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No Second Chances: What to Do After a Botched Execution

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Ohio tried and failed to execute Alva Campbell. The state shouldn't get a second chance.
The pathos and problems of America's death penalty were vividly on display yesterday when Ohio tried and failed to execute Alva Campbell. Immediately after its failure Gov. John Kasich set June 5, 2019, as a new execution date.
This plan for a second execution reveals a glaring inadequacy in the legal standards governing botched executions in the United States.
Campbell was tried and sentenced to die for murdering 18-year-old Charles Dials during a carjacking in 1997. After Campbell exhausted his legal appeals, he was denied clemency by the state parole board and the governor.
By the time the state got around to executing Campbell, he was far from the dangerous criminal of 20 years ago. As is the case with many of America's death-row inmates, the passage of time had inflicted its own punishments.
The inmate Ohio strapped onto the gurney was a 69-year-old man afflicted with serious ailm…

Recent Arkansas Executions Demonstrate Need For Greater Media Access To Capital Punishment

Arkansas' recent spate of executions of prisoners on death row, conducted with the use of nearly expired and improperly obtained drugs, was marred by reports that the drugs used were ineffective and caused the inmates to suffer. But uncertainty about what happened to inmates in the death chamber illustrates the need for greater reporter access to these events -- life and death stories for which they may be the only impartial witness.

The Arkansas Department of Corrections executed 4 men in 8 days, an abridged version of its initial, unprecedented plan to execute 8 men in 11 days before 1 of its lethal injection drugs expired. Supreme Court Justice Stephen Breyer called using the expiration date "as a determining factor separating those who live from those who die ... close to random." 4 other planned executions were blocked by court orders for multiple reasons, including possible issues with the clemency process and concerns over use of the sedative midazolam. The four executions were the first in Arkansas since 2005, and at least two of them may have been botched. But because of Arkansas' restrictions on media access to executions, the public may never know for certain. As The Associated Press' (AP) Kelly Kissel noted:

About 2 dozen people witness each execution in Arkansas, though the term "witness" is a misnomer. No one among the media or citizen witnesses can see as the inmate is secured to a gurney, watch as medical personnel place intravenous lines or hear what's happening as the actual execution takes place. If there's a dispute over what happened, resolution is difficult.

Sure enough, events in two of four executions in Arkansas are already in dispute. Lawyers say that during Jack Jones' execution, "infirmary workers had tried unsuccessfully to insert a central line in Mr. Jones's neck for 45 minutes, before placing it elsewhere on his body" and that "Mr. Jones gulped for air during the execution ... 'evidence of continued consciousness.'" The state of Arkansas contradicted these reports, and because of the witness restrictions Kissel described, neither claim is independently verifiable. Similarly, during the execution of Kenneth Williams, as NBC News reported, "Media witnesses reported [Williams] 'coughing, convulsing, lurching, jerking' for a 10 to 20 second period." Kissel, who was present at the execution, "explained that Williams 'lurched' 15 times in quick succession, followed by 5 slower lurches, 3 minutes after the sedative midazolam was introduced." Witnesses stated that Williams could be heard even after the mic was shut off. State Sen. Trent Garner, R-El Dorado, a citizen witness to the execution, described the movements in a federal court affidavit as "brief involuntary muscle spasms" and noted that he saw no evidence of "pain or suffering," such as a grimace. As a result of the conflicting witness accounts surrounding Williams' death, a federal judge has called for his execution to be investigated more closely.

It is reportedly not unusual for states to record executions. Of the four states in which executions were held this year, taping was permitted at least in Texas (Media Matters was unable to ascertain whether Virginia or Missouri allow audio or video recording during executions). But the Arkansas Department of Corrections does not audio or video record its executions and, even in written next-day logs, the department does not typically document the specific times that the drugs are administered or that the inmate is deemed unconscious.

And in the case of Ledell Lee, the 1st person Arkansas executed this year, the state told media witnesses that they would not be allowed to document his execution using pen and paper. Although the Department of Corrections reversed its decision just half an hour before Lee was set to be executed, it is unclear whether the reversal will remain.

Over the last several years, a number of executions in various states have been both reported and confirmed to have been botched, as states use untested and potentially dangerous combinations of drugs, many of which were not created for the purpose of lethal injection. Drug companies are increasingly objecting to use of their drugs to kill people, making it harder for states to obtain those drugs. And the relationship between prisons and lethal injection drug manufacturers that do permit the use of their drugs in executions has become less transparent, with several states attempting to enact secrecy laws to protect their suppliers. Questionable execution practices make transparency and media access a needed check on the system, but reports suggest that some states are actually making the execution process less transparent.

KUAR, an NPR affiliate in Little Rock, AR, reported that Texas, Missouri, and Virginia -- the only other states to have carried out executions this year -- allowed media witnesses to witness and document executions, at least once the inmate is secured to the gurney and his IV lines have been placed. Previously, for decades, the Virginia Department of Corrections allowed witnesses to observe the inmate being secured to the gurney and IV lines being inserted. But earlier this year, the department changed its policy to prevent witnesses from observing the inmate from beginning to end. And Oklahoma's policies became so egregiously restrictive after the botched April 2014 execution of Clayton Lockett, despite promised reforms, that the ACLU filed a lawsuit arguing that "the press, and by extension the public, were deprived of the First Amendment right of access to observe the initiation and termination of the execution proceeding." The Oklahoma governor also delayed executions until further notice, and in April 2017, a bipartisan commission unanimously recommended the state extend its moratorium on the death penalty "until significant reforms are accomplished," but the attorney general just last week announced his plans to resume execution protocols planning regardless.

During Lockett's execution, which a prison warden described as "a bloody mess," Lockett showed "clear signs of discomfort" after being administered the lethal injection drugs, and then officials "closed the blinds to the chamber and left witnesses unable to see his final moments." Lockett "died 43 minutes after the 1st execution drug was administered"; there were initially concerns that he had died of a heart attack, but while the state autopsy found no evidence of that, an independent autopsy examination was also never able to confirm this because the examiner was not given access to his head and neck.

Back in Arkansas, after the state tried to bar reporters from using pen and paper during the execution, Robert Dunham, the director of the Death Penalty Information Center, told KUAR reporters that he couldn't think of another state with the same rule. He used the execution of Joseph Wood in Arizona as an example of why it was important for reporters to be able to document the event, saying, "Reporters counted that [Wood] hacked more than 640 times. That was not something they could have done if they [didn't] have paper and pencil because they were making tick marks each time that he gasped."

Journalism is instrumental in bringing awareness to, and holding states accountable for, executions that have potentially violated prisoners' 8th amendment protection from cruel and unusual punishment. An estimated 3 % of executions from 1890-2010 have been botched in some way, with lethal injection yielding the highest percentage of botched executions. The stakes are high for inmates, their families, and the country. Arkansas and other states that conduct executions should at least let the media fully bear witness.

Source: mediamatters.org, Nina Mast, May 4, 2017. Nina Mast is a Researcher at Media Matters for America.

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