board certified in criminal law.

This appointment is subject to Senate confirmation.

Related posts are in the Texas Court of Criminal Appeals index.

Lethal Injection Roundup

"Lawyers in 3 states want fed execution drug probe," is the title of Brett Barrouquere's AP report, via the Washington Post.  The report is widely available.

Attorneys in Arizona, Georgia and Kentucky have called on the Justice Department to investigate how the states acquired a key lethal injection drug that is in short supply in the U.S.

The requests come amid a sodium thiopental shortage. The sole U.S. maker of the drug said earlier this year it would no longer produce it, sending many of the 35 death penalty states scrambling to find an alternative.

Justice Department officials didn’t immediately return telephone calls Tuesday, but previously have said they were reviewing a request for an investigation. Drug Enforcement Administration officials confirmed a week ago they had seized Georgia’s supply of the drug.

Meanwhile, Mississippi’s attorney general said the state will most likely switch to pentobarbital in future executions because of the shortage. Attorney General Jim Hood’s office did not immediately respond to questions about whether Mississippi will substitute pentobarbital for sodium thiopental in the three-drug cocktail or use it alone.

Texas and Oklahoma recently announced the switch to pentobarbital, and plan to use it along with two other drugs. Ohio became the first state to use pentobarbital alone when it executed an inmate with the drug March 10.

Kentucky public defender David Barron said in a letter to the Justice Department that there were multiple questions about how CorrectHealth, a Stockbridge, Ga.-based company, got a supply of sodium thiopental to sell to Kentucky. Barron also wants to know if Kentucky officials complied with federal law when it contacted Kayem Pharmaceuticals in India.

Barron represents Ralph Baze, who was sentenced to death for killing a sheriff and a deputy.

“It is likely that illegally imported or possessed thiopental will be used in the execution of Mr. Baze and multiple other individuals on Kentucky’s death row,” Barron wrote.

Kentucky bought 18 grams of sodium thiopental — enough for three executions — in February from CorrectHealth, which is owned by Dr. Carlo Musso, who as assisted Georgia in conducting executions. Musso didn’t immediately return a telephone message but has previously denied selling the drug.

Eight days after getting the drug from the Georgia company, Kentucky officials contacted Kayem Pharmaceuticals in Indian, according to documents obtained by The Associated Press. But the state opted not to buy the drug because it is sold in packs of 500 single-gram vials for about $5,000, which is more than the state needs.

An AP dispatch from Oklahoma notes, "Bill OKs substitute drugs for executions"  It's via the Tulsa World.

Oklahoma prison officials will have more flexibility to substitute the lethal drugs used to execute condemned inmates under a bill approved by a Senate panel.

The Senate Judiciary Committee on Tuesday unanimously approved a bill that authorizes the Department of Corrections to use a lethal quantity of "drug or drugs" to execute inmates. Existing law requires the department to use an ultrashort acting barbiturate in combination with a paralytic agent.

The state of Oklahoma had for years used the anesthetic sodium thiopental as the first in a three-drug cocktail to carry out the death penalty. But Oklahoma substituted pentobarbital last year after a nationwide shortage of sodium thiopental.

"Arizona execution appeals focus on drug used," is the Arizona Republic report by Michael Kiefer.  It appeared in the Sunday edition.

With two executions scheduled in Arizona within the next 16 days and two more looming in coming months, last-ditch motions for appeals and stays of execution are flying through state and federal courts, many of them centering on the importation and use of a drug used in the executions.

Sodium thiopental, a short-acting anesthetic often used during executions, has been purchased by several states from Great Britain because it is no longer available in the U.S., raising a host of questions about the quality of the foreign-made drug and how it is being obtained.

The U.S. Drug Enforcement Administration last week seized the sodium-thiopental supply of the Georgia Department of Corrections to verify whether it had been legally imported into the country.

The seizure came after a Washington, D.C., attorney asked U.S. Attorney General Eric Holder to look into whether Georgia had the proper DEA licenses to obtain the drug.

On Wednesday, attorneys representing an Arizona death-row prisoner whose appeals have run out released a letter from British authorities claiming 12 adverse patient reactions, nearly half of them for ineffectiveness, to sodium thiopental from the same batches imported to carry out U.S. executions.

Two executions are pending in Arizona:

- Eric King, 47, is scheduled for execution March 29 for murdering a convenience-store clerk and a security guard during a robbery in Phoenix in December 1989. King's most recent motions with the Arizona Supreme Court claim that a surveillance tape used in trial was edited and not original and that his co-defendant (for whom charges were dropped) had recanted his testimony. His petition for clemency also raises issues about the quality of the state's sodium thiopental.

- Daniel Wayne Cook, 49, is scheduled to die a week later, on April 5, for torturing, sodomizing and killing two restaurant co-workers in Lake Havasu City in 1987. On Wednesday, the 9th U.S. Circuit Court of Appeals turned down Cook's appeal, which was based on the legality of the thiopental that will be used to execute him. The court cited an October ruling in which the U.S. Supreme Court refused to stop the Arizona execution of Jeffrey Landrigan. The ruling said prisoners do not have a say in the origin of the chemicals used to kill them. On Saturday, Cook's attorneys asked the 9th Circuit to reconsider.

The Arizona Supreme Court also has been asked to set execution dates for two other inmates and will soon be approached for permission to execute a third.

And:

In documents filed Wednesday, attorneys for Beaty state that the drug was manufactured in Austria by a German firm and sold to the supply house by a British pharmaceutical firm.

Great Britain has subsequently tightened its export of sodium thiopental to keep American states from using it in executions, with Italy following suit.

In February, attorneys for death-row prisoners in Arizona and two other states filed a federal lawsuit challenging the U.S. Food and Drug Administration's decision not to regulate foreign thiopental imports.

The attorneys also appealed to Holder to not help states obtain the drug while the lawsuit moves through court.

Although the DEA seized thiopental supplies imported by the Georgia Department of Corrections, Arizona Department of Corrections spokesman Barrett Marson said his agency has all requisite certifications for its supply.

Beaty's motion, however, raises new questions about the efficacy of the sodium thiopental that Arizona and at least four other states have obtained from London's Dream Pharma. The motion contains affidavits from witnesses to two executions performed with British sodium thiopental who claim that the executed men's eyes did not close fully after the drug was administered and affidavits from experts who claim that their eyes should shut if the drug is working.

Dale Baich of the Federal Public Defender's Office in Phoenix signed an affidavit claiming that Landrigan's eyes remained one-quarter to halfway open during his execution last fall.

Earlier coverage begins with a New York Times editorial.

Lethal Injection Roundup

"Lawyers in 3 states want fed execution drug probe," is the title of Brett Barrouquere's AP report, via the Washington Post.  The report is widely available.

Attorneys in Arizona, Georgia and Kentucky have called on the Justice Department to investigate how the states acquired a key lethal injection drug that is in short supply in the U.S.

The requests come amid a sodium thiopental shortage. The sole U.S. maker of the drug said earlier this year it would no longer produce it, sending many of the 35 death penalty states scrambling to find an alternative.

Justice Department officials didn’t immediately return telephone calls Tuesday, but previously have said they were reviewing a request for an investigation. Drug Enforcement Administration officials confirmed a week ago they had seized Georgia’s supply of the drug.

Meanwhile, Mississippi’s attorney general said the state will most likely switch to pentobarbital in future executions because of the shortage. Attorney General Jim Hood’s office did not immediately respond to questions about whether Mississippi will substitute pentobarbital for sodium thiopental in the three-drug cocktail or use it alone.

Texas and Oklahoma recently announced the switch to pentobarbital, and plan to use it along with two other drugs. Ohio became the first state to use pentobarbital alone when it executed an inmate with the drug March 10.

Kentucky public defender David Barron said in a letter to the Justice Department that there were multiple questions about how CorrectHealth, a Stockbridge, Ga.-based company, got a supply of sodium thiopental to sell to Kentucky. Barron also wants to know if Kentucky officials complied with federal law when it contacted Kayem Pharmaceuticals in India.

Barron represents Ralph Baze, who was sentenced to death for killing a sheriff and a deputy.

“It is likely that illegally imported or possessed thiopental will be used in the execution of Mr. Baze and multiple other individuals on Kentucky’s death row,” Barron wrote.

Kentucky bought 18 grams of sodium thiopental — enough for three executions — in February from CorrectHealth, which is owned by Dr. Carlo Musso, who as assisted Georgia in conducting executions. Musso didn’t immediately return a telephone message but has previously denied selling the drug.

Eight days after getting the drug from the Georgia company, Kentucky officials contacted Kayem Pharmaceuticals in Indian, according to documents obtained by The Associated Press. But the state opted not to buy the drug because it is sold in packs of 500 single-gram vials for about $5,000, which is more than the state needs.

An AP dispatch from Oklahoma notes, "Bill OKs substitute drugs for executions"  It's via the Tulsa World.

Oklahoma prison officials will have more flexibility to substitute the lethal drugs used to execute condemned inmates under a bill approved by a Senate panel.

The Senate Judiciary Committee on Tuesday unanimously approved a bill that authorizes the Department of Corrections to use a lethal quantity of "drug or drugs" to execute inmates. Existing law requires the department to use an ultrashort acting barbiturate in combination with a paralytic agent.

The state of Oklahoma had for years used the anesthetic sodium thiopental as the first in a three-drug cocktail to carry out the death penalty. But Oklahoma substituted pentobarbital last year after a nationwide shortage of sodium thiopental.

"Arizona execution appeals focus on drug used," is the Arizona Republic report by Michael Kiefer.  It appeared in the Sunday edition.

With two executions scheduled in Arizona within the next 16 days and two more looming in coming months, last-ditch motions for appeals and stays of execution are flying through state and federal courts, many of them centering on the importation and use of a drug used in the executions.

Sodium thiopental, a short-acting anesthetic often used during executions, has been purchased by several states from Great Britain because it is no longer available in the U.S., raising a host of questions about the quality of the foreign-made drug and how it is being obtained.

The U.S. Drug Enforcement Administration last week seized the sodium-thiopental supply of the Georgia Department of Corrections to verify whether it had been legally imported into the country.

The seizure came after a Washington, D.C., attorney asked U.S. Attorney General Eric Holder to look into whether Georgia had the proper DEA licenses to obtain the drug.

On Wednesday, attorneys representing an Arizona death-row prisoner whose appeals have run out released a letter from British authorities claiming 12 adverse patient reactions, nearly half of them for ineffectiveness, to sodium thiopental from the same batches imported to carry out U.S. executions.

Two executions are pending in Arizona:

- Eric King, 47, is scheduled for execution March 29 for murdering a convenience-store clerk and a security guard during a robbery in Phoenix in December 1989. King's most recent motions with the Arizona Supreme Court claim that a surveillance tape used in trial was edited and not original and that his co-defendant (for whom charges were dropped) had recanted his testimony. His petition for clemency also raises issues about the quality of the state's sodium thiopental.

- Daniel Wayne Cook, 49, is scheduled to die a week later, on April 5, for torturing, sodomizing and killing two restaurant co-workers in Lake Havasu City in 1987. On Wednesday, the 9th U.S. Circuit Court of Appeals turned down Cook's appeal, which was based on the legality of the thiopental that will be used to execute him. The court cited an October ruling in which the U.S. Supreme Court refused to stop the Arizona execution of Jeffrey Landrigan. The ruling said prisoners do not have a say in the origin of the chemicals used to kill them. On Saturday, Cook's attorneys asked the 9th Circuit to reconsider.

The Arizona Supreme Court also has been asked to set execution dates for two other inmates and will soon be approached for permission to execute a third.

And:

In documents filed Wednesday, attorneys for Beaty state that the drug was manufactured in Austria by a German firm and sold to the supply house by a British pharmaceutical firm.

Great Britain has subsequently tightened its export of sodium thiopental to keep American states from using it in executions, with Italy following suit.

In February, attorneys for death-row prisoners in Arizona and two other states filed a federal lawsuit challenging the U.S. Food and Drug Administration's decision not to regulate foreign thiopental imports.

The attorneys also appealed to Holder to not help states obtain the drug while the lawsuit moves through court.

Although the DEA seized thiopental supplies imported by the Georgia Department of Corrections, Arizona Department of Corrections spokesman Barrett Marson said his agency has all requisite certifications for its supply.

Beaty's motion, however, raises new questions about the efficacy of the sodium thiopental that Arizona and at least four other states have obtained from London's Dream Pharma. The motion contains affidavits from witnesses to two executions performed with British sodium thiopental who claim that the executed men's eyes did not close fully after the drug was administered and affidavits from experts who claim that their eyes should shut if the drug is working.

Dale Baich of the Federal Public Defender's Office in Phoenix signed an affidavit claiming that Landrigan's eyes remained one-quarter to halfway open during his execution last fall.

Earlier coverage begins with a New York Times editorial.

In The Nation

The Nation's current issue features the monthly column, Ten Things.  This month it's, "Ten Things to Abolish the Death Penalty," conceived by Walter Mosley, with research by Rae Gomes.  As in all things death penalty, it's Texas heavy.  Here's an extended excerpt from this must read:

On March 9th, Illinois became the fourth US state in the past five years to abandon the death penalty, a significant shift in the country's growing rejection of capital punishment. After weeks of deliberation, Republican Governor Pat Quinn not only signed a bill into law that kills the death penalty in the state, he also commuted the sentences of all 15 men on death row—men who would have still faced execution even with the new law in place. In 2003, then-Illinois Governor George Ryan famously emptied death row, citing grave concerns about innocent people facing execution as well as "the fairness of the death penalty system as a whole.” Last week, Quinn echoed his predecessor.

For Nathson Fields, one of countless men who were wrongfully convicted after being tortured under corrupt Chicago police commander Jon Burge, the victory was especially sweet. "I spent eleven-and-a-half years on death row for a crime I did not commit. Illinois tossing out the death penalty will affect other states. This will send the message that it can be done. It should be done.”

What can we do to build on the success in Illinois? We can get involved by joining abolitionist groups, signing petitions and contacting our elected officials. But, as Gov. Quinn did, we must also listen to those who have grappled with this system firsthand: former prisoners, death row lawyers, prisoners' family members, activists and victims of violent crime. Margaret Summers of the National Coalition to Abolish the Death Penalty and Liliana Segura of the Campaign to End the Death Penalty asked ten such experts to share their thoughts, on cases that stand out, on strategies that work and on what Americans should know about the death penalty today.

1 Anthony Graves, exonerated from Texas’s death row in 2010.

I know how easy it was for them to take my freedom and set out to kill me. I feel that if it was that easy, I’m sure there have been many mistakes in the past, that many men and women on death row are innocent. It’s not an infallible system. Anyone can be sentenced to death for a crime they didn’t commit. That alone is a reason that the death penalty should be abolished. Read Graves's here and go to Witness to Innocence.

2 Bryan Stevenson, Executive Director, Equal Justice Initiative.

Nearly 135 years after Congress enacted the 1875 Civil Rights Act to eliminate racially discriminatory jury selection, the practice continues, especially in death penalty cases where hundreds of death row prisoners have been convicted or condemned by juries where people of color were illegally excluded. This racial bias has undermined the credibility of capital punishment and contributed to the marginalization of African Americans and other racial minorities from full representation when the most critical issues in our communities are decided. Read about Racial Discrimination in jury selection.

3 Martina Correia, activist, sister of Troy Davis, who is currently on Georgia's death row.

We must target the doctors who assist in state sanctioned killings and ban the sale or availability of drugs used in executions. We should launch a campaign of death row family members and members of groups like Murder Victims' Families for Reconciliation to challenge the US at the United Nations, calling executions a human rights violation, a morally corrupt and selective process of exterminating people without resources. Go to Physicians for Human Rights.

4 David Dow, Texas death penalty lawyer, author of  Autobiography of an Execution.

Learn about the Michael Richard case. He was mentally disabled. On the morning of his execution, in 2007, the Supreme Court agreed to hear a case on the constitutionality of lethal injection. Lawyers in my office scrambled to file a petition for Richard raising the issue, but he was executed because we did not finish by the time the court closed at 5. The court would not stay open late for us. I think if we had been able to get the petition filed, he would still be alive today.

5 Natalie Skinner, daughter of Hank Skinner, who is currently on Texas's death row.

If people would take the time to learn about the people on death row, they would be surprised to find out that many are parents with children who love them very much. Their relationships with their families don't just stop when they are sentenced to die. At the end of the day, the death penalty hurts more people than it helps by continuing the very cycle of violence it was put in place to break.

Read the rest at the link.

The Mental Retardation Standard in Georgia

Today's Atlanta Journal-Constitution reports, "Court asked to find mental retardation burden unconstitutional."  It's written by Bill Rankin.

A lawyer for a convicted killer said Georgia should no longer be the only state in the country that sets the highest legal threshold possible for death-penalty defendants who raise mental retardation claims.

In arguments on Monday before the state Supreme Court, David Gossett, a lawyer for Alphonso Stripling, said requiring such defendants to do this -- proving mental retardation beyond a reasonable doubt -- is unconstitutional.

Because of Georgia's law, "One thing is certain: mentally retarded defendants will be executed," Gossett said. The U.S. Supreme Court prohibited this in a ruling handed down in 2002, he noted.

Among states with the death penalty, 22 require defendants to prove mental retardation by the lowest legal threshold -- that he or she is more likely than not fits this description. Four other states have adopted a slightly tougher test.

About 10 Georgia death-row inmates who failed to prove mental retardation beyond a reasonable doubt could receive new hearings if the court finds Georgia's standard unconstitutional.

And:

Stripling finds himself in a difficult position on appeal. In 2003, a year after the U.S. Supreme Court banned the execution of the mentally retarded, the Georgia Supreme Court upheld the beyond-a-reasonable-doubt standard. Last June, a three-judge panel of the federal appeals court found Georgia's standard unconstitutional, but the full court vacated that ruling and is reconsidering the issue.

"Court may tighten death penalty rules," is the title of Greg Bluestein's  AP filing, via Coastal Courier.

Georgia's death penalty statute was in the crosshairs again Monday as the state's top court considered whether capital defendants have to meet an unfair standard to prove they are mentally disabled to avoid an execution.

The Georgia Supreme Court heard arguments Monday from Alphonso Stripling, who claims the state cannot seek the death penalty against him for the 1988 killings of two co-workers because he is mentally disabled. Prosecutors, meanwhile, say they want the chance to prove he is mentally competent.

Stripling's case is the latest legal scrutiny of the policy Georgia etched out in 1988, when it became the first state to ban executing mentally disabled inmates. But Georgia also is the only state that requires defendants to prove they are mentally disabled beyond a reasonable doubt — the most stringent legal standard.

A federal three-judge panel last year struck down the law by a 2-1 vote, saying the law violates the ban against cruel and unusual punishment and could result in the execution of those with mental disabilities, which was barred by the U.S. Supreme Court in 2002. The full 11th Circuit Court of Appeals is now reviewing the ruling.

Stripling's case could give the Georgia Supreme Court an avenue to weigh in on the debate.

And:

The court, which did not immediately release its decision, seemed split.

Justice David Nahmias and his colleagues noted the court's previous rulings that upheld the standard. Justice Robert Benham then asked Dooley if the state would be willing to accept a few deaths of mentally disabled death row inmates as "collateral damage" for its policy.

"I think that would be wrong. I do believe there are standards in place that protect defendants in Georgia," the prosecutor responded. "It only takes one person to say I'm not going to agree to a death penalty," he said, noting that the death sentence cannot be imposed unless a jury unanimously recommends it.

More on the 11th Circuit's panel ruling last June is at the link.  Earlier coverage of the issue from Georgia begins at the link; related posts, in the mental retardation index.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  As noted before, mental retardation is now generally referred to as a developmental disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Supreme Court to Review Alabama Case of Maples v. Thomas

The cert petition in  Maples v. Thomas (10-63) is in Adobe .pdf format.  The Constitution Project's amicus brief in support of the case is also in Adobe ,pdf format.

"Court to Hear Case Stalled by Mistake in Mailroom," is the title of Adam Liptak's New York Times report.

The Supreme Court on Monday agreed to hear an appeal from a death row inmate who faces execution after a mailroom mix-up at one of the nation’s most prominent law firms.

Lawyers at the firm, Sullivan & Cromwell, had agreed to represent Cory R. Maples, a death row inmate in Alabama, without charge. When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the firm in New York, its mailroom sent them back unopened and stamped “Return to Sender.”

Two associates handling Mr. Maples’s case had indeed left the firm, but it appears that no one told the court or the mailroom that new lawyers there had taken over. A court clerk in Alabama put the returned envelopes into the court file and did nothing more.

An Alabama lawyer, John G. Butler Jr., also represented Mr. Maples and also received a copy of the ruling. Mr. Butler said in a sworn statement that he was Mr. Maples’s lawyer in name only, serving as local counsel for the New York lawyers handling the case. He said he had not passed the ruling along to them or to Mr. Maples.

A deadline for filing an appeal from the ruling came and went, and so far the courts have rejected Mr. Maples’s request for an extension given the circumstances. “How can a circuit court clerk in Decatur, Ala., know what is going on in a law firm in New York, N.Y.?” Judge Glenn E. Thompson of the Circuit Court in Morgan County, Ala., later wrote.

Mr. Maples’s new lawyers, led by Gregory G. Garre, a former United States solicitor general, had asked the Supreme Court to consider two legal questions in the case, one technical, the other more fundamental. The court agreed to answer only the broader one: Whether missing a filing deadline may be excused when the inmate was blameless, the government’s actions were a contributing factor and the inmate’s lawyers had effectively stopped representing him?

"U.S. Supreme Court to review on missed Death Row deadline in Alabama," by Mary Orndorff for the Birmingham News.

Cory Maples says that the missed deadline was not his fault, and he should not be deprived of his shot at a retrial because of it. A lower appeals court ruled against him, which caused Maples to take his case to the justices in Washington.

"(The lower court) decision raises the shocking prospect that a man may be executed without any federal court review of serious constitutional claims due to a series of events for which all agree he was blameless and notwithstanding the state's own failings in the purported default," attorneys for Maples wrote in their petition to the Supreme Court.

The case also highlights Alabama's lack of a program providing attorneys to indigent Death Row inmates for their post-conviction appeals. Death penalty opponents say it is a flaw in Alabama's judicial system.

"Unfortunately, Alabama's system of postconviction review in capital cases is exceedingly complex and rife with pitfalls -- so much so that even attorneys and judges often must struggle to understand and comply with its procedures -- and Alabama stands alone in failing to provide counsel for indigent death-sentenced inmates in postconviction proceedings," wrote a group of former Alabama appeals court judges and past state bar presidents. The group, which includes former Alabama Supreme Court Justices Sonny Hornsby and Ralph Cook, filed written arguments supporting Maples' petition.

Although they had made "numerous efforts to reform this system, it remains a labyrinth in which many a hapless inmate has become hopelessly lost, sometimes through no fault of his own," the former judges wrote.

"Justices to weigh whether inmate should die after mailroom snafu," by Bill Mears at CNN.

At issue is whether a missed deadline to file a key appeal is justification to grant Maples a second chance, when the error was not the inmate's and the result would mean a punishment as serious as lethal injection.

His new attorneys, supported by some civil rights groups, say the criminal justice system has been turned on its head by allowing prisoners to suffer the consequences of their lawyers' mistakes or incompetence.

But state attorneys argue that long-established rules on filing often complex paperwork must by strictly enforced, to ensure that all parties -- including the courts -- get a proper chance to hear the claims in an orderly fashion. And the state says that in this case, Maples' appellate attorneys were from the blue-chip law firm Sullivan & Cromwell.

And:

Among the 34 states with the death penalty, Alabama alone does not automatically give all its 201 current capital inmates taxpayer-funded legal assistance to file papers challenging their convictions, sentences and lethal punishment. Big firms like Sullivan & Cromwell often step in and tackle the often long and expensive appeals process.

Lawyers for Maples say that such missed deadlines -- whatever the reasons -- have occurred before and that some flexibility should be built into the system, especially when it involves crucial constitutional issues like habeas and the death penalty.

They point to a 2006 high court ruling by Chief Justice John Roberts involving an Arkansas man whose home was sold by the state because of delinquent taxes.

"In this case, the state is exerting extraordinary power -- taking and selling a house. It is not too much to insist that the state do a bit more to attempt to let (a homeowner) know about it when the notice letter addressed to him is returned unclaimed," Roberts said in ruling for the homeowner. "Additional reasonable" steps must be taken to ensure the local resident received proper notice.

Other coverage includes:

"Supreme Court to Decide if Sullivan & Cromwell’s Mailroom Mix-Up Bars Capital Appeal," by Debra Cassens Weiss for ABA Journal.

The AP report, "Supreme Court to decide whether man can be executed after lawyer missed paperwork deadline," is via the Washington Post.

"Supreme Court to Review Sullivan & Cromwell Goof-Up," is Nathan Koppel's post at the Wall Street Journal Law blog.

The Broken Machinery of Death

That's the title of a New York Times editorial.  It appeared in the Saturday paper.

The Drug Enforcement Administration seized Georgia’s sodium thiopental supply this week, after a complaint that the sedative used in the three-drug protocol for execution by lethal injection was imported illegally. The American producer of sodium thiopental stopped making it and the complaint says the purchase of it from an unlicensed British supplier calls into question “the legality and integrity” of how Georgia administers injections.

Texas's supply is running out and it has now announced that, following the lead of Oklahoma, it will switch to the use of pentobarbital as the sedative in a three-drug protocol for executions. Ohio has switched to a one-drug protocol using pentobarbital as the sole drug. In none of these states have scientific studies been done ensuring that this drug will meet the Supreme Court’s requirement that executions not cause severe pain.

The death penalty is capricious, discriminatory and barbaric. The shortage of sodium thiopental has stripped what Justice Harry Blackmun called “the machinery of death” of even a cloak of scientifically based reliability.

And:

When Illinois joined New Jersey and New Mexico this month as the third state to abolish the death penalty in the last four years, it made the choice compelled by a long record of judicial abuses, false convictions and other fundamental problems. That should be enough for all states to abandon the penalty once and for all.

Earlier coverage of the DEA seizure begins at the link; related posts, in the editorial index.

Friday

I'm traveling today.  Posts will resume later today.

Georgia Lethal Injection News Coverage

"Georgia May Have Broken Law By Importing Drug," is the NPR report by Kathy Lohr.

There's been a lot of secrecy surrounding how states have been getting sodium thiopental since a U.S. company stopped making the sedative in 2009.

Records show Georgia bought the drug from an English distributor, Dream Pharma. In court, the Georgia Department of Corrections said it was not worried about the quality of its supply. But defense attorneys got records that showed the state may have violated federal law in obtaining the drug.

"Georgia has engaged in a pattern of illegality and shady misconduct to get drugs to execute people," says William Montross, an attorney with the Southern Center for Human Rights in Atlanta.

Montross says that Georgia bought sodium thiopental from a secondary distributor, a company that operated out of the back of a London driving school. He says that many defense attorneys condemned the practice, and question the quality of the drugs.

"This stuff was going on for months and months beforehand," Montross says, "and it was in court, and federal and state judges had an opportunity to do something — and no one did anything. They just turned a blind eye. And then finally, DEA steps in."

Since the shortage of sodium thiopental began, some suggested the Food and Drug Administration should inspect the quality of the drugs being imported. But the agency declined to get involved.

The DEA has not said whether it will seize supplies of sodium thiopental in other states. But some who are following the issue say the agency should.

"You know, we've already seen the shortage has delayed executions in a number of states — Arizona, Arkansas, California, Georgia and Tennessee — and all those states have had to go to England for their supply of the drug," says Fordham Law School professor Deborah Denno. "So it bears investigating whether those states have been engaging in the same kind of activity as Georgia has been."

The Independent carries, "Georgia halts executions amid concerns over drugs from UK," written by David Usborne.

Earlier this year, lawyers for Georgia death row inmate Emmanuel Hammond, who was convicted for killing a kindergarten teacher in 1988, tried but failed to have his execution delayed because of concerns about the British-supplied drug. Following the DEA action, the state will be unable to schedule new executions.

Georgia corrections officials have identified the source as Link Pharmaceuticals. It now trades under Archimedes Pharma Limited, another British firm that took the firm over five years ago. This has sounded alarm bells, particularly if the drugs received still carry Link Pharmaceuticals labels, because the shelf life is only three years.

The mystery may go deeper still, however. According to the Southern Centre for Human Rights, lawyers for Hammond identified the supplier as Dream Pharma Ltd, which operates from a driving school office in Acton, west London. Anti-death penalty activists have used the thiopental controversy to slow executions in several states.

"We commend the DEA for forcing the (Georgia) Department of Corrections to immediately cease using black-market execution drugs," said William Montross of the Southern Center for Human Rights. "It is an incredible relief that this federal agency has stepped up and intervened where the state and federal courts have turned a blind eye."

And:

Dream Pharma is not thought to have made the drugs. Instead, defence lawyers for death-row prisoners have alleged that the firm acted as a middle man by buying them from British manufacturers and then selling them on to the US.

The owner of Dream Pharma, Mehdi Alavi, declined to comment about whether his firm had supplied the drugs when approached by The Independent in January. Calls last night to Dream Pharma in Acton were not answered.

Earlier lethal injection coverage begins with the preceding post.

Texas Lethal Injection News Coverage

Brandi Grissom has an updated Texas Tribune post, "Texas Decides on Substitute Execution Drug."

The timing — less than three weeks from the next scheduled execution — and the TDCJ's decision-making process drew quick criticism. "Prison officials are not medical professionals," Maurie Levin, a professor at the University of Texas Capital Punishment Center, wrote in a press statement. "They cannot be trusted to change a medical procedure in the dark of night without public scrutiny, especially when there is such a minimal track record on the use of pentobarbital in lethal injections."

Deborah Denno, a professor at Fordham Law School and a national expert on death penalty issues, said the Texas decision was not about making executions more humane but was meant to make the process more feasible. And she said there could be unexpected consequences of using the new protocol. "This lemming-effect has created a decades-long pattern of lethal injection botches in which department of corrections try to remain one step ahead of lawsuits."

"Shortage forces Texas to switch execution drug," is the Dallas Morning News report by Selwyn Crawford and Matthew Huisman.

The attorney for the next person scheduled to die by lethal injection blasted a decision by Texas prison officials Wednesday to alter the way executions are carried out — the first significant change in Texas’ capital punishment protocol in more than two decades.

Prison officials announced Wednesday that they will substitute pentobarbital for sodium thiopental in the three-drug cocktail currently used in executions. Both drugs are anesthetics, but the sole U. S. manufacturer of sodium thiopental announced earlier this year that it would no longer make it. That set off a scramble by Texas — whose supply of sodium thiopental expires at the end of the month — and other death penalty states to find an alternative.

 And:

Levin said that she is considering legal action to halt Foster’s execution.

“Every state has a different execution team and execution chamber,” Levin said. “Those are the details that determine the adequacy of the process.”

The sole U.S. manufacturer of pentobarbital expressed displeasure at the decision by Texas officials.

“We strongly oppose its use to end lives as it contradicts everything we’re in business to do, which is to provide therapies to help people and improve their lives,” said Matt Flesch, communications manager for Lundbeck Inc. of Deerfield, Illinois. “We have sent a letter to the Department of Corrections in Texas asking them not to use the drug.”

Flesch said the company is reviewing “additional methods to control the drug’s misuse” but would not elaborate.

Michael Graczyk AP filing, "Responding to shortage, Texas changes its lethal-injection mix," is via the Fort Worth Star-Telegram.

Texas' prison director has the authority to tweak the state's execution process, like changing the drug, and only a switch from lethal injection to another form of capital punishment would require legislative action in Texas. Texas used the electric chair for executions from the 1920s until the 1960s.

The sodium thiopental shortage has delayed executions in several states. An Associated Press review found that at least five states -- Arizona, Arkansas, California, Georgia and Tennessee -- had to turn to England for their supply of the drug. Nebraska, meanwhile, secured a stockpile from an Indian firm. On Tuesday, Drug Enforcement Administration agents seized Georgia's supply of the sedative, saying officials had questions about how the drug was imported.

Texas inmate Charlie Brooks was the first in the nation to be executed by injection on Dec. 7, 1982. Texas has since executed 466 people, far more than any other state. Seventeen inmates were put to death last year in Texas, and two have been executed this year.

Maurie Levin, an attorney for Foster, said she believed that Texas was rushing to carry out an execution using an entirely new protocol.

"Prison officials are not medical professionals," Levin said in a statement. "They cannot be trusted to change a medical procedure in the dark of night without public scrutiny, especially when there is such a minimal track record on the use of pentobarbital in lethal injections."

The Houston Chronicle reports, "Texas to change death cocktail for condemned inmates," written by Peggy O'Hare.

Levin dismissed the courts' approval of Oklahoma's new execution process as irrelevant to what might happen here in Texas.

"Oklahoma is one thing, Texas is another," Levin said Wednesday from the University of Texas at Austin School of Law's Capital Punishment Center, where she is an adjunct professor. "They had some kind of vetting process in Oklahoma — they didn't have it here. They fact that it's been approved there is irrelevant to Texas' process and certainly irrelevant to the lack of openness here."

While Texas has made small modifications to the dosage amounts of the three drugs used to execute an inmate since lethal injections began here in 1982, this is the most substantial change ever made to the so-called "death cocktail," Lyons said.

"We were no longer able to purchase sodium thiopental domestically — the manufacturer in the U.S. announced they would no longer be manufacturing the drug. So we had to look for an alternate drug," Lyons said Wednesday.

Matt Largey reports, "Texas Switching Execution Drug Amid Shortage," for KUT-FM.

Pentobarbital is approved by the Food and Drug Administration for use as a sedative and for treating seizures. But it’s made headlines in several other states, because it’s commonly used in animal euthanasia. Ohio used it for the first time just last week.  Oklahoma has used it in at least two executions. So far, the drug has withstood court challenges there.

Earlier lethal injection coverage begins with the preceding post.

National Lethal Injection News Coverage

I'm going to break coverage into three posts this morning.  First, national reports, followed by posts with Texas and Georgia coverage.

"Executions in Doubt in Fallout Over Drug," is the title of the New York Times report by Kevin Sack.

The worldwide shortage of a drug used in executions reverberated this week in two of the most active death-penalty states as Texas announced it would replace the anesthetic in its three-drug regimen and federal agents seized Georgia’s supply.

The seizure on Tuesday of the powerful barbiturate — sodium thiopental — at the Georgia Diagnostic and Classification Prison in Jackson, site of the state’s death row, has at least temporarily blocked future executions, although none are now scheduled.

In Texas, where the administrative change was announced Wednesday, lawyers for an inmate scheduled to die next month are preparing to challenge the substitution of the new drug.

The moves in both states continue the fallout from the January announcement that Hospira Inc., the only American producer of sodium thiopental, had stopped making the anesthetic. The shortages began after the company suspended production in 2009 because of problems obtaining an ingredient. They now have become dire because the drug’s shelf life is typically no more than two years.

Many of the 34 states with the death penalty (Illinois repealed its law last week) have been scrambling for months to find stores of sodium thiopental or to replace it with other drugs with similar effects. Several states have delayed executions because of its unavailability. Texas has 314 inmates on death row; Georgia has 99.

In most state lethal injection protocols, sodium thiopental is first used to anesthetize the inmate, and then other drugs are administered to paralyze the body and stop the heart.

Tuesday’s seizure by the Drug Enforcement Administration presumably responded to a February complaint lodged by a lawyer for Andrew Grant DeYoung, who faces execution for killing his parents and sister in 1993.

The lawyer, John T. Bentivoglio of Washington, wrote Attorney General Eric H. Holder Jr. on Feb. 24 that Georgia’s Department of Corrections appeared to be importing sodium thiopental from a British distributor. Because the state does not have a federal license to import controlled substances, that would violate the Controlled Substances Act, Mr. Bentivoglio charged.

Drug Enforcement Administration officials declined to comment Wednesday about the precise nature of their investigation. The Georgia Department of Corrections said it was cooperating and would otherwise reserve comment.

Mr. Bentivoglio said lawyers learned through e-mails produced by an open-records request regarding another Georgia death penalty case that the state bought 50 vials of sodium thiopental in July from Dream Pharma Ltd., a London wholesaler.

He said the seizure demonstrated that the federal drug agency had taken his assertions seriously. “It’s clear that the potential unlawful import of this drug was more than a mere paperwork violation,” he said.

In Texas, the Department of Criminal Justice announced that it would replace sodium thiopental in its three-drug process with pentobarbital, another sedative. The state’s supply of sodium thiopental expires this month.

The Texas change follows a procedure adopted by Oklahoma, which first substituted pentobarbital in its executions in December. Last Thursday, Ohio executed an inmate using only pentobarbital in a large dose.

Reuters posts, "For Executions, Texas Switches To Drug Used On Animals," by Corrie MacLaggan.  It's via WHNT-TV.

The new drug, pentobarbital, will replace sodium thiopental in the Texas execution protocol. The change was necessary because Hospira Inc. of Illinois announced in January that it would stop making the anesthetic after Italy objected to Hospira manufacturing an execution drug in that country.

Since then, Ohio has also made the switch to pentobarbital, though its lethal injection protocol differs from that of Oklahoma and Texas. Ohio uses only pentobarbital while Texas and Oklahoma use a three-drug cocktail.

In that three-drug protocol, the sedative sodium thiopental -- now, pentobarbital -- is followed by lethal doses of drugs that relax muscles and stop the heart.

In Texas, the change in the lethal injection protocol is the most substantial since 1982, when the state carried out its first lethal injection, Lyons said.

Lyons said Texas has enough pentobarbital to carry out the five executions that have been scheduled.

The ABC News report is, "Drug Shortage Disrupts Lethal-Injection Mix," by Ariane de Vogue.

Prison officials in two states have been forced to take dramatic measures in the past 24 hours because one of the drugs used to carry out executions by lethal injection is no longer manufactured in the United States.

The Texas Department of Criminal Justice said today that because its supply of sodium thiopenthal has expired, it will change its three-drug protocol. Effective immediately, pentobarbital will now be substituted for sodium thiopenthal, officials said.

Both drugs are used to induce a coma-like unconsciousness. They are normally followed up in Texas by pancuronium bromide, which paralyzes the inmate, and potassium chloride, which induces cardiac arrest.

Texas has executed more death row inmates than any other state. There are 337 inmates on death row there, according to the Death Penalty Information Center, which is opposed to the death penalty.

Confirming the seizure, a DEA spokesman said the agency acted because of "compliance-related issues" with the importation of the drug.Meanwhile, the Georgia Department of Corrections was forced to turn over the state's entire supply of sodium thiopenthal to the federal Drug Enforcement Administration after the agency expressed concern that the state may have improperly imported the drug from a foreign supplier.

Georgia has no executions scheduled.

Of the 34 states that allow the death penalty, 31 use sodium thiopenthal.

Earlier lethal injection coverage begins with a post on the Texas drug switch.

New Hampshire Expansion Legislation Advances

The AP report is, "Bill would widen death penalty to cover fatal home invasions," via the Boston Globe.

The House voted yesterday to expand the state’s death penalty in response to a machete and knife attack that killed a New Hampshire woman and maimed her daughter during a home invasion.

Without debate, lawmakers voted to make home invasions like the murder of Kimberly Cates of Mont Vernon a capital crime and name the law after her.

And:

Steven Spader was convicted of Cates’s murder last year and sentenced to life without parole. Codefendant Christopher Gribble’s trial is underway. Gribble has admitted to taking part in the attacks but is trying to convince the jury that he was insane at the time.

They could not have faced the death penalty in the 2009 attack because the crime does not fall into the six types of murders punishable by death under the state’s statute, one of the narrowest in the nation.

The six are: killing an on-duty law enforcement officer or judge, murder for hire, murder committed in connection with a kidnapping, murder committed during rape, murder committed during certain drug offenses, and murder committed by a convict serving a sentence of life without parole.

The Union Leader reports, "House votes to extend death penalty to home invasion murders," by Tom Fahey.

The change in capital murder statutes stems from frustration that the death penalty laws do not apply to the murder of Kimberly Cates, 42, of Mont Vernon by a group of teens who invaded her home in October 2009.

Speaker of the House William O'Brien is the prime sponsor of the bill, HB 147. He called for a voice vote as soon as it was brought up for debate. The voice vote leaves no record of who supported or opposed passage.

The bill now goes to the Senate. Existing state law on the death penalty limits its use to a few crimes, including the murder of a judge or police officer, murders that occur during rape or kidnapping or during a drug deal.

O'Brien, R-Mont Vernon, said after the vote the bill was a direct response to the Cates case.

Kevin Landrigan writes, "Bill to make murder near home capital crime gains," for the Nashua Telegraph.

The bill expands the circumstances under which premeditated killings are covered under New Hampshire’s capital murder law, a penalty that was last carried out in 1939.

It says the death penalty could be invoked for a person who “knowingly causes the death of another, while in another’s residence, while attempting to enter another’s residence, or as a consequence of having been in another’s residence, without invitation or right.”

Gov. John Lynch has endorsed the bill’s concept, but he warned that it needs to be carefully written to get the support of law enforcement and victim rights groups.

Senior Assistant Attorney General Will Delker said the attorney general’s office takes no position on the bill, which he estimates would add one to three potential death penalty cases a year.

However, Delker said as written, it is very broad and would even apply after one burglar killed another arguing over who gets more of the booty.

The measure now heads to the state Senate for review.

Earlier coverage from New Hampshire begins in this roundup of reporting on state legislation.

News From Maryland

The Daily Record reports, "Death penalty debated before committee."  It's written by Steve Lash.

A former Maryland House Speaker and a man who served time on death row before being exonerated urged lawmakers Tuesday to repeal capital punishment in the state.

Opposing them were a county state’s attorney and law enforcement associations, who called the death penalty appropriate for the most heinous murders.

The two sides battled before the House Judiciary Committee over House Bill 1075, which would abolish Maryland’s death penalty.

The last attempt to repeal capital punishment in Maryland fell short in 2009. The legislative push that year did, however, lead to a law limiting the death penalty’s application to cases when the murderer’s conviction is based on DNA evidence; a videotaped, voluntary confession; or a video recording that conclusively links the defendant to the murder.

Former Speaker Casper R. Taylor Jr. and ex-death row inmate Kirk N. Bloodsworth urged lawmakers to take the final step and abolish capital punishment.

“Of all the votes I cast in the [House in] 28 years, the one vote that I want back is my vote to legalize the death penalty” after the Supreme Court reinstated capital punishment in 1976, said Taylor, a Democrat who represented Allegany County. Taylor served in the House from 1975 to 2003, and as speaker from 1994 to 2003. “It brings no one back and it cures no wrongs.”

Bloodsworth, who served two years on death row after being convicted in 1984 for the rape and murder of 9-year-old Dawn Hamilton in Rosedale, urged the committee to “end the death penalty once and for all.”

And:

Maryland has been under a de facto death penalty moratorium since December 2006, when the Court of Appeals invalidated Maryland’s execution protocols because they had not been adopted in compliance with the Administrative Procedure Act.

The moratorium will stand unless the governor adopts new protocols following the stringent APA requirements, or the legislature amends the APA to exempt execution protocols.

Gov. Martin O’Malley’s administration last month withdrew its proposed lethal-injection protocols from a General Assembly committee, saying further review was required because a drug used in the executions — sodium thiopental — is no longer available for purchase in the United States.

Julie Bykowicz writes, "Death penalty repeal unlikely, Senate president says," for the Baltimore Sun.

Advocates for abolishing Maryland's death penalty, which they called unfair and confusing after a recent revision, made their case Tuesday to a House of Delegates committee. But the effort is not likely to gain traction in the Senate.

"There's no sentiment in the Senate" to debate a repeal, said Senate President Thomas V. Mike Miller in an interview Tuesday. Miller, a Southern Maryland Democrat, is a proponent of capital punishment. "We've taken it up."

Two years ago, the General Assembly wrestled with a Gov. Martin O'Malley-led repeal effort. Instead of ending capital punishment, a closely divided Senate opted for a compromise plan that further limits when prosecutors can seek death. O'Malley is not pushing a repeal this year.

Even so, advocates for ending the capital punishment argue the time is right because the state's years-long de facto moratorium will only continue as officials ponder what chemicals to use in lethal injections. There's a nationwide shortage of one part of the three-drug cocktail Maryland and other states have long used. 

A law professor who testified at the House hearing criticized the 2009 compromise effort, saying Maryland's death penalty statute is now more confusing than ever. At least six capital murder cases are pending in counties across the state. Next month, two are scheduled to come to trial.

"There are significant unintended consequences of this bill that are already being litigated," said David Aaronson, a law professor at American University. He named five "ambiguous" terms that are attracting legal scrutiny.

The Washington Post carries, "Death penalty repeal gets hearing but lacks momentum," by John Wagner.

Much of the same cast of characters from previous debates over repealing Maryland’s death penalty were present in the House Judiciary Committee on Tuesday afternoon.

 At the hearing, those speaking in favor of this year’s repeal bill included Kirk Bloodsworth, a former Maryland death row inmate later exonerated by DNA evidence. Those opposed included Scott Shellenberger (D), the state’s attorney for Baltimore County, the Maryland jurisdiction which has sent more inmates to death row than any other.

 Representatives of  Maryland Citizens Against State Executions, the Maryland Catholic Conference and the American Civil Liberties Union were all on hand as well — as they have been in recent years.

 Yet Tuesday’s hearing lacked the drama of those during the first term of Gov. Martin O’Malley (D), when he made abolishing capital punishment a priority.

 This year, O’Malley has not put much muscle behind the bill. House leaders seem unlikely to embrace it. And Senate President Thomas V. Mike Miller Jr. (D-Calvert) told reporters Tuesday that the interest isn’t there in his chamber.

 “I don’t believe there’s a sentiment in the Senate to repeal,” Miller said.

 Part of the reason remains an uneasy truce reached in 2009, under which higher evidentiary standards are required in capital cases.

Earlier coverage from Maryland begins at the link.

More From Montana - A Powerful Voice for Healing

"Mother shares loss of daughter to teach forgiveness" is Patrick O’Neill's report in the Garner Citizen.  Here are two extended excerpts from this powerful must-read:

It’s hard to imagine the horror Marietta Jaeger Lane felt when she woke up in a Montana campground in 1973 to discover her 7-year-old daughter, Susie, was missing.

After putting her five children to sleep in a tent while on a family camping trip, Lane gave them each a hug and kiss goodnight. Susie had climbed out of her sleeping bag to give her mother a special good night hug. That was the last time Lane ever saw her youngest child again.

In the morning, the family discovered that someone had come in the night, cut a hole in the side of the children’s tent and abducted Susie, whose stuffed animals were left behind on the ground.

What followed was a journey Lane never expected. For a year after Susie’s abduction, Lane, who will be speaking this Saturday, March 19 at Garner’s St. Christopher Episcopal Church, waged a battle with God. Why had her daughter been taken from her under such devastating circumstances?

Before leaving their Michigan home for the trip, Lane said the family prayed, specifically asking God to bless and protect them.

“And then this happened. Where are you God? Where are you in this?” Lane recalled asking.

It wasn’t until a year after Susie’s abduction that Lane learned that her daughter had been tortured and raped for more than a week before being strangling to death and dismembered. The serial killer who abducted her, David Meirhofer, had also confessed to murdering three other children.

And:

Lane, now 72, said every time she felt rage and anger toward Susie’s abductor, God would tell her: “But that’s not how I want you to feel.”

As the first anniversary of Susie’s abduction approached, Lane gave an interview in which she expressed a desire to speak with her daughter’s kidnapper.

On June 25, 1974 — exactly a year to the minute of Susie’s abduction — Lane’s phone rang in the middle of the night, waking her from a sound sleep.

It was Meirhofer, who had called to taunt her.

“But he wasn’t counting on the spiritual journey that I’d been on during the intervening year,” Lane said.

Rather than get hysterical, Lane spoke with compassion toward Meirhofer, telling him how terrible he must feel to be burdened with the reality of what he had done, and that God loved him.

“He was virtually undone by what God had done to me, and backed down and stayed on the phone for about an hour and 20 minutes,” Lane said. “At one point I told him that I had been praying for him, and I asked him what I could do to help him, and he just broke down and … he said, ‘I wish this burden could be lifted from me.’”

Lane said that she knew what that could mean regarding the fate of her daughter but that she was committed to finding proof of what had happened to Susie.

That proof came in the course of that conversation, which Lane had been taping.

“He just relaxed and said a lot of things that he probably never in his wildest dreams intended to say, but he gave out enough information about himself — and God had graced me to remain calm … It just kind of undid him … but it was enough information that the FBI was able to identify him.”

After Meirhofer’s arrest, Lane stated publicly her opposition to capital punishment for her daughter’s killer. Because he wasn’t facing execution, Lane said he agreed to plead guilty to Susie’s murder and the other three murders. He was suspected in as many as a dozen Montana murders.

Meirhofer committed suicide the same day of his guilty plea.

As part of her healing, Lane befriended Meirhofer’s mother. The two mothers have prayed together at the graves of their children.

“She loves me,” Lane said. “She said I was the best thing that ever happened to her. I had absolutely no ill will toward her whatsoever. I just have grief and enormous sadness because she had no idea that there was anything wrong with her son.”

Today, more than 37 years after her daughter’s death, Lane speaks of her journey as being part of “Susie’s parable.” Jesus used parables, and the way Lane sees it, God is using her to be a living example of what’s possible when it comes to forgiveness and reconciliation.

Earlier coverage from Montana begins with the preceding post.  Related posts are in the victims' issues index.

News Coverage of the Montana Hearing

"Emotional crowd testifies on SB185," is the title of Allison Maier's report for the Helena Independent Record.

A senate bill that would abolish the state death penalty has made its way to the House Judiciary Committee, where it prompted four hours of occasionally emotional testimony and discussion Tuesday morning.

Attorneys, religious leaders, victims’ families, a former Florida prison warden, a man exonerated of a murder he didn’t commit and state representatives were among the crowd that overflowed from a first-floor hearing room to weigh in on the legislation.

Senate Bill 185, sponsored by David Wanzenried, D-Missoula, would remove the death penalty option — and all references to it — from Montana code, replacing it with life imprisonment without the opportunity of parole. The bill was narrowly passed by the Senate a month ago, with a vote of 26-24, almost entirely along party lines, with all the Democrats in favor and most of the Republicans against, with the exception of Carmine Mowbray (Polson), Jim Shockley (Victor), Donald Steinbeisser (Sidney), and Ryan Zinke (Whitefish).

At the Tuesday hearing, Wanzenried described Montana’s current death penalty system as arbitrary, ineffective and expensive, focusing more on the perpetrator than on the victim and his or her family. He said that the threat of capital punishment doesn’t seem to act as a deterrent for criminals, noting that North Dakota, which does not have a death penalty in place, has a lower murder rate than Montana. He also said that life imprisonment without parole is already utilized in the state, with 38 Deer Lodge inmates currently serving such a sentence.

He later referenced written testimony from former assistant state attorney general Betsy Griffing, now the legal program director of ACLU Montana, who served as coordinator of a death penalty task force for nearly five years. It details reasons death penalty cases are often costly, with complex procedures that require more attorneys, detailed pretrial motions, compensation for expert witnesses, and, occasionally, the location of trials in places where the jury pool will be untainted.

The AP report is, "Plan to repeal death penalty in Montana in key House committee after clearing Senate."  It's via The Republic of Columbus, Indiana.

A proposal to repeal Montana's death penalty and replace it with life in prison without parole has passed the Senate but now faces a key hurdle in the House — making it through the same committee where the bill has died in every legislative session since 2005.

The House Judiciary Committee heard Democratic Sen. David Wanzenried's bill Tuesday after the measure passed the Senate last month. A similar measure also carried by Wanzenried in the 2009 session died in the committee after being approved by the Senate.

The judiciary committee has proven a stumbling block for a repeal of the death penalty since the 2005 session. The last time a measure to abolish the death penalty cleared the committee was in 2003, but it was defeated on the House floor.

Little suggests the House committee will break from precedent this year, given the Republican domination of the committee and the House. Democrats usually support repeal of the death penalty more often than Republicans.

Rep. Cleve Loney, who is on the Judiciary Committee, said it was doubtful Senate Bill 185 by would clear the committee this year.

"Bill To Abolish Montana's Death Penalty Heard in House Committee," is KFBB-TV's report by Kacey Drescher.

Senate Bill 185 replaces capital punishment with life in prison without parole. “It means just exactly that. Let these vicious killers spend the rest of their lives in prison until the day they die and then they can burn in hell,” says Randy Steidl, who was exonerated from death row.

Senator Wanzenried says the death penalty, due to the appeals process, draws out the suffering of the victim’s families and catapults the murderer to undeserving notoriety. “There are mics in their face saying how do you feel about this appeal. How do you feel about the fact that this individual is going to be given another two years to appeal yet another dimension of the case?” he asks.

Wanzenried adds, “every time there’s an appeal, for those people rightfully entitled to it under the death penalty, they are given celebrity status.”

Earlier coverage from Montana begins with a notice of yesterday's House committee hearing.

Texas Attorney Speaks Out on Lethal Injection Drug Switch

"Statement from Attorney for Cleve Foster in Response to Change in Texas Execution Protocol," is from Maurie Levin, Adjunct Professor at the University of Texas School of Law Capital Punishment Center.

"The Texas Department of Criminal Justice (TDCJ) has known since at least early January that its supply of sodium thiopental was set to expire on March 1, 2011,  and that the company from which they had always obtained the drug had stopped production. Yet it is only today, less than three weeks shy of Mr. Foster’s scheduled execution, that TDCJ has announced a decision to change the protocol by which they will execute Mr. Foster.  The timing of the decision and disclosure raises serious concerns about the haste with which they are seeking to implement this new process, and a lack of transparency by state officials. To permit less than three weeks for these matters to be vetted undermines any faith we can have in TDCJ’s concern for deliberate process, accountability, or the constitutionality of the new procedures.

“Moreover, Texas is rushing to carry out an execution using an entirely new protocol, but they refuse to fully disclose basic information, such as whether  any medical authorities were consulted regarding the incorporation of a new drug; the source of the pentobarbitol; and the training of personnel who will implement the new procedure for the first time.
 
"Prison officials are not medical professionals. They cannot be trusted to change a medical procedure in the dark of night without public scrutiny, especially when there is such a minimal  track record on the use of pentobarbital in lethal injections. To ensure that the new protocol comports with Texas' constitution, we need -- and Texas law requires -- a deliberative process with appropriate authoritative input and public comment.  We expect our state officials to not conduct its business in secret – particularly when it concerns the ultimate act that Texas can take against one of its citizens.  The rush to execute should not trump the need to ensure that appropriate safeguards have been taken, or the far reaching implications of circumventing a deliberate process, especially when it is TDCJ that has waited until the last minute to decide on or announce the change in how it plans to carry out executions."

There is also a brief background on Cleve Foster case:
 
Cleve Foster was convicted and sentenced to death under Texas’ law of parties for the 2003 murder of Nyanuer “Mary” Pal.  His codefendant, Sheldon Ward, was convicted and sentenced to death as the triggerman.  Mr. Ward, who died on death row of natural causes, gave four statements asserting that Mr. Foster was not involved in Ms. Pal’s murder.   Mr. Foster was scheduled to be executed on January 11, 2011, but received a stay from the United States Supreme Court as the result of litigation raising questions about his innocence, and the ineffectiveness of appointed counsel in failing to adequately raise that issue.  The Supreme Court subsequently lifted that stay without comment on the merits and Mr. Foster is now scheduled for execution on April 5, 2011.

Earlier coverage of the Texas switch in lethal injection drugs begins with the preceding post.

Texas Switches to Pentobarbital for Lethal Injection Cocktail - UPDATED

The updated AP report is, "Shortage Forces Texas To Switch Execution Drug," via NPR.

Texas is changing one of the drugs used to conduct executions in the nation's busiest death penalty state because of a shortage of a drug it's used for nearly three decades, officials said Wednesday.

Texas Department of Criminal Justice officials said they plan to substitute pentobarbital for sodium thiopental in the three-drug cocktail used for lethal injections. Pentobarbital also is commonly used to euthanize animals and recently has been used for executions in Oklahoma.

A shortage of sodium thiopental has forced multiple states to scramble to find substitutes. Texas has used the drug since becoming the first state to do lethal injections in 1982. The Texas supply of sodium thiopental expires at the end of this month and an execution is set for early April.

Agency spokeswoman Michelle Lyons said Rick Thaler, director of the agency's institutional division, authorized the switch.

"It's in the state statute that changes in chemical and dosages may be made at the discretion of the institutional division director," she said. "We were looking for a drug with similar properties to sodium thiopental and this drug has been used in the Oklahoma execution process so there is a precedent for its use in executions."

UPDATE - Brandi Grissom posts, "Texas Decides on Substitute Execution Drug," at Texas Tribune.

Cleve Foster will be the first Texas inmate to receive the anesthetic drug pentobarbital — instead of sodium thiopental — in the three-drug cocktail that will be used in his execution on April 5.

Texas and other states that use lethal injection have been scrambling to find a substitute for sodium thiopental since the only American producer of it, Illinois-based Hospira Inc., announced in January it would stop selling the drug. Hospira had planned to manufacture the drug in an Italian plant, but authorities in that country wanted a guarantee that the drug would not be used in executions. 

Texas Department of Criminal Justice spokeswoman Michelle Lyons said officials there decided to follow the lead of Oklahoma and use pentobarbital in its lethal injection protocol. "It has been upheld by the courts, so we're confident that it will also be upheld for use in Texas," Lyons said. Five death row inmates are currently scheduled for execution.

Pentobarbital is a barbiturate similar to sodium thiopental and is often used in animal euthanasia. Ohio plans to use one massive dose of that drug in its executions. In the Oklahoma lethal injection protocol, which Texas plans to follow, the pentobarbital is used to put the inmate to sleep before other drugs stop the vital organs and cause death.

But pentobarbital has some of the same troubles as sodium thiopental. The drug is only available from one company operating in the United States, Lundbeck Inc., based in Denmark, a country that also opposes the death penalty. Lundbeck has asked Oklahoma and Ohio not to use the drug in executions.

UPDATE - Nathan Koppel posts, "Texas to Use Animal Drug for Executions," at the Wall Street Journal.

Texas, the nation's leading death-penalty state, will now use a drug generally used for animal euthanasia, to carry out executions.

The move to switch to pentobarbital, a sedative, comes amid a nationwide shortage of thiopental sodium, a more common execution drug used in the U.S. for almost three decades.

Texas follows the lead of two other states, Oklahoma and Ohio, which have also switched to pentobarbital.

Pentobarbital, which has long been used by veterinarians to put animals to sleep, has limited uses in medical procedures, including the treatment of certain types of epilepsy. The drug has also been used to carry out assisted suicides.

Lawyers who represent death-row inmates have argued in court that pentobarbital is too unproven and dangerous for use in human executions, but courts have so far rejected those challenges.

Texas' stock of sodium thiopental expires this month.  According to TDCJ, the next execution in Texas is scheduled for April 5.  Currently five execution dates have been set in Texas for 2011.  More are likely to be added.

Earlier coverage from Texas begins at the link.  Related posts are in the lethal injection index.

DEA Seizes Georgia Stock of Imported Sodium Thiopental

The updated AP report is, "Ga. executions off: DEA seizes critical drug," via Google News.  It's also available via Forbes.

All Georgia executions are off after federal drug agents seized the state's supply of a sedative used in lethal injections that has been challenged by capital punishment critics and death-row inmates, including a man recently executed who called the British exporter of the drug a "fly-by-night supplier."

Drug Enforcement Administration spokesman Chuvalo Truesdell wouldn't say exactly why Georgia's supply of sodium thiopental was taken Tuesday, just that "we had questions about how the drug was imported to the U.S." The sedative is part of a three-drug cocktail used in executions that has been in short supply since the sole U.S. manufacturer stopped making it.

No more execution dates in Georgia have been scheduled and it's unlikely any will be set before the issue is resolved. Georgia Attorney General's Office spokeswoman Lauren Kane said prosecutors couldn't ask a judge to set executions if corrections officials didn't have the necessary supplies to carry one out.

Georgia's stockpile of the drug has been a target of death row inmates and capital punishment critics since corrections officials released documents this year showing the state obtained the drug from Link Pharmaceuticals, a firm purchased five years ago by Archimedes Pharma Limited. Both are British firms.

The drug was used in January to execute Emmanuel Hammond, a 45-year-old man convicted for the 1988 shotgun slaying of an Atlanta preschool teacher. His attorneys sought a delay to gather more information on how the state obtained the drug, claiming in court documents it came from a "fly-by-night supplier operating from the back of a driving school in England." They said the drug could have been counterfeit.

The U.S. Supreme Court, as well as lower courts, rejected Hammond's argument.

The state's stockpile came under more scrutiny in February when John Bentivoglio, a former deputy attorney general, asked the Justice Department to launch an investigation into whether state corrections officials violated federal law by not registering with the DEA when it imported its supply of sodium thiopental.

"The United States has strict drug import rules for a reason: To ensure drugs used for legitimate purposes are not adulterated, counterfeit, or diverted into the illicit market," said Bentivoglio, who is representing death row inmate Andrew Grant DeYoung.

Joan Heath, a spokeswoman for the Georgia Department of Corrections, said state officials were not concerned with the quality of the drug and just wanted to make sure they were complying with the law.

"We contacted the DEA and asked them for a regulatory review, and that's what we're doing," she said. "We're going to make sure we're in regulatory compliance with the DEA over how we handle controlled substances."

And:

Truesdell, the DEA spokesman, said he was not certain if other states' supplies of sodium thiopental were also being collected by the agency. Officials in Arkansas and California said authorities have not seized their supplies.

Defense attorneys were elated by the news.

"We commend the DEA for forcing the Department of Corrections to immediately cease using black market execution drugs," said William Montross, an attorney with the Southern Center for Human Rights, which had sought to delay Blankenship's execution.

The Austin American-Statesman carries an earlier version of the AP report, with additional reporting by the Statesman's Mike Ward, "DEA seizes Georgia's supply of execution drug."

Georgia's stockpile of the drug has been a target since corrections officials released documents this year showing the state obtained the drug from Link Pharmaceuticals, a British company.

The drug was used in January to execute Emmanuel Hammond, convicted in the 1988 shotgun slaying of an Atlanta preschool teacher. His attorneys sought a delay to gather more information on how the state obtained the drug, claiming in court documents it came from a "fly-by-night supplier operating from the back of a driving school in England." They said the drug could have been counterfeit.

The U.S. Supreme Court, as well as lower courts, rejected Hammond's argument.

The state's stockpile came under additional scrutiny in February when John Bentivoglio, a former deputy attorney general, asked the Justice Department to launch an investigation into whether state corrections officials violated federal law by not registering with the DEA when it imported the sodium thiopental.

"The United States has strict drug import rules for a reason: to ensure drugs used for legitimate purposes are not adulterated, counterfeit or diverted into the illicit market," said Bentivoglio, who is representing death row inmate Andrew Grant DeYoung.

Texas' stock of sodium thiopental expires at the end of this month, and officials are looking for alternatives.

They are trying to find a new supply of sodium thiopental and, barring that, considering a switch to another drug, possibly phenobarbital, for the three-drug cocktail. A decision is expected soon, because Texas' next execution is scheduled for April 5.

The Atlanta Journal-Constitution reports, "DEA seizes Georgia's supply of lethal injection drug."  It's written by Bill Rankin and Kristi E. Swartz.

The Drug Enforcement Administration has seized Georgia's supply of a key execution drug over questions about how it was imported to the United States.

"Drugs were seized today by the DEA from our facility in Jackson," Department of Corrections spokeswoman Kristen Stancil told the AJC.

The seizure comes more than two weeks after an attorney representing a death row inmate from Cobb County wrote a letter to U.S. Attorney General Eric Holder saying the Georgia Department of Corrections circumvented federal law in trying to quickly secure a scarce drug used in lethal injections.

"DEA did take control of the controlled substances today," DEA spokesman Chuvalo Truesdell told the AJC. "There were questions about the way the drugs were imported over here."

Truesdell declined further comment, saying it is now "a regulatory investigation."

John Bentivoglio, a former associate deputy U.S. attorney general in Washington, described extraordinary steps the DOC took to get the sedative thiopental, a scheduled III non-narcotic controlled substance, when a shipment for several states, including Georgia, was held by U.S. Customs in Memphis last summer.

The letter said Corrections is not registered with the federal government to import drugs and the agency did not “submit a declaration to the Drug Enforcement Administration when GDC imported thiopental last year.

Stancil told the AJC after the letter was mailed, the agency asked the DEA for assistance "to make sure that the department was in compliance with the way we handled controlled substances."

Colleen Jenkins post, "U.S. agents seize Georgia execution drug supply," for Reuters, via WXIN-TV in Atlanta.

The federal government stepped in following a letter sent last month to U.S. Attorney General Eric Holder on behalf of Georgia death row inmate Andrew Grant DeYoung.

With sodium thiopental in short supply nationally, Georgia corrections officials ordered the drug from a pharmaceutical distributor in London, England, DeYoung attorney John Bentivoglio wrote in the February 24 letter.

The state received 50 vials of sodium thiopental in July, Bentivoglio said, citing public records.

But Bentivoglio said the state was not registered to import the controlled substance and failed to notify DEA about the shipment.

"I think it raises very troubling questions about the lengths to which they would go to pursue lethal injections when that process requires careful attention to the integrity of the process," Bentivoglio told Reuters on Tuesday.

"Feds seize Georgia's supply of lethal-injection drug," is the CNN report.

Thiopental is available only from international sources, since the drug's sole U.S. manufacturer, Hospira, stopped making the sedative in 2009. But the countries where the drug is made do not allow its export if it is going to be used for capital punishment, the Journal-Constitution reported.

Thirteen states wrote a letter to the Justice Department seeking help in obtaining the drug. Georgia was not among them.

Six death-row inmates have sued to prevent the Food and Drug Administration from importing thiopental, and last month one inmate's lawyer wrote to Attorney General Eric Holder to question how Georgia obtained its supply.

Nathan Koppel writes, "Georgia Execution Drug Is Seized," for the Wall Street Journal.

Georgia has used imported thiopental to carry out two lethal injections, the September execution of Brandon Rhode and the January execution of Emmanuel Hammond, according to court documents.

Witnesses to the Rhode and Hammond executions have questioned whether the state's imported thiopental properly sedated the men, potentially subjecting them to painful deaths.

"DEA Seizes Lethal Injection Drug from Ga. Corrections Department," by Debra Cassens Weiss at ABA Journal.

Related posts are in the lethal injection index.  Relevant posts include:

• Call for DoJ Investigation in Georgia Drug Acquisition
• More on the British Import
• Lethal Injection Roundup
• Questions Surround British Drug Used in Georgia Execution
• UK Source of Drug Revealed
• The FDA and Lethal Injection Drugs

Ohio Repeal Bill Introduced

"Bill proposes ending Ohio's death penalty," is the title of Alan Johnson's report in the Columbus Dispatch.

As Ohio heads toward a possible record number of executions this year, two lawmakers have introduced legislation to abolish the state's death penalty.

The "Execute Justice Bill" is sponsored by Democratic state Reps. Ted Celeste of Grandview Heights and Nickie Antonio of Lakewood.

"The costs associated with litigation and multiple appeals for Death Row inmates can run tens of millions of dollars a year," Celeste said in a statement. "This should be a part of the overall budget conversation as it has the potential to provide major financial savings at a time when we are facing an enormous deficit."

Sixteen states have banned capital punishment.

Ohio has bucked the trend, putting eight men to death last year, placing the state second to Texas in the number of executions in 2010. Ohio was the only state to increase executions from 2009 to 2010.

Two convicted killers have died by lethal injection already this year. Executions are scheduled monthly through November.

Marc Kovac writes, "Democrats to propose abolishing Ohio death penalty," for the Ravenna Record-Courier.

Democrats in the Ohio House plan to introduce legislation abolishing the death penalty in the state.

Democratic state Reps. Ted Celeste, from the Columbus area, and Nickie Antonio, from Lakewood, hope replace capital punishment with sentences of life in prison without parole — a move they say will reduce state spending while ensuring the innocent don’t face lethal injections for crimes they did not commit.

“We are herewith recommending the execution of justice, not people,” Celeste said. “No matter what we do, we cannot ease the pain of family members who lose someone to terrible violence. However, by eliminating the long process of appeals and the unknown, by having the penalty clear and specific (and) sentencing at trial, the process does not drag out for years.”

Antonio added, “In a civilized society, we should not support the killing of an individual by judge or jury and certainly not the state of Ohio executing her citizens. Now is the time for the state of Ohio to take the compassionate, pragmatic and economically proven step to abolish capital punishment.”

Celeste and Antonio announced the legislation during a press conference at the Statehouse Monday, where they were joined by two men who were exonerated of crimes that landed them on Death Row, plus a representative of the Catholic Commission of Ohio, which is supporting the legislation.

The state last week executed its 43rd death row inmate since restarting the capital punishment more than a decade ago. And the Ohio Supreme Court has scheduled 10 executions over the next 11 months.

Reuters reports, "Ohio lawmakers seek death penalty ban as fiscal fix."  It's via CNBC.

Ohio has never studied how much it spends fighting the lengthy appeals process that invariably follows the imposition of the death penalty.

But death penalty opponents such as Kevin Werner of Ohioans to Stop Execution say studies done by other states suggest prisoners sentenced to death cost millions of dollars more than prisoners who are sentenced to life in prison.

Celeste said passage would be "an uphill process. ... People don't want to be viewed as soft on crime," he said.

Earlier coverage from Ohio includes the state's latest execution using a single dose of pentobarbital.

The Cost Factor Examined in Several States

"Tight budgets may spell death of death penalty in some states," is the title of Barbara Goldberg's report for Westlaw News.

A perfect storm of cash-strapped budgets, newly elected governors and an increased use of DNA evidence threatens to smite the death penalty in an increasing number of states.

The death penalty got the ax in Illinois last week and stands a good chance of being eliminated this year in Connecticut, Maryland and Montana, where bills are wending their way through statehouses, said Richard Dieter, executive director for the Death Penalty Information Center.

Repeal efforts also are underway in Florida and Kansas, with another expected this week in Ohio, although their success is less likely, Dieter said.

"Innocence is the biggest issue, but what's getting these bills heard is the cost of the death penalty," Dieter said.

Studies show the basic cost of carrying out the death sentence is more than double that of a life sentence.

Lawmakers promoting the death-penalty repeal measure in Ohio say they hope to sell it as a way to help close the state's $8 billion budget deficit.

"We're proposing this as a way that the state can substantially save some money," said Democratic state Rep. Ted Celeste.

However, the measure is unlikely to go far in the Republican-controlled House and Senate, where many members were elected with support of death penalty advocates.

And:

In Illinois, which last week became the fourth state in the past two years to ban the death penalty, Democratic Governor Pat Quinn said it was impossible to fix a system that wrongly condemned 20 men later found to be innocent and freed from death row in his state.

Next could be Connecticut, where newly elected Democratic Governor Dan Malloy has said he favors a death penalty ban now being considered in the statehouse.

The last legislature in Connecticut passed a similar bill, but it was vetoed by then-governor Jodi Rell.

The cost of the death penalty is tempting to axe-wielding legislatures desperate to cut costs, Dieter said.

"Death row is expensive compared to regular prison," he said. "Your meals are delivered. You don't work in the prison. If you have a visitor, you're shackled. You're watched 24 hours. You have a single cell."

Typically in capital cases, taxpayers pay for at least two defense attorneys as well as DNA experts, he said.

In Maryland, the average total cost of a life sentence is $1 million, compared with $3 million to carry out the death penalty, he said.

In California, the annual cost of imprisoning an inmate is $25,000 compared to $90,000 for a year on death row, Dieter said.

Related posts are in the abolition, cost, and state legislation indexes.

Montana House Judiciary Considering Repeal Bill

The Montana House Judiciary Committee is considering SB 185, that would repeal the state's death penalty.  Streaming video and audio is live at the link.

KXLH-TV reports, "Montana House addresses education, budget bills."  It's by Marnee Banks.

Finally, a House committee will hear public testimony Tuesday on a bill to abolish the death penalty and replace it with life in prison without parole.

Earlier coverage from Montana notes the legislation's passage by the State Senate, last month.

Star-Telegram on the Skinner Case

"Justice is about getting it right," is the editorial in today's Fort Worth Star-Telegram.

Maybe now there can be more certainty about who killed Twila Busby and her sons, Elwin Caler and Randy Busby, in their Pampa home on New Year's Eve 1993.

After years of being rebuffed in the courts, Henry W. "Hank" Skinner recently won a U.S. Supreme Court ruling that will allow him to try to get crime-scene evidence put through DNA testing.

If that testing yields conclusive results, it could shine light on whether Skinner was wrongly convicted, as he argues, or whether blood, hair and fingernail scrapings point to him as the killer.

And:

Skinner's case has drawn national attention for several reasons.

It tests the scope of the 2001 Texas law giving inmates limited access to DNA testing after they've been convicted.

And his appeals gained traction after students of Northwestern University's Medill School of Journalism investigated his innocence claims and discovered, among other things, that a witness recanted her story, saying she'd been pressured by the prosecution. Skinner has said Busby's uncle was a likelier suspect, but he has since died.

Though courts have upheld Skinner's conviction and he was denied a clemency bid, the fact that not all available evidence was DNA tested raises doubts that analysis now could set to rest.

The justice system ultimately is about finding out the truth, to the extent that's possible, so perpetrators can be punished and victims can find closure. Finality shouldn't be just about getting it over -- but about getting it right.

Earlier coverage of Hank Skinner's case begins at the link.  The Supreme Court opinion in Skinner v. Switzer is in Adobe .pdf format.

North Carolina Lethal Injection Procedure Examined

WRAL-TV posts, "Death penalty debate hinges on administrative procedures."

The North Carolina Supreme Court heard arguments Monday in a case that could change how the death penalty is administered.

Lawyers for five death row inmates contend that an administrative law judge was right to order state officials in 2007 to revamp North Carolina's protocol for executions.

"The execution protocol will subject inmates to substantial risks of excruciating pain and suffering," said David Weiss, one of the attorneys for the inmates.

The Council of State has to approve changes to death penalty procedures, but Assistant Attorney General Joe Finarelli argued that the administrative law judge never had the jurisdiction to order any changes. A Superior Court judge sided with the council in the dispute.

The state Department of Correction is exempt from much of the state law governing review of administrative procedures, Finarelli said, so inmates should have sued the state in Superior Court if they don't like the death penalty protocol instead of challenging it in an administrative hearing.

And:

The inmates' lawyers say the council signed off on changes to capital punishment protocol without hearing from advocates for condemned prisoners.

"We're not asking the court to render an opinion on the appropriateness of the execution protocol itself. We're simply asking that the court find that the administrative law judge properly exercised jurisdiction.

If the Supreme Court agrees, the case will go back to a lower court for review.

North Carolina hasn't carried out an execution since 2006 because of legal disputes over the protocol and whether physicians could participate.

Prior to the oral arguments, the Winston-Salem Journal offered at preview, "N.C. Supreme Court to hear arguments about death-penalty protocol," is the title of the news report in the Winston-Salem Journal.

An administrative law judge was right to order North Carolina's statewide elected officials to revise the protocol for the execution of prisoners on death row, according to attorneys who are preparing to make that case to the state Supreme Court on Monday.

The state's top court is scheduled to hear oral arguments in a case involving five death-row inmates that has partly contributed to an unofficial moratorium on capital punishment in North Carolina. A ruling in those inmates' favor wouldn't overturn the death penalty or immediately force revised protocols for carrying it out but would send the case to a lower court for review.

The case essentially centers on whether Administrative Law Judge Fred Morrison had sufficient jurisdiction to order the Council of State, which consists of North Carolina's 10 statewide elected officials, to revise the protocol governing the death penalty.

The council argued that Morrison's 2007 ruling lacked that force. A Wake County Superior Court judge ruled in the council's favor, and now attorneys for the death-row inmates are asking the Supreme Court to settle the issue.

"The Council of State's role, as outlined in the North Carolina statutes, is an important one that allows for transparent review before the execution is actually implemented," said Durham lawyer Mark Kleinschmidt, who represents death-row inmate Jerry Conner.

The inmates' attorneys argue that the council essentially failed to fulfill its duties in that role when it signed off on new execution procedures in February 2007. The new procedures had been announced by the state Department of Corrections about two weeks earlier, but a judge almost immediately entered a stay on several executions, citing a 100-year-old law requiring the council to approve any new death-penalty protocols.

The inmates contend that the council then hastily approved the protocol without hearing from those representing condemned prisoners, and Morrison agreed.

"The legislature intended that there be some public scrutiny and review about executions and the method of executions in the state in part to ensure it was not done in a tortuous manner," said Ken Rose, an attorney with the Center for Death Penalty Litigation who also represents Conner.

And:

The case has been one of several factors contributing to what is essentially an unofficial halt to executions in North Carolina. Revelations of flawed work by a state crime lab, and the Racial Justice Act, which allows death-row inmates to challenge their sentences based on statistical arguments about racial bias, have also played a role.

Another version of the preview is distributed by AP, written by Tom Breen.  It's via the Myrtle Beach Sun News.

Earlier lethal injection news from North Carolina is at the link.  Related posts are in the lethal injection index.

A Victim's Voice in Austin OpEd

"In Texas, no one should pay for an imperfect system with their lives," is the title of an OpEd from today's Austin American-Statesman.  It's written by Helene Burns, a member of Murder Victims' Families for Reconciliation, nd a volunteer for both the Travis County Sheriff's Office's Critical Incident Stress Management Team, in Austin.

I am a survivor of a murder victim.

I'm a registered nurse, wife, mother and a citizen interested in helping the community. I even vote.

In 1985, my mother was killed in cold blood by my father, a physician. As it was a capital offense in California, the district attorney's office approached my family as to whether or not we wanted to pursue the death penalty. Although at that time, I was an advocate of the death penalty, the deputy district attorney explained that pursuing the death penalty is much harder on the surviving family members/victims, as it takes years of appeals before executions are carried out. Pursuing a life sentence would result in justice for the family in a more expedient fashion.

With input from the family, the district attorney's office opted to seek a sentence of life. I assisted prosecutors with gathering information for the case, as well as testified during the trial. After 22 months, my father was convicted, and remains incarcerated today.

We did not have victim services available to us at that time, which would have been an invaluable resource for me as well as my family.

Over time I became educated about capital cases in which mistakes were made, and innocent men executed. I was shocked as I had not thought that possible in the justice system. I came to believe that the death penalty is wrong in all cases. I am a firm believer in life without the possibility of parole for capital offenses. The death penalty only serves to create more victims. Executing someone does not bring back our loved ones.

And:

When someone loses a loved one to murder, there is never closure. You just learn to live with it. Closure is a myth.

Illinois Gov. Pat Quinn recently signed a bill to abolish the death penalty. Countless people in his state will benefit from his choice now and in the future, as well as enabling Illinois to free up millions of dollars for productive use.

In the midst of these tough, and often unpredictable economic times in our nation and the great state of Texas, the funding in the millions of dollars we would save by utilizing permanent imprisonment as opposed to the death penalty, could be used for law enforcement, cold case units, corrections and victim services. It would be a win-win situation in a truly difficult arena.

Let's rise to the occasion ... and choose life.

Related posts are in the OpEd and victims' issues inexes.

Editorial: Court Rules Rightly on Skinner

That's the title of an editorial from the Amarillo Globe-News Saturday edition.

Hank Skinner won a big court fight this week in Washington, D.C.

So did those who believe Skinner should be executed for killing a Pampa woman and her two sons on New Year's Eve, 1993.

Indeed, the U.S. Supreme Court's 6-3 ruling in Skinner's favor very well could prove beyond a doubt that he is guilty of the crime for which he's been convicted.

And that, by definition, would be justice served.

And:

So, let's proceed with this civil rights lawsuit in federal court and let us determine once and for all who committed this heinous crime.

The News & Observer of Raleigh, North Carolina carries the editorial column, "DNA stories, waiting to be told."  It's written by Steve Ford, the editorial page editor.

DNA has figured in several high-profile cases where people who have spent years in prison - convicted by juries supposedly beyond a reasonable doubt - finally were cleared.

In that respect, DNA testing shapes up both as a prosecutor's best friend and worst enemy. If suitable evidence is available, it can point a damning finger at someone who has committed a violent crime. But if it surfaces on down the road, it can expose a prosecution as having been terribly flawed. The nightmare would be proof of someone's innocence, and someone else's guilt, coming to light after a person wrongfully convicted had been executed.

A thorough DNA testing regimen presumably would help prevent wrongful convictions in the first place. Yet as the Skinner case shows, there can be an ingrained reluctance by prosecutors to have all evidence tested. And the fact is that Skinner's own lawyers at trial were leery of what some of that evidence might have shown.

To test or not to test became more a matter of courtroom strategy than an unblinking search for the truth (not that a defendant should be expected to cooperate in incriminating himself).

Even with rigorous DNA test requirements, some violent crime scenes won't yield any relevant evidence. And defendants who can afford top-shelf lawyers typically have an advantage that other defendants don't.

The justice system may work pretty well on the whole, but when lives are at stake, the consequences of any shortcoming can be monstrously magnified. The possibility of executing an innocent person was why Illinois' governor last week agreed to make his state the latest to abolish the death penalty.

The current Texas Lawyer reports, "Prosecutors, Defense Lawyers Split on Skinner's Impact," written by Miriam Rozen.

Williamson County District Attorney John M. Bradley was one of sixTexas prosecutors who filed an amicus brief supporting Switzer. He says the opinion now creates "just another loophole for death penalty defendants" to delay their sentences.

In general, Bradley says a Texas prosecutor is limited to getting five to 10 pieces of evidence tested for DNA. But he says a defendant, even at the time Skinner was first tried, could test evidence for DNA, as long as he made a plausible case that it could provide further evidence.

Campbell "Scott" Brumley, the county attorney for Potter County who also joined the brief, says, "My concern has been for an opening of the floodgates to attack criminal convictions under §1983."

Both say they fear that the Skinner decision will open the door for other convicted inmates to file suits in federal courts — beyond the one bite at the apple that they had with habeas — to seek access to DNA after the state properly denies them that access, just to create delays.

In the majority opinion, however, Ginsburg writes, "Contrary to fears of Switzer and her amici, in the Circuits that currently allow for §1983 claims for DNA testing, there has been no flood of litigation seeking postconviction discovery of evidence associated with the questions of guilt or punishment."

David González, a partner in Austin's Sumpter & González who serves as a legislative liaison for the Texas Criminal Defense Lawyers Association, agrees with the majority opinion: The courts won't be inundated with complaints similar to Skinner's, he says.

"It's going tobe limited by the cases that have something to test. Not every case has DNA," says González. He adds, "There are many folks that never want a DNA test. I mean, not all of my clients are innocent. Why is the state so afraid of just testing this stuff in the first place? Not doing so just makes us look bad."

Earlier coverage of the Skinner ruling begins at the link.  The Supreme Court opinion in Skinner v. Switzer is in Adobe .pdf format.