The StandDown Texas Project

ProPublica on the State of Lethal Injection

ProPublica posts, "A Prolonged Stay: The Reasons Behind the Slow Pace of Executions," by Raymond Bonner. He's the author of the 2012 book, Anatomy of Injustice: A Murder Case Gone Wrong.  This extensive report is a must-read.  Here's the beginning:

States that impose the death penalty have been facing a crisis in recent years: They are short on the drugs used in executions.

In California, which has the country's largest death row population, the chief justice of the state supreme court has said there are unlikely to be any executions for three years, in part due to the shortage of appropriate lethal drugs. As a result, state prosecutors are calling for a return of the gas chamber.

Ohio, which is second only to Texas in the number of executions carried out since 2010, said it will run out of the drug it uses in executions, pentobarbital, on Sept. 30. The state has two men scheduled for execution in November, and eight more set to be killed after that. Every state's supply of pentotbarbital, which has been the principal execution drug, expires at the end of November.

The shortage has forced death penalty states to scramble on two fronts: They are hunting for new suppliers or different drugs to use, and enacting changes to public records laws to keep the names of suppliers and manufacturers of those alternative drugs secret.

The lack of lethal drugs, and the fight over keeping new ones secret, are partly the result of a remarkably effective campaign by opponents of the death penalty, who have, in effect, taken their efforts from the court room to the boardroom.

Earlier coverage of the availability of lethal injection drugs begins at the link.  Related posts are in the lethal injection and international category indexes.

 Notable posts include:

• The Arkansas Lethal Injection Drugs
• Scott Christianson on a California Legislator's Push to Bring Back Gas
• Nebraska Lethal Injection Drug News
• Georgia Lethal Injection Drug Legislation
• News Coverage of DC Court of Appeals Oral Arguments
• Drugmaker to Block Sales of Propofol for Use in Executions
• Ohio Executes & Steps Up Search for Pentobarbital
• More on the Georgia Lethal Injection Drug Supply
• European Concerns Over Drugs Used in Lethal Injection Executions

Nathan Dunlap Case Roundup

"Hickenlooper may announce decision on Nathan Dunlap's fate Wednesday," is the breaking news report by Ryan Parker at the Denver Post.

A decision from Governor John Hickenlooper whether Nathan Dunlap will be executed for the Chuck E. Cheese killings may come as soon as Wednesday.

Eric Brown, spokesman for the governor's office told The Denver Post on Tuesday night an announcement on Wednesday was "not out of the question."

Hickenlooper has met with dozens of advocates on both sides of the issue since Arapahoe County District Judge William Sylvester set the week of Aug. 18 as the time Dunlap should die for killing three teenage employees and their 50-year-old manager during the robbery of a Chuck E. Cheese's restaurant in Aurora nearly 20 years ago.

The acting Department of Corrections chief will pick the exact date of execution.

A press conference has been scheduled at the state Capitol Wednesday afternoon by the Arapahoe District Attorney's office. The DA originally planned a Friday news conference.

The Denver Post also reports, "ACLU suit: Public is entitled to know how Nathan Dunlap will be killed," by Karen Augé.

The ACLU lawsuit asks the court to compel the corrections department to make public documents outlining exactly how an execution would be carried out, as well as the training those who will administer the deadly drugs will receive.

"I think the DOC is infringing, without adequate justification, on the public's legitimate right to information with regard to what surely is one of its most serious undertakings," said Mark Silverstein, legal director of ACLU of Colorado.

So far, the DOC has refused requests by attorneys for Dunlap and by media outlets, including The Post, to provide that information.

The Colorado Independent reports, "Nathan Dunlap Execution: Colorado Officials Decline To Detail How Dunlap Will Be Executed," by Susan Greene.

On Tuesday, the ACLU filed suit in Denver District Court, arguing that information about the execution would facilitate public discussion about the death penalty here. Debate over execution by lethal injection often includes consideration of how the injection can be administered least painfully and of the ethical questions the procedure raises for the pharmacists supplying the drugs, for example.

“By refusing to disclose the details of the execution procedure, including the drug or drugs that may be used and how they are obtained, as well as information about the companies that may be supplying the chemicals, CDOC infringes, without adequate justification, on the public’s legitimate right to information about how its government operates with regard to one of its most serious undertakings,” said ACLU of Colorado Legal Director Mark Silverstein in a release.

The ACLU complaint cites the Colorado Board of Pharmacy Rules of Professional Conduct, which prohibits “any practice which detrimentally affects the patient” and state that a “pharmacist may not dispense a prescription drug or a controlled substance based on an order that does not list a specific patient.”

"Nathan Dunlap Death Penalty Case: ACLU Files Lawsuit To Reveal Execution Protocols," is by Andrea Rael for Huffington Post.

The lawsuit seeks to compel the state's Department of Corrections to reveal its communications with pharmacies regarding what drug or drugs will be used to carry out the execution of convicted death row inmate Nathan Dunlap.

“By refusing to disclose the details of the execution procedure, including the drug or drugs that may be used and how they are obtained, as well as information about the companies that may be supplying the chemicals, CDOC infringes, without adequate justification, on the public’s legitimate right to information about how its government operates with regard to one of its most serious undertakings,” said ACLU of Colorado Legal Director Mark Silverstein.

Last month the CDOC sent a letter to compounding pharmacists requesting “sodium thiopental, pentobarbital, pancuronium bromide, potassium chloride, or similar drug or drugs that the CDOC can purchase” in preparation for what may be the state's first execution in over 15 years. Colorado has only put one man to death in the past 45 years.

The letter had been sent by then-CDOC Director Tom Clements to 97 compounding pharmacies in the state just before his death in March, and was prompted by the rejection of Dunlap's appeals to the U.S. Supreme Court.

"For the first time since 1997, the CDOC is facing the task of carrying out an execution," Clements wrote in the letter. "I am reaching out to compounding pharmacies throughout the state of Colorado in order to comply with state law that the CDOC acquire sodium thiopental or other equally or more effective substance to cause death."

And:

The ACLU's complaint also mentions that the Colorado Board of Pharmacy Rules of Professional Conduct prohibits “any practice which detrimentally affects the patient.”

“If compounding pharmacies in Colorado plan to participate in Colorado’s next execution, the public has a right to know,” said Silverstein, “and the State Board of Pharmacy might be interested in investigating whether pharmacies violate their license and state rules when they supply a drug for the express purpose of killing rather than healing.”

Think Progress posts, "In Colorado, Blacks Make Up 4 Percent Of The Population And 100 Percent Of Death Row."  It's by Nicole Flatow.

Few dispute that Nathan Dunlap committed a horrific crime and murdered several people at a Chuck E. Cheese. But judges, university professors, and other prominent state leaders are urging Gov. Hickenlooper to commute Dunlap’s sentence, both because crucial errors that defined his trial may have led him to get a harsher sentence than others, and because killing anyone under the perverted state system would be a miscarriage of justice. According to letters filed with Hickenlooper’s office:

• All three people on death row are black men. In a state that is only 4.3% African American, Colorado’s death row is 100% African American.
• All three men on death are from the same one county, out of Colorado’s 64.
• All three men committed their crime when they were under the age of 21.
• Two law professors who studied Colorado’s application of the death penalty concluded it was unconstitutional, after finding that prosecutors pursue the death penalty in less than one percent of the cases where it is an option, and that the state failed to set “clear statutory standards for distinguishing between the few who are executed and the many who commit murder.”

“It appears that race, geography and youth largely determines who gets the death penalty in Colorado,” wrote a group of NAACP leaders in a letter urging Gov. Hickenlooper to grant clemency. They note that not a single black juror served on the panel that sentenced Dunlap to death.

Earlier coverage of Nathan Dunlap's case begins at the link.  In the next post, a link to Andrew Cohen's latest writing on clemency for Dunlap.

Texas Execution

Texas carried out its sixth execution of 2013, last night in Huntsville.  It was the 498th post-Furman Texas execution since 1982, and the 259th execution conducted under the administration of Governor Rick Perry.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Houston man’s execution is sixth so far this year," is Michael Graczyk's AP report, via the Austin American-Statesman.

A Houston man condemned for killing a police officer during a car theft arrest 14 years ago was put to death Wednesday after his last-day appeal to the U.S. Supreme Court failed.

Jeffrey Demond Williams, 37, became the sixth Texas inmate executed by lethal injection this year.

To date, there have been 12 executions in American death penalty states this year; a total of 1,332 post-Furman executions since 1977.

According to TDCJ, nine additional execution dates have been set for 2013.

Earlier coverage of Jeffrey Williams' case begins at the link.

The Arkansas Lethal Injection Drugs

BBC News reports, "UK-based firm stops selling phenobarbital drug to Arkansas."

A UK-based pharmaceutical company has stopped selling a drug to Arkansas because the US state planned to use it to execute prisoners on death row.

Drug company Hikma, based in London, said phenobarbital is prescribed to prevent convulsions.

A spokesman said the drug is widely used and that the company did not condone its use on death row.

It acted to withdraw the drug on information from the legal rights charity Reprieve.

A spokesman said its subsidiary West-Ward Pharmaceuticals had not sold phenobarbital to the Arkansas Department of Correction (DoC) since mid-April when they were made aware it could be used for capital punishment.

"British maker of death penalty drugs adds new restrictions for US buyers," is by Ed Pilkington for the Guardian.

Ironically, Arkansas turned to the Hikma subsidiary, West-Ward Pharmaceuticals in Memphis, Tennessee, as a possible way of skirting the drug boycott. Since 2011 execution drugs have been in increasingly short supply after the European commission banned exports of listed chemicals to all US corrections departments.

With other options closed down, Arkansas decided to pioneer a new death penalty protocol untested by any other state: the use of phenobarbital, a barbiturate widely used medically as an anticonvulsant. This year the state adopted a new protocol that involves executing prisoners by injecting them with a relaxant, Lorazepam, followed by 12 grams of phenobarbital hydrochloride.

In April, West-Ward Pharmaceuticals shipped two batches of Phenobarbital to Arkansas department of corrections in Pine Bluff amounting to a total of almost 100 grams of the chemical – sufficient to kill eight prisoners. A spokesman for Hikma said the order had been made as part of the regular automated request for drugs for the general prison hospital services and given that phenobarbital has never been used in executions before in the US, it raised no red flags with the company.

Hikma added that the quantity of the drug was small, though a spokeswoman for the Arkansas department of corrections said it was "enough to perform several executions".

Maya Foa, a death penalty expert with Reprieve, welcomed Hikma's pledge to cut off the supply route to US corrections departments in capital punishment states. "This shows that the pharmaceutical industry is not willing to have its products used in executions. The industry now understands that it can stop its drugs reaching death chambers."

Arkansas confirmed to the Guardian that it had been contacted by West-Ward and told that it was closing the account. That presents the state with a long-term problem, but in the short term it still has plenty of phenobarbital with a shelf life that will last until October 2015.

Earlier coverage of Arkansas lethal injection issues begins at the link.  Related posts are in the lethal injection and international category indexes.

Texas Execution Scheduled for Wednesday

Texas is scheduled to carry out its sixth execution of 2013, tonight in Huntsville.  It would be the 498th post-Furman Texas execution since 1982, and the 259th execution conducted under the administration of Governor Rick Perry.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Texas to execute man for Houston officer’s slaying," is the AP filing, via the Longview News-Journal.

When Houston police arrested Jeffrey Demond Williams for gunning down a plainclothes officer working an auto theft assignment, the slain officer’s handcuffs dangled from one of Williams’ wrists.

And:

Attorneys for Williams appealed Tuesday to the U.S. Supreme Court to stop the execution, after lower courts refused to do so. They contend that he received poor legal help in earlier appeals, and that those lawyers should have argued that his trial lawyers had failed him. The trial lawyers should have provided jurors with more than superficial mitigating evidence of Williams’ mental impairment to show he did not deserve a death sentence, they said.

“There is a reasonable probability, but for trial counsel’s unprofessional errors, the result of the proceeding would have been different,” attorney Jonathan Sheldon told the high court.

Earlier coverage of Jeffrey Williams' case begins at the link.

To date, there have been 11 executions in American death penalty states this year; a total of 1,331 post-Furman executions since 1977.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), tonight.

According to TDCJ, nine additional execution dates have been set for 2013.

Nathan Dunlap Case Developments

The Clemency Petition and all supporting documents are available through the Office of the Federal Public Defender.

The Denver Post reports, "Nathan Dunlap lawyers challenge Colorado execution procedures, secrecy," by Karen Augé.

Attorneys for condemned killer Nathan Dunlap filed a civil lawsuit on Thursday, claiming the state Department of Corrections' execution protocol — at least as much of it as they have had access to — violates state law.

The lawsuit also challenges the DOC's practice of keeping details of its execution procedures secret.

"The protocol is so secret that it defies due process," said James Kilroy, one of the attorneys representing Dunlap in the civil suit.

"We've got lawyers and an inmate who literally don't know how state intends to carry this out."

What they do know about the process comes from a portion of an execution protocol, drafted in 2006, that has been released to Dunlap's attorneys, Kilroy said.

That document has been heavily redacted, but Kilroy said, "it refers to a three-drug protocol, where state statute indicates it should be a single drug."

"Attorneys file new challenge to execution of Nathan Dunlap in 1993 pizza restaurant slayings," is AP coverage by Dan Elliott.  It's via the Republic.

The lawsuit filed Thursday says Colorado's death penalty law, which mandates execution by lethal injection, is too vague because does not specify all the drugs and dosage amounts that can be used.

It also says the law does not list required qualifications for the people who carry out the execution nor include medical safeguards, and that exposes Dunlap to the risk of "conscious and agonizing suffering."

The suit claims the Corrections Department has a "secret protocol" for executions, and that officials plan to use a combination of three execution drugs when the statute calls for using a single drug.

Today's Aurora Sentinel publishes the editorial, "Dunlap’s death sentence can’t lurk in the shadows of doubt."  Here are brief excerpts from this must-read:

Despite the endless and excruciating pain Dunlap caused an exponential number of Aurora victims, none of those dead or wounded, none of those devastated by the deaths of loved ones will be made whole by Dunlap’s death. As much as we, and so many, wish that we could trade the lives of murderers for the murdered, it’s not so. We are not made safer as a community by executing murderers instead of locking them up for all their lives. Nothing we can do to murderers can ever repay or even mitigate the loss of victims. Exhaustive studies have shown repeatedly that the death penalty does not deter murderers from acting. If it were true, places like Texas would be free from homicides. The death penalty is about revenge, and revenge is not justice.

And:

There is simply too much doubt about the effectiveness of the death penalty. There is too much doubt about whether Dunlap drew the sentence because of his race. There is too much doubt about whether Colorado residents have grown to see how barbaric and expensive it is. There is too much doubt about whether Dunlap’s circumstances, rather than his crimes, brought on a death sentence.

We beseech Hickenlooper and all Aurora residents to work to set aside Dunlap’s imminent execution and instead commit him to spend the rest of his life in prison. If not permanently, a stay of execution should be granted until lawmakers and voters have settled where Colorado voters are on the complicated issue of capital punishment.

The NAACP of Colorado has called for a commutation of Dunlap's death sentence.  Rosemary Harris Lytle writes, "Grant Nathan Dunlap clemency from the death penalty."  She's President of the NAACP Colorado/Montana/Wyoming State Conference.  Her comments appear in today's Boulder Daily Camera.

Because of these and other concerns about the application of the death penalty in Colorado, the NAACP has joined with other civil rights activists, faith leaders, former law enforcement officials, educators, victim family members, mental health advocates and others who seek clemency.

Nathan Dunlap must spend the rest of his life in prison.

Westword reports more on Dunlap's clemency petition, "Nathan Dunlap clemency bid: 'No principled reason' to execute quadruple murderer," is by Michael Roberts.

The request begins with criticisms of the death penalty and the way it's utilized in this country. Bishop James Gonia of the Lutheran Evangelical Church believes that "executions harm society by mirroring and reinforcing existing injustice. The death penalty distracts us from our work toward a just society. It deforms our response to violence at the individual, familial, institutional, and systemic levels. It perpetuates cycles of violence." Likewise, Nita Gonzales and Gene Lucero of the Colorado Latino forum maintain that "race and class should not be the consistent determinants of who gets executed."

Then, former Colorado Supreme Court Justice Jean Dubofsky, representing twelve other ex-judges, gets specific about Dunlap.

Earlier coverage of Nathan Dunlap's case begins at the link.

Texas Execution

Texas carried out its fifth execution of 2013, last night in Huntsville.  It was the 497th post-Furman Texas execution since 1982, and the 258th execution conducted under the administration of Governor Rick Perry.  Texas has the nation's most  active death chamber and accounts for more than 37% of the   executions in America's death  penalty states.

"Waco Drug Dealer Executed by Lethal Injection," is the AP report via KXXV-TV.

A Texas death row inmate convicted of killing a fellow drug dealer while robbing him outside of a Waco convenience store 10 years ago was executed Tuesday evening.

In the seconds before being injected with a lethal dose of pentobarbital, Carroll Joe Parr told his victim's wife she should talk to her brother to learn "the truth about what happened to your husband."

To date, there have been 11 executions in American death penalty states this year; a total of 1,331 post-Furman executions since 1977.

According to TDCJ, 10 additional execution dates have been set for  2013.

Texas Execution Scheduled for Tuesday

Texas is scheduled to carry out its fifth execution of 2013, tonight in Huntsville.  It would be the 497th post-Furman Texas execution since 1982, and the 258th execution conducted under the administration of Governor Rick Perry.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

'Waco robbery-drug deal gunman Carroll Parr set to die Tuesday by lethal injection," is the AP report, via KTRK-TV.

Attorneys for Parr last week argued unsuccessfully in state courts and to the 5th U.S. Circuit Court of Appeals that a witness at Parr's 2004 trial had provided an affidavit saying his testimony was false and that he'd been encouraged by McLennan County prosecutors to testify falsely. Trial prosecutors denied the accusations and said the witness' retraction wasn't credible.

The 5th Circuit last year rejected another appeal from Parr, and the U.S. Supreme Court in January refused to review his case.

To date, there have been 10 executions in American death penalty states this year; a total of 1,330 post-Furman executions since 1977.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), tonight.

According to TDCJ, 10 additional execution dates have been set for 2013.

Arkansas Update

"Ark. AG Seeks Executions for 7 Felons," is Jeannie Nuss' AP report, via ABC News.

Arkansas' attorney general asked Gov. Mike Beebe to set execution dates for seven death row inmates, according to letters obtained Friday by The Associated Press.

Attorney General Dustin McDaniel noted in the letters sent to Beebe late Thursday that six of the seven inmates are challenging the state's new lethal injection law and protocol, which calls for Arkansas to use a drug that has never before been used for lethal injections in the U.S.

However, McDaniel said there aren't any court orders in place preventing executions of those seven prisoners.

And:

Arkansas hasn't put a prisoner to death since 2005, and for now, the state doesn't have any pending executions. That's expected to change, though it's not clear when.

Beebe spokesman Matt DeCample said Friday that the governor will set execution dates, despite his misgivings about the death penalty. Beebe, a Democrat, said earlier this year that he would sign legislation abolishing capital punishment if lawmakers would send him such a bill. State Sen. Joyce Elliott, D-Little Rock, proposed just that, but the measure never made it to the governor's desk.

"Despite anyone's personal feelings about the death penalty itself, it's a very unique and different situation to be the person that has to sign that final warrant," DeCample said Friday. "That's what (Beebe's) facing doing now again and he will do it, but it is not by any means a pleasant experience."

"AG seeks execution dates for seven death-row inmates," is the Arkansas News Bureau post.

Attorney General Dustin McDaniel asked Gov. Mike Beebe on Friday to set execution dates for seven convicted killers sentenced to death.

Six of the death-row inmates are plaintiffs in a legal challenge of Arkansas’ new lethal-injection law. The state Supreme Court recently declared their stays of execution from a previous case challenging Arkansas’ old lethal-injection procedure were no longer in effect.

In separate letters to Beebe naming each death-row inmate, McDaniel requested that the governor set execution dates “because there is currently no stay of execution in place regarding … conviction, sentence or the current lethal-injection protocol.”

Beebe spokesman Matt DeCample said the governor would set the execution dates but would not set more than one execution on any particular day.

And:

Jeff Rosenzweig, a Little Rock lawyer who filed the suit last week on the inmates’ behalf, said Friday he would seek to block any execution dates Beebe sets.

“I’m assuming the governor will set some sort of dates. If and when he does, we’ll move to stay” pending the outcome of the legal challenge of the new law, Rosenzweig said.

Earlier coverage of Arkansas lethal injection issues begins at the link.

Movement on the Death Penalty

That's the title of an editorial in today's New York Times.

On Thursday, Gov. Martin O’Malley of Maryland signed a law making life without parole the state’s maximum sentence, repealing the death penalty after more than 300 years. Maryland is the sixth state in six years, and the 18th in the country, to abolish capital punishment.

States have been rejecting capital punishment for good and powerful reasons. The death penalty is expensive to pursue, unnecessary as a means of retribution and has no benefit in deterring violent crime. Moreover, states have sentenced to death people who were proved innocent. And the penalty has been imposed by both the federal and state governments in arbitrary, capricious and discriminatory manners — in a word, unconstitutionally.

And:

But, in too many states, support for capital punishment continues to overwhelm good sense. The Florida Legislature this week passed a bill that requires the governor to sign a death warrant within 30 days of a review of a capital conviction by the State Supreme Court, and the state to execute the defendant within 180 days of the warrant. This rush-to-execute bill irresponsibly ignores the fact that since 1973, when the state reinstituted the death penalty, one death row inmate has been exonerated for every three executed. .

Meanwhile, Arkansas announced plans to use phenobarbital in executions, even though that barbiturate has not been used for a lethal injection in the United States and its efficacy has yet to be demonstrated. And the Georgia Legislature passed a bill making secret much of the information involved in the state’s lethal injections, which would stymie legal challenges. Over all, however, a consensus is building that the death penalty should go, a trend that should be encouraged. Execution is an indefensible, archaic tool of vengeance.

 Related posts are in the editorial category index.

California Death Penalty Push Rejected by Senate Committee

Today's San Francisco Chronicle reports, "Death penalty changes rejected," by Bob Egelko.

Prosecutor-backed legislation to shorten death penalty appeals in California, and bring back the gas chamber, has been rejected by a state Senate committee.

The bill, sponsored by the California District Attorneys Association, was defeated by the Public Safety Committee on Tuesday on a party-line 5-2 vote.

Backers of SB779, including its author, state Sen. Joel Anderson, R-Alpine (San Diego County), said the bill would speed up executions in California, which have been blocked by court orders since 2006. It was introduced following the narrow defeat in November of a ballot measure to repeal the state's death penalty law.

The bill would have limited most condemned prisoners to one round of appeals in the state court system and another in federal court. Other provisions would have eliminated public review of regulations on execution procedures, barred disclosure of the suppliers of drugs used in executions and authorized a new method of gas chamber executions.

California's last execution by cyanide gas was in 1993. A federal judge ruled a year later that the gas chamber at San Quentin caused excruciating pain and violated the constitutional ban on cruel and unusual punishment.

And:

Under SB779, a gas execution would have been carried out by filling the chamber with a nontoxic gas, such as nitrogen or helium, displacing the oxygen and suffocating the prisoner. The condemned inmate could choose between gas and lethal injection, but the bill specified that the execution would be conducted by gas if injections were not legally available.

Earlier coverage of the California legislation begins at the link.

Colorado Judge Sets August Execution Date for Nathan Dunlap

"Judge: Nathan Dunlap to face execution on week of Aug. 18," is the Denver Post report by Karen Augé and Adrian Garcia.

A judge Wednesday set the week of Aug. 18 as the time Nathan Dunlap should die for killing three teenage employees and their 50-year-old manager during the robbery of a Chuck E. Cheese's restaurant in Aurora nearly 20 years ago.

Over the objections of Dunlap's attorneys, Judge William Sylvester announced the date in an Arapahoe County District Court.

And:

Another — and potentially critical — issue stands between Dunlap and his last meal.

Like states around the country, Colorado is in a bit of a quandary over how it will obtain the three drugs to be used in an execution.

One of those drugs, sodium thiopental, is no longer manufactured in the United States, and the Italian government has said it will not allow the drug to be exported from a plant there if it is to be used for carrying out executions.

The DOC has sent letters to numerous compounding pharmacies around the state, seeking help getting the drug, spokeswoman Adrienne Jacobson confirmed.

But the department has refused requests, by both The Post and Dunlap's attorneys, to disclose whether any of those pharmacies have agreed to compound the drug for the state.

The AP filing is, "Judge chooses August for execution of Colo. inmate," by Dan Elliott.  It's via the San Francisco Chronicle.

Arapahoe County District Court Judge William Sylvester said Nathan Dunlap could be put to death the week of Aug. 18, but he also set a hearing on June 10 to hear arguments from Dunlap's attorneys over the constitutionality of the death penalty.

Dunlap would be the first person executed in Colorado in 16 years.

"We represent a very remorseful client, and it's a tragedy that this is going forward," defense attorney Phil Cherner said outside the courtroom.

And:

Though the judge set a week when Dunlap could be executed, it is up to Roger Werholtz, interim head of the Colorado Department of Corrections, to set the exact day.

Dunlap could avoid execution if Gov. John Hickenlooper grants him clemency. Hickenlooper plans to meet privately in coming days with victims' families, attorneys, law enforcement and others regarding Dunlap, spokesman Eric Brown said.

KDVR-TV posts, "Judge sets Nathan Dunlap execution date for August; Hickenlooper to meet with all sides," by Eli Stokols and Julie Hayden.

Hickenlooper and his staff are scheduled to meet with Dunlap’s defense team on Friday, FOX31 Denver was first to report Wednesday; they’re also scheduled to meet separately with District Attorney George Brauchler and prosecutors on the Dunlap case and families of Dunlap’s victims in the coming days.

“We represent a very remorseful client and it’s a tragedy that this thing is moving forward,” said Phil Cherner, Dunlap’s attorney, after the execution date was set.

>Dunlap, who was convicted of murdering four people inside an Aurora Chuck E. Cheese back in 1994, is one of three people sitting on Colorado’s death row.

With the date now set, Hickenlooper is suddenly facing increasing pressure to make a decision about whether or not to move forward with the execution — pressure from people on both sides of the case and from within his own cabinet.

“It took 17 years of scrutiny by every court in this land to see that this was done appropriately,” Brauchler told reporters after Wednesday’s hearing. “And the idea that a governor who ran on support of the death penalty may choose to inject himself in a process that he does not have to, to take this away from the voters, to take this away from the jurors who sat on this case — that is an injustice.”

Philip Cherner and Madeline Cohen, attorneys for Nathan Dunlap, issued this statement, "In Response to Setting of Date for Execution."

“Mr. Dunlap is guilty of committing a tragic crime for which he is remorseful. He should spend the rest of his life in prison without the possibility of parole. However, several prominent individuals here today, including faith leaders, civil rights leaders, a former prosecutor and an academic share concerns about the unfair and disproportionate use of capital punishment in Colorado. Given all that we know about this broken system, it would be unconscionable for the state to carry out this death sentence.

“It is disappointing that the state has moved ahead and set a date for the execution of Nathan Dunlap. As has been well-documented in a recent study, Colorado’s use of the death penalty is unfair and arbitrary. Despite the state’s minority 4.3% African American population, 100% of the men on Colorado’s death row are African American, which points to the racial bias inherent in our broken capital punishment system. Additionally, all the men on death row were
prosecuted by the same county, and were under 21 at the time of their crimes. These similarities reflect the incontrovertible fact that the death penalty is not applied in Colorado with proportionality, according to the crimes committed, but is sought in cases where the defendant fits a narrow profile.”

Earlier coverage of Nathan Dunlap's case begins at the link.

Ohio Executes

"Ohio executes man who killed, raped 6-month-old," is the AP report filed by Amanda Lee Myers, via WOI-TV.

A man convicted of killing a 6-month-old as he raped her was executed Wednesday despite his arguments that he never meant to hurt her.

Steve Smith, 46, was executed by lethal injection for the September 1998 killing of his live-in girlfriend's daughter, Autumn Carter, in Mansfield in northern Ohio.

And:

Smith became the 51st inmate put to death in Ohio since it resumed executions in 1999. The state has enough of its lethal injection drug, the powerful sedative pentobarbital, to execute two other inmates before the supply expires. Eight more inmates are scheduled to die from November through mid-2015.

It was Ohio's second execution of 2013.  To date, there have been 10 executions in American death penalty states this year; a total of 1,330 post-Furman executions since 1977.

Scott Christianson on a California Legislator's Push to Bring Back Gas

The Sacramento Bee publishes an OpEd, "DAs push for return of the gas chamber," by Scott Christianson, a former New York state criminal justice official.  He's also the author of The Last Gasp: The Rise and Fall of the American Gas Chamber.

State lawmakers are scheduled to conduct a public hearing Tuesday on legislation to overhaul California's dysfunctional system for carrying out legal executions. Much of the proposal is old news, but there is one as-yet unnoticed feature that merits close attention.

California's district attorneys want to bring back the gas chamber. Really. While the plan stands little chance of passage, it reveals just how desperate and out of touch the pro-capital punishment forces have become.

Since 1967, despite spending many hundreds of millions of dollars on the death penalty, California has put to death a grand total of 13 people – two by a procedure of lethal gas that was struck down by the federal courts in the 1990s and the last 11 by a protocol of lethal injection that remains stymied in the courts. Not surprisingly, public opinion has been turning against capital punishment: Last November 48 percent of the electorate voted for Proposition 34, which would have ended the practice.

And:

The use of nitrogen for execution purposes was first suggested in a brief article that appeared in a conservative magazine in September 1995. In it, Stuart A. Creque, a Bay Area freelance writer, called nitrogen asphyxiation a "perfect method of execution," saying nitrogen is "cheap and universally available" material that requires no special safety precautions, and claiming that it would cause painless death without any trauma or damage to human organs.

In 2011 this method was further recommended by Kent Scheidegger, the legal director of the Sacramento-based Criminal Justice Legal Foundation, a conservative public interest law organization that often collaborates with prosecutors to champion the most punitive responses to crime.

In his blog, Scheidegger stated, "The problem with the gas chamber was not the method but the choice of gas." He advocated the use of helium or nitrogen.

"I do not need reports or studies to know that hypoxia is painless," he wrote. All that is necessary, he said, "is retrofit the gas chamber to flush it with helium or nitrogen."

How many appellate judges, scientists or engineers would agree with either of those facile assertions? California law prohibits gassing for euthanasia of dogs or cats. Veterinarians considered it too cruel. But using it on humans would be OK?

Earlier coverage of the California legislation begins at the link; more on Scott Christianson's book, at the link.

Nebraska Lethal Injection Drug News

"Portion of Nebraska's supply of lethal injection drug set to expire," is the Lincoln Journal Star report by Kevin O'Hanlon.

As a federal appeals court considers whether Nebraska and other states must surrender their foreign-made supplies of a lethal injection drug that is becoming increasingly difficult to obtain, part of Nebraska's supply is set to expire.

Nebraska has two batches of sodium thiopental, one of which expires in May and the other in December. It's highly unlikely the state will be able to replace the drug if the appeals court orders its surrender.

"No state has used sodium thiopental for two years," said Richard Dieter, executive director of the Death Penalty Information Center. "Because of a stoppage by the manufacturer, the U.S. supply has reportedly dried up, and existing supplies are almost all expired. A federal court has banned its importation from overseas without FDA approval, and that is not happening."

A three-judge panel of the U.S. Court of Appeals District of Columbia Circuit recently heard arguments in a case stemming from a ruling last year by U.S. District Judge Richard Leon, who said the U.S. Food and Drug Administration must notify immediately state prison officials in possession of any foreign-manufactured sodium thiopental that using such drugs is against the law and the drugs must be returned to the FDA.

Nebraska and several other states in which the drug is part of the execution protocol were forced to buy it overseas when the last U.S. manufacturer quit making it in 2010 because of death penalty opposition from overseas customers. Nebraska's sodium thiopental was made by a Swiss company and came in two batches.

Leon sided with lawyers for death row inmates in Tennessee, Arizona and California who say the foreign-made sodium thiopental is an unapproved drug. But FDA lawyers point to a 1985 U.S. Supreme Court ruling in the case Heckler v. Chaney that said the FDA's decision to not take enforcement action in a lethal injection drug case was not subject to judicial review.

And:

Nebraska's execution protocol could be changed, but not without considerable effort. It was formulated by prison officials and vetted through a series of public hearings. The final rules were reviewed by the attorney general and approved by the governor.

Earlier coverage of Nebraska leathal injection issues, repeal legislation in the state legislature, and the FDA litigation, at the links.  Related posts are in the lethal injection category index.

New Challenge to Arkansas' New Lethal Injection Law

The Arkansas Democrat-Gazette reports, "6 on death row sue, say drugs a gamble," by John Lynch.

Six death row inmates sued the state Friday, claiming that Arkansas' new lethal injection procedure probably will not kill them.

In a lawsuit filed in Pulaski County Circuit Court, inmates Jason McGehee, Stacey Eugene Johnson, Jack Harold Jones, Bruce Earl Ward, Kenneth Williams, and Marcel Williams ask the court to declare the new procedure illegal and block the Arkansas Department of Corrections from using it.

The new lethal injection procedure relies on an untested drug barred by federal regulators, the inmates claim in their lawsuit.

The plan, which would use an anti-anxiety drug followed by a barbiturate, is more likely to induce uncontrollable behavioral disturbances and inflict brain damage on inmates than it is to execute them, the convicted killers argue in the 34-page suit.

They contend the drug combination is the equivalent of a science experiment, which renders it illegal.

"There is little to no data about how this combination of drugs given in this quantity will affect the prisoners," attorney Jeff Rosenzweig wrote in the lawsuit.  "The 2013 Lethal Injection Procedure is totally novel and essentially amounts to carrying out an experiment on the prisoners.

"Under its new statutory authority to choose from a broad range of drugs, the [state] has chosen in its 2013 Lethal Injection Procedure a completely untried combination and quantity of drugs that will take hours to be injected and to reach their peak effect, that will produce agonizing and degrading effects during the procedure and that will severely and permanently injure - but may not kill - the prisoners," the lawsuit adds.

And:

The case was assigned to Circuit Judge Tim Fox, who presided over the last two death row legal challenges to lethal injection procedures.

"Death-row inmates sue to void new lethal-injection law," is the Arkansas News Bureau report.

A lawsuit filed Friday on behalf of six condemned killers contends Arkansas’ new lethal injection law is unconstitutional and seeks to block executions.

The lawsuit filed in Pulaski County Circuit Court contends that the new law, adopted this year in response to a state Supreme Court decision that declared a 2009 law unconstitutional, violates death-row inmates’ right to die quickly by allowing prison officials to use a slow-acting barbiturate in a mix of chemicals for lethal injections.

The law in effect when the crimes were committed required the state to use fast-acting chemicals, and the new law violates “the well-settled state law principle that a sentence must be in accordance with the statutes in effect on the date of the crime,” according to the lawsuit.

The new execution procedure authorized in Act 139, the 2013 Method of Execution Act, permits use of an anti-anxiety drug and phenobarbital, a slow-acting barbiturate. The lawsuit termed the concoction “a completely untried combination and quantity of drugs that will take hours to be injected and to reach their peak effect, that will produce agonizing and degrading effects during the procedure, and that will severely and permanently injure — but may not kill — the prisoners.”

“We’re asking for a declaration that the new statute and the procedures that have been promulgated under it are unconstitutional and illegal, and we’re asking a judge to prohibit any executions,” said Little Rock lawyer Jeff Rosenzweig.

The AP filing is, "Inmates: New Ark. execution law unconstitutional," by Chuck Bartels, via the San Francisco Chronicle.

Arkansas' just-approved execution law is as badly flawed as the version it replaced, according to a lawsuit filed Friday that argues the new law is unconstitutional and puts inmates at risk for an agonizing death.

The lawsuit was filed in Pulaski County Circuit Court on behalf of six death row inmates who argue that the law approved by legislators last month still violates existing law and is unconstitutional. The Arkansas Supreme Court last year tossed out the state's previous execution law, saying the Legislature had ceded too much control to Correction Department administrators in carrying out executions.

Arkansas hasn't executed an inmate since 2005 due to court challenges, and inmates' attorney Jeff Rosenzweig said he expects this legal effort to kick around the courts for quite a while.

"I think these are meritorious claims that I think will take the courts a while to sort out. We're dealing with a brand new statute, new procedures and a lot of complicated evidentiary issues," Rosenzweig said.

The suit argues that the new procedures from the Legislature call for the use of an anti-anxiety drug and phenobarbital, a slow-acting barbiturate, in "a completely untried combination and quantity of drugs that will take hours to be injected and to reach their peak effect, that will produce agonizing and degrading effects during the procedure, and that will severely and permanently injure — but may not kill — the prisoners."

Earlier coverage of Arkansas lethal injection issues begins at the link.

Jeanne Woodford on California Legislation

"Breaking Bad: Death Penalty Desperation," is Jeanne Woodford's latest at Huffington Post.  She's executive director of Death Penalty Focus, and a former warden at San Quentin State Prison.

What do the gas chamber, state secrets and illegally manufactured drugs all have in common?

They are all in Senator Joel Anderson's preposterous new bill, SB 779, sponsored by the California District Attorneys' Association.

The measure is likely to fail but it's the clearest evidence yet that California's death penalty is broken beyond repair -- and that the only sane choice is to replace it with life in prison without possibility of parole.

SB 779 is 35 pages long and proposes changes to 27 different code sections. It's a massive, delusional overhaul of nearly every aspect of California's wrecked and expensive death penalty system--from small things like how a transcript is reviewed, to big things like whether the Supreme Court can review a case at all.

But the most deranged proposal made by the California District Attorneys' Association in SB 779 is that we bring back gas chamber executions to California.

Earlier coverage of the California legislation begins at the link.

Colorado Appeals Court Rejects Lethal Injection Challenge

"Appeals court rejects Nathan Dunlap's secrecy challenge," is the Denver Post report by Karen Augé.

An appeals court has denied condemned killer Nathan Dunlap's effort to force the state Department of Corrections to throw out its procedures for carrying out an execution and create the plans from scratch, this time with public input.

The Colorado Court of Appeals decision, released Thursday, affirms a lower court's ruling.

Dunlap's legal team had argued that a DOC document spelling out exact details of how an inmate would be executed should be tossed out because it was compiled without public input and wasn't available for public scrutiny.

Writing for the court majority, Judge Jerry Jones said the legislature gave the DOC's executive director broad powers to manage inmates, and that includes carrying out death sentences.

Dunlap's legal team said they will appeal.

"We believe that the court is wrong to find that lethal injection procedures in Colorado are exempt from the Administrative Procedures Act," attorney Jessica Yates said in a statement.

"Court rejects execution procedure challenge," is the AP report, via KUSA-TV.

Condemned killer Nathan Dunlap has lost his bid to challenge the procedure that Colorado will use to execute him.

The Colorado Court of Appeals Thursday rejected Dunlap attorneys' argument the state developed the lethal injection execution procedure without public input. The court sided with the state that argued the lethal injection execution procedure falls under the duties of the prisons director and don't require public input.

The ruling in Dunlap v. Colorado Department of Corrections is available in Adobe .pdf format.

Dunlaps attorneys, James D. Kilroy and Jessica E. Yates of Snell & Wilmer have issued, "Statement from Attorneys for Plaintiff  Nathan Dunlap in Response to Today’s Ruling from the Court of Appeals on the Administrative Procedures Act."  Here's the full text:

“We believe that the court is wrong to find that lethal injection procedures in Colorado are exempt from the Administrative Procedures Act. We intend to appeal this decision to the Colorado Supreme Court. No execution should be allowed to take place in Colorado until – at a minimum – that court has had a full and fair opportunity to review this issue.

As Judge Richman wrote in his dissent from the court’s ruling today: ‘One of the purposes of the APA is to ensure that state agencies do not restrict the freedom of any persons contrary to the public interest . . . and to permit public input and comment on proposed rules being considered by the agencies of our state government. . .The method of carrying out a death sentence by lethal injection is a matter of public interest and a matter on which the public should have the opportunity for input.’

Lethal injection rules and procedures in Colorado are shrouded in secrecy. The use of lethal injection represents the most extreme act a government can take against a citizen. Surely, in this case, the public, the courts and the press must have access to complete information in order have input into such a major policy decision, and to ensure that the state's actions fully comport with the law. As Judge Richman observed in his dissent, ‘[t]he fact that the procedures [for lethal injection executions] are not disclosed in the regulation – nor were they disclosed to the courts that have decided this case, or even the assistant attorney general who represents the DOC – makes it particularly troublesome for us to make an informed decision.’

The public, too, cannot make an informed decision about this important issue under these circumstances.”

Earlier this week, KDVR-TV reported, "Hickenlooper ‘gathering information’ as Dunlap execution ticks closer," by Eli Stokols.  There is video at the link.

Colorado Gov. John Hickenlooper told FOX31 Denver Monday that the looming execution of Nathan Dunlap, the Chuck E. Cheese killer, is the hardest decision he’s faced yet as governor.

A district judge is set to schedule an execution date for Dunlap, who murdered four people inside an Aurora Chuck E. Cheese 20 years ago, on May 1; and that execution date would likely be some time in August.

Phil Cherner, who represents Dunlap, told FOX31 Denver Monday that he hasn’t contacted the governor’s office yet, but that he will be asking Hickenlooper to commute his client’s death sentence if and when an execution date is set.

Hickenlooper has known this moment was approaching; and he’s been grappling with the issue for the last nine months.

And:

A month ago, Hickenlooper told House Democrats he was likely to veto legislation that would have repealed Colorado’s death penalty; the bill’s sponsor, Rep. Claire Levy, was steamed because she introduced the bill believing that Hickenlooper would sign it if it got to his desk.

“I thought we’d been pretty clear that we had real concerns with the bill,” Hickenlooper said. “I don’t think the people throughout the state, at this moment at least, are there yet.”

But unlike most policy decisions, capital punishment doesn’t break down party lines — it’s a political question that is, for many, deeply personal. And there’s no poll showing a broad majority on either side of the issue, as there’s been in support of universal background checks and civil unions, policies the cautious governor has backed this year.

That makes the death penalty an awkward issue for Hickenlooper, a personable but shrewdly political executive who values consensus above all.

Earlier coverage of Nathan Dunlap's case begins at the link; also available, coverage of the Colorado repeal legislation.

Texas Execution

Texas carried out its fourth execution of 2013, last night in Huntsville.  It was the 496th post-Furman Texas execution since 1982, and the 257th execution conducted under the administration of Governor Rick Perry.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Inmate executed for 2002 slaying," is the AP report on the execution of Richard Cobb.  It's written by Michael Graczyk, via the Austin American-Statesman.

To date, there have been nine executions in American death penalty states this year; a total of 1,329 post-Furman executions since 1977.

According to TDCJ, 11 additional execution dates have been set for 2013, including five scheduled in the next five weeks. More will be added.

Additional Coverage of Arkansas LI Drug Change

"Arkansas turns to different lethal injection drug," is the report in the Little River News.

After surrendering its supply of a lethal injection drug to federal agents in 2011, Arkansas turned to a somewhat surprising place to look for another drug: a list from lawyers for several death row inmates.

The state Department of Correction said last week that it decided to use phenobarbital after attorneys for several death row inmates mentioned in a lawsuit that it might be an available drug. Phenobarbital, which is used to treat seizures, has never been used in a U.S. execution, and critics contend that a drug that's untested in lethal injections could lead to inhumane deaths for condemned prisoners.

"People should not be using inmates as an experiment," said David Lubarsky, who chairs the anesthesiology department at the University of Miami's medical school. "And that is basically what this is. It's basically experimenting."

As drugmakers object to their products' use in lethal injections, more death penalty states have been looking at different options. But the states have revealed little, if any, information about how they go about picking drugs.

And:

In Arkansas, Department of Correction spokeswoman Shea Wilson said the agency consulted medical sources before picking phenobarbital, but Wilson refused to say what those sources were. She also wouldn't say whether the agency considered using other drugs.

"Our research indicated the drug would take effect within 5 minutes and should result in a painless death," Wilson said.

But even the paperwork that came with the state's supply of phenobarbital, which is a kind of drug known as a barbiturate, warns that the "toxic dose of barbiturates varies considerably," according to records.

"We have no idea about whether or not the injection of such large doses will produce some acute tolerance effect, in which case you may or may not actually be able to kill someone with it," said Lubarsky, who has testified in death penalty cases.

Earlier coverage of Arkansas lethal injection issues begins at the link.  Related posts are in the lethal injection category index.

Texas Execution Scheduled for Thursday

Texas is scheduled to carry out its fourth execution of 2013, tonight in Huntsville.  It would be the 496th post-Furman Texas execution since 1982, and the 257th execution conducted under the administration of Governor Rick Perry.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Despite prosecutor's deal with snitch, Cobb loses appeals," is Jordan Smith's report for the Austin Chronicle on the case of Richard Cobb.

Richard Cobb was just 18 when he and a friend, 19-year-old Beunka Adams, robbed the B-D-J's convenience store in Rusk, taking two female clerks and a customer hostage. The pair drove the three hostages to a nearby field known as the "pea patch," raped one of the clerks, and tied up all three. Cobb shot the customer, Kenneth Vandever, killing him; either Cobb or Adams – it remains unclear which – shot each of the clerks. Both were wounded, faked death, and ultimately survived. The murderous pair was turned in to police by Adams' cousin a day after the crime; the state sought, and obtained, a death sentence for each defendant.

On April 25 the state intends to execute Cobb – almost a year to the day after it carried out the death sentence on his accomplice, Adams. If the schedule remains on track, Cobb would be the 497th inmate put to death in Texas since 1982.

To date, there have been eight executions in American death penalty states this year; a total of 1,328 post-Furman executions since 1977.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), tonight.

According to TDCJ, 11 additional execution dates have been set for 2013, including five scheduled in the next five weeks. More will be added.

California Legislation

The San Diego Union-Tribune reports, "Senator Wants Swifter Death Penalty Reviews," by Michael Gardner.

State Sen. Joel Anderson, R-La Mesa, is carrying separate measures to speed up death penalty reviews, including what will likely be a controversial proposal to bring back the gas chamber.

“Removing unnecessary impediments to carrying out the punishment meted out by judges and juries will ensure timely justice,” Anderson said in a statement.

The gas chamber provisions tucked into Senate Bill 779 drew a sharp rebuke from the San Diego chapter of the American Civil Liberties Union.

And:

In addition to Senate Bill 779, Anderson’s Senate Constitutional Amendment 13 would allow appellate courts to hear death penalty appeals. Currently, those cases go straight to the state Supreme Court.

The amendment would require a two-thirds vote of the Legislature to get on the ballot. Democrats, who command strong majorities in both houses of the Legislature, have shown little support for overhauling the death penalty process.

Earlier coverage from California begins at the link.  Related posts are in the state legislation category index.

Andrew Cohen Updates the Warren Hill Case

"Executing the Mentally Handicapped - Is Illegal - Except When it Isn't," is Andrew Cohen's latest post at the Atlantic.

It rarely registers as news anymore when a federal appeals court denies a request for relief made by a death row inmate. It happens all the time, every week, in every jurisdiction that still recognizes capital punishment as a sentencing option. But there is nothing typical about what two federal judges of the 11th U.S. Circuit Court of Appeals did Monday in denying relief to Warren Lee Hill, a mentally ill capital defendant in Georgia who came within hours of being executed earlier this year.

By a vote of 2-1, over a sharp dissent, the 11th Circuit panel refused to allow Hill's attorneys to pursue their claim that Hill is mentally retarded* beyond a reasonable doubt and thus cannot be put to death under both Georgia law and the United States Supreme Court's ruling in Atkins v. Virginia (a 2002 decision which declared such executions to be a form of "cruel and unusual" punishment under the Eighth Amendment). Here is the link to the 11th Circuit ruling. The Atlantic's previous coverage of this case is found in the "More On" box on the right.

What makes this result so extraordinary -- and so unnerving to many who follow capital cases -- is the rationale employed by the court in turning down Hill's request. The 11th Circuit employed an argument that turns on its head the very essence of judicial review. Yes, there was relevant new evidence that Hill is mentally retarded, the judges acknowledged, but that new evidence didn't create a new "claim." And since there was no new "claim," they concluded, Congress precluded them from allowing Hill's evidence to be evaluated on its merits.**

"Court Lifts Execution Stay; State Out of Lethal-Injection Drugs," is Bill Rankin's updated Atlanta Journal-Constitution report.

The court’s decision means the state can set a new execution date for Hill at any time. But the Georgia Department of Corrections is currently out of pentobarbital, a barbiturate used as the state’s sole lethal-injection drug.

“At this time, we are looking into the procurement of the drug,” agency spokeswoman Gwendolyn Hogan wrote in an email.

Hill’s case attracted international attention when three state experts who previously testified Hill was faking his mental disability came forward to say they had been mistaken. The doctors — two psychiatrists and a psychologist — described their evaluations of Hill more than a decade ago as rush jobs and said an improved scientific understanding of mental retardation led them to now believe Hill is mildly mentally retarded.

In 1988, Georgia became the first state to ban executions of the mentally retarded. The U.S. Supreme Court declared the practice unconstitutional nationwide in 2002.

In a strong dissent, Judge Rosemary Barkett said there is now “no question” that Georgia will be executing a mentally retarded man. She noted that the seven mental health experts — the state’s and Hill’s — who have examined Hill now unanimously agree he is mentally retarded.

“The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness,” she wrote.

The expanded AP report is, "Appeals court lifts stay of execution for Ga. man," by Kate Brumback.  It's via NECN.

Like many death penalty cases, Hill's has had a long and complicated journey through the legal system, including two last-minute stays of execution.

The 11th Circuit panel granted a stay in February after Hill's lawyers argued he was eligible for reconsideration in federal court because three doctors who had testified in 2000 that Hill was not mentally disabled provided statements in February saying they had changed their opinions and now believe he is.

Georgia passed a law in 1988 prohibiting the execution of mentally disabled death row inmates, and the U.S. Supreme Court ruled in 2002 that the execution of mentally disabled offenders was unconstitutional. But Georgia also has the strictest-in-the-nation standard for death-row inmates seeking to avoid execution, requiring them to prove their mental disability beyond a reasonable doubt. The state of Georgia has long argued that Hill's lawyers have failed to do that.

In filings with the 11th Circuit, the state said the doctors' new statements were not credible and also argued Hill was procedurally barred from asking a federal court to reconsider his case.

In the majority opinion, Circuit Judge Frank Hull writes that the court recognizes Hill has submitted new evidence to support his claims but says the core argument — that Hill is mentally disabled and therefore shouldn't be executed — remain the same. The 11th Circuit and other courts have repeatedly held that new evidence and new legal arguments in support of a prior claim aren't enough to overcome the statutory bar on repeat petitions.

"If all that was required to reassert years later a previously rejected claim was a change in testimony, every material witness would have the power to upset every notion of finality by simply changing his testimony," Hull writes.

Hill's claim also doesn't meet exceptions to the requirements that would allow reconsideration by a federal court, Hull writes.

The U.S. Court of Appeals for the Eleventh Circuit ruling in In Re: Hill is available in Adobe .pdf format.

Earlier coverage of Warren Hill's case begins at the link.

Mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.  Related posts are in the mental retardation category index.

Arkansas Now Has Lethal Injection Drugs

The Associated Press posts, "Arkansas has enough drugs to carry out executions," by Jeannie Nuss.  It's via the Republic.  Here's an extended excerpt:

Arkansas plans to use a different drug to kill condemned prisoners, and for the first time in nearly two years, it now has enough drugs to do so.

Department of Correction spokeswoman Shea Wilson told The Associated Press on Wednesday that the agency spent about $20,000 to buy lorazepam and phenobarbital, even though phenobarbital apparently hasn't been used in a U.S. execution before and lawyers for some death row inmates say it may be unsuitable for that purpose.

Until recently, Arkansas and the more than 30 other death penalty states used a virtually identical three-drug process: A sedative called sodium thiopental was administered to put the inmate to sleep, and then two other drugs stopped the heart and lungs. But makers of sodium thiopental stopped selling it for use in executions, and supplies mostly ran out or expired, forcing states to consider alternatives.

Arkansas and several other states initially turned their attention overseas, obtaining sodium thiopental from a British supplier. But that didn't last long. In 2011, Arkansas lost its supply of sodium thiopental to federal agents amid legal questions about how it got a hold of the drug.

Wilson said the new drugs arrived in Arkansas this month, marking the first time in nearly two years that the state has had enough drugs to carry out executions.

She said lorazepam, which is used to treat anxiety, would be used as a pre-execution sedative before an inmate is injected with a large dose of phenobarbital, a barbiturate used to treat seizures that has never been used in a U.S. execution, according to the Washington-based Death Penalty Information Center.

"The phenobarbital would be the one that would kill them," Wilson said.

Documents obtained by the AP show that, under Arkansas' new lethal injection procedure, the state has about eight doses of phenobarbital and more than 30 doses of lorazepam.

Earlier coverage of Arkansas lethal injection issues begins at the link.

California Appeals Court Hears Lethal Injection Challenge

The Silicon Valley Mercury News reports, "Court hears challenge to California's execution method," by Howard Mintz.

A state appeals court hearing here Tuesday underscored the extent to which California's death penalty system has been lost in the legal weeds.

During less than an hour of arguments, the 1st District Court of Appeal offered few hints on whether it would uphold a Marin County judge's 2011 order blocking executions because state prison officials failed to comply with complex administrative rules in revising California's three-drug lethal injection procedures. The highly technical issue is the latest legal impediment for the state, which has not carried out an execution in more than seven years.

Justice J. Anthony Kline was the only member of the panel to signal where he stands in the case,

indicating the prison department's effort to overhaul its execution method was botched.

"The amount of conceded mistakes here is unusual," Kline told Deputy Attorney General Michael Quinn.

But Justices James Lambden and James Richman were silent during the hearing, asking no questions of either side. The court now has 90 days to rule.

While the outcome rests on arcane legal rules, the result could be important for the pace of California's execution process. If the appeals court sides with the state, allowing the three-drug method to move forward, it might prompt resolution of related federal court challenges to lethal injection -- possibly allowing executions to proceed next year. But a loss for the state would likely add to the interminable delays on the 734-inmate death row.

"Court In SF Hears Bid To Reinstate Lethal Injection Protocol," is by Julia Cheever of Bay City News, via the San Francisco Appeal.

A lawyer for the state asked an appeals court in San Francisco today to reinstate California’s three-drug lethal-injection procedure for executing death row inmates.

Deputy California Attorney General Michael Quinn argued that the revised lethal-injection plan, completed in 2010, complied with a state administrative law governing the development of new regulations.

Public comments on the California Department of Corrections and Rehabilitation’s draft of the protocol in 2009 “dealt with every conceivable issue related to the death penalty,” Quinn told a three-judge panel of the state Court of Appeal.

“There was no confusion about what the draft regulation was about.

The public was fully informed and able to comment,” Quinn maintained.

The state is appealing a 2011 decision in which Marin County Superior Court Faye D’Opal struck down the revised protocol on the ground that the CDCR violated the state’s Administrative Procedure Act.

The law requires agencies to show that new regulations are necessary and to provide a meaningful opportunity for public comment.

D’Opal ruled that among other errors, the department failed to justify why its three-drug plan was better and more effective than an alternative of using just one drug, a barbiturate.

Steven Mayer, a lawyer for condemned inmate Mitchell Sims, argued today, “At the end of the day, when you get to the heart of the case—which is the three-drug protocol—it is totally unclear why the three drugs were adopted.”

Earlier coverage of California lethal injection issues begins at the link.

New Lethal Injection Developments in Arkansas

"Lawyers say Arkansas to use untried execution drug," is the title of Jeannie Nuss' AP report.  It's via Huffington Post.

Arkansas plans to put prisoners to death with a drug that apparently hasn't been used in a U.S. execution, and lawyers for condemned inmates warn that it could take longer for someone to die from it than from other lethal injection drugs.

Arkansas Department of Correction spokeswoman Shea Wilson told The Associated Press on Tuesday that the state plans to use phenobarbital, along with lorazepam, in lethal injections. None are currently scheduled, but Arkansas recently passed a law that will allow the state to resume executions.

Both phenobarbital and lorazepam are used to relieve anxiety. Phenobarbital, which is a barbiturate or a kind of depressant drug, is also used to control seizures.

In a letter obtained by the AP, federal public defender Jenniffer Horan told Democratic Gov. Mike Beebe that phenobarbital takes effect more slowly than other drugs used to execute prisoners and that it carries a "substantial risk of a lingering and inhumane death."

"No state has ever used Phenobarbital in a lethal injection procedure, and for good reason," wrote Horan, whose office represents a number of Arkansas death row inmates. "Throughout the history of lethal injection, states have preferred ultra-short-acting barbiturates that cause rapid unconsciousness and death. Phenobarbital, however, has a long onset of action."

And:

Horan's office declined to comment beyond the letter to the governor, but in the letter, Horan said phenobarbital has not been approved by the FDA.

No one at the FDA immediately responded to an after-hours phone message seeking comment.

Beebe spokesman Matt DeCample said he hadn't seen Horan's letter, which asks the governor to review the Department of Correction's decision to use phenobarbital.

Earlier coverage of Arkansas lethal injection issues begins at the link.  Related posts are in the lethal injection category index.

Texas Execution

Texas carried out its third execution of 2013, last night in Huntsville.  It was the 495th post-Furman Texas execution since 1982, and the 256th execution conducted under the administration of Governor Rick Perry.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Convicted killer's last words before execution: 'I'm ready. Let's go'," is the AP report filed by Michael Graczyk.  It's via KHOU-TV.

A North Texas man was executed Tuesday evening for fatally shooting a teenager during a carjacking outside a nightclub 12 years ago.

Ronnie Threadgill, 40, received lethal injection in Huntsville less than two hours after the U.S. Supreme Court rejected a last-day appeal.

To date, there have been eight executions in American death penalty states this year; a total of 1,328 post-Furman executions since 1977.

According to TDCJ, 10 additional execution dates have been set for 2013, including five scheduled in the next five weeks. More will be added.

Texas Execution Scheduled for Tuesday

Texas is scheduled to carry out its third execution of 2013, tonight in Huntsville.  It would be the 495th post-Furman Texas execution since 1982, and the 256th execution conducted under the administration of Governor Rick Perry.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Ronnie Threadgill Files Last Appeal to Supremes," is Jordan Smith's Austin Chronicle report.

At issue is whether his trial attorney – and then the state habeas attorney – rendered ineffective assistance of counsel on several counts: by failing to ask the court for jurors to be given the option of convicting Threadgill on the lesser charge of felony murder (attempting to commit one crime and engaging in a dangerous act that causes someone to lose life; unlike capital murder, there is no intent to kill in felony murder) and by failing to thoroughly investigate a previous shooting case out of Limestone County. In order to prove Threadgill would remain a future danger unless sentenced to death, prosecutors brought a host of evidence about his past. Indeed, at the time of the McDonald killing, Threadgill, then 29, had spent almost all of his adult life in prison; among the bad acts prosecutors used as evidence against him was an allegation that he had shot a man named Erik Martin in a previous and unrelated incident in another county. What Thread­gill's defense apparently did not find out was that those Limestone County charges had been dropped after prosecutors found that there was "conflicting evidence" in the case.

Threadgill's claims were ultimately shot down, however, because they had not been raised in his first appeal. And on April 3, the Fifth U.S. Circuit Court of Appeals rejected his most recent appeal, which argued that the state habeas attorney was also ineffective for not calling into question the efficacy of the trial counsel. Whether these specific types of appeals can be made in Texas is actually the subject of a pending case before the U.S. Supreme Court, styled Trevino v. Thaler. The Fifth Circuit last week declined to stay Threadgill's execution, however, arguing that regardless of the outcome of the Trevino case, Threadgill is procedurally barred from having his claim heard. Threadgill's attorney, Lydia Brandt, is appealing that decision to the Supremes; at press time, a decision in the case was still pending.

To date, there have been seven executions in American death penalty states this year; a total of 1,327 post-Furman executions since 1977.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), Tuesday.

According to TDCJ, 10 additional execution dates have been set for 2013, including five scheduled in the next five weeks. More will be added.

What's Next for California

"California's dormant death penalty system faces another legal test," is the title of Howard Mintz' report in the Silicon Valley Mercury News.

Now more than seven years since the last execution in California, the state this week will try again to revive its dormant death penalty system in an appeals court considering the latest legal tangle over San Quentin's lethal injection procedures.

In a hearing Tuesday, the 1st District Court of Appeal will review a Marin County judge's 2011 order stopping executions because prison officials failed to comply with administrative rules in revising California's three-drug execution method. The Brown administration appealed the ruling, likely assuring the state will not execute anyone this year on its 734-inmate death row.

Even as the appeal proceeds, prison officials continue to craft a new execution procedure that would rely on a single drug to put condemned killers to death, similar to methods other states such as Arizona, Washington and Ohio set up to short-circuit challenges to the three-drug procedures. A prison spokeswoman said last week there is no timetable for adopting a single-drug method.

But California appears a long way from resolving a morass of state and federal legal battles over lethal injection.

Switching to the single-drug approach would likely require a new round of administrative hearings, which could take a year or more. Resolution of the legal battle in the 1st District would only pave the way for a return to the federal courts, which first put executions on hold in 2006. And states across the country, including California, are facing fresh problems over a shortage of drugs used in executions, and questions over whether they've obtained them legally from overseas manufacturers.

Syndicated columnist Tim Rutten writes, "California on track to stop killing its own."  It's via the San Gabriel Valley Tribune.

Last November, California came surprisingly close to becoming the sixth state in the past five years to abolish the death penalty, when voters rejected a proposition on the question, 52.7 percent to 47.3 percent. That result represented a nearly 19 percent decline in support for executions from 1976, when 71 percent of the state's voters approved a referendum re-establishing capital punishment. Nationally, in fact, both the number of death sentences imposed and the number of executions carried out has declined steadily since their high point in 1999 and reached new lows in each of the past four years.

Some of this reluctance to engage in legal killing comes, of course, from moral scruple. Many others have followed the sobering number of wrongful convictions revealed by new forensic technologies such as DNA identification, and concluded that no process as clearly fallible as our criminal justice system ought to be empowered to impose an irrevocable sanction, like death. Others have become acquainted with the racial disparities that continue to characterize death sentences across the country and concluded that capital punishment's tendency to erode constitutional guarantees of equal protection under the law simply aren't eradicable.

Others have come to agree with former U.S. Supreme Court Justice John Paul Stevens, who in 2008 wrote that three decades of service on the court had lead him to conclude that his vote to reinstate executions was a mistake. "I have relied on my own experience," Stevens wrote, "in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes." A criminal punishment with "such negligible returns to the State is patently excessive and cruel," he concluded.

Earlier coverage from California begins at the link; you can also jump directly to California lethal injection issues.

Arkansas Supreme Court Lifts Execution Stays

The Arkansas Supreme Court ruling in Jones v. Hobbs is at the link.

"Court: Six death-row inmates no longer under stays of execution," is the Arkansas News Bureau report.

The stays of execution previously issued by the state Supreme Court for six death-row inmates are no longer in place, the court ruled Thursday.

The court also said the inmates will have to take their case to circuit court if they want to challenge the state’s recently passed lethal-injection law.

The high court made the ruling in the case of inmates Jack Harold Jones, Marcel Williams, Jason McGehee, Don Davis, Bruce Ward and Stacey Johnson. The six had been under stays of execution that the Supreme Court granted in 2010 while the inmates challenged the constitutionality of the state’s lethal injection procedure.

Last year, the court ruled that the state’s lethal-injection law gave too much discretion to the director of the state Department of Correction, in violation of the constitutional doctrine of separation of powers. In response, the state Legislature passed Act 139 of 2013, which sets forth the types of drugs the department can use for lethal injections and the procedures the department must use for carrying out the death penalty.

And:

“We conclude that a circuit court would have jurisdiction of a constitutional challenge advanced by petitioners regarding the newly enacted Act 139, ” the court said in the order. ”For these reasons, (state’s) motion to lift stays of execution is moot, and we deny petitioner’s request to take the matter as a case.”

"With stays dissolved, Ark. to pursue executions," is by AP writer Kelly P. Kissel, via the Stuttgart Leader.

Attorney General Dustin McDaniel expects to take steps soon toward Arkansas' first execution since 2005 after the state's highest court ruled Thursday that stays issued years ago were automatically dissolved when a former execution law was ruled unconstitutional.

The state Supreme Court ruled that stays granted to six inmates in 2010 were voided last year when justices ruled that Arkansas legislators had given the Correction Department too much control over execution procedures. Legislators passed a new law last month, but justices Thursday rejected a request by attorneys to review the law before it is challenged in lower courts.

McDaniel's office will soon certify to Gov. Mike Beebe that there are no other legal impediments to resuming executions, spokesman Aaron Sadler wrote in an email to The Associated Press.

"We anticipate sending letters to the governor in the coming days," Sadler said, but noted there was no set time frame.

Attorney Jeff Rosenzweig said he and other lawyers for the condemned inmates would file whatever responses were necessary to protect the men's rights.

The Wall Street Journal reports, "Arkansas Moves Closer to Executing Eight Inmates," by Jacob Gershman.

Siding with the state, the Arkansas Supreme Court ruled that stays of execution for six inmates that were granted in 2010 are dissolved now that the state has adopted a new lethal-injection statute that replaced one found to be unconstitutional.

The decision authorizes the attorney general’s office to ask Gov. Mike Beebe to issue “proclamations” that would set execution dates for a total of eight inmates who’ve exhausted their appeals. And it means that to postpone the executions, the inmates would have to start again in trial court with a new lawsuit challenging the law.

And:

A spokesman for Mr. Beebe told Law Blog that the governor expects to issue the warrants once it gets the requests from Mr. McDaniel.

Last summer, the state’s highest court ruled that lawmakers had delegated far too much authority to the executive branch over picking the lethal drugs used in executions. In February, the Legislature passed a new law that they said fixed that separation-of-powers problem.

“To address objections to the method of lethal injection previously provided by law, the General Assembly finds that it should adopt a method of lethal injection that uses a barbiturate to bring about the death of the condemned prisoner,” the new statute states.

The old law had given the correction department freedom to pick any substance it wanted, according to the court.

"Challenge new execution law in lower court, justices tell 6 condemned," by Sean Beherec for the Arkansas Democrat-Gazette.

The six death-row inmates who successfully challenged the state’s old death-penalty statute must take their challenge of the new death-penalty statute to a lower court before a higher court hears it, the Arkansas Supreme Court ruled Thursday.

Earlier coverage of Arkansas lethal injection issues begins at the link.

Texas Execution

Texas conducted its second execution of 2013, last night in Huntsville.  It was the 494th post-Furman Texas execution since 1982, and the 255th execution conducted under the administration of Governor Rick Perry.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

Reuters posts, "Texas executes inmate convicted in 1990 murder and rape," by Corrie MacLaggan.

Texas executed a convicted murderer on Tuesday by lethal injection for killing a man then raping the victim's fiancée, even as he maintained to the end that he was "not a killer," according to the Texas Department of Criminal Justice.

Eleven other convicts are scheduled to be executed before the end of July in Texas, which has put to death more people than any other U.S. state since the death penalty was reinstated in 1976. Last year, it executed 15 people.

Rickey Lewis was convicted of shooting to death George Newman, 45, in 1990 while burglarizing Newman's home in East Texas.

"Texas executes man for 1990 fatal shooting, rape in Smith County," is the AP report, via the Dallas Morning News.

As the drug began taking effect, he said he could feel it “burning my arm.”

“I feel it in my throat. I’m getting dizzy,” Lewis said before he started to snore and, seconds later, lost consciousness.

He was pronounced dead 14 minutes after the lethal dose began.

To date, there have been six executions in American death penalty states this year; a total of 1,326 post-Furman executions since 1977.

According to TDCJ, 11 additional execution dates have been set for 2013, including six scheduled in the next six weeks. More will be added.

Arkansas Lethal Injection Drug Information

AP posts, "Arkansas inmates seek clarification in death penalty FOIA case."  It's via KTHV-TV.

Six death row inmates who asked a judge to order the Arkansas Department of Correction to turn over documents about lethal injection drugs now want the judge to clarify his ruling in the case.

Pulaski County Circuit Judge Collins Kilgore ruled last month that the inmates can't use Arkansas' open records law to obtain information about the origin, history of quality of the drugs the state will use to execute them.

But the inmates say Kilgore's order did not mention their request for judgment about the release of documents under the state's new lethal injection law.

Earlier coverage of Arkansas lethal injection issues begins at the link.

North Carolina Legislative Roundup

"N.C. Senate taking up capital punishment changes," is the AP report, via the Virginian Pilot.

North Carolina Republican senators say rule changes to capital punishment procedures in the state will help mete out justice upon convicted killers and give closure to families of slain victims.

The Senate scheduled floor debate to on legislation that seeks to end a logjam on North Carolina's death row, where no one has been executed since 2006 due to broad legal appeals.

The bill also would repeal completely the Racial Justice Act — a 2009 law that lays out a method for prisoners to use evidence to attempt to persuade a judge their death sentences should be reduced to life in prison.

WECT-TV posts, "Author advocates for maintaining Racial Justice Act ."  It's by Bailey Hicks.

A UNCW Department Chair and author says the Racial Justice Act needs to stay. As part of Senate Bill 306, Sen. Thom Goolsby is suggesting repealing the legislation.

Dr. Kimberly Cook says that's not a good idea. While writing her book, "Life After Death Row," she interviewed over a dozen people who were exonerated from death row.

"It was very sobering, illuminating, and also inspiring," said Cook. "I was inspired by the strength and determination they had to get through that most terrifying experience and come out of it with a determination to prevail in their case against the wrongful conviction."

She says after conducting interviews and talking to people who were wrongly convicted, she believes racial bias is still present in the judicial system, which is why she says the Racial Justice Act needs to remain in North Carolina.

"When we have racial discrimination that can lead to wrongful death to people of color we have to take that seriously," said Cook.

"Racial Justice Act supporters muster opposition to repeal," is the Raleigh News & Observer report by Craig Jarvis.

Death penalty opponents are planning a news conference to muster opposition to legislation that would repeal the Racial Justice Act and resume executions.

North Carolina Coalition for Alternatives to the Death Penalty will gather with sympathetic lawmakers and people whose relatives have been murdered. The news conference will be Wednesday in the statehouse.

Earlier this month, a repeal bill backed by the Senate leadership – SB306 – was the subject of a news conference by its primary sponsor, Sen. Thom Goolsby, a Republican from Wilmington.

Read more here: http://projects.newsobserver.com/node/27246#storylink=cpy

Earlier coverage from North Carolina begins at the link.

North Carolina Legislature on Path to Rescind RJA

AP posts, "NC Senate panel backs execution rule changes."  It's by Gary D. Robertson, via WBNS-TV.

A Senate judiciary panel on Tuesday approved a Republican effort members say will kick-start the resumption of North Carolina executions after more than six years and help end a method for death-row prisoners seeking life sentences on racial bias claims.

The committee voted along party lines in favor of the measure that its chief sponsor says will ensure justice is carried out for those convicted of heinous murders. The full Senate could hear the bill later this week.

No one on North Carolina's death row has been executed since 2006 because of various legal appeals.

Capital punishment "is the law of the land, and it needs to be carried out until or unless the people of North Carolina decide they do not want a death penalty," Sen. Thom Goolsby, R-New Hanover, told the panel. "We have a number of families that continue to suffer. Their dead continue to rot in their graves, and they are waiting for justice in this state."

The bill places in state law mostly technical changes in part to reflect a state Supreme Court ruling that found doctors are required to oversee executions, after a state Medical Board rule barred doctors from doing so. The bill also repeals what's left of the 2009 Racial Justice Act, which already was weakened last year by the Republican-led General Assembly.

The original Racial Justice Act allowed death-row inmates to use statistics and other evidence to persuade a judge that bias influenced their sentences. Successful cases convert their sentences to a life term without parole.

The Wilmington StarNews reports, "Bill to repeal Racial Justice Act easily passes committee," by Molly Parker.

Sen. Thom Goolsby's bill to repeal the Racial Justice Act easily passed a Senate committee Tuesday morning, but not before members heard emotional testimony from individuals on both sides of the death penalty debate.

And:

While the death penalty is legal in North Carolina, the last execution in the state was in 2006.

Goolsby, R-New Hanover, says the Racial Justice Act, passed by the General Assembly in 2009, has resulted in an end run around the death penalty – "the law of our land."

The Racial Justice Act was passed into law on the heels of the exoneration of three black men. It prohibits the seeking of the death penalty on the basis of race and allows defense attorneys to present statistical evidence to uncover patterns of racial bias. It was significantly curtailed by the General Assembly last year, strictly limiting the data that can be presented.

News 14 Carolina, the Time Warner Cable local news outlet, posts, "Bill aimed at restarting executions in NC advanced by Senate committee."

“And it wasn't until the legislature passed a law, another law, that allowed us to put DNA in a database that I was actually freed. But I went through 36 judges, and all of them denied my appeal, even though I was innocent,” said Darryl Hunt.

The full Senate is expected to debate this bill before the end of the week.

Earlier coverage from North Carolina begins at the link.  Later today, I'll be adding additional North Carolina news.  As always, thanks to Gerda Stein for distributing.

Georgia Lethal Injection Drug Legislation

Today's Atlanta Journal-Constitution reports, "Lethal injection secrecy bill wins approval."  It's by Rhonda Cook and Bill Rankin.

The Legislature Tuesday approved keeping secret the identities of the companies that provide drugs for executions even as the Department of Corrections is preparing to destroy its stockpile of 13 vials because it expires this month.

Such information as the expiration date — which was obtained in an open records request by The Atlanta Journal-Constitution — could be withheld from the public if Gov. Nathan Deal signs House Bill 122. The proposed law, which Corrections officials sought, would make the identities of those who make and supply the lethal injection drug a “state secret,” which means Georgia would have the discretion to hide the information.

The proposed law also makes a state secret the names of prison staff who carry out executions. For decades, the Georgia has kept the names of security staff secret. It would now shield the names of private doctors the prison system hires to carry out executions.

The legislation should make it easier for Georgia to obtain lethal-injection drugs as companies worldwide, in the face of strong criticism from opponents of capital punishment, have either stopped making lethal injection drugs or forbidden such drugs from being used for executions. Just two years ago, it was disclosed that the state Department of Corrections had resorted to obtaining its supply of one drug used in the lethal-injection process from Dream Pharma, a company that operated in the back of a storefront driving school in London.

The legislation is also expected to make it more difficult for lawyers representing death-row inmates to challenge the state’s lethal-injection process.

And:

Sara Totonchi, executive director of the Southern Center for Human Rights, said the legislation that won final passage Tuesday “completely undermines the transparency and accountability of the government’s role in the grievous act of extinguishing human life, a role that should be subject to the most stringent public oversight available in the legal system.”

Earlier coverage of the Georgia legislation begins at the link.

News Coverage of DC Court of Appeals Oral Arguments

The BLT, Blog of Legal Times, posts, "DOJ Urges D.C. Circuit to Allow Import of Lethal Injection Drug," written by Mike Scarcella.

A U.S. Justice Department lawyer today urged a federal appeals court in Washington to overrule a judge who blocked the import of a drug used in lethal injections.

U.S. District Judge Richard Leon ruled last year that food and drug regulators had a mandatory duty to disallow the entry of the drug, sodium thiopental, because it fails to meet certain requirements under federal law. The plaintiffs, represented by a team from Sidley Austin, are a group of death row inmates in Arizona, California and Tennessee.

The closely watched case before the U.S. Court of Appeals for the D.C. Circuit tests the scope of FDA's discretion to decline to enforce its own regulations. The appellate panel—senior judges David Sentelle and Douglas Ginsburg, sitting with Judge Judith Rogers—didn't immediately rule following an hour-long hearing.

The prisoners' lawyers contend the FDA lacks discretion to pass up enforcement. The federal law in question, the challengers argue, mandates that the agency "shall" refuse the admission of a foreign drug that is unapproved in the United States. "Normally, that's a mandatory expression," Sentelle said in court today.

A Justice Department lawyer, Daniel Tenny, arguing for the FDA, said that "shall" only comes into play if the agency concludes that the foreign drug violates U.S. requirements. The law, Tenny said, doesn't force the FDA to block the import of every foreign drug that hasn't received regulatory approval.

And:

Sidley appellate litigation partner Eric Shumsky in Washington said there's no wiggle room in the law: Congress intentionally used the word "shall" in describing the action FDA must take when confronted with an unapproved, misbranded foreign drug.

"There is no approved sodium thiopental—period," Shumsky told the D.C. Circuit panel.

Leon ruled in March 2012 that the government's "actions also create a slippery slope that other unapproved foreign drugs may be allowed to enter into the United States to the detriment of the general public."

The FDA, Leon wrote, "appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle. How utterly disappointing!"

Earlier coverage of the issue begins with a preview of yesterday's oral arguments.

Arkansas Judge Rules Inmates Cannot See Lethal Injection Drug Info

"Judge: Ark. lethal injection records FOIA exempt," is the AP report by Michael Stratford, via the Stuttgart Daily Leader.

Death-row inmates cannot use Arkansas' open records law to obtain information about the origin, history of quality of the drugs the state will use to execute them, a state judge ruled Monday.

Pulaski County Circuit Judge Collins Kilgore ruled after a hearing Monday that communication between the Department of Correction and a drug company was not subject to disclosure under the Arkansas Freedom of Information Act — even for the inmates who may one day receive a fatal dose.

Six condemned killers sought the information despite a section of the FOI law that limits the release of certain information about execution procedures — including how the drugs are obtained. The Legislature last month changed execution procedures after the state Supreme Court ruled in 2012 that previous lawmakers had given the Correction Department too much control over the process.

Kilgore said that, following a review of emails and other communication between the Department of Correction and a drug company, he had to reject the inmates' request. A Department of Correction official testified Monday the documents reflected an attempt to open an account with a drug manufacturer to procure new lethal injection drugs.

An attorney for the six inmates, Jeff Rosenzweig of Little Rock, had said they should have a right to the information because of problems with drugs obtained in the past. He noted in a court filing that his clients discovered in 2011 that the state was seeking to execute them using "unregulated, non-FDA-approved chemicals that it obtained from a business operating out of the back of an overseas driving school."

After Kilgore's decision Monday, Rozenzweig said the inmates would appeal.

The Arkansas News Bureau reports, "Judge denies inmates access to execution documents."

A judge Monday turned down a request by a group of death-row inmate for access to information about the drugs the state plans to use to execute them.

Pulaski County Circuit Judge Collins Kilgore ruled that the information sought by six condemned killers was exempt from public disclosure under the Arkansas Freedom of Information Act under provisions of a law passed just this year setting out procedures for the Department of Correction to carry out lethal injections.

Attorney Jeff Rosenzweig filed the suit in Pulaski County Circuit Court last week on behalf of death-row inmates Stacey Johnson, Jack Jones, Jason McGehee, Bruce Ward, Kenneth Williams and Marcel Williams. They allege the DOC did not fully comply with their FOI request for documents about the drugs.

Rosenzweig said Monday he likely would filed motions for clarifications of Kilgore’s ruling.

“If we end up with a ruling that we’re not pleased with, we’re going to appeal,” he said.

In a filing Friday, the attorney general’s office said the documents the inmates sought are exempt from the FOI under Act 139 of 2013.

Act 139 was enacted in response to a state Supreme Court ruling last year that the state’s previous lethal-injection law gave too much discretion to the DOC director, in violation of the constitutional doctrine of separation of powers.

The new law sets forth the types of drugs that the Department of Correction can use for lethal injections and states that the specific procedures for carrying out the death penalty “are not subject to disclosure under the Arkansas Freedom of Information Act.”

Saturday's edition of the Baxter Bulletin carried an AP report on the state attorney general's filing, "AG asks judge to dismiss Arkansas prisoners' lawsuit."  It was written by Jeannie Nuss.

The attorney general’s office on Friday asked a judge to dismiss a lawsuit from six death row inmates who want the court to order the Arkansas Department of Correction to turn over documents about lethal injection drugs.

Assistant Attorney General David Curran argued that the documents the inmates are seeking are exempt from the Freedom of Information Act.

Plus, Curran said, the inmates will almost certainly file another lawsuit, regardless of whether they get the documents they want.

Arkansas hasn’t executed a death row inmate since 2005 in part because of legal challenges.

The state Supreme Court last year deemed Arkansas’ 2009 lethal injection law unconstitutional, saying the Legislature had given the Department of Correction “unfettered discretion” to figure out the protocol and procedures for executions, including the chemicals to be used.

The Legislature this year enacted a new lethal injection law that spells out in greater detail the procedures that must be followed. The new law says the state must use a lethal dose of a barbiturate, but leaves it up to the Department of Correction to determine which drug. Correction officials say they haven’t figured out which drug to use yet.

Arkansas doesn’t have any pending executions, but Attorney General Dustin McDaniel’s office recently took a step toward changing that. His office asked the Supreme Court to lift stays of execution for six of the state’s 37 death row inmates: Don Davis, Stacey Johnson, Jack Jones, Jason McGehee, Bruce Ward and Marcel Williams.

Earlier coverage of lethal injection issues from Arkansas begins at the link.

FDA & Lethal Injection Drugs - Appeal Being Heard Today

"Appeals court to hear arguments against lethal-injection drug," is by Michael Doyle for McClatchy News Service.  It's via the Washington Post.  The case is being heard by a three-judge panel of the U.S. Court of Appeals for the District of Columbia.

Daniel Wayne Cook sexually assaulted, tortured and killed two men, a jury agreed. He’s dead now, executed this past August in an Arizona prison.

But Cook’s name lives on, as part of a lawsuit challenging the Food and Drug Administration’s allowing importation of a drug used in executions by injection.

Death-row inmates in several states are carrying on the challenge first filed under Cook’s name, though of course none will be present Monday when a top appellate court debates the case that’s one of many attacking lethal injection.

And:

The inmates argue that the FDA acted improperly in 2010 when it allowed some state prison systems to import foreign-made sodium thiopental for use in executing prisoners. Though states have since been substituting other drugs for the fast-acting sedative, the legal challenge continues, with the potential to reach even beyond the death-penalty realm.

“This case is not about halting executions, but about ensuring that illegal drugs are not used in carrying out otherwise legal executions,” attorney Eric A. Shumsky, who represents the death-row inmates, said Friday.

Also:

Last year, a Washington-based federal judge ruled that the FDA should not have permitted importation of a drug not approved for domestic use. In response, California officials denounced the ruling as “contrary to law,” and federal officials contended that they were acting with appropriate administrative leeway.

“FDA exercises enforcement discretion in the context of drug importation in a range of circumstances, a practice that has repeatedly been brought to Congress’s attention,” Justice Department attorneys said in a legal brief.

Earlier coverage of the FDA's involvement in the importation of lethal injection drugs begins at the link; also available, coverage of the 2012 federal district court ruling in Beaty v. FDA.

Georgia Legislation

"Bill would cloak lethal injection information in secrecy," is by Bill Rankin for today's Atlanta Journal-Constitution.

The names of those who carry out Georgia’s executions and the identities of those that supply the lethal drugs would be classified as “state secrets” under legislation moving through the General Assembly.

Rep. Kevin Tanner, R-Dawsonville, who sponsored the privacy exception, said it is needed to protect individuals involved in the execution process. But opponents said it shields from view how Georgia acquires its lethal-injection drugs and could, if there is a botched execution, prevent the public from finding out why it happened.

Tanner successfully attached the “state secrets” amendment to House Bill 122, which was approved by the Senate Judiciary Non-Civil Committee on Wednesday.

It would keep private the names of the guards on duty during executions, the pharmacist who fills out the prescription and the person who administers the lethal drug, he said. The amendment also requires the identifying information of any entity that “manufactures, supplies, compounds or prescribes” the lethal injection drugs to be classified.

Tanner, a former Department of Corrections board member, said he has been working with the agency on the amendment. Nearly half of the states with the death penalty have enacted similar legislation.

And:

William Montross, a lawyer for the Southern Center for Human Rights in Atlanta, said no one wants the names of the actual executioners.

“That is not what this bill is about,” he said. “It is about giving the Georgia Department of Corrections cover so that no one can see how they obtain the drugs they use to kill people. Transparency is being thrown out the window.”

Earlier coverage from Georgia begins at the link; also available, the state's lethal injection issues.

Drugmaker to Block Sales of Propofol for Use in Executions

Bloomberg Businessweek reports, "Teva to Block Drug for U.S. Execution Use as Hospira Pressured."  It's written by Makiko Kitamura.

Teva Pharmaceutical Industries Ltd. (TEVA) said it plans to control distribution of the anesthetic propofol to prevent the drug from being used in executions of U.S. prisoners.

The world’s largest maker of generic drugs has said it plans to restart production of the medicine, which is lethal in large doses and contributed to the death of singer Michael Jackson. A shortage of other execution drugs prompted Missouri’s department of corrections to say in May it will use propofol in any upcoming lethal injections.

While it plans to supply propofol to hospitals and health- care providers, Teva will establish procedures to prevent the drug from being sold to correctional facilities, spokeswoman Denise Bradley said. Petach Tikva, Israel-based Teva joins other drugmakers, including Denmark’s H. Lundbeck A/S (LUN) and Fresenius Kabi, a U.S. unit of Germany’s Fresenius SE (FRE), which have taken similar steps.

“Teva has shown that -- like any responsible pharmaceutical company -- it wishes to be in the business of saving lives, not ending them in executions,” said Maya Foa, head of the Stop the Lethal Injection Project at Reprieve, a London-based human rights group.

"Teva Will Try To Prevent Sedative From Being Used in U.S. Executions," by Peter Loftus is from Dow Jones Newswires, via Capital.gr.

Teva Pharmaceutical Industries Ltd. (TEVA) said it will try to keep the sedative propofol out of the hands of U.S. executioners when it relaunches the product.

"In accordance with the request made by our manufacturer, Teva is limiting the sale and distribution of this product to customers who agree to use best efforts not to sell or distribute to correctional facilities," said Teva spokeswoman Denise Bradley.

Corden Pharma manufactures propofol at a plant in Italy on behalf of Teva, according to the product prescribing label. A Corden spokesman couldn't immediately be reached.

Propofol is approved for sedation or anesthesia during medical procedures or surgeries. The drug gained notoriety for its role in the overdose death of pop star Michael Jackson in 2009.

And:

Last year, Missouri adopted the use of propofol to carry out executions, but the state's Supreme Court subsequently ruled it was premature to carry out executions under the new procedure while death-row inmates challenge it.

In August 2012, another supplier of propofol, Fresenius Kabi, said it wouldn't accept orders for the sedative from any U.S. departments of corrections, and would tighten its distribution controls to try to prevent the drug from being used in executions.

The UK site Ekklesia posts, "Top pharmaceutical company moves to stop flow of execution drugs."

One of the world’s largest pharmaceutical companies has taken steps to ensure its drugs cannot be used to carry out executions by lethal injection.

UK company Teva, which describes itself as a “top 10 global pharmaceutical company [with] $20.3bn in sales in 2012,” will put in place distribution controls to ensure its products cannot be used to kill prisoners on America’s death rows.

Teva is recommencing production of an anaesthetic called propofol, which in large enough doses can be used to kill. As supplies of other execution drugs run out, US prisons are starting to turn to propofol to carry out capital punishment.

The move brings the firm, which has its headquarters in Israel, into line with other pharmaceutical companies including Lundbeck and Fresenius Kabi, who have taken effective steps to block the use of their products for executions.

Teva has stated that they too will establish procedures "to help prevent propofol from being sold to correctional institutions for use in executions and sell only to acute care hospitals, clinics and healthcare facilities where the product's use is medically necessary."

Earlier coverage of European actions to stop drugs from being used in executions begins at the link.

Related posts are in the international and lethal injection category indexes.

Lethal Injection Update From Arkansas

"Ark. death row inmates want execution drug records," is the AP report by Jeannie Nuss, via the San Antonio Express-News.

Six death row inmates asked a court this week to order the Arkansas Department of Correction to turn over documents about lethal injection drugs under a public records request.

Attorney Jeff Rosenzweig filed paperwork Monday in Pulaski County also asking the court to declare that all available information about the origin, history and quality of lethal injection drugs must be disclosed under the Freedom of Information Act.

"Not only the condemned people, but the people in the state of Arkansas have a right to know what's being done in their name," Rosenzweig told The Associated Press on Tuesday.

Rosenzweig said a fellow attorney, Josh Lee, asked correction spokeswoman Shea Wilson for records related to lethal injection drugs earlier this month. But according to Rosenzweig's lawsuit, Wilson said the department didn't have any new information to release under the state's new lethal injection law.

Lee wrote back to Wilson, saying he took her response to mean that she had records responsive to his request and that she was refusing to disclose them because of an FOIA exemption in the lethal injection law.

The Arkansas News Bureau reports, "Inmates seek release of information on lethal-injection drugs."

Attorney Jeff Rosenzweig said Tuesday he filed a lawsuit in Pulaski County Circuit Court on Monday after the Department of Correction did not, in his opinion, fully comply with a request submitted under the Arkansas Freedom of Information Act.

A law enacted earlier this year sets forth the types of drugs that the Department of Correction can use for lethal injections. The law was a response to a state Supreme Court ruling last year that the previous lethal-injection law gave too much discretion to the DOC director, in violation of the constitutional doctrine of separation of powers.

Also, Rosenzweig and other attorneys representing a group of death-row inmates whose executions had been stayed because of the Supreme Court ruling asked the Supreme Court on Monday to deny a motion by the state to lift the stays.

Rosenzweig said it is not entirely clear whether the new lethal-injection law has cured the problems identified by the Supreme Court.

“I think most would agree it reduces the separation-of-powers problem. I don’t think it necessarily fully solves it. A court will have to decide,” he said.

Earlier coverage of Arkansas lethal injection issues begins at the link.

Kentucky Lethal Injection Hearing Coverage

"Judge plans to rule 'very promptly' on executions," is a condensed version of the AP report filed by Brett Barrouquere.  It's via KY Post.

A Kentucky judge says he plans to rule "very promptly" on the state's request to lift an injunction barring executions since 2010 and whether it may use a new single-drug method to carry out lethal injections.

Franklin Circuit Judge Phillip Shepherd on Monday described the issues surrounding executions as "a difficult matter" after a 90-minute hearing in Frankfort.

Attorneys for the state asked Shepherd to allow executions to go forward with a new one- or two-drug method. Earlier this year, the state adopted an execution process similar to Ohio's to replace a lethal injection method using three drugs.

An expanded version is available as, "Prosecutors: Execution changes prompted by inmates," via the Lexington Herald-Leader.

Kentucky prosecutors argued Monday that executions in Kentucky should resume because the state changed the way it would carry out lethal injections based on the concerns raised by condemned inmates who sued over the method.

In a 90-minute hearing in Frankfort, Assistant Attorney General Heather Fryman asked Franklin Circuit Judge Phillip Shepherd to lift an injunction barring executions in the state for the last three years. Fryman said the state looked at what the inmates sought to do away with and what other states had successfully done before adopting a lethal injection that uses 3 grams of sodium thiopental or 5 grams of pentobarbital - similar to the method used by Ohio. "We picked the drugs that they asked for," Fryman said.

And:

The court hearing was the latest tick in a decade-long battle over how Kentucky may carry out the court-mandated sentences for the 33 men and one woman awaiting executions in cases that rose to the U.S. Supreme Court, which effectively upheld lethal injections in 2007.

Shepherd halted lethal injections in 2010 as the state prepared to execute 56-year-old Gregory L. Wilson for the 1987 rape, kidnapping and murder of 36-year-old Debbie Pooley in Kenton County. The judge expressed concerns about how the state would determine if an inmate is mentally disabled and whether the use of sodium thiopental, pancuronium bromide and potassium chloride caused an unconstitutional amount of pain and suffering.

Earlier this year, Kentucky revised its regulations to use one drug - 3 grams of sodium thiopental or 5 grams of pentobarbital - and repeat the dose if the inmate has not died within 10 minutes.

In a two-drug execution, the warden may authorize continued injections of 60 milligrams of hydromorphone until the inmate dies, if the initial injection is not deadly. The regulations give the state the option of which method to use depending upon the availability of the drugs. Under the new regulations, inmates are informed seven days before a scheduled execution whether a single drug or two drugs will be used.

Much of the hearing dealt with the potential availability of sodium thiopental and pentobarbital and whether an American manufacturer of those drugs could be found. Multiple states, including Texas, Georgia and Ohio have used those or similar drugs, but at times have also struggled to find a steady supply.

The article notes that Kentucky has conducted three post-Furman executions since 1977.

Earlier coverage of Kentucky lethal injection issues begins at the link.

Lethal Injection Hearing in Kentucky

AP reports, "Ky judge to hear arguments over lethal injection method, state seeking to restart executions."  It's written by Brett Barrouquere, via the Republic.

Attorneys for Kentucky are set to argue why lethal injections should be allowed to go forward for the first time in more than four years.

Franklin Circuit Judge Phillip Shepherd will hear arguments at 2 p.m. Monday in Frankfort. The state earlier this year switched from using three drugs to carry out a lethal injection to a method that uses 3 grams of sodium thiopental or 5 grams of pentobarbital — similar to the method used by Ohio.

"Kentucky Could Be on the Verge of Restarting Executions," is the WKU-FM report by Lisa Autry.

Earlier this year, the state switched to one or two drugs, depending upon the availability of the drugs. 

Governor Beshear has requests to set execution dates for condemned inmates Robert Foley and Ralph Baze, but the governor has given no indication if or when he will act on those requests should the injunction be lifted.

Kentucky has executed three inmates since the death penalty was re-instated in 1976.  The last was in 2008.

Earlier coverage of Kentucky lethal injection issues begins at the link.  Related posts are in the lethal injection index.

Developments in North Carolina

At the Charlotte Observer O-pinion site, editorial board member Fannie Flono writes, "Time to rev up N.C.'s executions? No."

It's time to juice up the needle. No more slacking off on sending the N.C. death-row inmates to the death chamber for their lethal injection.

That's the thinking behind a new bill introduced Wednesday by New Hanover Republican senator Thom Goolsby. Goolsby's Senate Bill 306 would repeal the 2009 N.C. Racial Justice Act, a law state Republicans already gutted last year. The changes drastically reduced the ability of judges to use general statistics and data to decide whether a death row inmate was given the death penalty because of his or her race. Goolsby gave his support for that revamped bill lawmakers approved, saying then that he didn't "trust statisticians or people who come in after the fact to find some way to get coldblooded killers off of death row."

But that wasn't good enough and now he's calling for the law's total revocation. His bill also calls for doctors, nurses and pharmacists to participate in executions without fear of punishment from state licensing boards, something the courts have already declared permissible. And it also requires a somewhat ghoulish death watch by lawmakers with mandated updates to the General Assembly on the status of post-conviction death penalty cases, and on the training of executioners.

And:

Instead of trying to restart the state killing industry, North Carolina should join those states abandoning it. It's too often unfairly administered even when race is not a factor.

"Bill seeks to streamline NC execution process," is the AP report filed by Michael Biesecker.  It's via the San Francisco Chronicle.

Legislation introduced Wednesday aims at streamlining the execution process in North Carolina.

The measure by Sen. Thom Goolsby, R-New Hanover, seeks to make several changes to laws governing the administration and appeal of capital punishment. It also includes doing away with the state's Racial Justice Act.

The 2009 law allows those sent to death row to seek having their sentences commuted to life in prison without the possibility of parole if they can convince a judge racial prejudice played a role in their conviction.

Flanked by prosecutors from across the state, Goolsby decried that none of the 152 inmates on North Carolina's death row have been executed since 2006 due to various state and federal legal appeals.

WRAL-TV reports, "Bill seeks to put death penalty back on track."  It's by Mark Binker.

Sen. Thom Goolsby, R-New Hanover, has filed a bill he said will end North Carolina's de facto moratorium on the death penalty. Among other measures, it would wipe away the last vestiges of the Racial Justice Act, a measure that allows death row inmates to challenge their sentences based on statistical evidence.

And:

The measure also:

• Codifies court rulings that allow doctors, nurses and other health professionals to participate in executions without sanction from the North Carolina Medical Board or other licensing bodies.
• Outlines the time line the attorney general and Division of Adult Correction has to follow once an inmate has exhausted his or her appeals.
• Provides ongoing training to execution teams.
• Requires regular reports on the status of death row cases to the General Assembly.

It's unclear how much more quickly executions would happen if Goolsby's bill passes.

"Families of Fayetteville-area murder victims support bill to repeal Racial Justice Act," is the Fayetteville Observer report by Paul Woolverton.

The families of two Fayetteville-area murder victims stood in support of legislation filed Wednesday to repeal North Carolina's Racial Justice Act and end the state's unofficial moratorium on executions.

The Racial Justice Act of 2009 and 2012 provides condemned inmates an opportunity to escape death row if they have evidence that racism was a factor in their prosecutions and convictions. It was a response to concerns of institutional racism in the criminal justice system.

Independently from the Racial Justice Act, all executions in the state were halted in January 2007 by court challenges questioning the legality and constitutionality of North Carolina's execution practices.

"The beginning of the end of that moratorium starts today," said state Sen. Thom Goolsby, a Wilmington Republican and criminal defense lawyer, during a news conference to announce his legislation.

And:

The state is still in litigation over the constitutionality of its execution procedures, whether they violate the Eighth Amendment's prohibition on cruel and unusual punishment, said David Weiss, a lawyer with the Center for Death Penalty Litigation. Goolsby's bill would have not have an effect on that case, Weiss said, and until it's resolved, executions will remain on hold in North Carolina.

He thinks it will take at least a year.

The matter is pending before the N.C. Court of Appeals, and from there, it's expected to be heard by the N.C. Supreme Court, Weiss said.

"GOP bill would repeal Racial Justice Act once and for all," is from Raleigh's News & Observer.

SB306, filed by Sen. Thom Goolsby, a Wilmington Republican, would repeal the RJA in its entirety. Goolsby announced the bill at a news conference attended by district attorneys from around the state, and relatives of murder victims.

The bill would apparently not bring an end to the claims that have already been filed under the Racial Justice Act, however.

Goolsby said the bill would "restart the death penalty in North Carolina to ensure justice for the more than 100 families whose loved ones were taken brutally from them."

Tye Hunter, director of the Center for Death Penalty Litigation, in an interview noted that Republican legislators last session insisted they weren’t repealing the Racial Justice Act. “Now the mask is off,” Hunter said.

NC Policy Watch posts, "A return to executions?"  It's by Sarah Ovaska.

North Carolina hasn’t had an execution since 2006, and state Sen. Thom Goolsby wants to change that.

Goolsby, a Wilmington Republican, filed a bill today that seeks to repeal what’s left of the Racial Justice Act and restart executions in North Carolina.

North Carolina’s death row has 152 people on it, and the numbers of people sentenced to death has lessened in recent years. No one was sentenced to death by a North Carolina jury last year, though three people were in 2011. The longest resident of death row, Wayne Laws, has been awaiting execution since 1985.

Earlier coverage from North Carolina begins at the link. You can also jump directly to earlier news of the state's Racial Justice Act.

As always with news from North Carolina, thanks to Gerda Stein for distributing.

Nebraska Repeal Legislation Heard; Expected to Advance to Floor

The Omaha World-Herald reports, "Bill to abolish Nebraska death penalty is expected to advance."  It's written by Martha Stoddard.

Nebraska lawmakers appear headed for another debate about abolishing the state's death penalty.

At least five of the eight Judiciary Committee members are expected to support advancement of a repeal bill.

State Sen. Ernie Chambers of Omaha said he would name the bill his priority for the session if it gets out of committee.

“It's always a priority for me,” he said after a public hearing Wednesday on Legislative Bill 543.

The bill, which Chambers introduced, represents the latest round in the veteran lawmaker's long-running struggle to abolish capital punishment in the state.

It would substitute life in prison without parole for the death sentence.

The bill also would eliminate legal authorization for any means of execution, making it impossible to execute the 11 men now on death row.

"Chambers takes 37th swipe at death penalty," is by Kevin O'Hanlon for the Lincoln Journal Star.

Thirty-six times he has tried. Thirty-six times he has failed. Yet, Sen. Ernie Chambers of Omaha continues his seemingly quixotic attempt to abolish Nebraska's death penalty.

"It's a principle with me," Chambers said Wednesday. "The state should not kill any of its residents. I don't care who the victim is. I don't care who the perpetrator is or the means by which the life was taken. The state should not kill, because it cheapens life. It hurts public morals by virtue of cheapening the life."

And with that, Chambers went before the Judiciary Committee to discuss his bill (LB542) to change the death penalty to life in prison without the possibility of parole.

Chambers was re-elected to his north Omaha seat in November after sitting out four years because of term limits. Each year from 1973 to 2008, Chambers introduced a bill to abolish the death penalty. His bill passed in 1979, but it was vetoed by then-Gov. Charles Thone.

The AP report is, "Death penalty foes make religious, cost argument," by Grant Schulte.  It's via the News Times.

The state has 11 inmates on death row, but a series of legal problems with the method of execution has thwarted recent attempts. The state had previously executed prisoners using the electric chair, but the Nebraska Supreme Court ruled in 2008 that it was cruel and unusual punishment. Lawmakers voted the following year to replace the electric chair with lethal injection, but the state has not executed anyone using that method.

The sister of murder victim James Thimm said the death penalty has prolonged her family's suffering by keeping her brother's killer in the public eye. Thimm's killer, Michael Ryan, has sat on Nebraska's death row for more than 25 years after his conviction.

"Closure is a myth," Miriam Thimm Kelle said. "The death penalty does absolutely nothing for families, except more pain. It prevents the state from doing other things that could help prevent violent crime or solve cold cases."

Several who testified said the state uses the punishment unfairly, in some cases giving prison time instead of a death sentence for an equally heinous killing.

"Bill would abolish death penalty in Nebraska," is by Joseph Moore of the Nebraska News Service.  It's via the Rapid City Journal.

Nebraska would become the 18th state in the United States to abolish the death penalty under a bill introduced by Sen. Ernie Chambers of Omaha. The Legislature’s Judiciary Committee heard testimony March 13 on LB 543.

The bill would get rid of the death penalty in the state and replace it with life imprisonment without the possibility of parole. Nebraska has executed three people since 1976 when the U.S. Supreme Court allowed the resumption of executions after a two-year moratorium. There are currently 11 inmates on death row in the state.

In his remarks before the committee, Chambers called the death penalty a “negative influence on public morality” and cited Pope John Paul II’s call for the abolition of state-sponsored executions.

“The experience of this state with the death penalty has been fraught with errors, frustration and delay due to the constitutional mistakes in the statute,” Chambers said.

Additional coverage includes:

"Legislature debates removal of Nebraska death penalty," by Josh Egbert for KHAS-TV.

"Death penalty foes make religious, cost argument," at KETV-TV.

NET Nebraska reports, "Death penalty abolition considered," by Fred Knapp.

Earlier coverage from Nebraska begins at the link; case related coverage is also available.

Oklahoma Executes

"Oklahoma executes man convicted in 3 murders," is the AP report, via WLS-TV.

A man convicted of committing three murders in three states during a 10-day rampage was executed Tuesday in Oklahoma for one of the murders, the 1999 death of a woman whose credit cards he used to buy Christmas presents for his family.

Steven Ray Thacker, 42, used his final statement to apologize to his victims' families and friends, several of whom witnessed his execution from an adjacent room at the Oklahoma State Penitentiary in McAlester.

It was Oklahoma's first execution of the year, and the fifth execution in an  American death penalty state this year.  Oklahoma has executed 103 men and women since 1990.  Only Texas and Virginia have carried out more post-Furman executions.  In all, there have been 1,325 post-Furman executions since 1977.

Related posts are in the execution category index.

Colorado Seeks Lethal Injection Drugs

Today's Denver Post reports, "Colorado asks pharmacists for help in securing lethal injection drug."  It's written by Tim Hoover.

Struggling to obtain quantities of a lethal injection drug in order to carry out the state's first execution in 15 years, the Colorado Department of Corrections is now turning to pharmacists for help.

On Tuesday, the department sent a letter asking pharmacies across the state for help securing sodium thiopental, the barbituate general anesthetic also known as sodium pentothal that is used in lethal injections.

"For the first time since 1997, the CDOC is facing the task of carrying out an execution," department Director Tom Clements wrote in the letter sent to 97 compounding pharmacies across the state. "I am reaching out to compounding pharmacies throughout the state of Colorado in order to comply with state law that the CDOC acquire sodium thiopental or other equally or more effective substance to cause death."Under state law, the department must carry out executions with "a lethal quantity of sodium thiopental or other equally or more effective substance sufficient to cause death."

Earlier coverage from Colorado begins at the link.

Related posts are in the lethal injection categoy index.

Ohio Executes & Steps Up Search for Pentobarbital

"Focus returns to next source of Ohio lethal drug after execution of security guard's killer," is the AP report by Legal Affairs Writer Andrew Welsh-Huggins.  It's via the Republic.

Attention is back on Ohio's search for a new execution drug after the state put to death a security guard's killer and the deadline for finding a new drug approaches rapidly.

Frederick Treesh received a dose of the powerful sedative pentobarbital and was pronounced dead Wednesday morning at the Southern Ohio Correctional Facility in Lucasville.

And:

The Department of Rehabilitation and Correction runs out of its pentobarbital supply in September, and the agency is seeking an alternative. One option floated by authorities is obtaining the drug from compounding pharmacies, which are licensed to create small batches of drugs for specific clients.

Regular pentobarbital is no longer available because its manufacturer has put it off limits to states for executions.

It was Ohio's first execution of the year, and the fourth execution in American death penalty states this year; a total of 1,324 post-Furman executions since 1977.

France has issued a diplomatic communique on the Ohio execution.

France condemns the execution by lethal injection of Frederick Treesh in the state of Ohio on March 6, 2013. This is the 4th execution in the United States in 2013 and the 50th prisoner to be put to death in Ohio since the moratorium ended in 1999.

France reaffirms its constant opposition to the death penalty everywhere and under all circumstances. This is the thrust of the campaign for the universal abolition of the death penalty, launched on October 9, 2012. Our diplomatic network is fully committed to this priority, wherever the death penalty continues to be applied. France urges the Ohio authorities to put an end to the executions, to re-establish a moratorium and to initiate a debate on the abolition of the death penalty.

Earlier coverage from Ohio begins at the link. Related posts are in the lethal injection index.

South Dakota Lethal Injection Challenge Rejected

The Rapid City Journal reports, "Court rejects Charles Russell Rhines' lethal injection appeal."

Charles Russell Rhines came one step closer Thursday to his execution sentence for the 1992 murder of Donnivan Schaeffer in Rapid City.

Rhines challenged the constitutionality of South Dakota's lethal injection protocol, and Thursday Pennington County Circuit Judge Thomas Trimble rejected the challenge.

And:

"Lethal injection is the most humane manner of implementing the death penalty," wrote the court. The court concluded that South Dakota's protocol is similar to and in some respects more protective than the protocol approved by the United States Supreme Court.

Rhines can appeal this decision to the South Dakota Supreme court and then to federal courts before he exhausts all appeals.

South Dakota executed two men last year who had waived their appeals.

Legal Challenge Expected for New Arkansas Lethal Injection Law

"Legal challenges likely to delay Ark. executions," is the AP report filed by Jeannie Nuss.  It's via CT Post.

Arkansas enacted a new lethal injection law this week, ending months in legal limbo after the state's top court threw out the old law last year.

However, with more legal challenges expected, the state is likely months away from killing a condemned prisoner for the first time since 2005.

The attorney general's office expects some of the state's 37 death row inmates to challenge the new law.

"We don't know when the inmates will choose to file their lawsuit, but we are prepared for them to file it and we will be ready when they do," Chief Deputy Attorney General Brad Phelps said.

Two days after Gov. Mike Beebe signed the new execution legislation into law, no new execution dates had been set on Friday, meaning the state doesn't have any pending executions. For that to change, Attorney General Dustin McDaniel would have to notify Beebe that inmates' court challenges have run their course and ask him to schedule executions.

Phelps, the chief deputy attorney general, would not say which of the eight inmates who have exhausted their appeals would be the first to have an execution date.

And:

The Arkansas Supreme Court in June deemed a 2009 lethal injection law unconstitutional, saying the Legislature had given the Department of Correction "unfettered discretion" to figure out the protocol and procedures for executions, including the chemicals to be used.

What Beebe signed Wednesday spells out in greater detail the procedures that must be followed. However, some lawmakers expressed concerns that the law fails to address issues that led the court to overturn the previous one.

The new law says the state must use a lethal dose of a barbiturate, but leaves it up to the Department of Correction to determine which drug. So far, that agency hasn't rushed into selecting a drug.

"It's not like we're chomping at the bit for another execution. They're difficult," Department of Correction spokeswoman Dina Tyler said. "But if it's going to be the law of the land we have to have a way to carry it out."

Earlier coverage of the new Arkansas lethal injection law begins at the link.  Related posts are in the lethal injection index.  Arkansas has had a de facto moratorium on executions because the defective law.