"The flaws of lethal injection," is the title of an OpEd in today's Los Angeles Times written by California attorney
It has been a year and a half since the Supreme Court ended the nationwide moratorium on lethal injections, finding that Kentucky's three-drug protocol had adequate safeguards to protect inmates from "cruel and unusual" punishment. But in California, executions remain on hold, as they have been for more than three years. Some have urged the governor and others to move things along. They point to executions without incident, like Tuesday's of John Allen Muhammad in Virginia. But other recent executions compel a contrary conclusion: We still haven't found a way to get it right.
The latest debacle came in September, when Ohio botched its third lethal injection execution in as many years. The saga began when corrections officials could not find a vein during the execution of Romell Broom. They tried for two hours, sticking Broom at least 18 times. The process got more macabre when the condemned man tried to help his executioners, pumping his arm and pointing out potential veins. The team of corrections officials finally gave up, and Broom returned to death row.
It was all eerily familiar to those who follow executions in California. In each of the last three executions here, prison staff struggled for more than 30 minutes to insert IV needles. One of the prisoners, Stanley Tookie Williams, asked his executioners, "You doing this right?"
For those who believe that the lethal injection debate is just another concern of defense attorneys, let me assure you that is not the case. I served for 15 years as a federal prosecutor in Los Angeles and with an organized crime and drug enforcement task force based in Maryland. My tenure coincided with the "tough on crime" mind-set of the late-1980s and early 1990s. I sat on a committee that made recommendations regarding when and if to seek the ultimate sanction of death in particularly heinous federal criminal cases.
And:
The defects in lethal injection affect more than just the person being executed. Corrections officers who perform executions without proper training suffer a terrible strain. Families of crime victims who watch a botched process are further traumatized. And all of us are diminished when we allow an inhumane and unsound process to be the norm.
No state should go forward with another execution until we can be assured that it knows what it is doing in the death house. And if we don't have the ability to get it right, then maybe it's time to revisit the death penalty altogether.
AP's Andrew Welsh-Huggins has filed, "Ohio: 1 lethal injection drug should end lawsuit," available via Google News.
The state's decision to replace a three-drug lethal injection with a powerful dose of one anesthetic is raising the possibility of what may have seemed unthinkable not so long ago: a truce in the long-running legal challenges to death penalty injection across the country.
Ohio Attorney General Richard Cordray put it bluntly: A one-drug method would "render moot" his state's current injection lawsuit, which raises some issues found in other states regarding the potential for pain and suffering.
The state on Friday announced its plans to put a one-drug method in place by Nov. 30, in time to carry out an execution on Dec. 8. Inmate Kenneth Biros' execution has been on hold since a botched execution of another inmate on Sept. 15 temporarily stopped capital punishment in Ohio.
At issue are the other two drugs used in Ohio and 35 other states — one drug that paralyzes inmates and another that stops their hearts. Inmates have long argued that the combination of the other two drugs could cause pain that would not be detected.
Ohio, injection experts and defense attorneys challenging injection say a single dose of an anesthetic, similar to how veterinarians put down pets, would eliminate the potential for pain.
Opponents of the three-drug system aren't ready to concede the end of lawsuits anytime soon. But they're applauding Ohio for taking a step that other states have considered but not undertaken.
"If tomorrow every death penalty state got rid of the second two drugs in their protocols, certainly the Eighth Amendment concerns would be significantly alleviated," said Ty Alper, associate director of the Death Penalty Clinic at the Berkeley School of Law.
The Eighth Amendment prohibits cruel and unusual punishments.
Tennessee considered the one-drug approach but rejected it in favor of keeping the three-drug system. California also considered scaling back to one drug but concluded it might cause prisoners to go into convulsions "with unpredictable consequences."
Several states besides Ohio also have faced constitutional challenges to their three-drug execution procedures, but Ohio is the first to drop that approach in favor of a one-drug method.
The U.S. Supreme Court upheld the constitutionality of lethal injection last year, but Ohio's new system would be substantially different from the three-drug process the court examined.
AP also has the sidebar, "Prominent state challenges to lethal injection," from AP via Google News.
California: A federal judge has suspended executions until prison officials fix the deficiencies he identified in the lethal-injection process.
Maryland: Executions were halted in June as new execution protocols submitted by Gov. Martin O'Malley are examined by a legislative panel. O'Malley, a death penalty opponent, waited to submit the new rules in a failed attempt to give the Legislature time to repeal the death penalty.
Missouri: The execution process resumed this year for the first time in nearly four years but was stalled in June when the state's chief justice said the court was unlikely to schedule any future executions until legal challenges were resolved over the training and competence of the state's execution team.
Arizona: Executions have been on hold since 2007 as the U.S. Supreme Court reviewed Kentucky's lethal-injection method. Kentucky's plan was approved, but the high court didn't rule on methods in other states. Federal public defenders in Phoenix then questioned Arizona's methods in state and federal court.
Tennessee: A federal appeals court delivered a victory for the state's lethal-injection method in July after executions had been held up for years by an inmate's lawsuit contending it inflicted unnecessary pain.
"New execution protocol faces legal test," is the title of Tom Beyerlein's report in the Sunday editionof the Dayton Daily News.
The surprising and unprecedented changes that Ohio prison officials have made to the state’s execution protocol surely will be challenged in court, but the new plan may allow lethal injections to proceed more swiftly than if the state had insisted on maintaining the controversial process that led to an aborted execution attempt in September.
Even some death penalty opponents hailed Friday’s announcement by state prisons chief Terry Collins to replace a protocol using a three-drug lethal cocktail with a single-drug procedure and a backup plan to allow a lethal shot to the muscles if executioners can’t find usable veins.
“They’re not standing pat and defending the status quo,” said Richard Dieter, executive director of the Death Penalty Information Center of Washington, D.C. “That is the right thing to do. It’s quite possible Ohio will be a leader and other states will adopt this.”
Still, Dieter said the protocol is untested, and “we don’t know how it will work in practice. This is going to be an experiment with human subjects.”
Under the new protocol, condemned inmates are to be injected with a single drug, thiopental sodium, at a dose 2.5 times higher than the current amount. Two other drugs, pancuronium bromide and potassium chloride, will no longer be used. If a usable vein can’t be found, executioners will inject two other drugs, midazolam and hydromorphone, directly into the muscle.
And:
Ohio Public Defender Tim Young, whose office represents a number of death row inmates, said he’s pleased with the changes, which he called a major step toward ensuring that condemned inmates don’t meet a painful death. Young said his only disappointment with the plan is that Collins didn’t place a limit on the time spent or number of intravenous injection attempts made before switching to the alternate method.
Collins said the new procedures will be painless and won’t cause any disturbing effects, such as flailing by the inmate. The one-drug system will take about as long to cause death — 15 to 20 minutes — as the current procedure, he said. The intramuscular injection, similar to a flu shot in its delivery, could take up to 30 minutes or so.
Kevin Werner, executive director of Ohioans To Stop Executions, said that regardless of the protocol, the death penalty fails to deter crime and carries the risk of executing innocent people.
“The best improvement we can make to Ohio’s death penalty system,” he said, “is to abandon it and invest our energies in real ways that keep us safe and meet the needs of murder victims’ families, without the irreversible risk of mistake that the death penalty inevitably brings.”
National coverage includes Ian Urbina's Saturday report in the New York Times, "Ohio Is First to Change to One Drug in Executions."
Breaking ranks with the 35 other states that use lethal injections to execute prisoners, Ohio on Friday became the first state to say it would switch to a single drug, rather than a three-drug cocktail, in its death penalty procedure.
Critics have long argued that using a single drug, the preferred method in animal euthanasia, is more humane than the three-drug cocktail, which involves a short-acting barbiturate to render the inmate unconscious, followed by a paralytic and then a chemical to stop the heart.
But states have resisted changing the three-drug procedure, which has been in use since the late 1970s. And in a 2008 ruling that upheld Kentucky’s method of putting condemned prisoners to death, the Supreme Court rejected the claim that the three-drug cocktail posed an unconstitutional risk of a condemned inmate’s suffering acute yet undetectable pain.
Legal scholars said the Ohio decision represented a mixed blessing for death penalty opponents.
“This is a victory for those who complained particularly about the three-drug protocol,” said Douglas A. Berman, a law professor at Ohio State University. “However, death penalty opponents may find it even harder to complain about execution procedures if courts endorse this new approach and if Ohio is able to conduct executions without incident using this new protocol.”
Deborah W. Denno, a law professor at Fordham University, said the shift would have “national repercussions in that it is foreseeable that other states will follow.”
Ohio’s decision came in response to the failed Sept. 15 execution of Romell Broom, 53, who was convicted of the 1984 abduction, rape and murder of a 14-year-old girl.
And:
The new procedure announced Friday involves administering a massive dose of an anesthetic. If that fails, prison officials will then inject two chemicals — midazolam and hydromorphone — directly into the inmate’s muscles.
“I have full confidence that this protocol will allow my staff the ability to fulfill our legally mandated obligation in carrying out the execution process,” said Terry J. Collins, director of the Ohio Department of Rehabilitation and Correction.
Ty Alper, associate director of the Death Penalty Clinic at the University of California, Berkeley, called the change “a significant step forward.”
“The hope is that other states will realize that there is no need to paralyze inmates before executing them,” he said, “and that, in fact, doing so risks a horribly torturous execution.”
Richard C. Dieter, executive director of the Death Penalty Information Center in Washington, which opposes the death penalty, said that while he saw the policy change as an important step forward, he did not believe that Mr. Broom would be executed any time soon.
He said he anticipated that the new method would be delayed by extensive court challenges, with medical experts lining up to testify on both sides of whether the single-drug method is humane.
“The simple fact is that no one knows whether this method will work on humans,” he said, “and what unforeseen side effects there could be to using the drug in this way.”
Carol Williams wrote, "Ohio to lead way in single-injection executions," for the Saturday edition of the Los Angeles Times.
Ohio will now use a 5-gram dose of sodium thiopental -- 2 1/2 times the amount used in the three-injection method.
In the 34 other states that allow execution, the sodium thiopental injection is followed by a dose of pancuronium bromide, which causes paralysis, and then a final dose of potassium chloride to stop the heart.
The advantage to the single-injection method is that "there is no chance the inmate could be awake" when death occurs, said Dr. Mark Dershwitz, a University of Massachusetts Medical School anesthesiology professor who served as an expert witness in the Ohio deliberations. "The disadvantage is it will take longer for the coroner to be able to pronounce the inmate dead."
How much longer is uncertain, Dershwitz said, as the procedure hasn't been performed on humans. But he estimated that death would probably occur within 10 minutes, as opposed to the nearly instantaneous death caused by the potassium chloride injection.
Ohio corrections chief Terry Collins said in the court papers that the new procedures would be in place by Nov. 30 -- in time for a scheduled Dec. 8 execution if the stay imposed after Broom's experience is lifted.
"Ohio has taken an important step by abandoning the barbaric practice of paralyzing inmates before executing them," said Elisabeth Semel, a law professor and director of the Death Penalty Clinic at UC Berkeley.
Semel added, however, that more medical information will be needed before courts can determine whether the one-drug method satisfies the 8th Amendment's prohibition of cruel and unusual punishment.
Legal analysts say that they expect other states to follow Ohio's example if the state manages to carry out single-injection executions without the problems that have arisen in some of the three-drug procedures.
California, which has the nation's largest death row with 685 prisoners, is revising its lethal injection procedures but rejected the single-drug method early in the review process. No reason was given at the time.
Earlier coverage from Ohio begins with this post.
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