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Will the Supreme Court Kill The Death Penalty This Term?

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Will the U.S. Supreme Court add the fate of the death penalty to a term already fraught with hot-button issues like partisan gerrymandering, warrantless surveillance, and a host of contentious First Amendment disputes?
That’s the hope of an ambitious Supreme Court petition seeking to abolish the ultimate punishment. But it runs headlong into the fact that only two justices have squarely called for a reexamination of the death penalty’s constitutionality.
Abel Hidalgo challenges Arizona’s capital punishment system—which sweeps too broadly, he says, because the state’s “aggravating factors” make 99 percent of first-degree murderers death-eligible—as well as the death penalty itself, arguing it’s cruel and unusual punishment.
He’s represented by former acting U.S. Solicitor General Neal Katyal—among the most successful Supreme Court practitioners last term. Hidalgo also has the support of several outside groups who filed amicus briefs on his behalf, notably one from a group including Ari…

Why the U.S. could see more executions this year

Ronald Phillips
Ronald Phillips
The death penalty is in decline. In each of the past 7 years, the United States has seen the number of executions fall or remain flat. This shift is part of an overall trend that, since the turn of the century, has seen the death penalty dwindle nationwide, although this year might see an increase in the number of executions.

Capital punishment was at its modern peak in 1999, when there were 98 executions in the U.S.. During the mid-1990s, more than 300 people were sentenced to death in 3 consecutive years. The issuance of death sentences became increasingly rare, falling from 315 such penalties in 1996 to 31 in 2016, according to the Death Penalty Information Center, a Washington-based nonprofit that tracks capital punishment activity. Executions similarly plummeted, declining to 20 last year, the fewest in a quarter-century.

States are also moving away from capital punishment. There are 19 states without the death penalty, and 7 of them abolished it or had courts strike down the practice since 2007; several other states have official moratoriums on executions or, lacking the ability to procure lethal injection drugs, are simply unable to carry them out.

This year, it appears the country will see more executions than the year before for the 1st time since 2009. There have been 14 executions so far in 2017, equal to the number at this point in 2016. In a report issued this week, the Death Penalty Information Center said it expects there will be "a slight increase" in executions from the 20 carried out last year. Even with the expected uptick in executions, the report noted, 2017 would still see fewer executions than most years since 1990.

Part of the explanation for this potential increase rests with Ohio, one of the more active death penalty states this century but a state that has, in recent years, been unable to carry out executions. Ohio had been a consistent executioner, carrying out at least one death penalty each year between 2001 and 2014. (During the same span, only Texas and Oklahoma had at least one execution each year.) Ohio's last execution, in 2014, lasted nearly half an hour, 1 of 3 lethal injections that took an unusually long time that year.

Executions have been on hold in Ohio since. Ohio has postponed its planned executions multiple times while changing the drugs it hoped to use to carry them out, delaying planned lethal injections multiple times during the past few years. Ohio was among many states that have had to scramble their lethal injection protocols due to an ongoing drug shortage, and state officials had said that they needed delay the executions due to the time it would take to find new drugs.

"Ohio's executions have been delayed for years as Ohio struggled to obtain execution drugs," the state said in a court filing earlier this year.

The state announced last year that it adopted a new lethal injection procedure involving different drugs. With that in hand, Ohio said it intended to move forward with the execution of Ronald Phillips, who was convicted of raping and killing his girlfriend's 3-year-old daughter in 1993, as well as other executions to follow. Phillips and other inmates challenged Ohio's execution protocol, and a federal judge stayed their executions, prompting Ohio Gov. John Kasich (R) to once again postpone executions in the state.

In June, a divided federal appeals court reversed that judge's stay, potentially clearing the way for Ohio to resume executions later this month. When Ohio changed its lethal injection protocol again last year, it said it would use three drugs, which is roughly the same procedure in place in Florida, Oklahoma and other states. (3-drug lethal injections used to be common in the United States, but the drug shortage - spurred in part by drug companies' objections to capital punishment - has forced some states away from that.) 1 of those drugs, midazolam, has been repeatedly questioned for its utility in lethal injections, an issue that has arisen after bungled, unusually long or otherwise controversial executions in Ohio, Oklahoma, Arizona, Alabama and, earlier this year, Arkansas.

The U.S. Court of Appeals for the 6th Circuit dismissed claims made by Phillips - along with 2 other inmates scheduled to be executed this fall - that the new Ohio execution protocol would cause them unconstitutional pain. Allen Bohnert, one of the attorneys representing the death-row inmates, criticized the decision and vowed to challenge it at the U.S. Supreme Court.

In one of the dissents, Judge Jane B. Stranch highlighted declining public support for capital punishment. A Pew Research Center survey last year found that American support for the death penalty fell below 50 %, its lowest level since the 1970s. A Gallup poll showed support remained at 60 %. Both polls ultimately showed support is far below where it was in the 1990s, when 4 out of 5 Americans backed the practice. In Ohio, though, a 2015 poll showed higher support for executions than in the rest of the country.

Phillips's execution is scheduled for July 26, more than 3 1/2 years after Ohio's last lethal injection. Three executions are set to take place in September, October and November. If those executions are carried out, along with five planned in Texas by the end of the year, they will push this year's total executions nationwide ahead of last year. Other executions could be added to the calendar, and it is possible not all of those scheduled will take place, as executions are routinely postponed. Even Texas, long the country's leader in capital punishment, is not immune to delays and has seen a handful of executions delayed or execution dates changed for various reasons recently.

In Ohio, state officials say they are moving ahead with preparations for Phillips's execution. Under Ohio's execution protocol, by this point officials must have had medical staff evaluate Phillips to look for potential problems in placing the IV (which was blamed as the issue behind a bungled Oklahoma execution in 2014). 2 weeks before the scheduled execution - Wednesday - officials also are directed to make sure the state has enough lethal-injection drugs to carry out the procedure.

In a court filing in Phillips's case, Ohio officials said they "ensured that it could obtain all 3 drugs" before changing the execution protocol. A spokeswoman declined to answer questions about Ohio's supply of the drugs.

"To date all steps of Ohio's execution protocol have been complied with in preparation of the execution scheduled later this month," JoEllen Smith, the spokeswoman for the Ohio Department of Rehabilitation and Correction, said in a statement.

Source: Washington Post, July 13, 2017

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