"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Saturday, July 4, 2015

How states are responding to the Supreme Court's lethal injection decision

Florida's Death Chamber
Florida's Death Chamber
The country's patchwork, disjointed series of execution protocols does not appear likely to be changing any time soon, even with a Supreme Court ruling this week saying that Oklahoma can use the sedative midazolam in lethal injections.

In the days that followed the ruling, despite an ongoing shortage of lethal injection drugs, there did not appear to be a rush on the part of states to adopt midazolam, a controversial drug that has been used in troubling executions. This is not terribly surprising, as experts said after the decision that it wasn't as if the Supreme Court urged every state to use the drug.

"I don't think a lot of states are going to jump toward midazolam just because the Supreme Court said it's permissible," said Richard Dieter, a senior program director at the Death Penalty Information Center. "Its risks are apparent."

As a result, rather than providing a clear path forward for the dwindling number of states that still carry out executions or hope to do so, the ruling instead suggested that states could retain leeway in how they can execute inmates. Instead of providing a framework for carrying out executions, the majority opinion says that the status quo - a fractured system with new protocols, different drug combinations and widely varying backup options - will remain intact for now.

Some states, looking at the drug shortage across the country, have chosen to adopt or expand other options, like Utah and the firing squad, Oklahoma and nitrogen gas and Tennessee and the electric chair. Other states, though, have made different changes in recent months and appear to be sticking with those plans.

Take Ohio. While that state was the first in the country to use the controversial sedative as part of a two-drug protocol, pairing it with the narcotic hydromorphone for an execution last year, it didn't stay in the midazolam business for very long. In January 2014, Ohio's execution of Dennis McGuire - who admitted to raping and murdering a pregnant newlywed named Joy Stewart - lasted for nearly 25 minutes, as McGuire struggled, gasped and choked. Ohio has not carried out any executions since then, and earlier this year the state Department of Rehabilitation and Correction said it was dropping midazolam and hydromorphone. A few weeks later, officials said that they were delaying every execution scheduled for 2015 to let them get new drugs and adopt the new protocol.

Now that the Supreme Court has said states can use midazolam, that opens up the question of whether Ohio will once again turn to that sedative.

"Midazolam is not currently part of Ohio's execution policy and I will not speculate on what drugs may be used in the future," a spokeswoman for the Ohio Department of Rehabilitation and Correction wrote in an e-mail.

Still, the state did make some changes to its execution policies this week. On Monday, the Ohio Department of Rehabilitation and Correction updated its guidelines for executing inmates. The policy, as was first noted by the Associated Press, now says that the state will test any compounded execution drugs it plans to use and could also test any other execution drugs.

Ohio's next execution is scheduled for Jan. 21, 2016. This means there will be 2 years between executions, which doesn't sound like a lot, but Ohio is one of the most active death-penalty states in the modern era. Between 2001 and 2014, the state executed at least 1 person each year. There are currently 21 executions scheduled in the state between January 2016 and May 2019.

The next 2 executions in the country are scheduled to take place later this month in Missouri and Texas. Missouri says it plans to carry out an execution July 14 using pentobarbital, while Texas says it hopes to execute an inmate 2 days later with the same drug.

In Texas, where there are 6 executions scheduled between July and October, officials with the Department of Criminal Justice say they have enough pentobarbital to carry out those scheduled executions. The drug shortage's impact has been felt in the country's most active death penalty state, though, as Texas officials say they almost ran out of the drugs this year before obtaining a new batch.

Still other states that use or plan to use midazolam say they want to move ahead. Virginia corrections officials say that state has midazolam on hand, but they add that the state has no executions scheduled. Its supply of the drug expires later this year.

Authorities in Oklahoma, where the Supreme Court case originated, said they wanted to reschedule executions postponed by the court's decision to hear the challenge to their policies. The Alabama attorney general said he believed it meant his state, which wants to use midazolam, could resume executions. In Florida, the state that has used midazolam more often than any other - and a state that has the same execution protocol as Oklahoma - is also calling to resume executions, which were halted there after the Supreme Court took the Oklahoma case.

The state's attorney general has asked the Florida Supreme Court to lift a stay of execution it put into place while awaiting the higher court's decision. The court has not lifted the stay so far, but if it does, that would clear the way for executions to resume in Florida as well. Florida, like Oklahoma, has not carried out an execution since January, when the Supreme Court said it would hear a challenge to the Oklahoma protocol.

Source: The Washington Post, July 3, 2015

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