Capital Punishment in the United States Explained

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 -…

Judge Accepts Sweeping Reforms of Arizona Death Penalty Protocols

Arizona's death chamber
Arizona's death chamber
A U.S. judge accepted on Thursday major revisions to Arizona's death penalty procedures, such as eliminating paralytic drugs in lethal injections and giving witnesses more access to watch prisoners inside the death chamber, a lawyer for the death row inmates said.

The changes were part of a settlement reached in a 2014 lawsuit brought by seven death row inmates who argued Arizona's lethal injection practices were experimental, secretive and caused inmates prolonged suffering.

On Thursday, U.S. District Judge Neil Wake in Phoenix signed an order that in effect authorized a deal reached between the state and the lawyers for death row inmates, according to Dale Baich, a lawyer for the death row litigants.

The agreement was announced last week in federal court in Phoenix.

The deal marked the first time a state had agreed to such major changes in its drug protocol and execution procedures because of prisoners' complaints, Baich said.

Representatives for Arizona's attorney general and Department of Corrections did not immediately respond to requests for comment.

Lawyers for the inmates called on the state to drop the use of paralytic agents used to halt breathing, arguing the chemicals hid signs of consciousness and suffering during executions.

The state also agreed to limit the authority of the director of the department of corrections to change execution drugs, and allow a prisoner time to challenge any drug changes, Baich said.

States have been scrambling to find chemicals for lethal injection mixes after U.S. and European pharmaceutical makers placed a sales ban in recent years on drugs for executions because of ethical concerns.

In December, Arizona also agreed in the same case to stop using the valium-like sedative midazolam, or related products.

Midazolam has been used in troubled executions in Arizona, Alabama, Ohio and Oklahoma. In some instances, witnesses said convicted murderers twisted on gurneys before dying.

It also was used along with a narcotic in Arizona's last execution - that of murderer Joseph Wood in 2014. Wood was seen gasping for air during a nearly two-hour procedure in which he received 15 rounds of drug injections. Lethal injections typically result in death in a matter of minutes.

Arizona also agreed under the settlement to allow greater transparency by letting witnesses view more of the execution process, including the moment the executioner administers the drugs intravenously, Baich said.

Source: Reuters, June 23, 2017

Federal judge lifts stay on Arizona executions

Almost three years after a death-row prisoner agonized on a gurney for nearly two hours during a botched execution, Arizona can legally resume executions — if the state Department of Corrections can find the drugs to do so.

On Thursday, a U.S. District Court judge in Phoenix lifted a stay imposed in November 2014, four months after executioners hired by the Corrections Department injected 15 doses of a drug cocktail into convicted murderer Joseph Wood.

One dose was supposed to kill him, but instead, Wood snorted and gasped as witnesses watched and attorneys argued in a telephone call to the judge about whether to stop the execution.

Judge Neil Wake, who had presided over years of litigation over execution protocols, ordered the Corrections Department to investigate the flawed execution and litigate its execution protocol with attorneys representing other death-row inmates.

Wake shut down executions until such time as the case was settled or adjudicated.

On Thursday, the Corrections Department and the state of Arizona signed off on a settlement agreement with the prisoners' attorneys. Wake terminated the case and lifted the stay.

Among its conditions, Corrections agreed not to use the drug combination employed in the Wood execution.

Instead, it rewrote its protocol to specify two fast-acting barbiturates, sodium thiopental or pentobarbital, in single-drug injections.

But neither drug is readily available to states. Thiopental, which was used in executions over four decades, is no longer made in the United States and cannot be legally imported. Pharmaceutical companies refuse to sell pentobarbital for executions, though it can be custom-made by compounding pharmacies.

Corrections Department officials did not immediately respond to questions about whether they had access to the drugs, but on June 12, an assistant Arizona attorney general told Wake the state did not possess either.

Other terms of the settlement require that the new execution protocol:

  • Take away Corrections Director Charles Ryan's authority to make last-minute drug changes or discretionary decisions, such as closing curtains into the execution chamber, if things go wrong.
  • Eliminate a traditional three-drug combination that defense attorneys believe merely masks any sign of pain or distress and replace it with the two single-drug options.
  • Remove a clause saying that defense attorneys may obtain their own drugs for their clients' executions if they pass quality standards. Execution drugs, for the most part, are controlled substances that are only available to people or entities licensed to obtain them.
"The state finally recognized what we have been saying for the last 10 years," said Dale Baich of the Federal Public Defenders Office in Phoenix. "The Department of Corrections overhauled the protocol and removed what we have long said are unconstitutional provisions ... The department also apparently concedes that the director's unfettered discretion posed unconstitutional risks to prisoners facing execution.

"The Department of Corrections will be more accountable and there will be greater transparency during the execution process," Baich said.

Early on in the litigation, Wake dismissed First Amendment claims from the prisoners requesting more transparency in execution procedures. Baich said the prisoners will appeal that dismissal.

Some of those claims have been addressed in a second lawsuit before a different judge, lodged by a coalition of media outlets. That judge has already ruled that Corrections must allow witnesses, including from the media, watch by closed-circuit TV as the condemned prisoners are strapped to the gurney and must provide a live-camera view of the control board used to inject the chemicals.

But issues remain as to the quality of drugs and the qualifications of the executioners, and the media case is scheduled for trial in late July before U.S. District Court Judge G. Murray Snow.

Source: The Republic | azcentral.com, Michael Kiefer, June 22, 2017

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