[Deathpenalty] death penalty news----CONN., N.C., LA., ARK., CALIF.

[Rick Halperin]

June 19



CONNECTICUT:

Law Provides Guidance On How Former Death-Row Inmates Will Be Housed


veryday life for Maryland's death-row inmates barely changed in 2014 when Gov. 
Martin O'Malley commuted their sentences to life in prison without the chance 
of parole.

"They were already housed in general population," Gerard M. Shields, a 
spokesman for Maryland's Department of Public Safety and Correctional Services 
said about the four men facing execution in 2013, the year Maryland abolished 
capital punishment."We didn't have a separate death row and they had the same 
rights as everybody else, so nothing really changed for them in terms of their 
housing."

Now that capital punishment is officially in the history books in Connecticut, 
the question remains about how the lives of 11 formerly condemned prisoners 
will change.

Corrections officials are working to adjust their prison housing directives to 
comply with a state law regarding the incarceration of former death-row inmates 
and those now convicted of the crime of murder with special circumstances.

The law addressing those inmates, put in place when the death penalty was 
repealed in 2012, will likely keep the former death-row inmates away from the 
general prison population and locked up in maximum-security facilities.

All 11 former death-row inmates, as of Friday, were still being housed in a 
special unit at the maximum-security Northern Correctional Institution in 
Somers.

But now that Cheshire home invasion killer Steven Hayes has been resentenced, 
corrections officials are conducting a state-mandated "reclassification 
process" for Hayes that will dictate how he is managed in prison, Karen 
Martucci, acting director of the external affairs division of the state 
Department of Correction, said.

Martucci said Hayes, who received six consecutive life sentences during a brief 
hearing in Superior Court in New Haven on Wednesday, is the only inmate going 
through the reclassification process. As each former death-row inmate is 
resentenced, he also will go through reclassification, Martucci said.

Reclassification involves placing an inmate on a "special circumstances 
high-security status" and assessing whether an inmate could be dangerous to 
staff and other inmates and belongs in either "administrative segregation," 
also known as solitary confinement, or protective custody, according to the 
2012 state law.

An inmate with a "special circumstances high-security" status will be placed 
with inmates with the same status in a maximum-security facility, the law 
states.

The conditions of confinement could include that the inmate's movements must be 
monitored and that he must be escorted by corrections officers. He could be 
moved to a new cell at least every 90 days, have his cell searched at least 
twice a week and not be able to have contact during social visits, according to 
the law.

Work assignments will be allowed only in the assigned housing unit and the 
inmate will be allowed no more than 2 hours of recreational activity per day.

The law allows the confinement conditions to be reviewed annually and changed 
"for compelling correctional management or safety reasons."

Martucci said the corrections department has its own classification system for 
prisoners but in the case of classification for the former death-row inmates, 
state law is superseding the department's policies.

"This statute is governing everything," she said.

Connecticut abolished the death penalty in April 2012 but made the law 
prospective, meaning it applied only to new cases. Attorneys representing those 
on death row challenged the law, saying it violated the condemned inmates' 
constitutional rights.

In August 2015, the justices ruled 4-3 to ban capital punishment for all 
defendants, saying in the majority decision that Connecticut's death penalty no 
longer fit with societal values and served no valid purpose as punishment, a 
ruling they echoed in a decision last month that essentially ended prosecutors' 
fight to keep execution possible for those already on death row.

Susan O. Storey, Connecticut's chief public defender, said attorneys in the 
capital defense unit representing former-death row clients are poised to move 
forward with additional resentencings once they are notified about how 
corrections officials are interpreting the 2012 law.

"We're waiting to get some clarification on how this law will be interpreted 
and enforced so that each of the lawyers can decide how they are going to 
proceed," Storey said.

Hayes' accomplice in the 2007 Cheshire home invasion and killings, Joshua 
Komisarjevsky, is scheduled for resentencing in New Haven Superior Court in New 
Haven on July 26.

The Supreme Court on Friday ordered the resentencing in state court of Richard 
Reynolds, convicted of fatally shooting a Waterbury police officer, to life in 
prison without the possibility of parole, after the justices upheld his murder 
conviction but overturned his death sentence.

Hearings for Reynolds and the remaining 8 inmates have not yet been scheduled.

In older cases in which a sentencing judge has retired, the criminal presiding 
judge in that judicial district will assign a judge to hear those cases, 
Melissa Farley, executive director of external affairs for the state judicial 
branch, said.

(source: Hartford Courant)





**************

es Cop Killer From Death Row


The Connecticut Supreme Court has upheld the murder convictions of a man who 
killed a Waterbury police officer in 1992, but has overturned his death 
sentence because of the court's earlier abolishment of capital punishment.

Justices ruled Friday on the appeal of Richard Reynolds and ordered a lower 
court to resentence Reynolds to life in prison without the possibility of 
release.

Reynolds fatally shot Waterbury Officer Walter Williams.

Reynolds' appeal said his public defenders failed to question jurors about 
racial biases and failed to introduce evidence that Reynolds suffers from an 
anti-social personality disorder.

The Supreme Court abolished the death penalty last year. One death row inmate, 
Steven Hayes, has already been resentenced to life in prison. The 10 men 
remaining on death row also will be resentenced to life.

(source: nbcconnecticut.com)






NORTH CAROLINA:

Jury selection prolonged in capital case


The Randy Cagle murder trial began May 23 but not a shred of evidence had been 
presented as of Friday, June 17. In fact, opening arguments have yet to be 
given.

The delay has been the process of selecting a jury for the Randolph County 
Superior Court trial. Before the meat and bones of the trial can resume, there 
must be 12 jurors and 3 or 4 alternates seated.

The question on the minds of many is, why does it take so long to select a 
jury?

Capital murder

To start with, this is a capital murder case, meaning if Cagle is convicted of 
1st-degree murder he could face the death penalty. If the jury finds him guilty 
of 1st-degree murder, they will then have to decide if his penalty should be 
death or life in prison without parole.

In such capital cases, a larger panel of potential jurors is summoned and the 
prosecution and defense attorneys are allowed to dismiss for cause more of 
those interviewed. Normally, they have 6 challenges but in this case they have 
14 for the 12 jurors and one more for the alternates.

Charged with such serious decisions, more care is taken before accepting 
someone for the jury. Questioning can be long and tedious in a process that has 
been called "trying our best to make an educated guess" for both the 
prosecution and the defense.

The case

Cagle is charged with 2 counts of 1st-degree murder for the May 8, 2011, deaths 
of Davida Shauntel Stancil and Tyrone Clinton "Yogi" Marshall. Both stabbed to 
death, their bodies were found in a car parked near N.C. 705 southeast of 
Seagrove, a couple of miles from Cagle's residence.

Cagle's attorneys have made it clear that he admits to causing the fatal wounds 
but will plead self defense and mental debility. Those factors further muddy 
the waters of the case and, correspondingly, complicate jury selection.

Jury pool

Some 250 Randolph County residents were initially summoned last month for jury 
duty in the Superior Court trial. An additional 33 were moved over from another 
court date. Of the 34 applying for hardship dismissal, 11 were excused.

Those remaining who had reported for jury duty were divided into four panels, 
with one panel at a time being called to court for questioning. While the panel 
waits apart from the courtroom, each potential juror is called one at a time to 
be interviewed. When one is called, he or she is led into the courtroom and 
asked to sit in the witness chair.

Judge's questions

Judge Brad Long thanks the person for serving and tries to put the potential 
juror at ease. He gives assurances that the attorneys involved in the trial are 
"nice people."

Looking directly at the potential juror, Long says that responses to questions 
are to be truthful. "There are no right answers or wrong answers, just truthful 
answers," he says. "Don't worry about what anybody thinks of your answers. Just 
be truthful."

Long then introduces Cagle, the defense attorneys, the prosecutor, other 
members of the District Attorney's office in the courtroom and anyone else at 
the prosecution's table. He asks the potential juror of any familiarity with 
anybody in the courtroom, in the DA's office or on the witness list that has 
been previously provided. If the person is familiar with any of those people, 
he or she will be asked about the relationship.

Long then asks if the person is familiar with the murder case, and if so, what 
they know and how. He then asks the potential juror if he or she could follow 
the rules that will be provided in applying the law to the case.

Next, Long explains that a conviction of 1st-degree murder would automatically 
bring about a penalty phase in which the jury would decide whether life in 
prison without parole or death is the proper penalty. He gives instructions in 
how the process would involve weighing aggravating and mitigating factors to 
come to a conclusion.

Other questions Long asks include: Do you have strong feelings for or against 
the death penalty? Can you presume Cagle innocent during the trial even though 
he has admitted to causing the fatal wounds? Will you follow instructions given 
to the jury? Can you engage in the process of weighing aggravating vs. 
mitigating circumstances to determine Cagle's penalty in the event he is 
convicted of 1st-degree murder?

In some cases, a potential juror will be dismissed when the answers provided 
show Long that the person could not serve objectively in this particular case. 
He will then excuse them from further service.

Prosecutor's questions

When Long sees no reason to excuse the person, Chief Assistant District 
Attorney Andy Gregson is allowed to interview the potential juror. After 
attempting to make the person at ease, Gregson delves into the elements that 
Long has touched upon while also trying to get a sense of the person.

Typical questions Gregson asks include: Are you a person of common sense? Are 
you comfortable judging the testimony of witnesses? Can you apply the standard 
of reasonable doubt?

Gregson talks about the elements of proof for 1st-degree murder, including 
premeditated and deliberate thought, and felony murder which is murder 
committed while committing a felony. He says that premeditation is seldom 
proven by direct evidence, but instead must be proven by circumstances. "Can 
you follow that (reasoning)?" he asks.

The evidence to be provided at trial includes disturbing photos of the victims. 
Gregson asks if the potential juror can look at the photos closely and if he or 
she would "hold it against us?"

He also asks, "Can you consider both penalties (life without parole or death)?" 
"Is there any reason you couldn't be fair to both sides?"

When Gregson is finished with his questioning, he takes a few moments to confer 
with colleagues before saying if they are satisfied or not with the person.

Defense's questions

If the prosecution is satisfied with the person, questioning then goes to the 
defense attorneys, Frank Wells of Asheboro and Phoebe Dee of Orange County. 
Their interviews typically are longer and more tedious.

Wells reminds the person that Cagle doesn't deny stabbing the victims. The 
issue, he says, will be Cagle's mental capacity during the killings, whether it 
be his mental health or intoxication.

Again, the potential juror is asked what his or her thoughts are about the 
death penalty or life in prison without parole. Then there is another 
discussion about weighing aggravating and mitigating factors, in case the 
defendant is found guilty of 1st-degree murder. Wells or Dee explain that 
mitigating factors aren???t excuses but things that could be considered that 
could make life in prison the proper penalty.

"Could you consider those?" the potential juror is asked, with the 
understanding that a mitigating circumstance has to be proven to just 1 juror. 
Then all the jurors would have to weigh those factors together.

"Would anything make it difficult for you to engage in this process?" the 
potential juror is asked.

Other questions asked involve the person's life experience in regard to drug 
abuse, prescription painkillers or mental health issues. "Can you hear 
testimony by a psychologist or psychiatrist?"

The person may be asked, "Would it be a hardship for you to be here for 3 weeks 
or so?" "Is there anything else you want to talk about?" "Is there anything in 
your experience that tells you you shouldn't be in juror in this case?"

The defense team, when their questioning is completed, then confers for several 
minutes before announcing to Long either that they are satisfied with the juror 
or wish to exercise one of their challenges.

Final directives

Long then either tells the person that their service is ended and can leave, or 
provides further instructions if the person is accepted on the jury. Anyone 
serving on the jury is reminded not to talk to anyone about the case and to 
avoid news accounts of the trial.

It can take up to an hour to interview 1 prospective juror. Then after all that 
time they can be released from duty. In fact, according to Gregson, only 1 in 
every 6 to 10 persons interviewed winds up on the jury.

At the end of last Thursday's proceedings, the defense used its final challenge 
while Gregson had 6 remaining. At that point there were 11 jurors empaneled.

(source: The Courier-Tribune)

**************

NC Bar Association award carries legacy of explicit racism


This week, at the annual gathering of the N.C. Bar Association, an 
African-American attorney will accept an award created to honor the "public 
service contributions" of Dr. I. Beverly Lake Sr. The association's description 
of the award belies the irony of this moment.

The elder Lake - not to be confused with his son, I. Beverly Lake Jr., who 
founded the N.C. Innocence Inquiry Commission and recently announced his 
opposition to the death penalty - is identified on the association's website as 
a former N.C. Supreme Court justice and dean of Wake Forest University School 
of Law. A key part of Lake's biography, however, is omitted: his legacy as a 
staunch and unrepentant segregationist.

Lake Sr., who died in 1996, was a prominent N.C. lawyer beginning in the 1950s 
and served on the state Supreme Court in the 1960s and '70s. Even in the 
context of Lake's time, his views on race were extreme.

In 1956, after the U.S. Supreme Court ordered public school integration in 
Brown v. Board of Education, Lake delivered a fiery speech before the N.C. 
State Bar. He warned that, for white families, integration would "destroy both 
their school system and their children's pride in their racial heritage." He 
urged the state to defy the court's mandate by closing the public schools 
rather than integrating them. (He later proposed a constitutional amendment 
that would have removed the requirement for a system of public schools.)

Lake Sr. said, "If we must choose between a generation of inferior education 
and the amalgamation of our races into a mixed-blooded whole, let us choose 
inferior education since that is an evil which another generation can correct, 
while miscegenation is a tragedy which can never be undone."

In a 1957 interview on WRAL TV, Lake Sr. attacked the governor for yielding to 
national pressure to integrate schools and asked that the SBI investigate the 
NAACP's membership, leadership and donors. He told viewers that the NAACP is 
"trying to condition your children, even before they are old enough to be 
conscious of sex, to accept integration not only in the classroom, but in the 
living room and the bedroom as well."

His rhetoric made him the de facto leader of the state's segregationists, and 
in 1960, Lake Sr. ran for governor on a platform of preserving Jim Crow. He 
lost that bid, as well as another in 1964, but he never expressed contrition 
for his divisive politics.

In a 1975 rape case, Lake Sr. wrote approvingly of a prosecutor's argument that 
"the average white woman abhors' the idea of sex with a black man. In a 1987 
interview, he called it "a disgrace to have a state holiday for a man of 
deplorable character like Martin Luther King."

In 2004, the N.C. Bar Association, with a donation from the Lake family, 
created the Dr. I. Beverly Lake Sr. Public Service Award. For the next 11 
years, the award was given to a succession of white male attorneys, with no 
mention of the racist ideology it invoked. This is especially troubling in 
light of the NCBA's history as a whites-only professional organization that did 
not admit its first black members until 1967, nearly 70 years after its 
founding.

Last year, when local attorneys expressed concern about the NCBA's decision to 
hold Lake Sr. up as a model for present-day lawyers, several NCBA leaders said 
they were unaware of his full history. Their response was to change the name to 
the Lake Family Public Service Award honoring both Lake Sr. and his son. The 
association also decided to give the prize for the 1st time to an 
African-American attorney, former Court of Appeals judge and NCBA President 
Charles Becton.

These changes are welcome but far from adequate. Lake's son, former Chief 
Justice I. Beverly Lake Jr., has done much to improve our system of justice, 
and his work has helped free many innocent defendants. He has exhibited an 
admirable willingness to learn and evolve in his views. However, the addition 
of Lake Jr.'s name to the award, without any acknowledgment of Lake Sr.'s 
troubling record, simply whitewashes history.

The explicit and virulent public racism of Dr. I. Beverly Lake Sr. is not 
ancient history. We still live with its legacy today, even if we do not always 
realize it. The 1st step in leaving behind the dark days of segregation is to 
admit how very wrong we were - not to ignore our history while lionizing those 
who fought ardently for racist policies.

(source: Opinion; James E. Williams Jr. writes on behalf of the North Carolina 
Association of Black Lawyers, of which he is a member----News & Observer)






LOUISIANA:

Louisiana spends $1 million on litigation to avoid installing nine air 
conditioners in prison


Louisiana is broke.

The state is dealing with the "grimmest financial situation of the past 30 
years - possibly ever in modern history," The Times-Picayune reported in 
February. Currently, the state is facing a $600 million budget gap.

Louisiana also incarcerates more people per capita than any other state. Last 
year alone, the state spent $700 million on prisons. Meanwhile, the state has 
significantly cut funding for public defenders. From The Atlantic:

The small chunk of [public defense] funding that comes from state 
appropriations - about $16.5 million in 2014 - is spread thinner every year to 
stanch mounting deficits[...] What's more, the 2017 annual budget, approved by 
the legislature, slashes public-defender funding by an additional 62 % - a cut 
"that would require additional service restrictions on a scale unprecedented in 
the history of American public defense," wrote the president of the American 
Bar Association in a letter to Louisiana's governor.

You may be surprised to find out, then, that Louisiana spent $1 million on 
court cases to fight the installation of air conditioning for death row inmates 
housed at Angola, widely considered the worst prison in America. The AP reports 
that "The state could spend roughly the same money - and possibly much less - 
on an air conditioning system that would satisfy a federal judge's order to 
protect death-row inmates from dangerous heat and humidity."

>From the AP:

[T]he corrections department and attorney general's office have accrued at 
least $1,067,000 in expenses fighting the 3-year-old lawsuit filed on behalf of 
three inmates with medical problems.

A list of expenses incurred by the prison itself adds up to more than $100,000, 
including an April 2014 payment of nearly $29,000 to a firm that was monitoring 
the heat and humidity every 15 minutes.

A plaintiffs' expert has estimated it would cost about $225,000 - not including 
engineering fees or operating costs - to install air conditioning on death 
row's 6 tiers, which house dozens of inmates.

In 2014, an engineer hired by the state said nine air-conditioning units could 
adequately cool all eight tiers in the 10-year-old building that houses death 
row. An attorney for the state has said each unit would cost "several thousand 
dollars."

The money has been primarily spent on private attorneys, and some expert 
witnesses and contractors have also been paid tens of thousands of dollars.

While the state has not released its estimates to the public, even they seem to 
believe they are spending even more on litigation than it would cost to fix the 
problem. U.S. District Judge Brian Jackson, who is overseeing the case, said 
that "The state itself indicated that they could install mechanical air, fix 
this problem, end this case, for about -- what was it? About a million 
dollars." From the AP:

Judge Jackson said the bill is "stunning," given the painful cuts lawmakers are 
making to balance the state budget. He wondered out loud whether the state's 
refusal to give up the fight is based on prison management concerns, politics 
or ideology.

"Is this really what the state wants to do?" he asked. "It just seems so 
unnecessary."

Jackson is scheduled to hear testimony Wednesday on whether the state's current 
heat remediation measures - one cold shower a day, ice chests in their cells 
and fans outside - are adequately protecting the plaintiffs as Louisiana's 
sweltering summer approaches.

One of the poorest states won't fund constitutionally mandated public defense, 
spends all its money on prisons, and is facing a terrifying budget deficit. But 
sure, spend $1 million dollars on this. Okay.

(source: dailykos.com)






ARKANSAS:

Analysis: Death penalty case latest test for Arkansas court


A looming Arkansas Supreme Court decision over whether information about 
execution drugs should be kept secret could reveal whether the state's death 
penalty system is truly "broken," as Arkansas' last top attorney once claimed. 
It's the 1st major test for a court whose sharp divisions last year over 
another divisive issue - gay marriage - resulted in justices punting rather 
than deciding.

Unlike the gay marriage case, the state's highest court can't rely on the U.S. 
Supreme Court to step in and decide the issue. But the clock is still ticking, 
with days to go until part of Arkansas' execution drug supply expires.

Roughly a month has passed since justices heard oral arguments from lawyers for 
the state and the inmates. A lower court struck down the secrecy law, which 
lets the prison system withhold information about the manufacturer, seller and 
other information about the lethal drugs, even from the inmates themselves. 8 
death-row inmates sued to overturn the law.

Arkansas has 34 inmates on death row, but hasn't executed an inmate since 2005, 
when Mike Huckabee, a Republican, was governor.

Former Gov. Mike Beebe, a Democrat, signed death warrants while in office but 
completed 8 years in office without one taking place, because of legal 
challenges. He also said he would have abolished the death penalty if lawmakers 
sent him legislation doing so.

Beebe's successor, Republican Gov. Asa Hutchinson, is a death penalty supporter 
but has gone through the first year and a half of his term without an 
execution.

Hutchinson set dates last year for the first executions since 2005, but the 
court granted stays until the inmates' challenge was heard. At the time, he 
cast it as another step in the legal process.

"Had it not been set, then we would be sitting here 2 years, 3 years from now 
waiting for the next court challenge," Hutchinson told reporters. "Nothing 
moves if the governor does not set the date."

The window is closing for any of the executions to move forward, even if the 
state wins the case. Arkansas has until June 30 to execute the inmates with 
drugs it currently has on-hand. 15 doses of the paralytic vecuronium bromide 
expire at the end of next month, and the state's supplier has said it will not 
provide anymore. Sending the case back to Circuit Judge Wendell Griffen, who 
struck down the law, could narrow that window even further.

Complicating that timeline further is the fact that Supreme Court decisions 
typically take effect 18 days after they're issued - though justices can stray 
from that practice.

If justices were to allow executions to move forward, Hutchinson and state 
officials will be faced with the question of how - and if - the state should 
put 8 men to death in a matter of days. If justices agree with Griffen and 
strike down the execution law, it puts the state in a familiar position of 
trying to revive a death penalty process that's been in limbo for more than a 
decade due to court challenges and drug shortages.

It would also come nearly three years after former Attorney General Dustin 
McDaniel bemoaned the state of the death penalty system, saying he didn't see 
executions resuming anytime soon.

"I continue to support the death penalty, but it's time to be frank. Our death 
penalty system as it currently exists is completely broken," McDaniel said 3 
years ago.

The uncertainty surrounding the case is similar to last year, when the state 
weighed whether to uphold a judge's decision striking down Arkansas' ban on gay 
marriage. That case was sidelined for months over an unusually public dispute 
over which justices could hear it. Justices ultimately dismissed the case hours 
after the U.S. Supreme Court legalized same-sex marriage nationwide.

This case may not provide clarity on the future of executions in Arkansas. But 
it could indicate whether the state's highest court is willing to, at least 
this time, give a definitive answer on a controversial matter.

(source: Associated Press)






CALIFORNIA:

Illegal immigrant charged with murder in California fire had prior arrests, was 
never deported


The suspect charged with murder in connection with a vacant building fire in 
Los Angeles was in the United States illegally and had a string of arrests to 
his name -- but the feds never deported him, officials said Friday.

Johnny Sanchez, a 21-year-old citizen of Honduras, was initially arrested in 
2012 for crossing the southeastern California border illegally, the Los Angeles 
Times reported. Authorities said they released him because he had no criminal 
history or previous immigration violations at the time.

He was arrested again in January on suspicion of domestic violence and twice in 
the ensuing months on suspicion of drug possession, officials said.

After he crossed the border, authorities reportedly placed him under 
supervision and ordered Sanchez to report to them regularly -- but he stopped 
doing so in 2014, the Times adds.

Immigration and Customs Enforcement never started the process of deporting him, 
spokeswoman Virginia Kice said, adding that the reason why was unclear. She 
told the newspaper it's ICE policy "to focus on individuals who pose a public 
safety threat."

The fire on Monday killed 5 homeless people. 4 of the badly burned bodies 
weren't found until Tuesday afternoon, when search dogs located them under a 
heap of debris on the 2nd floor.

Sanchez was in some kind of fight with the others and lit the fire with the 
intent to kill, Los Angeles Police Capt. Billy Hayes said.

The suspect was charged Wednesday with 5 capital murder counts and was ordered 
held without bail.

The charges against Sanchez, who's also homeless, make him eligible for the 
death penalty if he's convicted, if prosecutors choose to pursue it.

It took nearly 150 firefighters more than 2 hours to extinguish the fire in the 
green, two-story building that once was home to an acupuncture clinic. It is 
surrounded by strip malls and an apartment building in the Westlake District 
about a mile west of downtown LA.

The structure appeared to be singed and some of its windows were blown out. It 
did not appear seriously damaged from the outside, but the inside was badly 
burned and most of the roof was gone.

There had been complaints about the building recently, Terrazas said, and 
authorities had contacted the owner -- who has sought a demolition permit for 
the building -- about keeping people out.

(source: FGox News)

****************

Modify but keep California death penalty


What is all the fuss about the death penalty in California? From my 
perspective, there has been a de facto moratorium on the death penalty for many 
years. What remains is the "threat" of the death penalty and even that is under 
attack.

Yet the death penalty threat serves as an important tool in the battle against 
the most egregious and horrific crimes imaginable. Many difficult cases have 
been solved by bargaining to remove the death penalty from consideration if 
additional information necessary to resolve this and other cases is given in 
exchange. Why would anyone want to surrender one of the most invaluable tools a 
prosecutor has in the quest for justice?

As for the chance that an innocent person may be executed, ask this question of 
an anti-death penalty advocate: "If all the prisoners on death row who have 
even the slightest doubt of guilt were returned to the general population of 
the prison with commuted sentences of life without the possibility of parole, 
would you then approve of the execution of the guilty?"

Ted Messerlian, Fresno

(soruce: Letter to the Editor, Fresno Bee)

*************

Priced Out Of Dying In California


On June 9th, 2016, California became the latest state to allow 
physician-assisted suicide. For all of the recent debate over legalizing 
physician-assisted suicide, one point often fails to be mentioned: Americans 
who choose to take lethal drugs will be unable to afford it. In February, 
Canada-based Valeant Pharmaceuticals purchased rights to secobarbital, the 
medication most used for prescription aid in dying (PAD; more commonly known as 
physician-assisted suicide) in the United States. Shortly after, Valeant 
doubled the price of secobarbital to $3,000 per lethal dose.

Lack of effective alternatives and inconsistent insurance coverage contributed 
to secobarbital's price increase, just as they do for other generic 
medications. However, three unique factors complicate any response to high 
prices of drugs used in PAD: the public divide over its acceptability, existing 
socioeconomic disparities in its use, and the historical ties to drugs used in 
the death penalty. Unless policymakers address these factors, individuals 
hoping to access legal prescription aid in dying may be unable to do so.

Authorization, use, and support of PAD are increasing. PAD is currently 
authorized by statute or court opinion in 5 U.S. states: Oregon (since 1994), 
Washington (2008), Montana (2009), Vermont (2013), and, most recently, 
California (2015). Most of these states authorize PAD for adults who submit a 
series of oral and written requests and who are certified by physicians to be 
mentally capable and have a terminal illness with estimated prognosis of 6 
months or less. In Oregon, PAD is increasing in frequency as more people become 
aware of the practice and more physicians are willing to participate. Between 
2011 and 2015, the number of prescriptions (114 to 218) and deaths from PAD (71 
to 132) nearly doubled.

In the U.S., PAD requires patients to self-administer lethal drugs orally. 
Before 2015 in Oregon and Washington, most PAD cases used secobarbital (54 % in 
Oregon; 64 % in Washington) or pentobarbital (45 % and 36 %, respectively). 
Years of experience helped determine optimal doses of these drugs for PAD and 
other uses. Secobarbital's original patent was in 1934 to treat sleep 
disorders, and it is currently only available in an oral form. Pentobarbital 
has been used for many years as an anti-seizure medication. However, 
pentobarbital also has an intravenous form; in this form, it has been the drug 
most used for death penalty executions in the U.S. and physician-administered 
voluntary euthanasia in Europe.

This association with the death penalty has had important implications for 
access to PAD. In 2011, the Danish manufacturer of pentobarbital, Lundbeck, 
stopped manufacturing pentobarbital in the United States over concerns that it 
was used in lethal executions for prisoners, which is illegal and condemned in 
much of Europe. The subsequent drug shortage caused the price per lethal dose 
to rise from $500 in 2012 to over $15,000. As a result, pentobarbital 
essentially stopped being used for PAD in Oregon in 2015, with over 80 % of PAD 
patients relying on secobarbital. An alternative 3-drug cocktail of a 
long-acting barbiturate, a hypnotic, and an opioid - reported to cost 
approximately $400 per lethal dose - began to be used in 2015 in Oregon and 
accounted for 20 % of PAD cases that year. However, only a few willing 
specialized compounding pharmacies can supply this cocktail. Furthermore, the 
effectiveness and safety of this new cocktail are less well established.

No drugs have been approved safe and effective in PAD. This is in part because 
of a 1985 Supreme Court opinion in Heckler v Chaney, stipulating that the Food 
and Drug Administration is not required to regulate drugs used for lethal 
injection or PAD. As more medications or formulations enter the field, states 
could require evidence of safety and efficacy by mandating the reporting of 
doses, adverse effects before death, and time to death. However, no states yet 
require this, and layperson witnesses to the death might find reporting these 
measures to be difficult.

Public sensitivities regarding PAD also yield uneven and sometimes uncertain 
insurance coverage of PAD drugs. The Assisted Suicide Funding Restriction Act 
of 1997 prohibited federal program coverage - including Medicare, the federal 
component of Medicaid, and the Veterans' Health Administration. Insurance 
coverage has thus been left to individual state Medicaid or commercial plans. A 
recent bill in California proposes to mandate Medicaid coverage for drugs used 
in PAD, but state Medicaid and commercial insurance coverage remains 
unpredictable.

Insurance coverage for PAD would protect patients from costs by distributing 
risk to a large population, but it would not reduce the costs of lethal 
medications. To actually reduce the cost will require developing PAD drugs that 
are reliably effective and inexpensive. Perhaps the three-drug cocktail will 
accomplish this, as experience, use, and availability grows. However, this 
could take years - over which time many more states are expected to legalize 
PAD. Furthermore, a serious initiative to control the price of PAD drugs could 
be more difficult than similar efforts to cut costs of other drugs, since such 
a negotiation will reopen the fractious debate on PAD itself.

Further escalation in PAD drug costs may exacerbate existing disparities in its 
use. In Oregon, of those who died via PAD, 71 % had some college education or 
more, compared to 58 percent of the national population. These deaths were also 
more likely to be older white males dying from cancer. Fears of 
institutionalization or impoverishment could drive resource-poor individuals to 
want to accelerate the timing of death. However, inconsistent insurance 
coverage and higher prescription costs may make PAD unaffordable for poor 
people. Ironically, high costs for lethal medications might balance the effects 
of coercive financial situations, though long-term care costs still overwhelm 
the costs of PAD drugs.

Research to develop other PAD drugs that can only be ingested orally might 
engender competition and bring down prices. Currently, the number of 
individuals utilizing PAD is far too low to incentivize new drug alternatives. 
However, public support for PAD could spur demand to develop alternatives. 
Importantly, none of this would affect the price and availability challenges 
affecting death penalty cases, since those require injectable drugs.

Making secobarbital a focus of drug company profits is unsettling, even for 
those who have opposed legalization of PAD (including one of us). One would 
reasonably want people to live well as long as they can and to have little 
cause for seeking an earlier death. But in states where PAD is authorized, one 
would also reasonably want people to make choices about treatment and survival 
without being pressured by the high costs of PAD or of long-term assistance. 
This debate is vigorous enough when considering ethics and emotions. Drug 
pricing should not play a role in it.

(source: Dr. Parikh is a resident physician at Brigham and Women's Hospital. 
Dr. Lynn is Director of the Center for Elder Care and Advanced Illness at the 
Altarum Institute----Huffington Post)