Will the Supreme Court Kill The Death Penalty This Term?

Will the U.S. Supreme Court add the fate of the death penalty to a term already fraught with hot-button issues like partisan gerrymandering, warrantless surveillance, and a host of contentious First Amendment disputes?
That’s the hope of an ambitious Supreme Court petition seeking to abolish the ultimate punishment. But it runs headlong into the fact that only two justices have squarely called for a reexamination of the death penalty’s constitutionality.
Abel Hidalgo challenges Arizona’s capital punishment system—which sweeps too broadly, he says, because the state’s “aggravating factors” make 99 percent of first-degree murderers death-eligible—as well as the death penalty itself, arguing it’s cruel and unusual punishment.
He’s represented by former acting U.S. Solicitor General Neal Katyal—among the most successful Supreme Court practitioners last term. Hidalgo also has the support of several outside groups who filed amicus briefs on his behalf, notably one from a group including Ari…

Oklahoma lethal injection process muddled by ‘inexcusable failure,’ grand jury finds

A grand jury on Thursday sharply criticized state officials charged with carrying out executions in Oklahoma, describing them as responsible for a litany of failures and avoidable errors.

The grand jury’s 106-page report, released Thursday, paints these officials as careless and, in some cases, reckless. The missteps described by the grand jury include a pharmacist ordering the wrong drug for executions, multiple state employees failing to notice or tell anyone about the mixup and a high-ranking official in the governor’s office urging others to carry out an execution even with the incorrect drug.

“There is no more serious exercise of state authority than carrying out a death sentence,” Scott Pruitt, Oklahoma’s attorney general, said in a statement accompanying the report’s release. He said the grand jury report made clear that “a number of individuals responsible for carrying out the execution process were careless, cavalier and in some circumstances dismissive of established procedures that were intended to guard against the very mistakes that occurred.”

This grand jury investigation was launched after authorities in Oklahoma used the wrong drug to carry out one execution last year and nearly used an incorrect drug months later. In both cases, Oklahoma officials received the drug potassium acetate, even though the state’s lethal-injection guidelines require the use of the drug potassium chloride to stop the heart. (The other two drugs in the protocol include midazolam, a sedative, and vecuronium bromide, a paralytic.)

Gov. Mary Fallin (R) called off the execution of Richard Glossip in September 2015 because she said state officials had obtained a drug not included in Oklahoma’s three-drug lethal injection protocol. Days later, Oklahoma officials acknowledged that they had also gotten the wrong drug for the execution of Charles Warner, carried out by lethal injection in January 2015.

The wrong drug was ultimately used in Warner’s execution because of the “inexcusable failure” of a few people, the grand jury stated, and because the state’s execution protocol lacks proper safeguards ensuring the right drug.

In its report, the grand jury did not determine that using the wrong drug altered Warner’s lethal injection, saying they found “no evidence the manner of the execution caused Warner any needless pain.” However, the report does say that using the wrong drug meant that Warner was not able to properly challenge the lethal injection procedure before his death.

The grand jury report also highlights issues facing corrections officials trying to obtain drugs amid a nationwide shortage, as companies have pushed not to have their drugs used in lethal injections.

Officials told the grand jury they first struggled to find a pharmacist with the drug they sought. When they did get a pharmacist who sent the incorrect drug, he cited “pharmacy brain” in explaining the mixup and was described by the grand jury as “negligent.” The pharmacist told the grand jury he first learned he had sent the wrong drug when he was contacted 30 minutes before the canceled execution in September.

Echoing the “pharmacy brain” explanation, a member of the execution team — identified as the “IV Team Leader” — was asked why nobody noticed the incorrect drug during the January 2015 execution.

Three prominent officials stepped down amid the investigation into the mixup, which indefinitely halted executions in the state and raised new questions about how lethal injections are carried out in Oklahoma, the country’s second most active death-penalty state.

One of those officials, Steve Mullins, Fallin’s former general counsel, is described in the grand jury report as “flippantly and recklessly” defying the state’s lethal injection protocol. According to the grand jury, Mullins testified that because the pharmacist and “IV Team Leader” thought the two drugs — potassium chloride and potassium acetate — were medically interchangeable, he felt comfortable and wanted to proceed with the September execution and then seek “clarification” before the next execution.

Mullins resigned earlier this year after testifying before the grand jury.

The grand jury report Thursday is the second sprawling probe into an execution mishap in Oklahoma in less than two years. In the most high-profile bungled execution in recent memory, Clayton Lockett, a convicted murderer,grimaced and writhed in 2014 during his lethal injection and even though officials halted the process, he died 43 minutes later. That incident halted executions in the state and was criticized by both President Obama and the United Nations.

An Oklahoma court indefinitely pushed back three executions already on the calendar for the weeks after the mixup. Pruitt said last fall he would not seek any executions until 150 days after the investigation is completed and prison officials say they can follow the Oklahoma execution protocol. As a result, it could be some time until executions resume in the state.

Source: The Washington Post, Mark Berman, May 19, 2016

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