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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…

Cruel & Unusual? The Death Penalty’s Trials in Mississippi

Mississippi's death chamber
Mississippi's death chamber
Mississippi's lethal-injection litigation nightmares are coming mainly from the MacArthur Justice Center in New Orleans where attorney James Craig, who represents several Mississippi inmates on death row, works. In September 2015, three inmates on death row, including Richard Jordan, filed a federal complaint against the state for violating their rights to due process and "to be free from cruel and unusual punishment" under the U.S. Constitution.

Lawyers amended this complaint just months after the Mississippi Department of Corrections changed its lethal-injection protocol that July to substitute a drug called midazolam as one of the three drugs in the series that creates the lethal injection. Midazolam, Craig and other attorneys allege, could create a substantial risk of harm to those on death row.

The State denies that midazolam creates a risk and but does admit in court documents that "MDOC intends to use midazolam as the first drug in Plaintiffs' executions and that midazolam is classified as a benzodiazepine."

The legal challenge against midazolam relies on the question of whether or not it is really "a similar drug" to the increasingly hard-to-get barbiturates, which Mississippi law currently allows. Midazolam is a sedative considered a "benzodiazepine" drug class—not a "barbiturate." Lawyers and advocates against the death penalty—and against the use of midazolam—argue that midazolam is not a true anesthetic, therefore not guaranteeing that it will render a person unconscious, which is its purpose.

Oklahoma state employees used midazolam in the botched execution of Oklahoma inmate Clayton Lockett in 2014; the procedure took 40 minutes before he finally died of a heart attack.

Arizona and Ohio officials also used midazolam in two executions where prisoners "showed visible signs of pain before dying," as Newsweek reported.

The U.S. Supreme Court did not deem midazolam unconstitutional in a case from Oklahoma, leaving the potential for future litigation about the drug open, since its ruling only applied to the evidence that Oklahoma inmates presented. In its 2015 Glossip v. Gross ruling, Justice Samuel Alito wrote that the prisoners failed to identify known and available alternative methods of executions that "entail(s) a lesser risk of pain." The 5-4 decision on June 29, 2015, came down just a month before MDOC announced that it would change its death-penalty protocols to include midazolam.

If House Bill 638 becomes law, this legal question will be moot—because the new wording broadens the language, allowing the state to legally use midazolam. Attorney General Hood sent a statement to the Jackson Free Press about the current bill to change the state's death-penalty law.

"Because we cannot obtain the first drug in the three-drug protocol and now are experiencing difficulty obtaining the second and third drugs, we have requested a change in the language on the types of drugs to be utilized, as well as alternative means," the statement said.

Advocates oppose the use of midazolam as well as the broad language in the bill, however. The ACLU of Mississippi, which opposes the death penalty generally, also opposes House Bill 638. Blake Feldman, one of the advocacy coordinators there, said midazolam is to blame for several botched executions—and that it is disturbing that state officials would want to use a drug that has been the root of problems elsewhere.

"We can't ignore that what this bill does is it very seriously increases the chances of a botched execution. ... The death penalty is a gross injustice, but a botched execution by the State paid for with tax dollars in our name is as bad as you can get," Feldman told the Jackson Free Press.

While Richard Jordan, Ricky Chase and Thomas Loden's midazolam complaint will be moot if House Bill 638 passes, the three death-row inmates will continue to challenge the use of a three-drug lethal-injection procedure as unconstitutional.

That is, the state's legal problems over the death penalty are far from over.

The 'Alternative Methods'

Mississippi would be the second state in the country to enact a method called nitrogen hypoxia if House Bill 638 becomes law. Rep. Foster, aware that the lethal-injection litigation is stalling the death penalty, added several other measures the State could carry out in lieu of the lethal injection. Originally his bill added nitrogen hypoxia (lethal gas), firing squad and electrocution in that order as alternatives to lethal injection—if that method is deemed unconstitutional.

Most states with the death penalty use lethal injection to execute people. Oklahoma, after all its negative lethal-injection headlines seems to be moving forward with a new method: nitrogen gas.

In 2015, Oklahoma Gov. Mary Fallin signed a bill to allow the state to use the method to execute its prisoners on death row, and last September, the attorney general there suggested that the state needs to develop a protocol for the new method, the Tulsa World reported.

The only hang-up for nitrogen hypoxia is that there are no reports of it ever being used to legally execute a human, the Associated Press reported in 2015. In May 2016, a grand jury in Oklahoma issued a report about what went wrong in another botched lethal-injection execution, and in that report, suggested that nitrogen gas could be a better alternative for the state to use, The Oklahoman reported.

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Source: Jackson Free Press, Arielle Dreher, March 22, 2017

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