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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

'Dangerously hot': Louisiana death row inmates still face health problems from heat years after order to cool it down

Louisiana Death Row
Louisiana Death Row
The state has done "little if anything" to keep the sweltering heat on Louisiana's death row below 88°F (31,1°C) degrees, a Baton Rouge federal judge said Wednesday while warning he won't shy away from making a "tough and unpopular" decision to protect the health and safety of 3 ailing condemned killers.

It's been 2 1/2 years since Chief U.S. District Judge Brian Jackson ruled the state is violating the 3 Louisiana State Penitentiary inmates' constitutional right against cruel and unusual punishment and ordered state corrections officials to maintain heat indexes on death row at or below 88 degrees.

At a hearing he called Wednesday to determine whether the state's 2nd heat remediation plan adequately protects the prisoners from Louisiana's searing summer heat and humidity, Jackson said the plan's measures - once-daily cold showers, chests filled with ice, an extra ice machine and additional fans - have failed to halt heat indexes from topping the 88-degree mark.

Jackson said he won't "sit idly by" while Elzie Ball, Nathaniel Code and James Magee continue to suffer, noting that 14 inmates have died in neighboring Texas from the heat since 2007.

"Nobody wants that here in Louisiana. That's what this case is about," the judge said.

Jackson will rule sometime after both sides file post-hearing briefs, which are due July 11.

The state's initial court-ordered heat remediation plan included air conditioning, but the 5th U.S. Circuit Court of Appeals in New Orleans ruled last summer that while the 3 inmates deserve some relief, they aren't entitled to air-conditioned quarters.

James Hilburn, an attorney for state corrections officials, argued at Wednesday's hearing that the appellate court did not order the 88-degree threshold, but an agitated Jackson added the appeals court didn't undo it either.

"It's been proven with scientific certainty that (88-plus degrees) is a hazard to their health," the judge said. "I've already ruled. 88 degrees is the standard."

Jackson added that just because a remedy is "costly or inconvenient" doesn't trump the Constitution.

Nilay Vora, 1 of the inmates' attorneys, asked Jackson to order implementation of the state's 1st heat remediation plan. Vora said death row without air conditioning exposes Ball, Code and Magee to "serious risk of substantial harm."

Hilburn defended the state's latest plan, saying, "This was not a flippant plan."

Jackson, who did not rule out ordering "mechanical air" for the inmates, warned he could sanction the state if it doesn't remedy the constitutional violations that he and the 5th Circuit found - that the high heat indexes violate the 3 inmates' Eighth Amendment guarantee against cruel and unusual punishment.

"A court can't simply sit on its hands and allow a constitutional violation to persist," he said.

Ball, Code and Magee - shackled and dressed in bright orange prison garb - testified in the cool confines of Jackson's courtroom and said they continue to suffer from dizziness, nausea, headaches and profuse sweating due to the unrelenting heat in their cells.

"It ain't got as hot as it's going to get," Ball noted.

Summer doesn't officially begin until Monday.

"It's too hot" on Louisiana's death row, testified Dr. Susi Vassallo, of Texas. "It's dangerously hot."

Vassallo, a medical doctor who specializes in heat-related illnesses, said the components of the state's 2nd heat remediation plan, either considered individually or collectively, do not reduce the substantial risk of serious harm to the 3 inmates. She described the plan's components as comfort rather than safety when dealing with heat indexes exceeding 88 degrees.

"If we set the bar at death, that is too high," she said.

Colin Clark, an assistant state attorney general, said in court that the Louisiana Department of Corrections has not had a single heatstroke incident in the last 9 years.

The 5th Circuit last year suggested the state could open the doors to the air-conditioned guard pods and divert cool air into the death-row tiers, but Jimmy Cruze, the death row warden, testified Wednesday the appeals court's suggestion was rejected by the state because it poses a security risk.

"It's a bad security move," he said. "We don't leave doors open."

Mechanical engineer Frank Thompson, who designed death row, testified the death-row core is air-conditioned but the death-row tiers are equipped only with cross ventilation and a central heating system. Death row, he said, meets commercial building standards.

Air conditioning is the only plausible way to stop heat indexes from surpassing 88 degrees, Thompson added.

Ball is on death row for fatally shooting a beer delivery man during the 1996 armed robbery of a Gretna lounge.

Magee was condemned to die for the 2007 shotgun murders of his estranged wife and their 5-year-old son in a subdivision near Mandeville.

Code received the death penalty for the 1985 murders of 4 people at a house in Shreveport.

Source: The Advocate, June 16, 2016

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