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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Prisoner wants to die, but debate rages in Nevada over whether to use a new lethal drug

Scott Dozier
Defense attorney David Anthony faced a dilemma Monday as he argued that his client shouldn’t be put to death with a new, untested lethal injection cocktail: As long as his client professes an unequivocal desire to die, saving him might prove difficult, if not impossible.

And time is running short, with Scott Dozier facing execution on Nov. 14.

Anthony can’t ask for a stay of execution if Dozier doesn’t want it — and Dozier has said he doesn’t want one.

“These issues pose a moral dilemma,” the lawyer said outside a Las Vegas courtroom where he argued for a delay of the execution.

Anthony said there also remain concerns about the use of a paralytic drug during the lethal injection. Testimony by an expert on Friday suggested it could lead to pain and suffering for Dozier. And Anthony argued that it was especially risky since it would be administered by out-of-practice prison personnel, under a new chief medical officer.

Dr. John DiMuro, an anesthesiologist who stepped down from his post as Nevada’s chief medical officer about a week ago, was replaced by a psychiatrist, according to Assistant Solicitor General Jordan Smith.

That change had led to uncertainty in a state that doesn’t carry out executions with regularity. The last execution in Nevada was in 2006. Anthony argued that a psychiatrist simply didn’t have the same experience for overseeing the protocols for drug-based executions.

Smith argued there would be an attending physician who oversaw Dozier’s execution and that there would be trained medical personnel present as well.

The paralytic drug cisatracurium is at the center of the controversy. According to the American Civil Liberties Union of Nevada, the state would be the first to use the paralytic during an execution in combination with fentanyl and diazepam. There are fears cisatracurium would simply act as a mask — paralyzing Dozier while his body was in pain and he experienced “air hunger” — the phenomenon of not being able to breathe.

"Errors during an execution do not violate the cruel and unusual punishment standard." - U.S. Supreme Court

“It’s not a shame for anyone here if we need to push the pause button,” Anthony said. “If it’s the right thing to do, it’s the right thing to do.”

The 46-year-old death row inmate was convicted in 2007 of murdering and dismembering 22-year-old Jeremiah Miller five years prior at a Las Vegas motel. He also was convicted in Arizona 12 years ago for the murder of 26-year-old Jasen Green.

A little more than a year ago, Dozier asked to waive his appeals and sought to be put to death as soon as possible. Clark County District Court Judge Jennifer Togliatti signed his death warrant, but said she wanted to proceed with “an abundance of caution.”

Anthony brought in Dr. David Waisel, a Boston-based anesthesiologist, on Friday to testify that Nevada’s desire to use a paralytic drug could mask any pain and suffering by Dozier as his body is injected with fatal doses of fentanyl and diazepam.

Fentanyl
But Waisel also was critical of the state’s lack of practice in administering the toxic cocktail of drugs via lethal injection — noting it’s been 11 years since Nevada executed an inmate.

“Lethal injection in Nevada is ripe for error,” Waisel said in brief filed Monday. “Nearly every tenet for safety is violated. It is a dramatically unfamiliar situation and location for the individuals performing the injections. Even for experienced individuals this increases risk; it is increased even more for the inexperienced, especially without high quality practice.”

Smith said the U.S. Supreme Court has ruled that the potential for errors during an execution does not violate the cruel and unusual punishment standard. And Waisel acknowledged that if the process were carried out correctly and exactly, the risk of suffering would be minimal.

“It’s never a guarantee that an error wouldn’t happen,” Smith said.

Atty. Gen. Adam Laxalt’s office said it would not comment on pending litigation.

Togliatti didn’t rule Monday on the use of the paralytic and said she wanted Dozier present via video from his cell in Ely when the hearing resumed Wednesday.

The judge also said she wanted to give Anthony time to consult with Dozier about the risks laid out about the use of the drugs, the issue of a new medical director overseeing the state’s protocols he didn’t establish and how the drugs would be administered.

“Part of the struggle I’m having is, we’re not a regular execution state,” Togliatti said. “We don’t do this on a regular basis.”

Source: Los Angeles Times, David Montero, November 6, 2017


Arguments continue over drugs set to be used in execution of Scott Dozier


Nevada's death chamber
In just 7 days, the state of Nevada is set to execute a convicted killer.

Scott Dozier has said repeatedly he is ready to die, but defense attorneys want to make sure he doesn't suffer.

On Monday, both sides were back in court, still arguing over how the execution will happen.

One point of contention for the defense is that the acting Chief Medical Officer for the state is a psychiatrist, not an anesthesiologist.

The doctor who will actually oversee the execution isn't either; he's in family practice.

The issue for the judge is making sure Dozier's death is not cruel and unusual punishment.

"I think the one thing we can agree on is that no one wants a botched execution," said David Anthony, Assistant Federal Public Defender.

Anthony says there's no shame in hitting the pause button, as he looks out for the interests of Dozier.

The convicted killer has stated in the past that he's ready to die.

The state is ready to move forward Nov. 14, administering a never-before-used 3-drug cocktail.

After hearing from an anesthesiologist on Friday, the defense worries that 1 of those drugs, a paralytic, would amount to suffocating Dozier.

"There's nothing wrong with the protocol as it stands now if it's done right. If the dosing is done right, if the administration is done right, and if somebody who is experienced in depth of anesthesia, he will not suffer," said Judge Jennifer Togliatti.

Still, Anthony points to another execution from 2014 out of Arizona.

The lethal injection death of Joseph Wood took more than 2 hours. Some witnesses described Wood as gasping for air -- something Dozier's team is trying to avoid.

"After the botch we're talking about in the Wood case, that brought executions in Arizona to a standstill, they would rather not execute a person than use a paralytic," said Anthony.

But according to the state of Nevada, the decision to stop next week's execution sits with one person, the defendant himself.

"If Mr. Dozier decides he doesn't want to go forward, then Mr. Dozier can say that. If Mr. Dozier wants a stay, Mr. Dozier can say that," said Jordan Smith, Assistant Solicitor General.

On Wednesday, the judge will hear from Dozier 1 more time, appearing via video conference from prison.

Togliatti wants to make sure he understands exactly what is being discussed when it comes to the drugs and prison protocol for his execution.

Source: NBC News, November 7, 2017


Against a 'Cruel and Unusual' Death


A tad more of this? Cartoon
Nevada must not allow a death-row inmate to 'volunteer' for execution by fentanyl and other drugs.

Last Thursday, the ACLU launched a petition drive aimed at convincing Nevada's governor to stop the execution of Scott Dozier. A convicted murderer, Dozier has ended all of his legal appeals and asked that his capital sentence be carried out without further delay. He is scheduled to be put to death on Nov. 14.

If Dozier gets his wish, he would be the 1st in Nevada since 2006 and the 22nd execution in the United States this year. He also would be the 142nd "volunteer" to be executed since the United States resumed executing people in 1976.

Nevada intends to kill Dozier using a previously untested lethal injection protocol, including the controversial drug fentanyl, which has played a large role in America's opioid epidemic.

But Dozier's execution raises serious questions about whether death-row inmates should be allowed to waive their legal rights and volunteer to die, especially when the methods used to kill them risk violating the Eighth Amendment's prohibition of cruel and unusual punishment.

Dozier is by no means a sympathetic character. Having previously been convicted of second degree murder in Arizona, he was found guilty and sentenced a decade ago for a gruesome murder. Dozier robbed and killed 22-year-old Jeremiah Miller in a Las Vegas motel. He cut his corpse into pieces, and Miller's head, arms and legs have never been found.

On Oct. 31, 2016, Dozier wrote to District Judge Jennifer Togliatti, informing her that he wished to waive all remaining appeals and be put to death as expeditiously as possible. He told friends and family that "he is tired of life [and that] he envisions his path to the execution chamber." He told a lawyer, "Perhaps there's some fundamental differences in our philosophies of life. And I think I recognize this causes you cognitive dissonance because it's just never going to make sense. But I think you find life has a deeper inherent value than I believe, especially in mine."

While controversial, courts have consistently upheld the right of death-row inmates to forgo their appeals, so long as they are "competent" to make that decision. As the Supreme Court put it in a 1966 decision, judges hearing such requests need to assess whether a death-row inmate "has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation."

But can decisions when made on death row ever be "competent" and "rational"? Conditions there are dreadful, by any standard, enough to make us question whether inmates can feel free in any sense to make life and death decisions. And almost 90 percent of those who have waived their appeals in death cases suffered from some form of mental illness at the time they made their decisions.

In Dozier's case, there is a further complication beyond his request to be executed promptly. The method Nevada intends to use for his execution raises serious questions. While Dozier has said that if it were up to him he would like to die by firing squad, he acknowledges that the decision is not his.

Nevada, having failed in its efforts to obtain other drugs more commonly used in American executions, will use a new and untested lethal injection protocol. That protocol involves the sedative diazepam (better known as Valium), the muscle relaxant and paralytic cisatracurium and the opioid fentanyl.

As one commentator recently observed, "You got something that's killing hundreds of people a day across the United States. And you got prisons who can't get death penalty drugs, so they're turning to the drug that's killing hundreds of people across the United States. This sounds like an article from the Onion."

In addition, both the combination and sequence of drugs seem odd, since fentanyl and diazepam each cause unconsciousness. If taken in large enough doses, either can bring about death.

When other drugs, like midazolam, have been used in executions, there have been dosing problems, and one wonders whether the state wishes to administer two such drugs as if to circumvent those risks.

And, if the other drugs don't work, cisatracurium will prevent Dozier from registering pain, even as he experiences the feeling of being unable to breathe and suffocating to death.

We have no idea how this drug cocktail will affect Dozier, but there is little reason to have faith in its effectiveness. Lethal injection, even when it used a standard drug protocol for decades, was America's most unreliable method of execution.

Because Nevada's protocol is at best "experimental," wrote a former county prosecutor, "the risk of a botched execution is real."

The late Supreme Court Justice Thurgood Marshall once said that "the Eighth Amendment not only protects the right of individuals not to be victims of cruel and unusual punishment, but ... also expresses a fundamental interest of society in ensuring that state authority is not used to administer barbaric punishments."

Nevada's plan to execute Scott Dozier threatens to violate the Eighth Amendment. For that reason, the decision to die should not be left to him.

Nevada's governor needs to act to protect the "fundamental interest" that Marshall described. The governor can do so by stopping his state from proceeding with what can only be deemed a cruel form of human experimentation.

Source: US News & World Report, Op-Ed, Austin Sarat, November 7, 2017. Austin Sarat is associate dean of the faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College.


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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