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

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…

Federal judge may allow Alabama to execute inmate using new 1-drug method

'Use of a single dose of midazolam has apparently never been tried elsewhere.'
'Use of a single dose of midazolam has apparently never been tried elsewhere.'
A federal judge may allow Alabama to change its lethal injection method for the Dec. 8 execution of Alabama death row inmate Ronald Bert Smith.

U.S. District Court Judge Keith Watkins, in an order issued Wednesday, tells Smith's attorneys to submit in writing, on or before noon on Nov. 16 why he should not order Alabama to execute Smith using "a large initial dose of midazolam, followed by continuous infusion" of that drug.

Smith is among a group of Alabama death row inmates who have been challenging Alabama's 3-drug lethal injection protocol for executions. Alabama, along with other states, have developed different drug combinations after drug manufacturers started refusing to supply execution drugs the states had been using.

When death row inmates file lawsuits challenging a state's method of execution as cruel and unusual punishment, they must offer suggestions to the court of alternate methods of execution. Among the suggestions by Alabama inmates have been firing squad and hanging - both options Watkins dismissed because they are not set out in Alabama law. One lawmaker, however, last week said he will introduce a bill to make firing squads an option.

Efforts to reach Smith's attorney were unsuccessful prior to publication of this story. A spokeswoman for the Alabama Attorney General's office said that office would not comment.

Earlier in the litigation Alabama offered death row inmate Christopher Brooks the opportunity to be executed by a 1 large dose of midazolam, Watkins noted in his order. That drug - a sedative - is the 1st drug administered in the state's 3-drug protocol.

Brooks refused and on Jan. 21 became the 1st inmate executed in more than 2 years, using the state's new 3-drug lethal injection method.

After his execution, a witness in the viewing room testified one of Brooks' eyes opened after the consciousness assessment and remained open until the curtain was closed in the viewing room, according to the judge's order.

"The eye episode has become a central component of the Eighth Amendment (cruel and unusual punishment) claim in the current complaint of Mr. Smith, in the motion to dismiss, and in the response to it - particularly in Mr. Smith's objection to midazolam as a sedative in the 3-drug protocol," the judge states. "Mr. Smith argues that midazolam will inadequately anesthetize him, thereby causing severe pain upon the infusion of the 2nd and 3rd drugs in the protocol, rocuronium bromide and potassium chloride, respectively."

"It is undisputed that potassium chloride causes severe pain to a conscious person," Watkins states.

Attorneys for 8 Alabama death row inmates have discussed other methods of executions in recent court filings in their lawsuits that claim the state's current lethal injection method is painful and would violate the constitutional protection against cruel and unusual punishment. The Alabama Attorney General's Office in July sought to have all seven lawsuits dismissed.

While they feared midazolam wouldn't sedate them enough for the next 2 drugs, the inmates argued that 1 large dose of midazolam would be enough to kill them anyway.

Watkins writes that he ultimately dismissed the notion of a one-drug protocol in Brooks' case as "fraught with peril" arising out of a number of unanswered concerns.

Use of a single dose of midazolam to execute an inmate has apparently never been tried elsewhere. But legal arguments in the inmates' lawsuits have cited expert testimony that a single large and continuous dose of midazolam could be used to cause death.

Pittman said the Tommy Arthur case prompted him to introduce the bill.

But it's time to reconsider it, according to Watkins. "Changes in the posture of the case dictate that the court explore the midazolam option pled and urged by Mr. Smith and presently offered by defendants (Alabama Attorney General's Office)," Watkins states.

Watkins writes that: Alabama's "offer" for one mega dose of midazolam is not contingent on Smith executing a consent as was the case with Brooks; "a year of reflection on the issue brings it to the forefront"; and that a 1-drug midazolam protocol exists.

"Because Mr. Smith has pled it and offered the option as viable, readily implemented and available, defendants (Alabama) have accepted the offer," Watkins writes in his order.

All the parties agree that midazolam is available, it is feasible, it is readily implementable, and it is not risky with regard to unnecessary pain and suffering, Watkins writes in his order.

Watkins also ordered the Alabama Attorney General's Office on or before Monday to submit to him its plan for administering 1 large dose of midazolam, along with a copy of its 3-drug protocol for comparison.

Smith, who has been on death row since Oct. 6, 1995, was convicted in Madison County in the November 1994 slaying of Circle C convenience store clerk Casey Wilson during a robbery. A judge overrode a jury recommendation for life without parole and imposed the death penalty.

Source: al.com, November 11, 2016

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