Will the U.S. Finally End the Death Penalty?

In the past, abolition efforts have faced a backlash—but Gavin Newsom’s moratorium may be different.
The American death penalty is extraordinarily fragile, with death sentences and executions on the decline. Public support for the death penalty has diminished. The practice is increasingly marginalized around the world. California, with its disproportionately large share of American death-row inmates, announces an end to the death penalty. The year? 1972. That’s when the California Supreme Court declared the death penalty inconsistent with the state’s constitutional prohibition of cruel or unusual punishments—only to have the death penalty restored a year later through popular initiative and legislation.
On Wednesday, again, California walked back its commitment to the death penalty. Though not full-fledged abolition, Governor Gavin Newsom declared a moratorium on capital punishment lasting as long as his tenure in office, insisting that the California death penalty has been an “abject…

15 Professors of Pharmacology Tell High Court: Ohio’s Execution Drug is “Profoundly Troubling”

Today, fifteen prominent professors of pharmacology filed an amicus curiae brief at the U.S. Supreme Court stating that the “record of midazolam-protocol executions is profoundly troubling” and that the sedative midazolam, which Ohio plans to use in the scheduled execution of Ron Phillips on Wednesday morning at 10:00 a.m., is “unsuitable…because it is incapable of inducing unconsciousness and cannot prevent the infliction of severe pain.” (pp. 14-15)

The pharmacologists’ brief references an amicus brief of pharmacologists filed in Glossip v. Gross, and how the scientific consensus that midazolam is not an appropriate drug for use in executions has grown since the U.S. Supreme Court’s ruling in that case, stating:

“Amici previously asserted that there is ‘overwhelming scientific consensus… that midazolam is incapable of inducing’ the intended ‘deep, comalike unconsciousness’ because of its physical properties and mechanism of action. As the District Court’s findings of fact reflect, the evidence supporting this scientific consensus has grown since Glossip. Neither the parties’ legal arguments nor dosage can change the material properties of this drug. ‘An excessive dose of midazolam will not result in unconsciousness.’ From amici’s perspective, the Sixth Circuit’s decision improperly shuts down the judicial scrutiny that this critical issue deserves.” (p. 7)

The Brief of Fifteen Professors of Pharmacology as Amici Curiae in Support of Certiorari: http://bit.ly/2v0hJj1

Attorneys for Mr. Phillips have filed Petition for a Writ of Certiorari and an Application for a Stay of Execution due to the substantial risk of a botched lethal injection execution using midazolam. 

Ohio plans to use midazolam as the first drug in a three-drug procedure, along with a paralytic that could mask any pain and distress. Mr. Phillips’ filings at the U.S. Supreme Court can be accessed here:

The Petition for a Writ of Certiorari can be accessed here: http://bit.ly/2u5MCk5

The Application for a Stay of Execution can be accessed here: http://bit.ly/2velXAe

Ohio officials have not carried out an execution for three-and-a-half years, since the 26-minute problematic midazolam execution of Dennis McGuire, where he gasped for air and choked. In Mr. Phillips’ stay motion, attorneys argue that the en banc U.S. Court of Appeals for the Sixth Circuit used the wrong standard of review in overturning the federal district court’s preliminary injunction against Ohio’s controversial lethal injection protocol. The stay request was also filed on behalf Gary Otte and Raymond Tibbetts, the next Ohio prisoners scheduled for execution after Mr. Phillips.

In addition to Mr. McGuire’s execution, midazolam has been implicated in other problematic executions, including that of Clayton Lockett in Oklahoma. On April 29, 2014, Mr. Lockett took 43 minutes to die after being administered the drug. In Arizona, Joseph Wood gasped over 600 times like “a fish on land” during his nearly two hour execution, even after being given fourteen times the legal dose of midazolam on July 23, 2014. Arizona has since announced it will no longer use midazolam. In Alabama, on December 8, 2016, media eyewitnesses to the execution of Ronald Smith reported that he gasped, heaved, coughed, clenched his fists, and appeared to be speaking or trying to speak, for thirteen minutes after midazolam was administered, and moved during his execution in response to the second consciousness check, when he should have been unconscious. At that point, the paralytic and painful, heart-stopping drugs were administered.

Background Re: Lethal Injection Litigation in Ohio

On June 28, 2017, in a closely divided 8 to 6 decision on the Eighth Amendment issue, the U.S. Court of Appeals for the Sixth Circuit overturned the preliminary injunction against Ohio’s controversial lethal injection protocol. That preliminary injunction, issued earlier this year by a federal district court, was initially affirmed on appeal by a divided panel of the Sixth Circuit.

Attorneys for Ohio death row prisoners had argued that the three-judge Sixth Circuit panel correctly upheld the federal district court’s preliminary injunction issued in January 2017. The district court issued a preliminary injunction because it found that the prisoners were likely to succeed at trial on their claim that the use of midazolam as the first drug in a three-drug protocol creates a substantial risk of unconstitutional pain and a substantial risk of serious harm.

On April 6, 2017, the three-judge panel of the U.S. Court of Appeals for the Sixth Circuit upheld the lower federal court’s preliminary injunction against Ohio’s controversial lethal injection protocol that uses the three drugs midazolam, pancuronium bromide, and potassium chloride.

The ruling upheld a January 26, 2017 order of Magistrate Judge Michael R. Merz of the U.S. District Court for the Southern District of Ohio. Judge Karen Nelson Moore and Judge Jane B. Stranch, noted that “the district court in this case evaluated evidence that was not available to the Oklahoma district court in Glossip [v. Gross] (p. 14.)” The opinion states:

“The district court found that Plaintiffs were likely to succeed on their claim that the use of midazolam as the first drug in a three-drug protocol creates a substantial risk of severe pain. There is no dispute that the suffocation caused by the paralytic and the intense burning sensation caused by potassium chloride are excruciatingly painful, just as in Baze [v. Rees] it was ‘uncontested that ... there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride’ if a proper dose of an effective anesthetic is not administered first. This case, like Baze, ‘hinges on’ the efficacy of the first drug in the three-drug protocol. (p. 10)”

The decision from the 3-member panel from the U.S. Court of Appeals for the Sixth Circuit can be accessed here: http://bit.ly/2o6WyH5

On January 26, 2017, after a five-day evidentiary hearing that included testimony from 14 witnesses, Judge Merz issued a 119-page decision granting a preliminary injunction against Ohio’s new lethal injection protocol. The district court’s opinion and order can be accessed here: http://bit.ly/2jtAqV5

In addition to rejecting Ohio’s use of midazolam, Judge Merz also rejected Ohio’s proposed three-drug lethal injection protocol, given prior sworn representations by state officials that it would never again use a three-drug execution method that included a paralytic and potassium chloride.

On October 3, 2016, Ohio officials announced their intention to begin carrying out executions using midazolam plus the two painful drugs they had abandoned in 2009. Since 1994, Ohio's statute governing lethal injection has specified that execution procedures must "quickly and painlessly cause death." Midazolam cannot meet this requirement, since it does not relieve pain and cannot reliably keep a prisoner from regaining consciousness.

For more information, please contact Laura Burstein, Laura.Burstein@Squirepb.com; @LauraBurstein1

Source: Ohioans To Stop Executions, July 24, 2017

Ronald Phillips Set to Die in Ohio's 1st Execution in 3 Years

Ohio's death chamber
Ohio's death chamber
Father Lawrence Hummer had been told the lethal injection of Dennis McGuire would probably take about 5 minutes. Just about that much time had passed when something ghastly happened.

"He started struggling for breath," said Hummer, who knew McGuire from Masses he celebrated for Ohio's Catholic death-row prisoners and volunteered to be a witness at his January 2014 execution.

"I was trying to calm his children down when all of a sudden I heard audible gagging. I thought it was another witness, but when I looked back to [McGuire], he was the one gagging," Hummer said. "Your instinct is to help or stop it, but of course nobody could do a thing."

According to multiple witnesses, McGuire gasped, snorted and heaved for up to 15 minutes before he was finally pronounced dead, ending Ohio's longest execution - and its 1st using an untested 2-drug cocktail.

More than 3 years later, Ohio has not put another prisoner to death. But after a tangled journey through the court system and an international search for chemicals, that could be about to change.

Unless the U.S. Supreme Court steps in, child-killer Ronald Phillips will be strapped to a gurney at the state prison in Lucasville on Wednesday evening and given an injection of 3 chemicals - 1 of which was used on McGuire and in several other executions that did not go as planned.

Phillips, 44, was convicted of raping and beating to death his girlfriend's daughter, Sheila Marie Evans, in 1993. The Ohio parole board said it was "clearly among the worst of the worst capital crimes."

"Its depravity is self-evident," the panel said in denying clemency. "Words cannot convey the barbarity of the crime. It is simply unconscionable."

Phillips was originally scheduled to die in 2013, but Ohio ran out of the drug it used, the barbiturate pentobarbital, and was unable to buy more because opponents of capital punishment convinced pharmaceutical companies to stop selling it to executioners.

The state adopted a new protocol: the sedative midazolam, followed by a massive dose of the opioid hydromorphone. Phillips would have been the 1st to receive it, but he won a delay with a request to donate his organs to relatives.

The state eventually rejected the donation idea, but it bought Phillips some time. The result was that in the meantime, McGuire became the 1st and only Ohio inmate executed with the experimental combination.

A review by prison officials concluded that McGuire - who raped and fatally stabbed a woman who was 8 months pregnant - did not suffer any distress. But after McGuire's family sued and midazolam came under fire for botched executions elsewhere, Ohio abandoned the 2-drug injection.

Its plan was to instead use a drug it relied on for more than a dozen years, sodium thiopental. But that drug is no longer made in the United States, and the Food and Drug Administration warned the state to drop plans to import it from overseas.

Switching gears, Ohio then adopted a 3-drug injection that several other states have been using: midazolam for sedation, following by a paralytic and the heart-stopping potassium chloride.

Despite its newfound popularity - Arkansas used it to kill 4 prisoners in 8 days - the formula is controversial. Critics say midazolam doesn't protect inmates against the pain of the other 2 drugs and thus violates the constitutional protection against cruel and unusual punishment.

A challenge out of Oklahoma was taken up by the U.S. Supreme Court, which declined to ban midazolam. But in January, a federal magistrate judge halted plans to restart executions, finding the use of the sedative created "a substantial risk of serious harm."

An appeals panel upheld that ruling, but was then reversed in a decision by the full court, which gave Ohio the green light to move ahead with Phillips' execution. Although he and other inmates have appealed to the nation's highest court, chances for a reprieve are increasingly slim.

In a response to Phillips' appeal, Ohio's attorney general argued its latest formula has a reliable track record.

"Ohio, a late adopter of the midazolam 3-drug protocol, chose it only after it was adopted by several States, used in over a dozen prior executions, authorized by many courts, and upheld by this Court," the state wrote in its brief.

Not all the executions have been problem-free, however, as 15 pharmacologists pointed out in a brief filed Monday. Last year, witnesses in Alabama reported that Ronald Bert Smith coughed and heaved for 13 minutes. Arizona swore off midazolam after Joseph Wood took 2 hours to die after getting the same kind of injection used on McGuire.

The coalition Ohioans to Stop Execution says it's just too risky for Ohio to restart its execution machinery with midazolam in the mix. It delivered petitions signed by 100,000 state residents to Gov. John Kasich's office on Monday.

Last week, the group released a statement from a retired judge who headed a court-appointed task force on the death penalty in Ohio and who complained that most of the panel's major recommendations have not been implemented - although none of those centered on execution drugs.

The state is saying little beyond its legal papers. Kasich's office referred inquiries to the Department of Rehabilitation and Correction, which issued a brief statement: "Ohio intends to fulfill its statutory obligation of carrying out court-ordered executions in a lawful, humane and dignified manner."

The last time the state came close to executing Phillips, a prison medical team had trouble identifying a good spot for the injection, he later told a court.

"I guess the Lord hid my veins from them," he said.

Whatever happens Wednesday could have implications for the future of executions in Ohio. If there's a glitch or worse, prison officials will be under pressure to once again retool the protocol. If it unfolds as planned, the state will have momentum to move forward with more executions.

That's a prospect Hummer, the Catholic priest who witnessed McGuire's execution, dreads. He said he is still haunted by what he witnessed in the death house 3 years ago.

"It was a horrendous experience," he said. "It's something that never goes away."

He may be called upon to do it again.

"I have 2 guys who come to mass every week who are due to be executed next year, and I told them, 'I'll be there for you if you wish,'" Hummer said. "I can't abandon the guys I've been with. I mean, how can I not do it?"

Source: NBC News, July 25, 2017

Resuming Executions in Ohio Will Not Serve Justice

After a 3-year hiatus, the state of Ohio is scheduled to resume executions this week. Ronald R. Phillips is scheduled to be put to death on July 26, despite outcry from groups including human rights organizations, faith leaders, correctional officers, and exonerated former death-row prisoners.

"While much of the country moves away from the death penalty, Ohio will be taking a devastating step backward should they move forward with this execution," said James Clark, senior campaigner with Amnesty International USA. "The capital punishment system is broken beyond repair, and must be abandoned."

Source: Amnesty International USA, July 25, 2017

Diocese of Southern Ohio objects to reinstatement of death penalty

Despite much objection, the state of Ohio will end its current hold on the death penalty and proceed with its first execution in 3 1/2 years on July 26th, 2017.

The Diocese of Southern Ohio, in partnership with other community faith leaders, and a host of death row exonerees, is urgently encouraging Governor Kasich to reconsider the reinstatement of this punishment given the state's questionable history of wrongful convictions and botched executions.

"While certain crimes can be difficult to forgive, we must remember that we are all children of God," Bishop Thomas Breidenthal said. "As Christians, we should respect human life as precious, and not sanction death via our very human, and sometimes flawed, criminal justice system."

Those looking to learn more or get involved with the movement are encouraged to contact their respective congress person or senator and ask them to halt this process, or by signing the petition via the link below:


About the Diocese of Southern Ohio

The Episcopal Church is home to more than 25,000 people in Southern Ohio. Our communities of faith can be found in Cincinnati, Columbus and Dayton, and in farm towns and county seats all across the southern half of Ohio.

We are led by the Rt. Rev. Thomas E. Breidenthal. As bishop, he offers spiritual leadership in partnership with the clergy and people of this diocese.

We are part of a larger, global community. The Episcopal Church has its roots in the Church of England and is part of the Anglican Communion. There are about 2.4 million Episcopalians in the United States and sixteen other countries and more than 70 million Anglicans worldwide.

Source: The Global Dispatch, July 25, 2017

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