Lethal injection

Op-ed: Abolishing the death penalty is not a ‘defense’ of society’s worst criminals

November  1, 2017

A Nov. 16 op-ed addressed an October panel discussion centered around the various issues with the death penalty (“Addressing false assumptions about the death penalty”). The author claims the panel “defended the indefensible” — rapists and murderers. The panel’s purpose was not to “defend” anybody, but to address a broken system and discuss better alternatives. What is indefensible is the perpetuation of a failed policy that doesn’t keep the public safer, risks executing innocent people and costs taxpayers millions of dollars in the process.

The author claims that the death penalty acts as a deterrent and saves lives — that more executions means a lower overall murder rate. The problem with that argument, though, is that it’s false on its face. He cites that in 1960 there were 56 executions and 9,140 murders. Four years later there were 15 executions and 9,250 murders. Therefore, because there were 41 fewer executions in 1964 versus 1960, and an increase of 110 murders, the death penalty must be an effective deterrent. What he fails to factor in is the population increase in the United States from 1960 to 1964. This means the homicide rate was lower in the year with fewer executions — 5.1 murders per 100,000 in 1960 and 4.9 in 1964.

When comparing death penalty states against non-death penalty states, the lack of deterrent effect is apparent. In the last decade, death penalty states have seen an average increase in their homicide rates of 2.25 percent, from 5.31 per 100,000 people in 2007 to 5.43 in 2016. Non-death penalty states have actually seen their homicide rates decrease by 7.9 percent, from 5.28 in 2007 to 4.86 in 2016.

Additionally, of the 10 states with the lowest murder rates in 2016, eight of them were states with no death penalty. Finally, since the argument is that more executions means an overall lower murder rate, when you take the top 10 states with the highest execution numbers since the death penalty was reinstated, they have an average homicide rate of 5.78 over the last decade, roughly 17 percent higher than the national average of 4.94 during the same time.

Dozens of studies far more exhaustive than an op-ed allows have shown there is no deterrent benefit to the death penalty. The most comprehensive analysis was conducted by the renowned National Research Council, which examined over three decades of studies and concluded there is no deterrent effect by having the death penalty. The conclusion of these scientists and academics is shared by experts on the front lines of keeping our communities safe. In two separate national surveys of police chiefs, the death penalty was ranked the least effective tool to prevent violent crime.

Beyond not being an effective deterrent to crime, the death penalty is flawed in other profound ways. Since 1976, at least 160 people have been released from death rows due to evidence of their innocence (an average of one person every three months) — some within hours of their scheduled executions. Additionally, the costs are outrageous. According to Utah’s Legislative Fiscal Analysis Office, the death penalty costs us $1.6 million more than life without parole per inmate. Unavoidable mandates from the U.S. Supreme Court mean capital cases take decades from trial to conclusion (which in most cases is a legal reversal of some sort, not an execution). This lengthy process is also a nightmare for the victims’ families who are promised a punishment and then forced to wait through year after year, appeal after appeal, while the condemned becomes a celebrity.

Those of us who spoke on the panel last month did so with a desire to expose the ugly truth that our death penalty system isn’t serving our state. We are eager to cultivate a robust and honest dialogue about a punishment that has cost our state millions of dollars, provides false promises to victims, risks executing innocent people and — as experts continually attest — doesn’t make us any safer.

Death row inmate who survived his own execution really doesn’t want a do-over

November  2017

An Ohio man who became the third U.S. death row inmate in seven decades to survive his own execution filed a new appeal for mercy Tuesday, arguing that Ohio’s lethal injection protocol constitutes cruel and unusual punishment because one of its drugs may not work properly.

Alva Campbell, a 69-year-old man sentenced to death in 1998 for killing 18-year-old Charles Dial in a robbery, had his execution halted about 25 minutes after it was scheduled to start, according to the Associated Press. The execution team, it turned out, couldn’t pinpoint a vein that they could use to inject Campbell with a dosage of lethal drugs.

In court documents filed before the execution, Campbell’s lawyers warned that this was a possibility, as Campbell has a history of chronic heart and lung problems that can make finding a vein tricky. In fact, the prison was so worried that Campbell’s lungs would give out and he would stop breathing, while lying on the execution gurney, that the team gave him a wedge pillow to help him stay calm and alive until they could execute him.

Campbell’s lawyers also cited Ohio’s bad track record when it came to successfully carrying out executions. Though the first failed execution in modern U.S. history took place in 1946, when Louisiana’s attempt to execute Willie Francis using the electric chair failed, the second was much more recent: In 2009, an Ohio execution team made 18 attempts over the course of two hours to find a vein to inject Romell Broom with lethal injection drugs. Then-Gov. Ted Strickland ultimately ordered them to give up. Broom remains on death row, locked in a court battle where he argues that trying to execute him a second time would be unconstitutional.

Alva Campbell, 69 (Ohio Department of Rehabilitation and Correction )

Campbell’s new appeal to the U.S. Court of Appeals for the Sixth Circuit Court, however, technically centers around a different issue: the use of midazolam, a sedative that’s meant to render an inmate unconscious.

Midazolam has been used in several recent botched executions, including in Ohio. In 2014, the state executed convicted killer and rapist Dennis McGuire, even though McGuire reportedly gasped, snorted, and snored minutes after he should have been knocked unconscious. A judge ended up declare Ohio’s lethal injection procedure unconstitutional, leading the state to halt executions for years.

As drug manufacturers and distributors become more and more reluctant to allow their wares to be used in executions, however, states are scrambling to find drugs they can use in lethal injections. That’s led midazolam’s popularity to skyrocket.

Evidence “from recent executions demonstrates the disturbing signs that prisoners remain sensate to severe pain, aware, and conscious following injection of 500 mg. of midazolam or more are ‘the rule,’ not ‘the exception,’” Campbell’s lawyers write in his latest appeal.

Campbell’s new execution date is June 6, 2019.

In the Execution Business, Missouri Is Surging

Defense lawyers call it a crisis; the state says it’s just doing its job.
Since Texas carried out the country’s 1st lethal injection in 1982, the state has performed far more executions than any other state. To date, 528 men and women have been put to death in Texas, more than the total in the next 8 states combined.
But viewed from a slightly different angle, Texas has lost its place as the epicenter of the American death penalty, at least for the moment.
Since November 2013, when Missouri began performing executions at a rate of almost 1 per month, the state has outstripped Texas in terms of the execution rate per capita. In 2014, both states executed 10 people, but Texas has more than 4 times the population of Missouri. This year, the difference is not quite as stark (Texas: 10, Missouri: 5) but Missouri still ranks number 1. The state that has become the center of so many conversations about criminal justice through the courts and cops of Ferguson is now the center of one more.
Why?
The politicians, judges and prosecutors who keep the system running at full steam simply say the death penalty is a good thing and the pace of executions is a sign that nothing is gumming up the pipes of justice. Defense attorneys are more eager to talk about the reasons for the current situation. They tend to use the word “crisis.”
The Drugs
The most important reason for the rise in Missouri’s rate of execution is also the most mysterious. As other states have dealt with a nationwide shortage in lethal-injection drugs by turning to new and experimental combinations – leading to grisly botched executions (Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, and Joseph Wood in Arizona) and lawsuits that have slowed down the pace of executions – Missouri has managed to get a steady supply of pentobarbital, a common execution drug.
Like their counterparts in all death-penalty states, Missouri officials are pushing in court to keep the source of their pentobarbital a secret. Texas has also exclusively used pentobarbital for executions in recent years, but has struggled to find a compounding pharmacy that will produce it. In Missouri, corrections officials had also struggled, but now have managed to stockpile the drug.
“We’re the only state in the union with no trouble getting pentobarbital,” says Cheryl Pilate, a Kansas City attorney who has represented death-row inmates. The pentobarbital made by small, generally unregulated compounding pharmacies – the choice in Texas – does not have a long shelf-life, leading Pilate and her colleagues to wonder whether Missouri officials are getting the drug from a veterinary supplier (the drug is often used to euthanize animals) or a manufacturer from overseas. Attorney General Chris Koster recently said in a court filing, quoted by BuzzFeed, that “Missouri uses pentobarbital as the lethal chemical in its execution process, but does not admit nor deny the chemical now used is compounded as opposed to manufactured.”
The Governor and the Attorney General
Attorney General Koster, as well as Missouri Governor Jay Nixon, are both Democrats and both outspoken supporters of the death penalty. Nixon himself was the attorney general before Koster, so both have overseen the state’s side in fighting the appeals of death-row inmates, pushing them along toward execution. Koster has suggested that the state set up a laboratory to make its own supply of lethal-injection drugs.
Nixon has the power to commute death sentences to life in prison, but he has done so once in his 6 1/2 years as governor, and he provided no explanation for why. Many political commentators have speculated that Nixon and Koster, as Democrats in a primarily conservative state – where the electoral votes went to Mitt Romney in the 2012 presidential election – use executions to establish their tough-on-crime bonafides. “As a Democrat in public office, you would lose a lot of votes by not being enthusiastically in support of the death penalty,” says Joseph Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City.
Nixon and Koster’s support for the death penalty fits a historical pattern of death-penalty support among blue governors in red states. In the 1990s, Texas Governor Ann Richards never commuted a death sentence and Arkansas Governor Bill Clinton famously flew home from the presidential campaign trail to preside over an execution of a man missing part of his brain. (Nixon had his own similar case earlier this year.) At the same time, Republicans in states near Missouri – Governor John Kasich in Ohio and former Governor Mike Huckabee in Arkansas – have regularly granted clemency to death-row inmates.
Nixon’s office did not respond to a request for comment on the politics of the death penalty, while Koster’s press secretary, Nanci Gonder, replied that he “has consistently supported the death penalty for the most serious murder convictions” and “1 of the duties of the Attorney General is to ensure that legal punishments for violating Missouri’s criminal laws are carried out.”
The Courts
Sean O’Brien, a professor at University of Missouri-Kansas City School of Law, spent much of his career defending death-row inmates and recalled a case in which the judges at the Missouri Supreme Court ruled against the prosecution. In 2003, the court ruled in favor of a man who committed a murder before turning 18, a decision that was later ratified by the U.S. Supreme Court and became the basis for a nationwide ban on the execution of juveniles.
Missouri Supreme Court judges are appointed by the governor, and in 2013 Governor Nixon selected Judge Mary Russell to be chief justice, overseeing the setting of execution dates. Her court set up the 1-a-month schedule in November of that year. When she stepped down in July this year, she told several reporters that the pace of executions picked up because they had been on hold during the lethal-injection drug shortage. Once the state had the drugs, she said, “there were a number of people who had been backlogged whose appeals were exhausted.”
“It’s required by law that the Supreme Court shall set execution dates,” she added. “It’s not that we agree or disagree with the death penalty.”
The Eighth Circuit U.S. Court of Appeals, which has final say over death cases in Missouri, rarely stops executions, according to O’Brien, the law professor. “We’ve got a situation where all 3” – the governor, attorney general, and supreme court – “are lickety-split gung-ho on this, and the federal courts aren’t stopping them.”
The Defense Bar
During a short phone interview last week, the Missouri capital-defense attorneys Cheryl Pilate and Lindsay Runnels used the words “crisis,” “disaster,” “horrific” and “overwhelming” as they described their “extremely small and embattled defense bar.” They see their cohort’s rushed work and missed deadlines and paltry resources as signs of broader problems with public defense in the state. Missouri was ranked 49th by the National Legal Aid & Defender Association in per-capita spending on indigent defense in 2009.
My colleague Ken Armstrong has chronicled the experience of one overburdened defense lawyer who dealt with the executions of 2 clients over 2 months at the end of 2013. In a March 2015 letter to the Missouri Supreme Court, members of the American Bar Association Death Penalty Assessment Team wrote, “The current pace of executions is preventing counsel for the condemned from performing competently.”
“You live in a perpetual state of tension,” Pilate said, “thinking your client could be next.”
This state of affairs may not last. A pending lawsuit over the secrecy of the lethal injection drugs might force the state to divulge its source, allowing for more litigation that could lead to a slow-down. The Missouri Supreme Court will soon have a new chief justice. A future Republican governor or attorney general could follow the lead of Kasich or Huckabee. The defense bar may get more help from national anti-death penalty groups now that the state is ground zero. For now, though, as the death penalty declines nationally, Missouri is headed in the other direction.
Source: themarshallproject.org, August 31, 2015

Disease, suicide killing Ala inmates faster than execution

August 29, 2015

IRMINGHAM, Ala. (AP) — Disease and suicide are claiming inmates on Alabama’s death row faster than the executioner.

With Alabama’s capital punishment mechanism on hold for more than two years because of legal challenges and a shortage of drugs for lethal injections, five of the state’s death row inmates have died without ever seeing the inside of the execution chamber.

John Milton Hardy, convicted of killing Clarence Nugene Terry during a robbery at a convenience store in Decatur in 1993, was the most recent death row inmate to die. Prison officials say he died of unspecified natural causes on June 15.

Convicted killer Benito Albarran, 41, hanged himself in the infirmary at Donaldson prison about two months earlier. A decade earlier, he was convicted of fatally shooting Huntsville police officer Daniel Golden outside a Mexican restaurant where he worked.

Golden’s brother, David Golden, said family members wanted to witness Albarran’s execution and felt cheated by his death.

“He took the coward’s way out,” Golden told reporters in Huntsville after Albarran killed himself.

Attorney Joseph Flood, who represented Albarran as he challenged his conviction in state court, said the inmate’s mother died a week or two before he took his own life.

“He fell into a deep depression after that,” said Flood.

In March, David Eugene Davis, 56, died of natural causes at Holman prison near Atmore after suffering from liver failure. He was convicted of killing Kenneth Douglas and John Fikes in St. Clair County in 1996.

Two more death row inmates died last year, Ricky Dale Adkins of cancer and Justin T. Hosch, who hanged himself at Holman prison. Hosch was convicted in Autauga County in the 2008 shooting death of Joey Willmore, and Adkins was condemned for killing real estate agent Billie Dean Hamilton in St. Clair County in 1988.

The last inmate put to death in Alabama was Andrew Reid Lackey, who died by lethal injection on July 25, 2013, for killingCharles Newman during a robbery in Limestone County in 2005. At the time, he was the first inmate put to death in the state since October 2011.

With 189 people currently on death row, the state is trying to resume executions, but legal challenges could be a roadblock.

The state is asking a federal judge to dismiss a lawsuit filed by death row inmate Tommy Arthur, who challenged the use of the sedative midazolam as inhumane during lethal injections. The U.S. Supreme Court has upheld the use of the drug in an Oklahoma case, but Arthur contends Alabama’s execution protocol is different from the one used there.

The state switched to midazolam after it had to halt executions because it was out of other drugs needed for lethal injections.

High court won’t rehear death penalty case

The Supreme Court refused Friday to reconsider the death-row appeals of 3 Oklahoma prisoners whose pending executions by lethal injection were upheld by the justices in June.
Without comment, the court denied a petition filed by the prisoners’ lawyers that would have turned the case into one testing the overall constitutionality of the death penalty.
The justices ruled 5-4 on June 29 that Oklahoma can use the sedative midazolam as part of a 3-drug lethal injection protocol, despite contentions that it may not render prisoners completely unconscious and incapable of feeling pain. The court’s majority said the inmates failed to suggest any better alternative.
But the decision included a sweeping dissent from Justices Stephen Breyer and Ruth Bader Ginsburg that questioned whether capital punishment is no longer constitutional. The 2 liberal justices cited scores of death-row exonerations, racial and geographic disparities, decades-long delays between sentencing and executions and a trend away from capital punishment in courts and states.
Breyer, who wrote the dissent, urged the court to hear a case in the near future on whether the death penalty violates the Constitution’s prohibition against cruel and unusual punishment. The court ruled that way in 1972, resulting in a 4-year moratorium on executions, but reversed itself in 1976.
“It would be appropriate for the court to use this case to address the constitutionality of the death penalty, because the outcome will turn not on facts specific to any single litigant, but on circumstances common to the administration of the death penalty,” attorneys for death-row inmates Richard Glossip, John Grant and Benjamin Cole said.
A similar effort was mounted in early July by Missouri prisoner David Zink, but the Supreme Court refused to delay his execution, and he was put to death July 14. Barring a last-minute reprieve, Glossip is scheduled to die Sept. 16, with Grant and Cole to follow later this year.
A more likely candidate for the Supreme Court to consider whether the death penalty is constitutional will come before the U.S. Court of Appeals for the 9th Circuit on Monday. In that case, a federal district judge already has declared California’s death penalty unconstitutional because of long delays, inadequate funding for defense lawyers, and the lack of a lethal injection protocol.
The June Supreme Court case concerned the specific drug used by Oklahoma and some other states to sedate prisoners before lethal drugs are administered. While Florida has used midazolam with apparent success, three executions in Arizona, Ohio and Oklahoma resulted in condemned prisoners gasping and writhing on their gurneys.
The high court’s 5-member conservative majority ruled that states may continue to uses midazolam because the defendants could not suggest an alternative – a burden that the court’s 4 liberal members criticized in a dissent written by Justice Sonia Sotomayor.
Source: USA Today, August 28, 201

Tennessee will keep lethal injections for death row executions, court rules

Judge rejects claim from 33 death row inmates and says they did not prove the one-drug method led to a painful and lingering death

A judge in Tennessee has upheld the state’s lethal injection process for executing inmates, hours after a federal judge in Mississippi said that state’s process may break the law.

At issue in both cases is the efficacy of the states’ execution drugs. US states have been experimenting with various combinations of lethal injection since a European-led boycott made it difficult to obtain the drugs they require to carry out executions.

Tennessee uses a single drug, pentobarbital, to execute its inmates; Mississippi relies on a three-drug mixture including a pentobarbital or midazolam, sedatives that are followed by a paralysing agent and a drug that stops an inmate’s heart.

In Tennessee, Davidson county chancery judge Claudia Bonnyman said from the bench that the plaintiffs, 33 death row inmates, did not prove that the one-drug method led to a painful and lingering death.

She also said the plaintiffs did not show during a lengthy trial that there had been problems in states where the method was used.

“Plaintiffs were not able to carry their burdens … on any of their claims,” Bonnyman said.

She also said the plaintiffs did not show during a lengthy trial that there had been problems in states where the method was used.

“Plaintiffs were not able to carry their burdens … on any of their claims,” Bonnyman said.

In Mississippi, meanwhile, US district judge Henry T Wingate said Mississippi’s plans did not appear to include a drug meeting the legal requirement for an “ultra short-acting barbiturate” that would render a person unconscious almost immediately.

Three death row prisoners sued, saying they could remain conscious during execution. During the lawsuit, Mississippi changed its procedure to say it would use midazolam as a sedative, after the US supreme court approved the drug’s use in Oklahoma.

Mississippi officials have said they struggle to buy pentobarbital because death penalty opponents had pressured manufacturers to cut off the supply.

Midazolam has been implicated in troubled executions in Arizona, Ohio and Oklahoma that went on longer than expected as inmates gasped and made other sounds.

The US supreme court ruled five to four in June that Oklahoma’s use of midazolam in executions did not violate the eighth amendment prohibition on cruel and unusual punishment.

Federal Judge Temporarily Halts Mississippi Executions

Judge Henry Wingate gave the order verbally on Tuesday, following up with a written order Wednesday, in a case that challenges the state’s lethal injection methods as cruel and unusual.

A federal judge has temporarily halted Mississippi from carrying out executions.

U.S. District Court Judge Henry Wingate gave the order verbally on Tuesday in response to a suit brought by death row inmates challenging Mississippi’s lethal injection methods as cruel and unusual.

On Wednesday, Wingate followed up with a written order, finding that the inmates are likely to succeed on their claim that “Mississippi’s failure to use a drug which qualifies as an ‘ultra short-acting barbiturate or other similar drug’ as required” by state law violates both that law and the U.S. Constitution’s due process guarantees.

Under the order, Mississippi is barred from using “pentobarbital, specifically in its compounded form, or midazolam, from executing any death row inmate at this time.” Additionally, the state must inform the court of any other execution procedure it wishes to use before executing any inmate.

Mississippi had hoped to execute inmate Richard Jordan on Thursday for a murder as part of a kidnapping in 1976. The state’s execution protocol calls for three drugs — a sedative, followed by a paralytic and then a drug to cause cardiac arrest. The protocol is similar to the one approved by the U.S. Supreme Court this year, but inmates counter that the state is lacking safeguards that other states have — such as an EKG to verify the inmate is actually unconscious.

The inmates also say Mississippi is further constrained by state law that mandates executions be performed with an “ultra short-acting barbiturate or other similar drug.” In the middle of litigation, the state switched its anesthetic to midazolam, the drug the Supreme Court recently approved. However, it is not a barbiturate.

Mississippi, like many other death penalty states, attempts to keep the supplier of its execution drugs a secret.

Attorney General Jim Hood’s office has filed a notice with Wingate’s court that it is appealing the ruling.

Read the order:

http://www.documentcloud.org/documents/2300605-ms-jordan-v-fisher-pi.html#text/p1

Death row inmate seeks medical evaluation

August 17, 2015

A medical examination done Friday on a death row inmate convicted in a 1994 Columbia triple murder is expected to determine whether a benign brain tumor will cause complications with the state’s lethal injection protocol, according to federal court documents.

Ernest Lee Johnson has been in prison since June 1995, and a noncancerous tumor was discovered in his brain years later. Doctors removed part of the tumor in 2008, and the last scan of Johnson’s brain, in 2011, showed the remaining tumor wasn’t growing, according to a motion filed in June by one of his attorneys, Kansas City-based Jeremy Weis. The motion requested funding to hire physician Joel Zivot, assistant professor of anesthesiology and surgery at Emory University’s School of Medicine and the medical director of the cardio-thoracic intensive care unit at Emory University Hospital, to examine and evaluate Johnson.

Chief Judge Greg Kays of the Western District of Missouri in late June approved $7,200 for Zivot to review Johnson’s medical records and perform another scan of the condemned man’s brain, as well as to pay for travel time, consultation with attorneys and help in drafting an affidavit. Zivot will “render an expert medical opinion as to how Mr. Johnson will respond to the lethal injection drugs and whether he will respond differently than other Missouri inmates due to his unique medical condition,” Weis wrote.

Weis and Johnson’s other attorney, William Gaddy, did not respond to messages seeking comment. Michael Spillane, a Missouri assistant attorney general, is representing Troy Steele, the warden of Potosi Correctional Center, where Johnson is being held, who is named as the defendant in the case. Nanci Gonder, spokeswoman for the attorney general’s office, said the examination was conducted on Friday and that Spillane is waiting to obtain a copy of Zivot’s findings. Johnson’s next court date has not been set.

The most recent federal litigation continues a flurry of post-conviction proceedings for Johnson. Johnson was convicted in 1995 of the Feb. 12, 1994, murders of Fred Jones, 58, Mary Bratcher, 46, and Mable Scruggs, 57. His death sentence was twice overturned, in 1999 and 2003. The Missouri Supreme Court in 2008 affirmed a 2006 Pettis County jury’s decision to put Johnson back on death row, despite arguments from his attorneys that his IQ was in the 60s, far below the average of 100. Attorneys had previously gotten the sentence reversed because of Johnson’s mental retardation. The state’s highest court in 2008 had ruled his representation hadn’t successfully proven Johnson’s mental handicap.

As Jones, Bratcher and Scruggs closed a Casey’s General Store on Ballenger Lane, Johnson came in armed with a handgun and robbed the cash register before bludgeoning the victims to death with a hammer and flat-head screwdriver.

Johnson’s case went to the Eighth U.S. Circuit Court of Appeals in early 2013. A three-judge panel in December that year denied his application for appeal, and the U.S. Supreme Court in October 2014 denied a petition to hear the case. Nothing has been filed in the pending U.S. District Court case since Kays approved Zivot’s examination on June 22.

© 2015 Columbia Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Judge Dismisses Lawsuit By Georgia’s Only Woman on Death Row

Kelly Gissendaner, convicted in the murder of her husband in Gwinnett, was to die March 2, but ‘cloudy’ lethal drug forced postponement.

Judge Dismisses Lawsuit By Georgia's Only Woman on Death Row

A U.S. District Court judge has dismissed a lawsuit filed by Georgia death row inmate Kelly Gissendaner, who claimed she was subjected to cruel and unusual punishment on the day of her postponed execution.

The March 2 execution was postponed indefinitely when authorities found a cloudy appearance in the drug to be used for the lethal injection.

According to media reports, the lawsuit was dismissed Monday by U.S. District Judge Thomas Thrash, who said Gissendaner failed to show her Eighth Amendment rights had been violated.

Gissendaner, Georgia’s only woman on death row, was sentenced to die for masterminding the 1997 murder of her husband in Gwinnett County.

The Atlanta Journal-Constitution reported the suit dismissal clears the way for the state to re-schedule Gissendaner’s execution. There was no word on when that might be.

RELATED

Gissendaner was scheduled to die by lethal injection on March 2, but was postponed at the last minute when authorities decided not to use the drug. The execution was scheduled for 7 p.m.; the postponement wasn’t announced until around 11 p.m.

Gissendaner’s suit claimed she was put through undue “mortal fear” as she waited for officials to make a decision on whether or not to use the drug, and charged the state”botched” the execution by failing to have the proper drugs in place for a humane death. The suit also claimed that secrecy surrounding the drugs used for executions in Georgia prevented Gissendaner from proving the execution method could be unconstitutional.

Thrash wrote in his decision, “If anything, the March 2 incident shows that the State is unlikely to use defective drugs,” according to the Associated Press.

Gissendaner, of Auburn, Ga., was convicted of plotting the murder of her husband, Douglas, near Dacula in 1997. If executed, she would be the first woman put to death in Georgia in 70 years.

She was found guilty of convincing her boyfriend Gregory Owen to murder Douglas Gissendaner on Feb. 7, 1997, then went to lengths to deny her involvement, prosecutors said. Owen, who was sentenced to life in prison, avoided the death penaltyby helping prosecutors in the case against Gissendaner.

Authorities said Douglas Gissendaner, a Desert Storm veteran, was beaten and stabbed to death by Owen in a secluded wooded area off Luke Edwards Road near Dacula. The body was found two weeks later.

The attorney general’s office said Owen was waiting for Douglas Gissendaner to return home from a night with church friends, and then took him by knifepoint to the Luke Edwards location. Owen forced the man to his knees, then beat him with a night stick and stabbed him multiple times in the head and neck. Owen took the man’s ring and watch to make it appear it was a robbery.

The attorney general’s office also said Kelly Gissendaner arrived at the scene as the stabbing occurred, and the two took her husband’s vehicle and set it on fire within a mile of the murder scene.

Gissendaner appeared on local television asking for information on her husband’s whereabouts, but authorities said she “basically continued business as usual, even going back to work” in the days after the murder. She gave conflicting stories during interviews with investigators, saying at first there were no marital problems and later admitting to an extra-marital affair with Owen.

Owen confessed to the crime on Feb. 24 and implicated Gissendaner, who was arrested the next day.

Gissendaner was convicted by jury trial on Nov. 18, 1998.

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Photo: Kelly Gissendaner; Georgia Dept. of Corrections

 

 

Not a killing state: Is Colorado prepared for the death penalty?

The majority of Coloradans want their state to kill James Holmes. But if he receives the death penalty, the Department of Corrections may not be ready.
Convicted murderer James Holmes is now awaiting his sentence.
He faces the death penalty for his crimes, a punishment 2/3 of Coloradans believe he deserves.
But lethal injection drugs are increasingly hard to obtain. If the jury sentences Holmes to death, is Colorado actually capable of carrying it out?
Like all 31 states that still allow capital punishment, Colorado uses lethal injection as its primary means of execution. But it almost never happens: The 1997 death of Gary Lee Davis remains the state’s only execution in almost 50 years, and the only time Colorado has ever performed a lethal injection. We are, in the words of death penalty activist Sister Helen Prejean, “not a killing state.”
The Colorado Department of Corrections, tasked with performing executions, doesn’t even keep drugs for the procedure on hand. Their shelf life is less than the average 10 years it takes for a death penalty appeals process.
In March of 2013, 5 months before death row inmate Nathan Dunlap was scheduled for execution, The Denver Post reported that CDOC was still struggling to acquire a crucial drug.
Tom Clements, CDOC’s then-director, wrote a letter to 97 compounding pharmacies across the state in an attempt to acquire sodium thiopental, a rapid-onset anesthetic critical to the state’s lethal 3-drug cocktail.
Clements sought the pharmacies’ help because the drug is now nearly impossible to find ready-made. Hospira Inc, the only producer in the nation, stopped making it in 2011. The E.U. has blocked its export for use in executions. But compounding pharmacies are less than eager. In March this year, the American Pharmacists Association called upon its members to stop providing any drugs for use in executions.
In light of Clements’ letter, the ACLU in 2013 submitted an open records request to CDOC asking for a copy of its execution protocol. (The agency initially didn’t comply, forcing the ACLU to file a lawsuit.)
What they found was troubling. Colorado law demands lethal injection be administered with “a lethal quantity of sodium thiopental or other equally or more effective substance sufficient to cause death.”
The protocol from 2011 calls for Sodium Pentothal, the name brand of sodium thiopental. But the 2013 protocol, with no change in state law, calls for “Sodium Pentothal/Pentobarbital,” implying that the 2 are interchangeable despite being 2 different drugs. (When pentobarbital was used in the 2014 Oklahoma execution of Michael Wilson, he reportedly said he felt his “whole body burning.”)
Colorado is not the only state scrambling for alternatives. Oklahoma, Tennessee and Utah have authorized the use of the gas chamber, electrocution and the firing squad, respectively, if lethal injection drugs become unavailable. And the U.S. Supreme Court recently ruled that midazolam, the controversial drug linked to multiple botched or prolonged executions across the country, is constitutional for use in lethal injections.
Ultimately, the ACLU’s investigation came to a halt when Gov. John Hickenlooper granted Dunlap an indefinite stay of execution. But the discrepancy between protocol and state law raises concerns about the secrecy that goes along with lethal injection.
How can the public stay informed about the death penalty when no organization will publicly admit to selling the drugs? How do we determine what drugs count as an “equally or more effective substance to cause death” without being able to properly test them?
Gov. Hickenlooper’s stay of execution for Dunlap means the state, at least for now, isn’t actively seeking out lethal injection drugs. His office didn’t return requests for comment, but the governor has said publicly that he will not allow an execution during his term. The other 2 men on death row will not exhaust their appeals for years.
If sentenced to death, James Holmes can expect the appeals process to take 10 years or more.
By that time, Colorado’s lethal injection protocol – and indeed, its stance on the death penalty – could look quite different.
Source: The Colorado Independent, July 30, 2015