Rick Halperin
2018-08-22 13:59:03 UTC
August 22
MISSOURI:
Death penalty reporter sues Missouri in bid to witness executions
In 2014, Chris McDaniel was investigating whether Missouri was injecting
inmates with a particular sedative, midazolam, before executing them. While
under oath, the state had previously said it would not use the drug in its
executions. McDaniel, a death-penalty reporter, needed to find out crucial
details for his story, so he applied to be a witness of executions in the
state. On his application, he wrote that he wanted to "ensure that this solemn
task is carried out constitutionally." More than 4 years and 17 executions
later, he has published multiple high-impact investigations uncovering
Missouri's lethal-injection secrets. He has never been allowed to witness an
execution, however, and has yet to hear back about his application.
In the same year in which McDaniel submitted his application, the American
Civil Liberties Union (ACLU) sued the Missouri Department of Corrections to
obtain copies of witness applications. After a judge ordered the department to
release the documents in 2016, the ACLU found that the agency had not approved
dozens of applications from people wanting to witness executions to make sure
they were carried out constitutionally. McDaniel was one of them, and the ACLU,
which had worked with him on a previous case, asked if he would join a federal
lawsuit.
ICYMI: 'Conveyor belt of killing': Covering Arkansas' rush of executions
McDaniel - a BuzzFeed investigative reporter who formerly worked for St. Louis
Public Radio - and the ACLU filed a lawsuit against the Missouri Department of
Corrections in 2016 alleging that the state is barring him from being an
execution witness because of his critical coverage of the state's
lethal-injection protocol. This is a violation of his constitutional rights,
his attorney argues, because the witness-selection policy allows for
discrimination based on reporting protected by the First Amendment. The suit
demanded that Missouri come up with a policy for how witnesses are selected.
The Department of Corrections moved to dismiss the case, but on July 28 of this
year, a federal appellate court ruled that McDaniel may proceed with the suit.
"I think it's a very important press-access issue," McDaniel tells CJR.
"Prisons are notoriously difficult to report on because we don't get access....
the biggest power a government can have is taking the life of someone, and it's
also the thing that's carried out with the most secrecy at the state level."
In active death-penalty states, secrecy around executions is the norm - and
botched executions are far from rare. As pharmaceutical companies increasingly
refuse to sell their drugs for the purposes of killing people, states have
begun exploring new, sometimes dangerous avenues to procure drugs, some of
which have never been used in executions before. These untested methods, and
other issues, can result in botched executions that may violate the Eighth
Amendment's prohibition of cruel and unusual punishment. By witnessing and
reporting on executions, reporters act as an important link between the
execution chamber and the public, relaying information that few have access to.
The biggest power a government can have is taking the life of someone, and it's
also the thing that's carried out with the most secrecy at the state level.
In 1982, there were no journalists present to witness Virginia's execution of
Frank J. Coppola by electric chair. According to an attorney who was there,
Coppola was jolted for nearly 2 minutes with electricity, which eventually set
his head and leg on fire. And in March 2018, journalists looked on in horror as
executioners tried for hours to locate a vein of Doyle Lee Hamm's to pump
lethal injection drugs into, stabbing him a dozen times. By the time they gave
up, Hamm was soaked with blood, and he urinated blood the next day, his
attorney said. And even when journalists are present, that doesn't mean they
are able to see the entire execution.. States have been known to close the
curtains when something has gone wrong.
Hamm's case is just one of many that have shown the importance of journalists
being present for executions. Their presence holds states accountable, an
important task as death row inmates continue to fight their cases and cite
botched executions as proof of cruel and unusual punishment to do so. After
Hamm's execution attempt made headlines across the country, Alabama agreed that
it would not try to kill him again.
But stories often do not go deep enough to provide the public with a clear
picture of what's happening when someone is executed, McDaniel says,
attributing the issue to several factors, including secrecy and the complexity
of the death penalty. A June Washington Post article on the Texas execution of
Danny Bible, who was likely to experience a botched execution due to several
medical issues, his attorneys argued, reported that it had "occurred without
complications" despite revealing that "after the drugs were administered, he
muttered that it was 'burning' and that it 'hurt.'"
"I sort of view my reporting on this as a government-accountability reporting
position and this is like the biggest responsibility that the government has,"
McDaniel says. "And it's kind of of a weird thing where this is the biggest
power that the government has, but it's also a thing that they receive
shockingly little press oversight for."
In Missouri, the power to select at least "8 reputable citizens" to be
witnesses, a requirement for every execution, lies with just one person: the
director of the Missouri Department of Corrections. At least 1 media witness is
chosen from in-state, according to a corrections department spokeswoman.
Missouri's legislature grants this discretion, but doesn't provide any criteria
for how they will be chosen, according to Anthony Rothert, who is McDaniel's
attorney and the legal director of the ACLU of Missouri. This is highly
unusual, he says; every other death-penalty state has a procedure for choosing
witnesses.
It's important for members of the press to be there to honestly and accurately
tell the public what is going on at this very secret thing.
The director of Missouri's corrections department, George Lombardi, was
choosing people who would be favorable to his agency, such as detectives,
students, or former corrections department employees, to be witnesses, Rothert
says. The media witnesses were from outlets who were generally on the state's
good side, according to Rothert.
"People who do more in-depth reporting on the various aspects of the death
penalty and how it's carried out and have made the Department of Corrections
look bad are not selected," Rothert says.
Rothert argues that regardless of McDaniel's coverage, denying him the
opportunity to witness executions because of his stories violates the due
process clause of the Fourteenth Amendment.
"This case is about whether or not the policy, the complete discretion given to
choose witnesses, is allowing the government to engage in viewpoint
discrimination and punish those who might report critically on how the death
penalty is carried out," Rothert says.
Prior to applying to become a press witness, McDaniel revealed in a 2013
investigation for St. Louis Public Radio that Missouri's execution-drug
supplier was not licensed to sell in Missouri. As a result, the pharmacy
supplying the drugs agreed to no longer sell them in the state, a huge blow to
the corrections department, which then had to find a new supplier, no easy
task. But the hurdles McDaniel created through his reporting should not be a
reason for the corrections department to shut him, and the public, out, he
argues. "I don't think their dislike of me making their job more difficult
should impact my ability to report - the public's ability to know about what is
taking place," he says.
As McDaniel continued to report on the use of a controversial sedative,
midazolam, in executions without being able to actually witness the executions
themselves, he relied on accounts from people who were there. By speaking to
press witnesses, he was able to find out that inmates being executed were
likely sedated, but these witnesses didn't have the detailed notes McDaniel
needed to create a timeline of specifics such as when a person's eyes were
open. He depended heavily on chemical logs of drugs in the state's possession
he had obtained via public records requests to find out which drugs were being
used.
After his story was published in September 2014, McDaniel wrote two more pieces
critical of lethal injection in Missouri. A 2016 BuzzFeed investigation
revealed that an Oklahoma pharmacy supplying lethal injection drugs to Missouri
had committed nearly 1,900 pharmacy regulation violations. And in March 2018,
another BuzzFeed investigation found the compounding pharmacy the Missouri had
been using for its lethal injection drugs was deemed "high risk" by the Food
and Drug Administration. In light of these facts, the US Court of Appeals for
the Eighth Circuit ruled in his favor in July, finding it probable enough that
McDaniel had been harmed by the lack of protocol for selecting witnesses that
the case could move forward.
"McDaniel's allegations that the Director's policies provide an opportunity to
exclude McDaniel based on his viewpoint and that the Director has excluded
McDaniel and all applicants sharing his particular viewpoint are sufficient to
give him standing to press the claim," the court wrote.
Now that the appeals court has ruled, the case will likely return to the trial
court, Rothert says. He expects it to be decided in about a year.
Ideally, the corrections department wouldn't be able to decide who gets to be a
witness, and reporters would choose among themselves, McDaniel says, noting
that the reporting on an execution can have an impact that extends far beyond
the time in the witness gallery.
"It's important for members of the press to be there to honestly and accurately
tell the public what is going on at this very secret thing," he says. "It's
important for that specific execution, and it's important for things that could
be difficult to understand at the time but could be relevant in a longer
investigation."
A spokeswoman for the Missouri Department of Corrections declined to comment,
citing the litigation.
(source: Columbia Journalism Review)
NEBRASKA:
A New Debate on the Death Penalty
The use of fentanyl in a Nebraska execution and the Catholic Church's recent
stand on capital punishment has stirred the debate over the way states execute
the condemned.
Nebraska authorities used fentanyl to help execute a convicted murderer on
August 14.
Carey Dean Moore, a 60-year-old inmate who was sentenced to death for killing 2
Omaha cab drivers in 1979, was pronounced dead at 10:47 a.m. at the Nebraska
State Penitentiary in what was the nation's 1st execution carried out with the
powerful opioid that is at the center of the U.S. overdose epidemic. What
impact will the use of the drug in Moore's execution have on lethal-injection
drug protocols in other death penalty states, and what are some of the
challenges facing judges now that pharmaceutical companies are bringing legal
action to prevent their products from being used to carry out executions?
Scott SundbyScott Sundby, professor and Dean's Distinguished Scholar at the
University of Miami's School of Law who teaches criminal law and procedure and
is author of A Life and Death Decision: A Jury Weighs the Death Penalty, offers
insights on the issue in 5 questions with UM News.
Nebraska became the 1st state to use fentanyl in an execution. Does Nebraska's
use of this powerful opioid point to the state's desperation to find drugs now
that pharmaceutical companies are blocking the use of their products to carry
out executions?
Sundby: Nebraska's use of fentanyl is only the latest in the rather startling
spectacle of states scrambling to find drugs that they can use for lethal
injection. Pharmaceutical companies understandably do not want their drugs
associated with executions (probably very few patients come in and say, "hey,
Doc, can I have a prescription for that drug that states are using to put
people to death") and, therefore, have refused to sell or allow their drugs to
be used in executions. As a result, some states have essentially turned their
employees into 'drug mules,' sending them across the state's border with cash
to buy execution drugs from compound pharmacies that do not want to be
identified.. The fact that no one wants to be identified with supplying the
means for executing people and that states are retreating into secrecy as to
how they obtain and administer execution drugs is one of a number of signs that
American society is becoming less and less supportive of capital punishment.
Will the drug's use by Nebraska open up a new avenue for states that are
struggling to find execution drugs?
Sundby: One strongly suspects that Nebraska's experience will simply go down as
the latest episode in what will be a continuing saga of states' efforts to
answer the question: Is there a humane way to put a person to death against
their will? The states are in this quandary because prior methods of execution
- hanging, firing squad, gas chamber, electric chair - were on the verge of
being found to violate the 8th Amendment ban on cruel and unusual punishment,
so they turned to lethal injection as the alternative. Consequently, there is
no viable 'Plan B' if states cannot find lethal injection drugs, which means
that, like Nebraska, they will continue to scramble to find drugs that they can
obtain and administer. Indeed, Nebraska may not be able to obtain fentanyl in
the future since the makers of fentanyl are now trying to block the drug's use
in future executions, which would put Nebraska back in the mad melee to find
execution drugs.
Drug companies are in a legal battle to prevent their products from being used
in executions, effectively putting a stop to executions in some cases. This
seems to be new ground for judges who have to rule in these cases. Could this
spawn new legislation in some states?
Sundby: The drug companies have been resolute in their efforts to stop the use
of their products for lethal injection by building into contracts prohibitions
on the use of their drugs for executions. And we are talking about corporate
giants like Pfizer and Johnson & Johnson that have plenty of resources and
lawyers to pursue those who violate the contracts. The drug companies' actions
when considered in tandem with challenges by death row inmates produces a
double pincer effect: drug companies bring civil suits to keep states from
using their drugs, this forces states to seek out new drugs with unknown
effects, which in turn makes the new protocols vulnerable to constitutional
challenge on the grounds that states are essentially experimenting with these
drugs on the condemned inmates and causing unnecessary suffering.
The net effect of this parallel line of legal challenges is an ever-shrinking
availability of execution drugs, which is why some states are passing laws that
try to shroud in secrecy how they are obtaining drugs, who is administering
them, and the effects once administered. These secrecy laws are
constitutionally vulnerable since they are not-so-subtle attempts to hide
botched executions and to deprive defendants of information that they could use
to challenge the execution protocol as being "cruel and unusual."
Pope Francis recently declared the death penalty wrong in all cases. How will
this new teaching potentially affect U.S. judges who are practicing Catholics?
For example, should Catholic judges recuse themselves in death penalty cases
that conflict with their religious beliefs?
Sundby: Judges occasionally must rule in a way with which they personally
disagree and that is accepted as part of their duty as judges to follow the
law. A judge's religious or moral beliefs, therefore, are not grounds for
recusal unless the beliefs would prevent them from following the law or would
give rise to "a serious risk of actual bias" (usually based on a personal
involvement in the case, such as having received $3 million as a campaign
contribution from one of the litigants or having been involved in the case
earlier as a lawyer for one of the litigants; both of these examples are cases
where the Supreme Court said recusal was constitutionally necessary).
Whether judges are in reality able to fully put aside their views and follow
the law is, not surprisingly, a hot topic of empirical debate, but the law's
general presumption is that they are able to do so and will disqualify
themselves if they realize that they cannot. Consequently, just because a judge
is a practicing Catholic (or the member of any other church or group that
opposes the death penalty) would not be grounds for recusal. The situation is
somewhat analogous to when then-Governor Tim Kaine carried out 11 executions in
Virginia even though he personally was vehemently opposed to the death penalty.
With Pope Francis changing the Catholic Church's stance on the death penalty,
what's the likelihood that such developments can potentially impact a jury's
decision to impose a death penalty sentence?
Sundby: The short answer is that the Pope's position in theory should not
affect a capital jury's decision because a citizen who would never impose
capital punishment due to their religious or moral beliefs could not serve on a
capital jury in the first place. The rationale is that a juror (just like a
judge) must be able to 'follow the law,' and if an individual would never
impose the death penalty, they cannot follow the law of a state that says it is
an appropriate penalty (in the same way that someone who says that he or she
believes the Second Amendment makes any law banning firearm possession invalid
could not serve on a jury in a case where the defendant is accused of violating
firearm laws). So if a potential juror were to say, "I am a Catholic and given
Pope Francis's teaching I could never impose the death penalty," he or she
could not be on the jury.
The longer answer, though, is that the Catholic Church's opposition becomes one
more influential voice against the death penalty and will likely add to the
trend we are already seeing that even individuals who are not always opposed to
the death penalty (and thus could be capital jurors) are more and more hesitant
to impose a death sentence in the jury room and more inclined to show mercy;
nationwide, juries imposed only 39 death sentences all of last year.
(source: miami.edu)
COLORADO:
Coronado case: Death-penalty bid poised to add years of delays, defense says
Prosecutors' decision to seek the death penalty for suspects in the
execution-style killings of 2 Coronado High School students could add 2 to 3
years of delays to their cases, their attorneys said Tuesday.
The question of when Diego Chacon and Marco Garcia-Bravo will get their day in
court was left open as a judge agreed to postpone back-to-back trials in
October.
Among issues that must be addressed before new dates are set is whether they
will be tried separately or together, as prosecutors have requested, said 4th
Judicial District Judge David A. Shakes, who set a hearing on the issue for
Nov. 18.
The judge said he also wanted to rule, by January at the earliest, on defense
motions challenging the constitutionality of potential death penalties for
defendants who both were under age 21 at the time of the March 2017 crimes.
"Don't think that anything I've said means that I agree with a 2-year
continuance," Shakes told prosecutors after they objected to the defense teams'
estimates.
Chacon, 20, and Garcia-Bravo, 21, are accused of carrying out an abduction plot
that led to the deaths of 16-year-old Natalie Cano-Partida and 15-year-old
Derek Greer. Cano-Partida was the target over suspicions she was an informant
for the men's gang rivals, authorities have said. Derek allegedly was killed
for being with her.
The postponements came at the request of both defendants, who surrendered their
speedy trial rights.
The defense teams insisted on sticking with October trials until it became
clear they couldn't be ready.
More time is needed to pore through more than 100,000 pages of reports and
dozens of media files while preparing for what promise to be exhaustive
pretrial battles, the court-appointed defense attorneys said.
Lawyers for Garcia-Bravo, a Mexican national, say their investigators must
travel to Mexico to begin probing his past in preparing to argue he shouldn't
be put to death in the event of convictions. Both defense teams say they must
complete more legal training on the death penalty.
Shakes was appointed to the case this month after Judge Larry E. Schwartz
recused himself, citing his retirement plans. Schwartz didn't give a date for
his retirement, saying he planned to provide notice "within the next several
months."
Within days of Shakes' appointment, attorneys for Chacon sought to get him
kicked off the case, citing his ties to 2 interns on their team.
Both are students at the University of Colorado at Colorado Springs, and they
said in affidavits they saw Shakes, a part-time instructor, as a personal
mentor.
Shakes denied the motion, saying he could set aside his prior relationships
with the students. He announced Tuesday that the Colorado Supreme Court had
declined to take up an appeal by Chacon's team, letting his ruling stand.
Prosecutors previously asked for separate trials but later said Chacon and
Garcia-Bravo should be tried together.
"I'm willing to consider that, but it's going to take time," Shakes said.
The judge also ordered extra security measures in court. For the 1st time since
the cases began, spectators were forced to go through a metal detector outside
the courtroom. They also were barred from bringing in laptops or cell phones.
Attorneys for Garcia-Bravo objected, saying the measures create a fearful
environment, potentially introducing bias. Shakes batted down the argument,
saying jurors wouldn't be subjected to the measures.
The judge didn't mention threats, saying only that the measures were deemed
necessary because the cases involve murders "with gang overtones."
The defendants, who are jailed without bond pending trial, are expected to
return to court Oct. 3.
(source: Colorado Spring Gazette)
NEVADA:
Judge lets another drug firm enter Nevada execution case
Another pharmaceutical company was allowed Tuesday to join 2 other firms in
Nevada state court hearings about the use of their drugs in a twice-postponed
execution of a convicted killer who says he wants to die.
Sandoz Inc. is the latest addition to the case before Clark County District
Court Judge Elizabeth Gonzalez in which drugmakers Alvogen and Hikma
Pharmaceuticals USA accuse Nevada of improperly obtaining their products for a
lethal injunction - a use the companies say they don't allow.
The judge in Las Vegas also set a Sept. 10 court date to decide when additional
hearings could be held, while acknowledging the Nevada Supreme Court is already
planning Sept. 12 hearings about the stalled execution of Scott Raymond Dozier.
The high court plan to hear oral appeals next month could lead to a decision
there by mid-October. Prison officials want to reschedule Dozier's execution
for mid-November.
State Deputy Solicitor General Jordan Smith maintains that Nevada prison
officials lawfully obtained the drugs in question from a third-party supplier
and the companies are now stricken by "sellers' remorse" amid concerns about
their corporate reputations.
Sandoz makes the muscle paralytic cisatracurium. Alvogen makes the sedative
midazolam. Hikma is a producer of the powerful opioid fentanyl, which has been
blamed for illegal-use, drug overdose deaths nationwide.
Nevada wants to use those 3 drugs for its 1st execution since 2006 in a
sedative-opioid-paralytic combination similar to one Nebraska used last week in
the lethal injection of Carey Dean Moore.
Nebraska also used a 4th medication, the heart-stopping drug potassium
chloride, that isn't part of Nevada's plan.
Nevada executions must by law be by lethal injection. Dozier's dates with death
were previously postponed in November and July.
The 47-year-old is not challenging his convictions or the sentence he received
in 2007 for killings in Phoenix and Las Vegas. He insists he wants to die and
doesn't care if it's painful.
(source: thenewstribune.com)
USA:
AMA to Supreme Court: Doctor participation in executions unethical
Anesthesiologist Joel Zivot, MD, says he won't give Missouri officials an
opinion on which execution method might result in the lowest risk of severe
pain for a prisoner on death row because he feels ethically unable to compare
the consequences of alternative forms of execution allowed under state law.
Missouri officials say that because prisoner Russell Bucklew didn't offer
testimony to directly compare each method of execution and show that one
"significantly reduces the risk of severe pain," the man hasn't met his burden
to be put to death by something other than the state's standard lethal
injection protocol.
Bucklew says he will suffer unnecessarily if he is put to death by the standard
lethal-injection protocol. Instead, Bucklew is asking he be put to death by
lethal gas because he believes it will cause him less suffering due to his rare
medical condition, cavernous hemangioma. The condition causes blood-filled
tumors to grow on his body. He claims once the drugs are administered, he will
choke on his own blood for 4 minutes.
Now the U.S. Supreme Court is considering the case, Bucklew v. Precythe,
including the question of whether the Eighth Amendment requires that an inmate
prove an adequate alternative method of execution when challenging the state's
method based on a rare and severe medical condition.
The AMA has filed an amicus brief in the case before the high court.
The brief doesn't support either party. Instead, it offers justices background
on the "applicable ethical principles" that guide physicians on capital
punishment. It also confirms that "testimony used to determine which method of
execution would reduce physical suffering would constitute physician
participation in capital punishment and would be unethical."
"Society wants to delude itself into a belief that capital punishment no longer
represents a weighted moral choice, but is now somehow scientific - nearly
antiseptic. This delusion, however, cheapens life and makes its extinction
easier," the brief advises the court. "The medical profession, whose 'essential
quality' is an interest in humanity and which reveres human life should have no
part in this charade."
Ethical stance as old as time
The AMA notes that as early as the 5th century BCE, those who practiced
medicine took an oath to the gods of the day "to ground their practice in
service to the best interest of their patients." The Hippocratic Oath included
its vow: "I will not give a lethal drug to anyone if I am asked, nor will I
advise such a plan," the brief says.
Today, the AMA Code of Medical Ethics speaks directly to a physician's ethical
responsibility when it comes to capital punishment stating, in part, that "as a
member of a profession dedicated to preserving life when there is hope of doing
so, a physician must not participate in a legally authorized execution."
The American College of Correctional Physicians, American College of
Physicians, Americans Public Health Association, American Society of
Anesthesiologists and the World Medical Association also have said it is
unethical for physicians to participate in capital punishment.
Patient-physician relationship at stake
The brief tells the court that any physician assistance in an execution or the
design of an execution would undermine the patient-physician relationship that
relies on trust.
Physicians risk confusing their responsibility to the patient with a
responsibility to the state if they participate in executions, the brief
states. In turn, if patients don't have trust in their physician's independent
judgment, they may avoid needed medical care or withhold sensitive information.
"By refusing to participate in capital punishment, even when sanctioned by a
free society, physicians are making a statement - even if symbolically - that
their role is not to serve the state as experts in killing, but to minister to
their patients as healers," the AMA brief tells the court. "Ethical physicians
avoid any potential blurring of these fundamentally incompatible functions."
(source: ama-assn.org)
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MISSOURI:
Death penalty reporter sues Missouri in bid to witness executions
In 2014, Chris McDaniel was investigating whether Missouri was injecting
inmates with a particular sedative, midazolam, before executing them. While
under oath, the state had previously said it would not use the drug in its
executions. McDaniel, a death-penalty reporter, needed to find out crucial
details for his story, so he applied to be a witness of executions in the
state. On his application, he wrote that he wanted to "ensure that this solemn
task is carried out constitutionally." More than 4 years and 17 executions
later, he has published multiple high-impact investigations uncovering
Missouri's lethal-injection secrets. He has never been allowed to witness an
execution, however, and has yet to hear back about his application.
In the same year in which McDaniel submitted his application, the American
Civil Liberties Union (ACLU) sued the Missouri Department of Corrections to
obtain copies of witness applications. After a judge ordered the department to
release the documents in 2016, the ACLU found that the agency had not approved
dozens of applications from people wanting to witness executions to make sure
they were carried out constitutionally. McDaniel was one of them, and the ACLU,
which had worked with him on a previous case, asked if he would join a federal
lawsuit.
ICYMI: 'Conveyor belt of killing': Covering Arkansas' rush of executions
McDaniel - a BuzzFeed investigative reporter who formerly worked for St. Louis
Public Radio - and the ACLU filed a lawsuit against the Missouri Department of
Corrections in 2016 alleging that the state is barring him from being an
execution witness because of his critical coverage of the state's
lethal-injection protocol. This is a violation of his constitutional rights,
his attorney argues, because the witness-selection policy allows for
discrimination based on reporting protected by the First Amendment. The suit
demanded that Missouri come up with a policy for how witnesses are selected.
The Department of Corrections moved to dismiss the case, but on July 28 of this
year, a federal appellate court ruled that McDaniel may proceed with the suit.
"I think it's a very important press-access issue," McDaniel tells CJR.
"Prisons are notoriously difficult to report on because we don't get access....
the biggest power a government can have is taking the life of someone, and it's
also the thing that's carried out with the most secrecy at the state level."
In active death-penalty states, secrecy around executions is the norm - and
botched executions are far from rare. As pharmaceutical companies increasingly
refuse to sell their drugs for the purposes of killing people, states have
begun exploring new, sometimes dangerous avenues to procure drugs, some of
which have never been used in executions before. These untested methods, and
other issues, can result in botched executions that may violate the Eighth
Amendment's prohibition of cruel and unusual punishment. By witnessing and
reporting on executions, reporters act as an important link between the
execution chamber and the public, relaying information that few have access to.
The biggest power a government can have is taking the life of someone, and it's
also the thing that's carried out with the most secrecy at the state level.
In 1982, there were no journalists present to witness Virginia's execution of
Frank J. Coppola by electric chair. According to an attorney who was there,
Coppola was jolted for nearly 2 minutes with electricity, which eventually set
his head and leg on fire. And in March 2018, journalists looked on in horror as
executioners tried for hours to locate a vein of Doyle Lee Hamm's to pump
lethal injection drugs into, stabbing him a dozen times. By the time they gave
up, Hamm was soaked with blood, and he urinated blood the next day, his
attorney said. And even when journalists are present, that doesn't mean they
are able to see the entire execution.. States have been known to close the
curtains when something has gone wrong.
Hamm's case is just one of many that have shown the importance of journalists
being present for executions. Their presence holds states accountable, an
important task as death row inmates continue to fight their cases and cite
botched executions as proof of cruel and unusual punishment to do so. After
Hamm's execution attempt made headlines across the country, Alabama agreed that
it would not try to kill him again.
But stories often do not go deep enough to provide the public with a clear
picture of what's happening when someone is executed, McDaniel says,
attributing the issue to several factors, including secrecy and the complexity
of the death penalty. A June Washington Post article on the Texas execution of
Danny Bible, who was likely to experience a botched execution due to several
medical issues, his attorneys argued, reported that it had "occurred without
complications" despite revealing that "after the drugs were administered, he
muttered that it was 'burning' and that it 'hurt.'"
"I sort of view my reporting on this as a government-accountability reporting
position and this is like the biggest responsibility that the government has,"
McDaniel says. "And it's kind of of a weird thing where this is the biggest
power that the government has, but it's also a thing that they receive
shockingly little press oversight for."
In Missouri, the power to select at least "8 reputable citizens" to be
witnesses, a requirement for every execution, lies with just one person: the
director of the Missouri Department of Corrections. At least 1 media witness is
chosen from in-state, according to a corrections department spokeswoman.
Missouri's legislature grants this discretion, but doesn't provide any criteria
for how they will be chosen, according to Anthony Rothert, who is McDaniel's
attorney and the legal director of the ACLU of Missouri. This is highly
unusual, he says; every other death-penalty state has a procedure for choosing
witnesses.
It's important for members of the press to be there to honestly and accurately
tell the public what is going on at this very secret thing.
The director of Missouri's corrections department, George Lombardi, was
choosing people who would be favorable to his agency, such as detectives,
students, or former corrections department employees, to be witnesses, Rothert
says. The media witnesses were from outlets who were generally on the state's
good side, according to Rothert.
"People who do more in-depth reporting on the various aspects of the death
penalty and how it's carried out and have made the Department of Corrections
look bad are not selected," Rothert says.
Rothert argues that regardless of McDaniel's coverage, denying him the
opportunity to witness executions because of his stories violates the due
process clause of the Fourteenth Amendment.
"This case is about whether or not the policy, the complete discretion given to
choose witnesses, is allowing the government to engage in viewpoint
discrimination and punish those who might report critically on how the death
penalty is carried out," Rothert says.
Prior to applying to become a press witness, McDaniel revealed in a 2013
investigation for St. Louis Public Radio that Missouri's execution-drug
supplier was not licensed to sell in Missouri. As a result, the pharmacy
supplying the drugs agreed to no longer sell them in the state, a huge blow to
the corrections department, which then had to find a new supplier, no easy
task. But the hurdles McDaniel created through his reporting should not be a
reason for the corrections department to shut him, and the public, out, he
argues. "I don't think their dislike of me making their job more difficult
should impact my ability to report - the public's ability to know about what is
taking place," he says.
As McDaniel continued to report on the use of a controversial sedative,
midazolam, in executions without being able to actually witness the executions
themselves, he relied on accounts from people who were there. By speaking to
press witnesses, he was able to find out that inmates being executed were
likely sedated, but these witnesses didn't have the detailed notes McDaniel
needed to create a timeline of specifics such as when a person's eyes were
open. He depended heavily on chemical logs of drugs in the state's possession
he had obtained via public records requests to find out which drugs were being
used.
After his story was published in September 2014, McDaniel wrote two more pieces
critical of lethal injection in Missouri. A 2016 BuzzFeed investigation
revealed that an Oklahoma pharmacy supplying lethal injection drugs to Missouri
had committed nearly 1,900 pharmacy regulation violations. And in March 2018,
another BuzzFeed investigation found the compounding pharmacy the Missouri had
been using for its lethal injection drugs was deemed "high risk" by the Food
and Drug Administration. In light of these facts, the US Court of Appeals for
the Eighth Circuit ruled in his favor in July, finding it probable enough that
McDaniel had been harmed by the lack of protocol for selecting witnesses that
the case could move forward.
"McDaniel's allegations that the Director's policies provide an opportunity to
exclude McDaniel based on his viewpoint and that the Director has excluded
McDaniel and all applicants sharing his particular viewpoint are sufficient to
give him standing to press the claim," the court wrote.
Now that the appeals court has ruled, the case will likely return to the trial
court, Rothert says. He expects it to be decided in about a year.
Ideally, the corrections department wouldn't be able to decide who gets to be a
witness, and reporters would choose among themselves, McDaniel says, noting
that the reporting on an execution can have an impact that extends far beyond
the time in the witness gallery.
"It's important for members of the press to be there to honestly and accurately
tell the public what is going on at this very secret thing," he says. "It's
important for that specific execution, and it's important for things that could
be difficult to understand at the time but could be relevant in a longer
investigation."
A spokeswoman for the Missouri Department of Corrections declined to comment,
citing the litigation.
(source: Columbia Journalism Review)
NEBRASKA:
A New Debate on the Death Penalty
The use of fentanyl in a Nebraska execution and the Catholic Church's recent
stand on capital punishment has stirred the debate over the way states execute
the condemned.
Nebraska authorities used fentanyl to help execute a convicted murderer on
August 14.
Carey Dean Moore, a 60-year-old inmate who was sentenced to death for killing 2
Omaha cab drivers in 1979, was pronounced dead at 10:47 a.m. at the Nebraska
State Penitentiary in what was the nation's 1st execution carried out with the
powerful opioid that is at the center of the U.S. overdose epidemic. What
impact will the use of the drug in Moore's execution have on lethal-injection
drug protocols in other death penalty states, and what are some of the
challenges facing judges now that pharmaceutical companies are bringing legal
action to prevent their products from being used to carry out executions?
Scott SundbyScott Sundby, professor and Dean's Distinguished Scholar at the
University of Miami's School of Law who teaches criminal law and procedure and
is author of A Life and Death Decision: A Jury Weighs the Death Penalty, offers
insights on the issue in 5 questions with UM News.
Nebraska became the 1st state to use fentanyl in an execution. Does Nebraska's
use of this powerful opioid point to the state's desperation to find drugs now
that pharmaceutical companies are blocking the use of their products to carry
out executions?
Sundby: Nebraska's use of fentanyl is only the latest in the rather startling
spectacle of states scrambling to find drugs that they can use for lethal
injection. Pharmaceutical companies understandably do not want their drugs
associated with executions (probably very few patients come in and say, "hey,
Doc, can I have a prescription for that drug that states are using to put
people to death") and, therefore, have refused to sell or allow their drugs to
be used in executions. As a result, some states have essentially turned their
employees into 'drug mules,' sending them across the state's border with cash
to buy execution drugs from compound pharmacies that do not want to be
identified.. The fact that no one wants to be identified with supplying the
means for executing people and that states are retreating into secrecy as to
how they obtain and administer execution drugs is one of a number of signs that
American society is becoming less and less supportive of capital punishment.
Will the drug's use by Nebraska open up a new avenue for states that are
struggling to find execution drugs?
Sundby: One strongly suspects that Nebraska's experience will simply go down as
the latest episode in what will be a continuing saga of states' efforts to
answer the question: Is there a humane way to put a person to death against
their will? The states are in this quandary because prior methods of execution
- hanging, firing squad, gas chamber, electric chair - were on the verge of
being found to violate the 8th Amendment ban on cruel and unusual punishment,
so they turned to lethal injection as the alternative. Consequently, there is
no viable 'Plan B' if states cannot find lethal injection drugs, which means
that, like Nebraska, they will continue to scramble to find drugs that they can
obtain and administer. Indeed, Nebraska may not be able to obtain fentanyl in
the future since the makers of fentanyl are now trying to block the drug's use
in future executions, which would put Nebraska back in the mad melee to find
execution drugs.
Drug companies are in a legal battle to prevent their products from being used
in executions, effectively putting a stop to executions in some cases. This
seems to be new ground for judges who have to rule in these cases. Could this
spawn new legislation in some states?
Sundby: The drug companies have been resolute in their efforts to stop the use
of their products for lethal injection by building into contracts prohibitions
on the use of their drugs for executions. And we are talking about corporate
giants like Pfizer and Johnson & Johnson that have plenty of resources and
lawyers to pursue those who violate the contracts. The drug companies' actions
when considered in tandem with challenges by death row inmates produces a
double pincer effect: drug companies bring civil suits to keep states from
using their drugs, this forces states to seek out new drugs with unknown
effects, which in turn makes the new protocols vulnerable to constitutional
challenge on the grounds that states are essentially experimenting with these
drugs on the condemned inmates and causing unnecessary suffering.
The net effect of this parallel line of legal challenges is an ever-shrinking
availability of execution drugs, which is why some states are passing laws that
try to shroud in secrecy how they are obtaining drugs, who is administering
them, and the effects once administered. These secrecy laws are
constitutionally vulnerable since they are not-so-subtle attempts to hide
botched executions and to deprive defendants of information that they could use
to challenge the execution protocol as being "cruel and unusual."
Pope Francis recently declared the death penalty wrong in all cases. How will
this new teaching potentially affect U.S. judges who are practicing Catholics?
For example, should Catholic judges recuse themselves in death penalty cases
that conflict with their religious beliefs?
Sundby: Judges occasionally must rule in a way with which they personally
disagree and that is accepted as part of their duty as judges to follow the
law. A judge's religious or moral beliefs, therefore, are not grounds for
recusal unless the beliefs would prevent them from following the law or would
give rise to "a serious risk of actual bias" (usually based on a personal
involvement in the case, such as having received $3 million as a campaign
contribution from one of the litigants or having been involved in the case
earlier as a lawyer for one of the litigants; both of these examples are cases
where the Supreme Court said recusal was constitutionally necessary).
Whether judges are in reality able to fully put aside their views and follow
the law is, not surprisingly, a hot topic of empirical debate, but the law's
general presumption is that they are able to do so and will disqualify
themselves if they realize that they cannot. Consequently, just because a judge
is a practicing Catholic (or the member of any other church or group that
opposes the death penalty) would not be grounds for recusal. The situation is
somewhat analogous to when then-Governor Tim Kaine carried out 11 executions in
Virginia even though he personally was vehemently opposed to the death penalty.
With Pope Francis changing the Catholic Church's stance on the death penalty,
what's the likelihood that such developments can potentially impact a jury's
decision to impose a death penalty sentence?
Sundby: The short answer is that the Pope's position in theory should not
affect a capital jury's decision because a citizen who would never impose
capital punishment due to their religious or moral beliefs could not serve on a
capital jury in the first place. The rationale is that a juror (just like a
judge) must be able to 'follow the law,' and if an individual would never
impose the death penalty, they cannot follow the law of a state that says it is
an appropriate penalty (in the same way that someone who says that he or she
believes the Second Amendment makes any law banning firearm possession invalid
could not serve on a jury in a case where the defendant is accused of violating
firearm laws). So if a potential juror were to say, "I am a Catholic and given
Pope Francis's teaching I could never impose the death penalty," he or she
could not be on the jury.
The longer answer, though, is that the Catholic Church's opposition becomes one
more influential voice against the death penalty and will likely add to the
trend we are already seeing that even individuals who are not always opposed to
the death penalty (and thus could be capital jurors) are more and more hesitant
to impose a death sentence in the jury room and more inclined to show mercy;
nationwide, juries imposed only 39 death sentences all of last year.
(source: miami.edu)
COLORADO:
Coronado case: Death-penalty bid poised to add years of delays, defense says
Prosecutors' decision to seek the death penalty for suspects in the
execution-style killings of 2 Coronado High School students could add 2 to 3
years of delays to their cases, their attorneys said Tuesday.
The question of when Diego Chacon and Marco Garcia-Bravo will get their day in
court was left open as a judge agreed to postpone back-to-back trials in
October.
Among issues that must be addressed before new dates are set is whether they
will be tried separately or together, as prosecutors have requested, said 4th
Judicial District Judge David A. Shakes, who set a hearing on the issue for
Nov. 18.
The judge said he also wanted to rule, by January at the earliest, on defense
motions challenging the constitutionality of potential death penalties for
defendants who both were under age 21 at the time of the March 2017 crimes.
"Don't think that anything I've said means that I agree with a 2-year
continuance," Shakes told prosecutors after they objected to the defense teams'
estimates.
Chacon, 20, and Garcia-Bravo, 21, are accused of carrying out an abduction plot
that led to the deaths of 16-year-old Natalie Cano-Partida and 15-year-old
Derek Greer. Cano-Partida was the target over suspicions she was an informant
for the men's gang rivals, authorities have said. Derek allegedly was killed
for being with her.
The postponements came at the request of both defendants, who surrendered their
speedy trial rights.
The defense teams insisted on sticking with October trials until it became
clear they couldn't be ready.
More time is needed to pore through more than 100,000 pages of reports and
dozens of media files while preparing for what promise to be exhaustive
pretrial battles, the court-appointed defense attorneys said.
Lawyers for Garcia-Bravo, a Mexican national, say their investigators must
travel to Mexico to begin probing his past in preparing to argue he shouldn't
be put to death in the event of convictions. Both defense teams say they must
complete more legal training on the death penalty.
Shakes was appointed to the case this month after Judge Larry E. Schwartz
recused himself, citing his retirement plans. Schwartz didn't give a date for
his retirement, saying he planned to provide notice "within the next several
months."
Within days of Shakes' appointment, attorneys for Chacon sought to get him
kicked off the case, citing his ties to 2 interns on their team.
Both are students at the University of Colorado at Colorado Springs, and they
said in affidavits they saw Shakes, a part-time instructor, as a personal
mentor.
Shakes denied the motion, saying he could set aside his prior relationships
with the students. He announced Tuesday that the Colorado Supreme Court had
declined to take up an appeal by Chacon's team, letting his ruling stand.
Prosecutors previously asked for separate trials but later said Chacon and
Garcia-Bravo should be tried together.
"I'm willing to consider that, but it's going to take time," Shakes said.
The judge also ordered extra security measures in court. For the 1st time since
the cases began, spectators were forced to go through a metal detector outside
the courtroom. They also were barred from bringing in laptops or cell phones.
Attorneys for Garcia-Bravo objected, saying the measures create a fearful
environment, potentially introducing bias. Shakes batted down the argument,
saying jurors wouldn't be subjected to the measures.
The judge didn't mention threats, saying only that the measures were deemed
necessary because the cases involve murders "with gang overtones."
The defendants, who are jailed without bond pending trial, are expected to
return to court Oct. 3.
(source: Colorado Spring Gazette)
NEVADA:
Judge lets another drug firm enter Nevada execution case
Another pharmaceutical company was allowed Tuesday to join 2 other firms in
Nevada state court hearings about the use of their drugs in a twice-postponed
execution of a convicted killer who says he wants to die.
Sandoz Inc. is the latest addition to the case before Clark County District
Court Judge Elizabeth Gonzalez in which drugmakers Alvogen and Hikma
Pharmaceuticals USA accuse Nevada of improperly obtaining their products for a
lethal injunction - a use the companies say they don't allow.
The judge in Las Vegas also set a Sept. 10 court date to decide when additional
hearings could be held, while acknowledging the Nevada Supreme Court is already
planning Sept. 12 hearings about the stalled execution of Scott Raymond Dozier.
The high court plan to hear oral appeals next month could lead to a decision
there by mid-October. Prison officials want to reschedule Dozier's execution
for mid-November.
State Deputy Solicitor General Jordan Smith maintains that Nevada prison
officials lawfully obtained the drugs in question from a third-party supplier
and the companies are now stricken by "sellers' remorse" amid concerns about
their corporate reputations.
Sandoz makes the muscle paralytic cisatracurium. Alvogen makes the sedative
midazolam. Hikma is a producer of the powerful opioid fentanyl, which has been
blamed for illegal-use, drug overdose deaths nationwide.
Nevada wants to use those 3 drugs for its 1st execution since 2006 in a
sedative-opioid-paralytic combination similar to one Nebraska used last week in
the lethal injection of Carey Dean Moore.
Nebraska also used a 4th medication, the heart-stopping drug potassium
chloride, that isn't part of Nevada's plan.
Nevada executions must by law be by lethal injection. Dozier's dates with death
were previously postponed in November and July.
The 47-year-old is not challenging his convictions or the sentence he received
in 2007 for killings in Phoenix and Las Vegas. He insists he wants to die and
doesn't care if it's painful.
(source: thenewstribune.com)
USA:
AMA to Supreme Court: Doctor participation in executions unethical
Anesthesiologist Joel Zivot, MD, says he won't give Missouri officials an
opinion on which execution method might result in the lowest risk of severe
pain for a prisoner on death row because he feels ethically unable to compare
the consequences of alternative forms of execution allowed under state law.
Missouri officials say that because prisoner Russell Bucklew didn't offer
testimony to directly compare each method of execution and show that one
"significantly reduces the risk of severe pain," the man hasn't met his burden
to be put to death by something other than the state's standard lethal
injection protocol.
Bucklew says he will suffer unnecessarily if he is put to death by the standard
lethal-injection protocol. Instead, Bucklew is asking he be put to death by
lethal gas because he believes it will cause him less suffering due to his rare
medical condition, cavernous hemangioma. The condition causes blood-filled
tumors to grow on his body. He claims once the drugs are administered, he will
choke on his own blood for 4 minutes.
Now the U.S. Supreme Court is considering the case, Bucklew v. Precythe,
including the question of whether the Eighth Amendment requires that an inmate
prove an adequate alternative method of execution when challenging the state's
method based on a rare and severe medical condition.
The AMA has filed an amicus brief in the case before the high court.
The brief doesn't support either party. Instead, it offers justices background
on the "applicable ethical principles" that guide physicians on capital
punishment. It also confirms that "testimony used to determine which method of
execution would reduce physical suffering would constitute physician
participation in capital punishment and would be unethical."
"Society wants to delude itself into a belief that capital punishment no longer
represents a weighted moral choice, but is now somehow scientific - nearly
antiseptic. This delusion, however, cheapens life and makes its extinction
easier," the brief advises the court. "The medical profession, whose 'essential
quality' is an interest in humanity and which reveres human life should have no
part in this charade."
Ethical stance as old as time
The AMA notes that as early as the 5th century BCE, those who practiced
medicine took an oath to the gods of the day "to ground their practice in
service to the best interest of their patients." The Hippocratic Oath included
its vow: "I will not give a lethal drug to anyone if I am asked, nor will I
advise such a plan," the brief says.
Today, the AMA Code of Medical Ethics speaks directly to a physician's ethical
responsibility when it comes to capital punishment stating, in part, that "as a
member of a profession dedicated to preserving life when there is hope of doing
so, a physician must not participate in a legally authorized execution."
The American College of Correctional Physicians, American College of
Physicians, Americans Public Health Association, American Society of
Anesthesiologists and the World Medical Association also have said it is
unethical for physicians to participate in capital punishment.
Patient-physician relationship at stake
The brief tells the court that any physician assistance in an execution or the
design of an execution would undermine the patient-physician relationship that
relies on trust.
Physicians risk confusing their responsibility to the patient with a
responsibility to the state if they participate in executions, the brief
states. In turn, if patients don't have trust in their physician's independent
judgment, they may avoid needed medical care or withhold sensitive information.
"By refusing to participate in capital punishment, even when sanctioned by a
free society, physicians are making a statement - even if symbolically - that
their role is not to serve the state as experts in killing, but to minister to
their patients as healers," the AMA brief tells the court. "Ethical physicians
avoid any potential blurring of these fundamentally incompatible functions."
(source: ama-assn.org)
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