America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

7 executions in 11 days wouldn't allow due process, ABA president tells Arkansas governor

Arkansas' death chamber
Arkansas' death chamber
ABA President Linda Klein has asked the governor of Arkansas to delay an unprecedentedly accelerated series of executions scheduled for this month.

The state has not executed a single person in 12 years, but it plans to execute seven men over an 11-day period beginning April 17, the Washington Post reports. An eighth man, Jason McGehee, was also scheduled to die in these 11 days, but a judge has delayed that execution, the Post reported in an earlier story.

Republican Gov. Asa Hutchinson has said that he ordered the executions to be scheduled in such a short time span because the state' stock of lethal injection drugs is set to expire. "It is uncertain as to whether another drug can be obtained, and the families of the victims do not need to live with continued uncertainty after decades of review," he said in a statement to the Post.

"We are troubled that this current execution schedule ... prioritizes expediency above due process," Klein said in her letter to the governor. "Because neither Arkansas decision-makers nor defense counsel currently have adequate time to ensure that these executions are carried out with due process of law, we simply ask that you modify the current execution schedule to allow for adequate time between executions."

Klein says in her letter that the short notice for the condemned men has overwhelmed their legal defense teams. The work that is done in the run-up to an execution "can easily consume all of the available time and resources of an attorney representing just one client with an approaching execution date; here, several of the men facing execution are represented by the same attorneys," Klein wrote. "It simply is not possible for an attorney to do all that is minimally required for multiple clients scheduled for execution only days apart. Under such extraordinary constraints, any time and resources spent on behalf of one client facing death will necessarily be at the expense of another. This conflict of interest is simply untenable in matters of life and death."

The ABA holds no position about the death penalty in general, Klein says, but "sufficient procedural safeguards to decrease the risks of injustice" should be present. She urged the governor to delay the executions so that these safeguards could be adhered to.

"Regardless of whether these men are put to death this month or on a more measured schedule, the state will need either to locate new drugs or to develop an alternative execution protocol for the remaining men on Arkansas' death row," Klein concluded. "Given that these policy decisions will need to be made soon, expediency need not, and should not, be placed above the Constitution's due process protections."

U.S. District Judge Kristine Baker of the Eastern District of Arkansas began hearing arguments Monday to determine whether the state should be allowed to proceed, in the 1st of 4 scheduled days for arguments, the Associated Press and Arkansas Democrat-Gazette report. The next stop for either side to appeal her ruling would be the St. Louis-based 8th U.S. Circuit Court of Appeals, and then the U.S. Supreme Court.

The previous record for the number of executions in an 11-day period was set by Texas, which executed 6 men in at 10-day span in both 1997 and 2000, the Post reports.

Source: abajournal.com, April 12, 2017

Arkansas has never used midazolam, the sedative at center of execution debate

Midazolam is the sedative at center of execution debate

At the heart of the federal court challenge to Arkansas's death penalty protocol is a drug called "midazolam."

It's the latest battleground in the 50-year debate over capital punishment in the United States. With Arkansas planning to execute seven inmates before its supply of the sedative runs out at the end of April, the issue is moving the state to the international stage.

"It's a central nervous system depressant," said Dr. Mike Martin, a medical doctor and professor at University of Central Arkansas. "[Midazolam] is in the same drug class as valium, and it's used primarily as a sedative in minor surgeries like having your tooth extracted."

This drug designed for causing relaxation is the reason for a great tension. Midazolam will be the 1st drug injected into the veins of condemned prisoners in the Arkansas 3-drug "cocktail." 2 drugs after that stop the prisoners breathing and then the heart.

"The cocktail is meant to do it as rapidly as possible," Martin said.

At least that's the plan.

But midazolam has never been used in Arkansas in executions, and no state has ever successfully executed 2 inmates in 1 day using the sedative.

It's replacing a different class of drugs at the start of the process. Anesthetics like sodium pentothal were first used, but they are now virtually impossible for states to get for capital punishment.

So far, a handful of states have tried Midazolam, but in at least 4 cases, the sedative proved less effective at rendering the inmate unconscious, which left the prisoner feeling the pain of the other 2 drugs. The inmates slowly suffocated and eventually died of heart attacks

"If the goal is to be as humane as possible, I think the sodium pentothal may be a little more effective," said Martin.

That effectiveness and how much pain is endured are important legal questions, and the Eighth Amendment of the Constitution forbids cruel and unusual punishment.

The most dramatic of the 4 botched midazolam cases came in Oklahoma.

Clayton Lockett took 2 hours to die, groaning and struggling as the midazolam failed.

The case led to a later U.S. Supreme Court case and in 2015, the justices ruled in a 5-4 decision that the pain caused in midazolam lethal injections was constitutional.

Since 2013, there have been 17 midazolam executions, almost all in Florida, which first began using midazolam with the 1st one among those considered "botched" by anti-death penalty advocates. 3 states put executions on hold after problems and are keeping the midazolam debate alive.

Different experts are delivering opinions before state and federal judges, and so far, the science has failed to clearly decide the matter.

"I think pentothol may have a more anesthetic effect, but midazolam certainly has an anesthetic effect as well," Martin said.

Arkansas has had at least 2 other modern-day lethal injection executions get "botched." Both involved difficulty finding veins to attach the IV for the drugs, not the drugs themselves.

Source: KTHV news, April 12, 2017

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