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Capital Punishment in the United States Explained

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In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim -…

Louisiana officials struggle with no way to execute death row inmates

Louisiana's death chamber
Louisiana's death chamber
73 people sit on Louisiana death row - convicted of crimes so horrific that a jury of their peers sentenced them to death. But as things stand, the state has no way to execute them.

Over the past several weeks, Louisiana lawmakers have debated whether they should end the practice of capital punishment entirely, citing their faith, the costs of the program and whether the death penalty is an effective deterrent.

But to some extent, the question of whether to ban the death penalty is moot. Louisiana finds itself in the same predicament as many other states with capital punishment: It has run out of its supply of drugs for lethal injections, and pharmaceutical companies whose drugs were being used for the deadly cocktail have largely blocked further access. And, like other states, Louisiana law details how the execution is to be carried out by lethal injection, meaning the Legislature would have to pass a bill to allow the state to kill the condemned using other methods, such as by electrocution or firing squad.

"The state currently does not have a supply of the drugs to carry out the death penalty," said Ken Pastorick, spokesman for the Department of Corrections. Without access to those drugs, Pastorick says, "the state will not conduct executions."

It's been seven years since Louisiana executed a death row inmate - Gerald Bordelon, who was convicted of killing his 12-year-old stepdaughter. Bordelon hastened his own execution by waiving his appeal.

Bordelon is the only person Louisiana has executed in the past 15 years. Before that, executions occurred steadily if not routinely: Between 1983 and 2002, 27 people were executed in Louisiana. During that period of time, the longest lag between executions was 2 years. In 1987 alone, 8 people were executed.

But Louisiana's lack of urgency in carrying out death sentences - which distinguishes Louisiana from other law-and-order states like Texas and Oklahoma - has been a frustration to at least 1 state lawmaker. Rep. Steve Pylant, R-Winnsboro, said he's a proponent of the death penalty and believes it's an effective deterrent to crime but not if criminals see the state has cold feet about going through with it.

"We need to start executing folks," he said. "They say they can't get the pharmaceuticals - well, then why can other states get them but we can't? If we don't want to do lethal injections, we got firing squads, we got gas chambers, we got other means."

Pylant ruffled feathers this week when he cast a game-changing vote in a House committee to spike a bill that would abolish the death penalty. Pylant was a co-sponsor of the bill and had previously said the state was wasting money if it wasn't going to go through with executions. But after he voted against his bill, which failed by a single vote, he said he had only attached his name to draw attention to his concerns.

Since 1993, Louisiana law has only allowed for lethal injection as a means of execution. Pylant said he wouldn't comment on whether he intended to propose legislation next year to expand the ways the state can execute people.

As recently as 2014, the Legislature mulled ways to allow executions to move forward. Former state Rep. Joe Lopinto, R-Metairie, pitched a short-lived proposal to bring back the electric chair, which is on display at the museum at the Louisiana State Penitentiary at Angola. After pushback from the Department of Public Safety and Corrections, that legislation morphed into a bill that would keep secret the sources of lethal injection drug providers and allow the state to tap out-of-state pharmacies. The bills lost steam after two botched lethal injections elsewhere in the country made national headlines.

The soonest Louisiana could execute anyone would be next year. A lethal injection scheduled for convicted child-killer Christopher Sepulvado has been delayed by the courts since 2014, after attorneys on his behalf filed a suit challenging the constitutionality of the death penalty in Louisiana. In his appeal, Sepulvado has requested to learn exactly how he'd be put to death in light of botched lethal injections in recent years, and a lack of access to the drugs.

The state has previously used lethal doses of pentobarbital, an anesthetic. But in 2011, European drug manufacturers banned the export of the drug for lethal injections.

Since then, states have moved to a drug called midazolam, a sedative commonly used for colonoscopies, combined with hydromophone. That combination was challenged in the U.S. Supreme Court, after inmates sued saying the drug wasn't strong enough to block the pain of the other lethal drugs in the injection. Midazolam was the drug used in a handful of high-profile botched executions, like Arizona's Joseph Wood, who strained in agony for two hours after receiving the injection in 2014.

But in 2015, the Supreme Court ruled midazolam was not "cruel and unusual" in a 5-4 vote.

Some states, however, are still having trouble getting access to midazolam for the use of lethal injections.

"It's becoming increasingly difficult for states to obtain drugs for executions, and it's gotten to the point where some companies won't sell to state prisons even for medical purposes because they're afraid the drugs will be diverted for the use of executions," said Robert Dunham, executive director of the Death Penalty Information Center.

In Arkansas, the state raced to execute 4 death-row inmates in April because its supply of midazolam was set to expire.

Only 32 states still allow the death penalty. And of those states, lethal injection is the most widely used means of execution; however, in some states, electrocution, lethal gas and firing squads are still options.

Death penalty lives on in Louisiana after House committee rejects bid to end practice

The death penalty lives on in Louisiana.

A 2015 report by Louisiana State Penitentiary officials recommended using nitrogen induced hypoxia - which is a deficiency of oxygen - as an alternative to lethal injection. A gas chamber was ruled out, but the recommendation considered using a mask to deliver the nitrogen.

"The research reviewed suggests that this method would be the most humane method and would not result in discomfort or cruel and unusual punishment to the subject," the report said.

Dunham said he disagrees, noting that the effect is people are effectively suffocated to death.

"The American Veterinary medical association won't even euthanize large mammals with nitrogen hypoxia," he said. "Their guidelines on euthanasia won't allow it."

Though a bill was rejected last week in a House committee to abolish the death penalty, its sponsor Rep. Terry Landry, D-New Iberia, said there could be a glimmer of possibility for its revival.

He said there was a possibility the lone Democrat who voted against the bill, Rep. Barbara Norton, D-Shreveport, could ask the chairman of the committee for reconsideration. Norton could not be reached for comment.

But Landry said it's a difficult and emotional vote, and he's not sure if he'll put his colleagues through another debate.

"It's a very, very tough vote," he said. "It's literally about life and death. I'm not sure whether I want to do this again."

Source: The Advocate, May 22, 2017

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