[Deathpenalty] death penalty news----VA., OHIO, CALIF., USA

[Rick Halperin]

June 27



VIRGINIA:

Changes To Capital Punishment Take Effect In Virginia This Week

The Virginia Department of Corrections will soon have the option of using the 
electric chair as a means of execution for inmates awaiting the death penalty 
if lethal injection drugs are not available.

The law is one of hundreds going into effect in the Commonwealth on Friday, The 
Roanoke Times reports. Between 1910 until 1994, the electric chair was used for 
all executions in Virginia. The Commonwealth, along with nine other states, 
currently allows death row inmates to choose between electrocution and lethal 
injection.

Legislation also going into effect on Friday will ban smoking in cars when a 
child 8 years old or younger is inside the vehicle. Violators will be slapped 
with a civil fine of $100.

Another law going into effect is a firearms legislation package compromise 
between Virginia GOP lawmakers and Gov. Terry McAuliffe. The package increases 
acknowledgment of out-of-state concealed-carry permits, among other provisions.

(source: dailycaller.com)






OHIO:

Ohio, facing January execution date, has yet to find supply of lethal-injection 
drugs


Ohio officials face a problem: The state has more than 2 dozen convicted 
killers scheduled to die over the next 3 years but no means to execute them.

Just over 6 months before the 1st scheduled execution since 2014 - Ronald 
Phillips of Summit County on Jan. 12, 2017 - the state, despite exhaustive 
efforts, has not secured a supply of lethal-injection drugs for even 1 
execution.

The Ohio Department of Rehabilitation and Correction is looking for suppliers, 
spokeswoman JoEllen Smith said.

"DRC continues to seek all legal means to obtain the drugs necessary to carry 
out court-ordered executions," she said.

Prison officials have tried several means to buy drugs, including from overseas 
sources (specifically India) and from Ohio "compounding pharmacies," which mix 
drugs to customer specifications. Neither panned out.

The biggest hurdle in obtaining a drug supply is that most major manufacturers 
have either stopped making drugs used for lethal injection or refuse to sell 
them to states for use in executions. The problem affects all states with the 
death penalty.

Meanwhile, a legislative committee established in 2015 to look at both the 
rights of murder victims' families and alternative means "by which a 
court-ordered sentence of death is performed in Ohio, consistent with judicial 
precedent," has discussed victims' rights but not broached the subject of 
execution alternatives.

Sen. Bill Coley, R-West Chester, chairman of the Joint Committee on Victims 
Services, did not return a call seeking comment. However, Sen. Bill Seitz, 
R-Cincinnati, has a lot to say about alternatives if drugs are unavailable. "If 
it becomes an impossibility to get the lethal-injection-drug mix that we need, 
then we should look to other forms of capital punishment that have been blessed 
by the U.S. Supreme Court as not violating the Eighth Amendment ban on cruel 
and unusual punishment," Seitz said.

The methods include a firing squad, the electric chair and hanging. However, 
any of those would require changing state law, which now allows only lethal 
injection. Ohio's electric chair, known as Old Sparky, was officially was put 
out of business on Nov. 22, 2001, when Gov. Bob Taft signed a law banning its 
use. The chair was removed from the Southern Ohio Correctional Facility near 
Lucasville in 2002 and is now periodically displayed by the Ohio History 
Connection.

In the meantime, Seitz urged his legislative colleagues to enact pending 
legislation to "restrict the application of capital punishment to the 
most-severe cases." He cited a bill that would outlaw the execution of people 
who are "seriously mentally ill."

Kevin Werner, executive director of Ohioans to Stop Executions, said it is a 
"fool's errand" for the state to look at other methods.

"No matter what they change it to, it's going to lead to more litigation," 
Werner said. "I don't think Ohioans have the stomach for some of these 
methods."

(source: Columbus Dispatch)






CALIFORNIA:

No to death penalty: It is unfair, unreliable----Californians may be faced with 
two competing death penalty initiatives in November. A measure to repeal the 
death penalty has already qualified for the ballot. A 2nd initiative aims to 
preserve and reform the death penalty by speeding up executions


Justice Stephen Breyer of the U.S. Supreme Court recently said the death 
penalty is unconstitutional and unworkable. I agree with him. And in November 
we Californians will get to be heard on the question.

Justice Breyer caused quite a stir last year with a thoughtful, deeply detailed 
dissent in a case, Glossip v. Gross, about Oklahoma's plan to use a particular 
chemical, Midazolam, to execute Mr. Glossip. His lawyers argued that the drug, 
the cause of 2 "botched" executions - in one of which the condemned man 
struggled and suffered through 2 hours of torture before dying - was illegal, 
its effect amounting to "cruel and unusual" punishment banned by our 
Constitution's 8th Amendment.

The lawyers did not prevail, but Justice Breyer's dissent virtually eviscerated 
the death penalty, carefully addressing its failure on each of the legal 
grounds used to justify it since capital punishment was reinstated by the 
Supreme Court in Gregg v. Georgia in 1976. In his dissent Breyer cites facts 
and studies showing the death penalty to be an unreliable, arbitrary, and 
ineffective failure.

To date 156 women and men have been tried, convicted and sentenced to death 
only to be finally - sometimes after 3 or 4 decades - exonerated and freed. The 
number of innocent people executed is not known, though Justice Breyer names 
some who possibly were.

There is too much arbitrariness in the criminal justice process for the death 
penalty to ever be carried out fairly. Inherent economic and racial bias in our 
criminal justice system - conscious or unconscious, local political pressures 
on prosecutors and judges, and whether the accused has access to a quality 
defense all impact the outcome of cases involving life and death. Two people 
convicted of the same crime can face very different punishments depending on 
who they are and where they live.

No matter where you stand on the death penalty, we should all be able to agree 
it is grossly ineffective. It takes too much time and costs far too much money 
to administer. While necessary to protect the innocent and guarantee fairness, 
the appeals process, as Justice Breyer noted, involves "unconscionably long 
delays that undermine its penological purpose," weakening any possible 
retributive or deterrent value, while at the same time denying many victims' 
families the closure they've been promised.

After dismantling the rationale behind our failed death penalty, Justice Breyer 
said: "I recognize that in 1972 this court, in a sense, turned to Congress and 
the state legislatures in its search for standards that would increase the 
fairness and reliability of imposing a death penalty. The legislatures 
responded. But, in the last 4 decades, considerable evidence has accumulated 
that those responses have not worked."

With more than 40 years to try to make the death penalty reliable, fair and 
effective, the states have failed. If anything, it has gone in the opposite 
direction. Today, the death penalty is more unreliable, less fair and more 
ineffective than ever.

The death penalty is broken beyond repair; maintaining it demeans us all.

Justice Breyer's one mistake is counting California among the 11 states where 
the death penalty has not been used for 8 years. He's correct that we've had no 
executions, but it's certainly not for lack of trying. Despite a court ruling 
that put California's execution chamber on hold, death sentences continue to be 
pursued vigorously by ambitious prosecutors, giving us the country's largest 
death row: 748 women and men - 1/4 of the entire nation's condemned. 
California's death penalty has cost us $150 million per year since its 
re-establishment in 1978, a total of $5 billion to date. We've sentenced almost 
1,000 women and men to death and executed 13 - a cost of $384 million per 
execution. During those years, 8 times as many on death row have died of 
natural causes or suicide.

Fortunately, we now have the opportunity to solve the problem. The Justice That 
Works Act - an initiative on California's ballot this November - replaces death 
row with life in prison without the possibility of parole, requires inmates to 
work and pay restitution to their victim's family, and saves our state's 
taxpayers $150 million every year. It's the only real solution to a failed 
death penalty system. That's why a diverse coalition of victims' families, law 
enforcement, taxpayer advocates, civil rights and community leaders are 
gathering together to pass it.

Whatever the reason - whether it's unreliability, unfairness or ineffectiveness 
- I hope you'll help us put an end to our failed death penalty this November.

(source: Op-Ed; Mike Farrell, best known as BJ Hunnicutt of TV's "M*A*S*H," is 
a human rights activist and currently the president of the board of Taxpayers 
for Sentencing Reform----San Diego Union-Tribune)






USA:

How drug expiration dates could end executions in 2 states


Officials from Arizona's prison system told a federal judge Friday that they 
were "presently incapable of carrying out an execution." The same day, Arkansas 
officials acknowledged that they would be unable to legally execute inmates 
after this week.

The potential end to executions in these 2 states isn't due to political 
activism or court decisions. Instead, it could come from something much more 
mundane: expiration dates.

Both states rely on the drug midazolam for use in lethal injections. The drug, 
a sedative, is used in a "cocktail" with other drugs to incapacitate a death 
row inmate before they're killed. Midazolam has been steeped in controversy for 
years. The last time Arizona used it, during the 2014 execution of Joseph Wood, 
it took Wood two hours to die, and witnesses saw him gasping for air.

In a 5-4 decision last year, the Supreme Court allowed the drug to be used. But 
no FDA-approved manufacturers are currently selling it for use in executions.

Arizona's supply of the drug expired in May while a lawsuit over its use 
dragged on. And Arkansas' supply will expire before the end of this week, on 
June 30. Both states have been unable to find new supplies, and while laws in 
both allow for the use of other drugs in lethal injections, officials' efforts 
to get those drugs have also failed.

It's a dramatic turn of events for Arizona and Arkansas, which are both in the 
top 15 states by number of executions since 1976. But they're hardly alone. 
Many states have been increasingly stymied in their attempts to resupply lethal 
injection drugs. Pfizer, one of the largest drug companies in the world, said 
earlier this year that it would stop selling drugs to states for use in 
executions. The FDA confiscated 3,000 vials of another drug that Arizona, 
Texas, and Nebraska had tried to import from India, which violates federal law.

Ohio is out of drugs and searching for a new source, officials say. Texas has 
only enough of its drug, pentobarbital, to carry out eight more executions. 
Utah even passed a bill last year reinstating the firing squad as a legal 
method of execution due to a shortage of drugs.

Overall, executions are on the decline in the U.S., and the death penalty is 
also facing more challenges from politicians and the public as states scramble 
to find new drug sources. Also on Friday, members of the Democratic National 
Committee's platform drafting committee approved a statement in the party's 
platform calling the death penalty "a cruel and unusual form of punishment 
which has no place" in the U.S.

It was the 1st time in the history of the party that it wrote opposition to the 
death penalty into its platform.

(source: fusion.net)

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

There's A Standoff Between States And The Feds Over Illegal Execution Drugs


It's been nearly a year since the federal government seized thousands of vials 
of lethal injection drugs on their way to death penalty states. The states want 
their drugs, and neither side is showing signs of backing down.

Nearly a year after seizing thousands of vials of execution drugs destined for 
death penalty states, the federal government continues to hold onto the 
shipments - and shows no signs of releasing them anytime soon.

What's more, much of the discussion between the states and the federal 
government has been hidden in secrecy, and requests for comment or 
documentation have been denied; ignored; or met with brief, vague responses.

Nonetheless, a Friday court filing by lawyers for Arizona made clear that the 
conflict continues - and appears to be headed for court.

Arizona, Texas, and Nebraska each ordered 1,000 vials of sodium thiopental from 
a man in India named Chris Harris. Harris has convinced several states to buy 
execution drugs from him over the past several years, even though his drugs 
have never been used after questions are raised about their legality.

Although Harris claimed to be a drug manufacturer, BuzzFeed News revealed the 2 
facilities he lists with the United States are just an old apartment building 
he left owing rent on and a small office space he rents out. Neither can be 
used to manufacture drugs.

In total, the 3 states paid Harris nearly $80,000 for 3,000 vials of execution 
drugs that they have not, and likely will never, receive - let alone actually 
use in an execution.

The shipment for Nebraska never made it out of India after FedEx realized the 
drugs were illegal to import. The shipments to Arizona and Texas were 
intercepted at the airport by the Food and Drug Administration in July 2015, 
and the agency continues to hold the drugs.

Sodium thiopental, although used in countries like India as an anesthetic, is 
no longer used in the United States, and there are no FDA-approved 
manufacturers of the drug. In the past, it had been used widely by death 
penalty states to sedate the inmates.

Arizona and Texas have balked at the detention of their drugs, appealing to the 
FDA in October 2015 to release the vials. The FDA responded in April 2016 that 
they would continue detaining the drugs, although the states have so far kept 
the full response from the public.

After 11 months of holding onto the states' drugs, the FDA has made no final 
ruling on destroying or sending the drugs back to India. The thousands of vials 
of execution drugs continue to be held, likely in a government warehouse.

"A lot of times these things are labelling issues, where something can be done 
to fix the problem," Sonali Gunawardhana, an attorney at Wiley Rein LLP who 
specializes in importation law, told BuzzFeed News. When the issue is minor, 
she said, the importer can meet with the FDA and work out a way to make it 
compliant.

"But the reality is that this situation appears to be very different than those 
situations, and there's not an easy way to make it compliant," she said. "If I 
had to guess, the FDA is holding onto the drugs until they expire."

Gunawardhana said the state's next recourse would be to sue - something that 
Arizona has already indicated it plans to do if the FDA denies their request to 
release the drugs.

"At that point, we would proceed in court to challenge," assistant attorney 
general Jeffrey Sparks told a federal judge in January.

Late Friday, the attorney general's office wrote in a court filing that there 
is no estimated timeline for the FDA to make a final decision, and reiterated 
that "If the agency's decision is unfavorable to the Department, its only 
recourse would be to file suit."

The states all hired private attorneys for legal help. Arizona has hired Alston 
& Bird, an Atlanta-based law firm with more than 700 lawyers and offices across 
the country. The law firm's argument to the FDA is that since the drugs 
aren???t used for any medical purpose, the FDA has no right to detain them.

"The detained drug is to be used only for law enforcement," Alston & Bird 
partner Daniel Jarcho wrote in an October 2015 letter to the FDA. "The 
restrictive legend on the label ('For law enforcement purpose only') makes that 
clear."

"The purpose of [the statutes] is to provide warnings to patients as they take 
their own drugs. Here there will be no lay patient 'users' taking the detained 
drugs. This is a circumstance in which the imported substance is a drug that 
will not be used for medicinal purposes at all," Jarcho wrote.

The letter to the FDA was marked "confidential" and also included a command 
that the agency keep information on the supplier secret.

"We demand that FDA and CBP comply with [Arizona's execution secrecy law] and 
maintain the confidentiality of such information, unless required by law to 
release it," the attorney wrote. "Any such release of any such information 
should not occur without first notifying ADC."

Alston & Bird would not answer questions about the feud with the FDA. "We don't 
have anything to add here," spokesperson Nick Clarke said.

The states have so far refused to turn over the FDA's response to BuzzFeed 
News, which it received in April 2016. The Arizona Department of Corrections' 
said it wasn't a public record, and is "the work product of a private attorney 
in furtherance of ADC's ongoing settlement discussions with FDA."

Arizona Attorney General Mark Brnovich's office insisted on Friday that they 
don't even have a copy of the FDA's response, which is remarkable considering 
his office discussed the status of the FDA situation the same day.

The Texas Department of Criminal Justice has also not turned over the FDA's 
response, and is asking its attorney general to weigh in on if they are legally 
required to do so. 2 months after BuzzFeed News requested the response, the 
attorney general hasn't made a decision.

Both states also have attempted to redact the identity of the private law firms 
they've hired to represent them, although neither has pointed to a reason for 
the redaction or a law that allows them to do so.

The FDA also has been quiet on the conflict. A spokesperson would only say that 
"the drugs are still being held by the agency. This remains an ongoing 
proceeding, and the agency has no further comment."

In March 2015, Arizona wrote Harris a check for $23,700. The next day they cut 
him another check for $3,000, bringing the total to $26,700 - the same amount 
Nebraska paid for the drugs.

Later that month, Texas paid Harris $24,990. In total, Harris made at least 
$78,390 selling illegal drugs to the states in 2015.

Arizona declined to comment on purchasing the drugs from Harris. Texas did not 
respond to a request for comment.

While Arizona and Texas continue to fight with the FDA over the drugs, Nebraska 
has given up - at least for now.

After facing heavy criticism from state lawmakers, Nebraska Department of 
Correctional Services Director Scott Frakes attempted to get a refund from 
Harris in January 2016.

Frakes said not receiving the drugs the state paid for was "unacceptable" and 
"a breach of the representations and promised delivery date made by Harris 
Pharma." He asked for "full reimbursement" and warned of "further proceedings" 
if Harris did not do so.

Harris wasn't interested, writing that refund was "not possible as there has 
been no fault of my company." He added: "Hope this issue does not spoil the 
relationship between our organisations and we are able to do business in the 
future."

Although Frakes threatened to sue Harris if he didn't give them a refund, that 
doesn't seem like a likely possibility now. Frakes hasn't reached out to Harris 
since then, and he has had extremely limited discussions with the attorney 
general's office about the possibility.

Texas did not respond to a request for comment on if the state will sue the FDA 
for its drugs.

Unlike Texas, which currently has an inventory of execution drugs, Arizona is 
much more desperate. The state insists it has no other options than its 
detained supply of drugs from India.

"The Department has no pentobarbital, no sodium thiopental, and ... no 
unexpired midazolam," attorney David Weinzweig wrote on Friday.

"Other than prevailing in the FDA matter, the Department has no immediate or 
potential prospect of obtaining" execution drugs.

The judge may ask more about the FDA detention at a scheduled conference in 
ongoing litigation at the end of the month.

The state had hoped to use its supply of another execution drug before it 
expired, asking the judge to speed up litigation brought by death row inmates. 
But the judge denied that request, finding the inmates??? arguments to have 
merit.

If Arizona isn't able to find another legal supplier, the state will have to 
choose between holding off on executions further and going to battle with the 
federal government. But the longer the state waits to decide whether to sue, 
the more likely the state is to put itself at risk of running into the same 
issue: At the end of litigation, the drugs could very well be expired.

(source: BuzzFeedNews)