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…

Tennessee: Inmate's lawyers look for holes in lethal injection rules during death penalty challenge

Lawyers challenging Tennessee's lethal injection guidelines on Thursday suggested the state's rules surrounding executions were unclear and incomplete, issues they believe could spur the illegal torture of inmates.

On the 4th day of a civil trial brought by 33 Tennessee death row inmates, attorneys for the inmates spent hours questioning Department of Correction leaders about a revised protocol for lethal injections released last week.

While questioning the warden at Riverbend Maximum Security Institution, where the state's only execution chamber is located, federal public defender Jerome Del Pino established that prison staff practiced lethal injections without instructions from the pharmacy slated to provide the three-drug injection cocktail.

The protocol released July 5 requires that the lethal injection components should be "transferred, stored and maintained in accordance with the pharmacy."

"Wouldn't you want to have all the directions that you're supposed to follow in carrying out an execution?" Del Pino asked Warden Tony Mays.

Mays acknowledged those instructions have not been available during previous practice runs, but added that "once we receive them we will follow to the letter."

The state is scheduled to execute Billy Ray Irick, a 59-year-old Knoxville man convicted of the 1985 rape and murder of a 7-year-old girl, on Aug. 9.

The inmates' challenge rests on the 1st component in the state's 3-drug lethal injection cocktail, midazolam. Midazolam is meant to render the inmates unable to feel pain before they are executed, but witnesses called Wednesday said inmates executed in other states appeared to be alert and in pain after getting doses of midazolam.

State attorneys have disputed this characterization, and plan to question a physician who says midazolam is effective.

Del Pino focused a significant amount of his questioning on the protocol's directions if midazolam fails to render an inmate unconscious. The warden, not a physician, is supposed to test to see if an inmate is still awake after the midazolam dose, according to the protocol.

The protocol calls for a 2nd dose of the drug if an inmate is still alert after the 1st round, but doesn't say what to do if the 2nd dose is ineffective.

Mays said he would consult the physician on site and might contact the commissioner for the Department of Correction, but those steps aren't spelled out in the state's directions.

The inmate's lawyers closed the 4th day of the trial by questioning Tony Parker, the commissioner for the Department of Correction. His testimony is expected to continue Friday.

Chancellor Ellen Hobbs Lyle is presiding over the case in Davidson County Chancery Court and is expected to make a ruling at the trial's conclusion.

Source: The Tennessean, July 12, 2018

Execution witnesses: Condemned writhed, grimaced when lethal drugs entered their bodies

Inmates executed with a controversial cocktail of drugs opened their eyes, thrashed against their restraints and grimaced after getting a dose meant to render them unconscious before they died, according to several witnesses in a trial challenging Tennessee's lethal injection protocol.

The challenge is led by 33 inmates on Tennessee's death row, who sued the state in Davidson County Chancery Court, saying the drugs the state plan to use would lead to unconstitutional suffering. The resulting trial is moving at breakneck speed, as lawyers hope to have a decision before Billy Ray Irlick's scheduled execution on Aug. 9.

The Tennessee inmates, who are represented by federal public defenders and other attorneys, say the reactions of the executed inmates in other states are evidence that the controversial drug midazolam, which is part of Tennessee's 3-drug lethal injection cocktail, fails to render people unconscious and subjects them to torturous pain before they die.

Several defense attorneys who had witnessed their clients executed using the drug midazolam testified Wednesday, many of them describing similar scenes.

Christine Freeman, a federal defender and director of Alabama Post-Conviction Relief Project, saw convicted killer Torrey McNabb executed in October. She described him grimacing and raising his arm up well after midazolam had been administered.

"His brow was furrowed, his lips were kind of tightened," Freeman said. "It was very sudden. It was very dramatic."

The challenge is led by 33 inmates on Tennessee's death row, who sued the state in Davidson County Chancery Court. Nashville Tennessean

Federal public defender Eric Motylinski said his client, convicted killer Kenneth Williams, moaned, writhed and made choking sounds before he died by lethal injection in 2017 in Arkansas.

"He was rising up from the gurney repeatedly, rhythmically and violently, sort of hitting up against the straps," Motylinski said. "I cared about Mr. Williams, and if the state had to kill him I would have hoped that they could have done it in a way that he didn't suffer."

State attorneys have argued Tennessee's planned lethal injection cocktail is appropriate and does not amount to torture, including "unnecessary cruelty, terror, pain or disgrace, such as being disemboweled in public, burned alive, beheaded."

Attorneys for the state said Tennessee's protocol calls for a version of the drug called a compound, which was different from the protocols described in most of the testimony Wednesday. Compounded medications are put together by special pharmacists using the drug's raw materials.

Tennessee argues compounding is the only way the state can get the drug, citing a campaign from death penalty opponents to stop companies from supplying drugs for executions. They say the compound drug will still function as intended, and that Tennessee's protocol is similar to methods that have been upheld as proper by the U.S. Supreme Court.

Attorneys for the death row inmates disagree; they note every compounded drug is slightly different, so there's no effective way to predict how the drug will perform. In a court hearing before the start of the trial, 1 attorney likened obtaining the compounded midazolam to "getting black market drugs for an execution."

The maker of midazolam, Alvogen, filed a lawsuit Tuesday against the state of Nevada in an attempt to stop officials from using the drug in an execution, according to the Las Vegas Review-Journal.  In a statement to The Tennessean, Alvogen spokesman Halldor Kristmannsson said the company "objects to the use of its midazolam product being acquired fraudulently for an improper purpose."

Kristmannsson clarified obtaining the drug for use in an execution amounts to an improper purpose, in the view of Alvogen. But the company has "no position" on compounded midazolam, Kristmannsson said.

Both the Tennessee Department of Correction and attorneys for the death row inmates plan to call as witnesses physicians who have differing opinions on midazolam's efficacy.

Chancellor Ellen Hobbs Lyle is presiding over the case and is expected to make a ruling at the trial's conclusion.

Source: The Tennessean, July 12, 2018

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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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