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

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…

Secrecy lingers over Arkansas' next execution

As Arkansas prepares to restart its death chamber several months after the state carried out its first executions in nearly 12 years, an order from the state's highest court to release more information about lethal injection drugs could throw an obstacle in its path. At the minimum, it may raise a new round of uncomfortable questions about how the state obtains its execution drugs.

The state Supreme Court ruled last week that a 2015 law keeping secret the source of Arkansas' execution drugs doesn't extend to manufacturers, a decision that could force the state to release drug labels for its supply of a lethal injection drug early this week. It could undermine an approach Arkansas and at least a dozen other states have used to repel legal challenges by keeping secret how and where they obtain their drugs.

The ruling came a week before the scheduled execution of Jack Greene, a convicted murderer scheduled to die Thursday. A state judge dismissed Greene's attempt to halt his execution on Friday, but the inmate's attorneys said they're appealing to the Arkansas Supreme Court. Greene was convicted for the 1991 killing of Sidney Jethro Burnett after Burnett and his wife had accused Greene of arson. Gov. Asa Hutchinson last week said he's seen nothing in Greene's case file so far that would prompt him to halt the killer's execution.

If put to death, Greene will be Arkansas' 1st execution since the state put 4 men to death over 8 days in April. The state had originally planned to execute 8 men over 11 days before its supply of midazolam, 1 of the 3 drugs it uses in lethal injections, expired. 4 scheduled executions were halted by the courts.

The Supreme Court ruling revives a familiar issue: the secrecy surrounding the source of Arkansas' lethal injection drugs. A 2015 state law keeps the drug source a secret, a move Arkansas officials have said is needed to ensure it can find suppliers.

"Public pressure from anti-death-penalty advocates likely would lead manufacturers to implement even more distribution controls that would, as a practical matter, make it impossible for the state to acquire the drugs in its lethal-injection protocol," the state argued in court filings last month.

Justices, however, dismissed that argument and said doesn't protect the drug makers.

"The evidence presented in this case demonstrated that many manufacturers of lethal injection drugs already prohibit the use of these drugs in executions and that these manufacturers often have contracts in place with their distributors that prevent the downstream sale of the drugs to prison officials," Justice Courtney Goodson wrote in the court's ruling last week. "It is therefore the confidentiality of the sellers and suppliers of these drugs to the (Correction Department) that the confidentiality provisions were intended to protect."

Potassium chlorideThe state had previously released photos of its execution drugs with the manufacturers' names blacked out, but stopped doing so after The Associated Press was able to use those labels to identity the drug makers. 

A separate lawsuit seeking the same information about the state's 2 other lethal injection drugs is also pending before the high court. Both lawsuits were filed by the same attorney, Steven Shults, who has been seeking the labels.

Hutchinson in August scheduled Greene's execution after prison officials said they'd obtained a new supply of midazolam. The department said it paid $250 in cash for enough of the drug to conduct 2 executions.

2 drug makers unsuccessfully sought to prevent their drugs from being used in Arkansas' executions in April, and a case is still pending before the state Supreme Court over a medical supply company's claims that the state misleadingly obtained 1 of the drugs.

Details about the maker of the latest midazolam supply could open the door for new challenges. The ruling, which takes effect early this week, orders a lower court to determine what information other than the manufacturer must be withheld from the drug labels released.

With a narrow window until Thursday night, the biggest question remaining is how much of an impact - if any - the decision to release those labels could have on efforts to spare Greene's life.

Source: Associated Press, November 6, 2017

Ark. judge dismisses bid to halt killer's execution

Jack Greene
An Arkansas judge dismissed an effort Friday to halt this week's planned execution of a convicted killer despite his attorneys' arguments that he's not mentally competent.

The ruling came shortly after Gov. Asa Hutchinson said he was unlikely to grant clemency to Jack Greene, who is scheduled to be executed Thursday night. Greene was convicted in the 1991 death of Sidney Burnett, who was beaten with a can of hominy, stabbed and later shot.

Jefferson County Circuit Judge Jodi Raines Dennis dismissed a lawsuit filed by Greene's attorneys challenging an Arkansas law that gives the state's top prisons official authority to determine an inmate's mental competency. Dennis ruled that the state Supreme Court had already upheld the law as constitutional. Dennis also said she did not have the authority to halt Greene's execution.

Greene's attorneys plan to appeal to the state Supreme Court. They argue that Greene suffers from psychotic delusions and believes prison officials and his attorneys are conspiring to cover up injuries he believes corrections officers inflicted on him.

"The U.S. Supreme Court has clearly found that severely mentally ill death row prisoners like Mr. Greene must have access to competency hearings presided over by neutral decision makers in order to prevent unconstitutional execution," Scott Braden, an assistant federal defender representing Greene, said in a statement Friday.

The state said it was prepared to defend its plan to execute Greene.

"The attorney general continues to believe the execution will occur as scheduled, but is prepared to respond to any and all challenges from inmate Greene in the days leading up to the execution," said Judd Deere, a spokesman for Attorney General Leslie Rutledge.

If carried out, Greene's execution would be the 1st since Arkansas put 4 inmates to death over an 8-day period in April. Arkansas originally planned to put 8 inmates to death over an 11-day period, scheduling the executions before its supply of a lethal injection drug expired, but 4 of the executions were blocked by the courts.

Hutchinson scheduled Greene's execution in August after the state obtained a new supply of midazolam, the expired drug. The Arkansas Supreme Court on Thursday ordered the state to identify the manufacturer of the drug, saying the information was not protected by an execution drug secrecy measure.

The ruling, which requires a lower court to determine what information on the drug's label other than the manufacturer can be withheld, doesn't directly address Greene's execution and will take effect early next week.

Hutchinson earlier Friday said he was unlikely to halt Greene's execution. The state Parole Board last month recommended Hutchinson not grant clemency, rejecting Greene's argument that he was not mentally competent. Hutchinson said he believed Greene was mentally competent based on U.S. Supreme Court standards, and didn't plan on granting clemency.

"I've seen nothing that causes me concern in proceeding forth at this point," Hutchinson told reporters. "Obviously, we will continue to receive any information, continue to evaluate that, but at this point the execution is still scheduled and will remain on schedule."

Source: Associated Press, November 5, 2017

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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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