[Deathpenalty] death penalty news----TEXAS, MISS., USA

[Rick Halperin]

April 7




TEXAS:

The death row killers who refused to die quietly and had to be gassed out of 
their cells then strapped down during execution----Former crime reporter 
Michelle Lyons, who witnessed nearly 300 executions in Texas, US, reveals the 
desperate acts of death row prisoners who refused to accept their fate



After spending years or often decades locked up in a tiny cell for 23 hours a 
day, most Death Row inmates go willingly to their executions. However, some 
refuse to die quietly - with officers forced to gas them out of cells, strap up 
their heads and even give chase across prison grounds.

Michelle Lyons, who has witnessed nearly 300 executions in Texas, US, 
exclusively tells Sun Online how certain inmates "fight like hell" in their 
last moments.

On most occasions, Michelle watched from the witness area, with the killers 
already on the gurney - the stretcher where they'd be given a lethal injection.

Seven prisoners once tried to escape from the Row in Huntsville - with one 
shoving magazines and newspapers under his clothes to help him roll over 
razor-wire fences.

Others have had to be gassed out of their cells with Mace-like spray, while one 
killer even stole a key to a set of handcuffs, which he spat out with his dying 
breath.

"I could tell immediately when I went into the witness room if they had 
fought," recalls 43-year-old Michelle, a former crime reporter and prison 
spokeswoman.

Michelle Lyons, 43, witnessed nearly 300 executions over 12 years

"Inmates would have five restraints on them - on each of their arms, each of 
their legs and their torso - but those who had fought had more restraints on 
their head.

"One inmate even said, 'I'm not going to walk so you'll have to carry me' - so 
they did."

Murderer Ponchai Wilkerson, the son of a retired police officer, is among those 
who fought to live.

Wilkerson, who shot dead a jewellery shop worker in Houston nearly 30 years 
ago, tried to escape from the Row on Thanksgiving night 1998 along with 6 other 
prisoners.

Dressed in prison garb dyed black with markers, the group carefully placed 
cushions and sheets in their beds before leaving their cells for dinner and 
hiding in a recreation yard.

Later that night, they used a hacksaw to cut a hole in the fence and scaled the 
roof. They then sprinted for freedom, but were spotted by officers who opened 
fire.

One inmate said 'you'll have to carry me' - so they did

Wilkerson surrendered during the shooting, but escaped from his prison cell 2 
years later and took a female officer hostage, while armed with a sharpened 
piece of metal.

Fortunately, the guard was later released unharmed.

However, Wilkerson's resistance to death didn't end there - on the day of his 
execution, he had to be gassed out of his cell.

"He fought and they did have to gas him," recalls Michelle, who worked as a 
reporter for The Huntsville Item newspaper and as a Texas Department of 
Criminal Justice spokeswoman.

And even with his last breath, the killer proved defiant.

'His final breath was the moment this key came out his mouth'

Michelle says: "His execution was so unnerving because when he was making his 
last statement he was murmuring something.

"He was moving his mouth in a strange way. He timed it just right so his final 
breath was the moment this key came out of his mouth and rested on his chin."

Chillingly, the key was to a set of handcuffs.

"It was believed he had planned to try to escape but he hadn't anticipated 
being restrained with 2 sets," says the mum, who lives in Huntsville and has 
penned a book about her life as an execution witness, called Death Row: The 
Final Minutes.

"He had the key for one set but not the other."

Wilkerson was declared dead at 6.24pm on March 14, 2000, after spitting out the 
inch-and-a-half key at the Huntsville Unit execution chamber.

'He sunk like a rock in the river'

While he had surrendered during the attempted death row breakout 2 years 
earlier, one of his fellow prisoners - Latino murderer Martin Gurule - had not.

Gurule, the only 1 of the 7-strong group to keep going, stuffed magazines and 
newspapers under his clothing so he could roll over 2 razor-wire security 
fences.

Inmate Martin Gurule successfully escaped from prison, but ended up drowning in 
a river "The fences have these sharp razor blades," Michelle explains.

"He had wrapped himself in magazines and newspapers so he wouldn't get cut up."

Although Gurule successfully made it out of the Ellis Unit's grounds with 
bullets flying around him, his makeshift 'suit of armour' turned out to be his 
downfall.

A week after the escape, he was found drowned in a river.

"He was still wrapped up when he jumped in the river - he sunk like a rock," 
says Michelle.

The murderer had died - but not in the way the state had planned.

Banging his head until the end

Another Death Row inmate who fought in his final days was Gary Graham, who was 
17 when he was sentenced to die for murdering a man outside a supermarket.

Gary Graham, who became a "media darling", is pictured on death Rrw in 1998

During his time behind bars, Graham drew support from the public and 
celebrities, with many claiming he was innocent of his crime. Actress Bianca 
Jagger and civil rights activist Rev Al Sharpton were among the witnesses at 
his June 2000 execution.

"He had became a media darling," says Michelle.

"He had vowed he was going to fight and he did."

She adds: "When we came into the witness area he had been banging his head."

Kept in a cage to stop fighting

Killer Emerson Rudd, who was 18 when he shot dead a restaurant manager during a 
robbery, also proved difficult to get to the gurney.

Prison guards even put him in a cage to stop him from fighting. Like Wilkerson, 
he had to be gassed from his cell, with the spray leaving his skin "red raw".

She says of the gas: "It makes it hard to breathe - officers would have masks 
on to protect themselves. Inmates are given warnings before the gas is used."

Offering up his arm without hesitation

She also, surprisingly, says inmates "barely ever fight" as they prepare to 
die.

On 2 occasions, Michelle, who has a 14-year-old daughter, watched the 
executions from within the IV room, where an anonymous medically-trained team 
would administer the lethal drugs.

Which US states have the death penalty?

TEXAS is not the only US state with the death penalty.

Capital punishment is legal in a total of 30 states.

These are: Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, 
Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, 
Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, 
Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia 
and Wyoming.

During one of these events, she watched through one-way glass as the inmate 
calmly walked into the death chamber, hopped on the gurney and held his arms 
out wide.

Within seconds, he had been strapped into a crucifix position by a tie-down 
team and fitted with IV lines, ready to carry a deadly cocktail of drugs 
through his veins.

Before long, he was dead, given the ultimate punishment for his horrific crime.

Michelle writes in her book that it "troubled me so much seeing the inmate walk 
unrestrained to the gurney, hopping up there and offering his arms with no 
hesitation".

Personal tragedy

Michelle witnessed her last execution in 2012 and now works in legal marketing.

While she felt no sympathy for some inmates, she says she had a harder time 
with other executions where she felt the prisoner wouldn't re-offend if they 
were released.

"I felt guilty - but it's easy to feel that way because they hadn't killed 
anyone I loved," she says.

But in 2016, Michelle was dealt her own heartbreak when her teen stepdaughter 
Kristine was shot dead.

Kristine, 17, was gunned down in the car park of a California shopping centre, 
with her killer, Cameron Frazier, later locked up for life for her murder.

Michelle feels the death penalty would have been the appropriate punishment for 
him.

"I really understood how one single crime could undo so many lives," she tells 
us.

"My marriage to Kristine's father ended the year after, and her mum's life of 
course was undone. Her siblings had a very difficult time. One act of violence 
shattered so many lives."

Death Row: The Final Minutes: My life as an execution witness in America’s most 
infamous prison by Michelle Lyons is available to buy on Amazon.

(source: thesun.co.uk)








MISSISSIPPI:

Mississippi man on trial for killing a baby



An Itawamba County man is being charged in the death of a 4-month-old baby 
girl.

The woman who was babysitting the infant, tells autorities she left her alone 
with 35-year-old Ricky Dale Junior to go to the store.

When she returned, she says the child was unresponsive.

If convicted, Dale Junior could get the death penalty.

(source: WJTV news)








USA:

Death penalty repeal sweeping across states as both parties get on board----"I 
think with the death penalty, we've crossed the tipping point on the question 
of innocence," one expert said.



New Hampshire state Rep. Renny Cushing opposed the death penalty before his 
father was murdered more than 30 years ago. He opposed it still in 2011, when 
his brother-in-law was shot and killed in Tennessee.

And in early March, he took to the House floor to encourage his colleagues to 
support his bill to abolish capital punishment in his home state — the 
bipartisan fruit of about six years of work in the Legislature, the Democratic 
lawmaker said, and one that comes 21 years since he sponsored his first piece 
of legislation aimed at repeal.

"To me, it was hanging on to my values as a victim," Cushing, 66, told NBC News 
of his decadeslong effort.

"I know that in the aftermath of murder, having a ritual killing by government 
employees of an incapacitated prisoner doesn’t do anything to bring either my 
father or my brother-in-law back," he added. "It just really fills another 
coffin and widens the pain."

Repeal efforts such as Cushing's are gathering steam in state legislatures 
across the country, mostly in places where the death penalty has been seldom 
issued in recent years, Robert Dunham, executive director of the Death Penalty 
Information Center, said, as lawmakers in both parties increasingly embrace 
change.

New Hampshire, where one person remains on death row, is just one of at least 
15 states to take steps toward ending capital punishment so far this 
legislative session, according to the DPIC. That includes California, the state 
with the nation's largest death row of 737 people, where Democratic Gov. Gavin 
Newsom placed a moratorium on the state's death penalty in early March. 
Already, 20 states and the District of Columbia have outlawed capital 
punishment, while three other states have a governor-issued moratorium.

"I think with the death penalty, we've crossed the tipping point on the 
question of innocence," Dunham said of the uptick in state-level repeal 
efforts. "Every person who looks at the facts in good faith agrees that people 
who are innocent are at risk of being sentenced to death and being executed."

Lawmakers and criminal justice reform advocates who have led the push for 
repeal say it's an ineffective, medieval form of punishment that wastes 
taxpayer dollars, ensnares innocent people, discriminates against minorities 
and the poor while also violating moral or religious codes. Those opposed to 
such efforts argue that the death penalty is an effective deterrent to crime, 
necessary for public safety — and is the only punishment appropriate for the 
most heinous offenses.

In Colorado, where a bill to end the state's use of the death penalty died last 
Tuesday in the state Senate, all three of the men on death row are from the 
same county. Colorado state Sen. Angela Williams, D-Denver, said that capital 
punishment discriminates not only by race, but also by place.

"The three men on death row are all African American. They all went to the same 
high school. They’re all from Arapahoe County. All of their cases were 
prosecuted in the 18th Judicial District," Williams said in an interview prior 
to the bill being withdrawn from consideration. "As an African American woman 
who has worked on criminal justice reforms in the past, I am greatly concerned 
about the inequity of this application in Colorado."

Still, divisions remain. Despite Democrats holding a majority in both the state 
Senate and House, it was unclear if there would have been enough votes for the 
repeal to pass, according The Denver Post. Those opposed to the proposal 
accused those in favor of rushing the process. And on Tuesday, one of the 
bill's co-sponsors announced to the general assembly through tears that she was 
withdrawing the bill from consideration.

Prior to the bill being withdrawn, Dunham had pointed to Colorado as an example 
of the increasingly bipartisan nature of the debate surrounding the repeal of 
the death penalty.

"Just looking at Colorado, which has a Democratic majority," Dunham said. "If 
this were a partisan issue, then that vote would have been rammed through 
already, but there are Democrats who are opposed to repeal."

Those Democrats who oppose it include state Rep. Tom Sullivan, D-Arapahoe 37, 
who lost his son in the mass shooting in Aurora in 2012, and state Sen. Rhonda 
Fields, D-Arapahoe 29, whose son and his fiancée were murdered in 2005. 2 of 3 
men on death row in the state are there in connection to the killings.

Fields proposed that Colorado voters — not its lawmakers — decide whether or 
not to abolish the death penalty. "I believe we should trust Colorado voters to 
have the final say on such an important matter," she tweeted March 11.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said 
he supports the death penalty and has worked on cases supporting the rights of 
victims since the mid-1980s. He also believes that public opinion should be 
taken into account on this matter, particularly in California after a 2016 
ballot poll indicated that the majority of voters supported the death penalty.

Repeal "was on the ballot and the people voted on it and the people made their 
decision,” Scheidegger said of the recent moratorium issued by Newsom. "The 
governor is spitting in the face of democracy to misuse the clemency power to 
effectively repeal a law. He has a constitutional duty to see that the law is 
faithfully executed and he is in gross violation of that duty."

Colorado state Sen. John Cooke, R-Weld 13, said that as a former sheriff, 
preserving the option of capital punishment is necessary. "You see the things 
that people do to other people, there’s just pure evil out there. Those people 
need to pay the ultimate price for what they've done," Cooke, who opposed the 
repeal bill's advancement, said.

In Washington state, where Democrats have the majority in both chambers of the 
legislature, prospects for repeal appear brighter. After the state Supreme 
Court's unanimous vote in October 2018 against capital punishment, in which the 
justices said it was "imposed in an arbitrary and racially biased manner," a 
bill ending its use passed the state Senate earlier this year. The House 
Committee for Public Safety voted to advance the bill April 1, and the full 
House is expected to vote on it in the coming weeks. Gov. Jay Inslee, who is 
running for the 2020 Democratic presidential nomination, said that he would 
sign the bill, according to The Associated Press.

Hannah Cox, the national manager of Conservatives Concerned About the Death 
Penalty, said that while the issue of repealing the death penalty was once a 
partisan one, that's changing.

It "was virtually unheard of in 2012 for a Republican lawmaker to sponsor 
repeal," Cox said. This year, ten states have had Republican-sponsored 
legislation aimed at doing away with capital punishment, according to her 
grassroots advocacy group. That includes Georgia, where the bipartisan House 
Bill 702 was introduced on March 28 backed by the Ways and Means committee 
chairman and boasting 2 other GOP co-sponsors.

“Times are different. People are just recognizing the flaws in the criminal 
justice system and I think viewpoints are really, really different than they 
were in the '90s on this issue," Cox said.

Cushing noted that in New Hampshire, "there’s wide, broad bipartisan support 
for repeal of the death penalty.”

"The legislation in New Hampshire has always been bipartisan and it is this 
year again. The past 2 years, Republicans have taken the lead," he added.

His bill passed the state House with a vote of 279-88 and Cushing expects it to 
be considered by the full Senate soon. Though Republican Gov. Chris Sununu has 
vowed to veto it — just like he rejected almost identical legislation last year 
— Cushing said he thinks the strong show of support in the House bodes well for 
the possibility of overriding a veto, which would need a 2/3 majority from both 
legislative chambers to pass.

"We'll see," he said.

(source: NBC News)

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

Let clergy be present during executions



So the clergy-in-the-death-chamber saga continues, each chapter stranger than 
the one before. Let’s connect the dots.

In February, to general condemnation (including my own), the U.S. Supreme Court 
allowed the execution of a Muslim inmate in Alabama who had been denied the 
presence of an imam in the death chamber, even though a Christian inmate could 
have had clergy present.

After the outcry, in late March the justices switched their position, agreeing 
to stay the execution of a Buddhist inmate in Texas who has been denied the 
presence of a Buddhist priest in the death chamber, even though a Christian 
inmate could have clergy present.

Then, after scratching its head for about 12 seconds, Texas hit upon perhaps 
the worst possible solution: Let’s not allow anybody to have clergy present in 
the death chamber. Then nobody’s being discriminated against.

The idea is so absurd that it sounds like a constitutional law final 
examination question — one most students could hit out of the park. The state 
is about to kill a man. Let’s imagine, for the sake of argument, that the 
condemned man deserves it.

His last request on this earth is for the consolation of his faith in his final 
moments. Someone to pray with, to comfort him as his eyes close for the last 
time and he crosses into the great unknown. And the state’s answer amounts to: 
“Gentlemen, you can’t pray in here! This is the death room!”

Such a policy represents the very definition of cruel and unusual punishment. 
The state of Texas is practically begging to be sued; and the litigation will 
surely drag on; and if the courts are sensible, in the end this particular 
practice will not be permitted.

Now, those who are of a mind might decide to blame Justice Brett Kavanaugh, who 
actually suggested this possibility in his separate opinion concurring in last 
month’s grant of stay.

The problem, wrote Kavanaugh, is that things can go wrong, as they do in other 
“medical procedures.” OK. Chilling but true. Here’s his solution: “States 
therefore have a strong interest in tightly controlling access to an execution 
room in order to ensure that the execution occurs without any complications, 
distractions, or disruptions. The solution to that concern would be to allow 
religious advisers only into the viewing room.”

Well, let’s break this down. If you’re going to have executions, you’re going 
to have security problems, so of course not everybody can get into the death 
chamber. But before we decide that the obvious solution is that no inmate will 
be allowed a spiritual adviser at his side as his eyes close for the last time, 
we might at least want to compile a list of all the episodes in which 
executions have been disrupted by clergy of any faith.

I suspect that the number will be arbitrarily close to zero.

The short of the matter is that Kavanaugh is mistaken. Spiritual solace is not 
the state’s to regulate, and clergy confined to the viewing room can’t play the 
same role as clergy nearer by. The religious leader who comforts the criminal 
facing death is like Kipling’s “Thousandth Man,” who stays by your side to the 
gallows’ foot. Putting a wall between prisoner and comforter is what a 
civilized society should strive to avoid.

Implementing this approach won’t be easy. Chaplains who work on death row are 
trained in the awful technology of capital punishment, and know how to comfort 
without getting in the way. At minimum the state should train chaplains from 
more faith communities — certainly from the major ones. If it proves necessary 
to bring in an outsider, the state should have procedures in place to do so 
safely.

A state might object that training more chaplains will prove costly. Yet the 
problem arises only because the state has decided that some people deserve to 
die. Reasonable people can disagree over whether the state is right about that, 
but there’s no particular reason that capital punishment has to be cheap. 
Certainly depriving the condemned man of spiritual comfort in his final moments 
is the worst way to save a buck.

(source: Opinion; Stephen Carter is a Bloomberg Opinion 
columnist----postandcourier.com)

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

When It Comes to the Death Penalty, the Supreme Court Legalized Torture Long 
Ago



Months before the U.S. Supreme Court sparked fresh outrage over the death 
penalty by upholding the planned execution of a man who risks drowning in his 
own blood, Justice Stephen Breyer invited Missouri Solicitor General D. John 
Sauer to consider the matter “as a person rather than a lawyer.”

It was November 2018. Oral arguments in Bucklew v. Precythe were about halfway 
done. The issue at hand: Russell Bucklew, condemned to die for a murder and 
rape committed in 1996, suffered from a rare medical condition called cavernous 
hemangioma. Blood-filled tumors in his throat, neck, and mouth made it 
difficult for him to breathe — at night he slept at a 45 degree angle to avoid 
choking. If subjected to a lethal injection, experts warned, the tumors could 
rupture, causing a gruesome death. To avoid this fate — and as required by law 
when challenging a state’s execution protocol — Bucklew chose a different way 
to die: nitrogen gas, currently allowed in Missouri and three other states. But 
his proposal was rejected without a trial or hearing.

The courts conceded that Bucklew may well suffer under lethal injection, but 
found “no basis to conclude that Bucklew’s risk of severe pain would be 
substantially reduced by use of nitrogen hypoxia instead.” But a dissenting 
judge on the 8th Circuit Court of Appeals was not convinced. There were too 
many lingering questions. Would Bucklew be lying flat during the execution — 
and would his airway would be blocked as a result? How much pain would he 
experience if subjected to Missouri’s 1-drug pentobarbital protocol versus 
nitrogen gas? The state’s medical expert claimed that the pentobarbital would 
render him immune very quickly. Bucklew’s expert disagreed.

Then there were unsettling questions brought up in the 1st half of the oral 
argument. Shielded by Missouri’s secrecy law, the state would not disclose the 
identities of anyone involved in carrying out the execution. So there was no 
way to know their qualifications — or their preparedness should something go 
wrong. The last time Missouri was poised to execute Bucklew, his attorney told 
the justices, the execution team “got a one-page summary of his condition. … It 
didn’t mention the tumor in his throat. It did not indicate any breathing 
issues.”

With so many lingering uncertainties, Breyer suggested to Sauer, it seemed 
logical to do more fact-finding. “Go back and hold a full hearing on it,” he 
said. Present the evidence and consider the alternatives. “Why not?”

Untried and Untested

One answer is that’s just not how the death penalty works. Medical 
practitioners may gather all information to ensure a risky procedure goes 
smoothly, but lethal injection is only designed to look clinical. The end goal, 
after all, is death. Besides, prosecutors aren’t the people who will be faced 
with killing a man strapped to a gurney. They have different priorities.

“First, the state of Missouri has a compelling interest in seeing this just and 
lawful sentence is carried out as quickly as possible,” Sauer told Breyer. To 
send the case back for further inquiry “would interject yet more delay before 
the execution of a sentence that’s been in place for 22 years now.” Plus, there 
was a problem with Bucklew’s chosen alternative. “At this time, no protocol 
exists for execution by nitrogen hypoxia. No state has ever tried it.” In its 
2008 ruling in Baze v. Rees, Sauer argued, the court said repeatedly “that an 
alternative method of execution that is untried and untested, that no state has 
ever used, that no study supports showing its efficacy, is not an alternative 
that’s reasonable.”

For anyone who has paid attention to the controversies over lethal injection in 
the past decade, this argument was specious at best. It was a distortion of 
Baze, for one. (In that decision, which rejected a challenge to the country’s 
prevailing execution protocol, Chief Justice John Roberts wrote that it did not 
violate the Eighth Amendment to deny condemned prisoners the option of “untried 
and untested” alternatives to lethal injection — not that new alternatives 
should never be an option at all.)

But more to the point, “untried and untested” has been the name of the game for 
years when it comes to executions. After Baze, states strayed wildly from the 
3-drug protocol upheld by the court, swapping out old drugs with products never 
before used in lethal injection. 1-drug, 2-drug, and 3-drug combinations were 
tried and discarded across the country, with a series of botched executions 
generating revulsion and controversy along the way.

Death penalty opponents have decried these executions as human “experiments.” 
But Dr. Joel Zivot, a veteran anesthesiologist and the expert in the Bucklew 
case, argues that it is actually worse than that. An experiment is a scientific 
inquiry; the testing of a hypothesis based on some kind of foundation. The 
states’ approach to lethal injection has been far more reckless and cruel. 
Calling it an experiment, Zivot said, “gives credibility where no credibility 
is deserved.” State-Sanctioned Torture

The chaos over lethal injection eventually led to the case that is the 
precursor to Bucklew, and which is critical to understanding it: Glossip v. 
Gross, decided in 2015. Following the gruesome 2014 execution of Clayton 
Lockett in Oklahoma, a man named Charles Warner, who was next in line to die, 
sought an injunction in district court, protesting the “ever-changing array of 
untried drugs of unknown provenance.” The courts denied the challenge — Neil 
Gorsuch, a 10th Circuit judge at the time, was among those who rejected his 
petition — and Warner was executed in January 2015. Witnesses reported his last 
words were “my body is on fire.” Just days after his death, however, the 
Supreme Court granted certiorari in the challenge to Oklahoma’s execution 
protocol, with a man named Richard Glossip replacing Warner as the named 
plaintiff.

The drug at the center of the case was midazolam. Experts insisted the sedative 
was incapable of rendering a person insensate to the pain associated with 
lethal injection. But that didn’t seem to trouble conservatives on the court. 
“Because some risk of pain is inherent in any method of execution, we have held 
that the Constitution does not require the avoidance of all risk of pain,” 
Justice Samuel Alito reasoned in Glossip. “After all, while most humans wish to 
die a painless death, many do not have that good fortune.”

Glossip was a travesty. The oral arguments were spiteful and tense; Alito and 
and then-Justice Antonin Scalia blamed anti-death penalty activists for making 
it impossible for states to acquire reliable execution drugs, making clear that 
they would settle for a lesser alternative. The 5-4 decision sanctioned an 
execution protocol that was rooted in junk science and peddled by a state that 
would be revealed to have misled the court. Most devastating, Glossip imposed a 
grim new requirement that would make it nearly impossible to challenge lethal 
injection: People on death row now had to offer an alternative way for the 
state to kill them.

This “second prong” of Glossip, as it is known in legal terms, put a major 
burden on the condemned and their attorneys. It also put medical experts in an 
ethical quandary; few would be willing to overtly endorse a method of execution 
as a reasonable alternative. As death penalty lawyers lost case after case, new 
evidence emerged that states had been quietly torturing people to death on the 
gurney. It came to light at a trial over Tennessee’s lethal injection protocol 
last summer, where a slew of witnesses testified to disturbing scenes during 
executions using midazolam. Their descriptions were backed up by a pathologist 
who had reviewed every available autopsy of people executed with the drug and 
found evidence of pulmonary edema, a buildup of fluid in the lungs, indicating 
that the condemned had drowned in their own fluids. A federal judge in Ohio was 
so disturbed by this evidence earlier this year, he issued a ruling decrying 
midazolam executions as akin to waterboarding — a finding that led the newly 
elected governor to put scheduled executions on hold.

It is against this backdrop that the Supreme Court handed down its 
controversial 5-4 decision in Bucklew earlier this week. In his opinion, 
Gorsuch reiterated what Alito wrote in Glossip, that the Constitution “does not 
guarantee a prisoner a painless death — something that of course, isn’t 
guaranteed to many people, including most victims of capital crimes.” Only 
executions that were deliberately cruel would be considered unconstitutional.

Gorsuch’s opinion sparked shock and indignation. Commentators called it 
“bloodthirsty,” “medieval,” and “immoral,” a guarantee that more people will 
die “in agonizing pain.” Legal analysts warned that it dismantled the “evolving 
standards of decency” framework that has been so fundamental to Eighth 
Amendment jurisprudence, while marking “the start of a new, brutal era in 
American capital punishment.”

In truth, it is hard to know how Bucklew might impact Eighth Amendment law 
beyond death penalty cases. And on this front, it would be hard to do more 
damage than has already been done. Neither Baze nor Glossip had much to say 
about “evolving standards of decency.” Both rulings upheld methods of lethal 
injection — once seen as advanced and enlightened — at the very moment they 
were being revealed to be just as cruel as its predecessors. Although the 
Supreme Court has curtailed the execution of vulnerable populations — juvenile 
defendants, people with mental disabilities — it has always given 
constitutional cover to even the most grotesque executions. While the ruling in 
Bucklew is certainly callous and cruel, it is also a reminder of how little 
most Americans have paid attention to what states have been doing in their 
name. For the people on death row, the court legalized torture long ago.

Build Your Own Gas Chamber

So why did Bucklew strike a nerve? For one, it was one of the first death 
penalty rulings handed down by the new Supreme Court bench. For those seeking 
clues on just how cruel the new conservative court might be going forward, 
Bucklew certainly gives reason for alarm.

Bucklew only made it to oral argument in the first place because of the bench 
as it existed on March 20, 2018 — the day Missouri planned to kill him. To win 
a stay of execution, five Supreme Court justices must vote in favor — Roberts, 
Gorsuch, Alito, and Clarence Thomas all voted against. (Then-Justice Anthony 
Kennedy, the longtime swing voter in death penalty cases, voted in favor.) A 
few weeks later, the justices agreed to consider Bucklew’s claim that executing 
him would violate the Constitution.

But in the intervening months, Kennedy left the court and was replaced by Brett 
Kavanaugh. Bucklew would be his first death penalty case. To his credit, 
Kavanaugh asked some key questions during the oral argument last fall, pushing 
Missouri’s solicitor general to answer whether there was any constitutional 
limit to the suffering imposed by an execution method in the absence of a 
viable alternative. (“So you’re saying that even if the method imposes 
gruesome, brutal pain, you can still go forward?” Kavanaugh asked. Yes, Sauer 
said, unless the punishment was seen as “superadding terror, pain, or 
disgrace.”) But ultimately, Kavanaugh fell in line with his right-wing 
colleagues.

For those in the trenches of lethal injection litigation, there is plenty to 
hate about Bucklew. But it is hardly a shock. “It’s disappointing that the 
court seems to be wedded to this idea that defendants have this obligation to 
endorse methods of execution,” said Tennessee Federal Public Defender Kelley 
Henry, calling Bucklew “an additional tie on our hands.”

At the same time, Henry said, “the court did clear up a dispute in the lower 
courts.” Until Bucklew, it was unclear whether Glossip required the condemned 
to propose alternatives that were already on the books in their respective 
states. Bucklew held that any existing execution method that petitioners 
believed could reduce the risk of pain is on the table. In the 
through-the-looking-glass world of lethal injection litigation, this is what 
passes as progress.

Henry points out the double standard that exists among the justices over 
“untried and untested” execution methods. (“It seems to me that if you have a 
method that no state has ever used, that that danger is magnified,” Roberts 
mused at oral arguments last fall.) “If the state wants to experiment on its 
own, that’s fine,” Henry says. “But if we want to say that the state’s method 
is unconstitutional,” and propose an alternative method, “we have this 
additional burden of proof.”

Indeed, one of the most gratuitous sections of Gorsuch’s opinion is a portion 
criticizing Bucklew’s “bare bones proposal” of using nitrogen gas to kill him. 
Among the “essential questions” Bucklew failed to address: “how nitrogen gas 
should be administered (using a gas chamber, a tent, a hood, a mask, or some 
other delivery device); in what concentration (pure nitrogen or some other 
mixture of gases); how quickly and for how long it should be introduced; or how 
the State might ensure the safety of the execution team, including protecting 
them against the risk of gas leaks.”

To Zivot, the alternative method requirement was already bad enough. Now “the 
question is, are you therefore asking Bucklew to build his own gas chamber? And 
then ‘with how many bricks?,’ I suppose, and ‘what kind of chair?,’ and ‘where 
would the nitrogen go?’ And then he would have to conduct some sort of test, I 
guess, with volunteers, and try them out and see perhaps a randomized 
prospective trial comparing, say, lethal injection to nitrogen hypoxia or some 
such thing. Obviously it’s absurd.”

There is an additional irony in Gorsuch’s insistence on a better blueprint for 
executions. Like its historical predecessors, lethal injection was never the 
subject of rigorous study by the states that have adopted it. From its 
invention in the 1970s, the design was merely copied from one state to the 
next, with prison officials tasked with choosing drugs and figuring out doses. 
In recent years, states have relied on increasingly dubious sources, seeking 
out compounding pharmacies to acquire drugs, while occasionally breaking 
federal law. To ward off scrutiny, states have passed measures to keep secret 
their sources, claiming that intimidation by anti-death penalty zealots creates 
a security risk. Missouri is no exception. Although it has escaped the 
controversies over midazolam, having never adopted it, the state chose its 
current drug protocol the same way as others have: based on availability rather 
than its efficacy. In an exposé published last year, BuzzFeed News uncovered 
the identity of the pharmacy that sold the drugs used in Missouri’s executions 
going back to 2014, a compounding pharmacy “based in the suburbs of St. Louis 
that has been repeatedly found to engage in hazardous pharmaceutical procedures 
and whose cofounder has been accused of regularly ordering prescription 
medications for himself without a doctor’s prescription.” Under its “cloak and 
dagger” drug procurement process, prison officials attended “a clandestine 
meeting with a company representative, exchanging an envelope full of cash for 
vials of pentobarbital.”

A Last Gasp for the Death Penalty? There may be another reason the ruling in 
Bucklew was so widely condemned. The death penalty is on the decline. Public 
support has fallen to historic lows. Despite a president who fantasizes about 
executing drug dealers, a stance against the death penalty is no longer seen as 
a liability among his opponents in the 2020 election. For the first time in 
decades, it is the default position among Democratic candidates.

It may also be that Bucklew, despite being guilty of horrible crimes, is 
indisputably vulnerable to the agony and torture of lethal injection in a way 
that others are not. If Missouri law allows executions by nitrogen gas, it 
seems senseless not to try to grant his request. Bucklew was not challenging 
all pentobarbital executions, after all. He was merely asking to avoid the 
certainty of a tortuous death for himself. As Breyer might put it, “Why not?”

Because it “invites pleading games,” writes Gorsuch, in one of the most callous 
parts of his opinion. If the court granted relief to Bucklew, soon others would 
be trying the same thing. Gorsuch may be relatively new to the Supreme Court 
bench, but he has made clear that he is tired of lethal injection challenges — 
or as he casts them, “tools to interpose unjustified delay.” If Bucklew teaches 
us anything, it is that the death penalty’s many cruelties will never be ended 
by the same court that sanctioned it for generations. If Americans truly care 
about the torture committed in their name, they must stop looking to judges who 
can only think like lawyers and not as people.

(source: theintercept.com)

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

The death penalty is antiquated, unfair, and expensive



The death-penalty, state sanctioned execution, capital punishment or whatever 
you want to call it, is a relic of the past and should be done away with in 
America, as it has been in 100 countries around the world. It is unfair because 
it is not applied equally to blacks and whites, nor is it applied equally to 
the rich and poor. There are not many rich people being executed—none to my 
knowledge. It is unjust because over the years, at least 160 individuals have 
been released from death-row, many of them exonerated by DNA findings after 
spending decades on death row. That is wrong and unacceptable in a nation built 
on equal treatment under the law.

There is no doubt that innocent men have been executed, which is a tragedy, and 
more than enough reason to stop all executions in America. The United States is 
the only western country that still has the death-penalty. It is certainly not 
a deterrent, which is what the proponents often say. It’s just not true.

There are almost 2800 people on death row in America, and many of them have 
been there for decades. The business of capital punishment is lucrative because 
of the automatic appeals that are in place, which can cost millions of dollars. 
It is cheaper to give a defendant life without parole than it is to give them 
the death penalty, which sounds crazy, but it is true. Death penalty cases are 
more expensive than regular cases because all the judges, lawyers, and other 
court personnel must devote more time into getting the case ready, trying the 
case and reviewing the multitude of issues surrounding the case, given the fact 
that a life is at stake.

The fact is that death-penalty cases can take a long time to come to conclusion 
after the initial trial because of extended post-trial proceedings, which are 
called habeas corpus, that require enormous sums of time and money for a couple 
of reasons: The procedure consists of a long review of the entire case, and the 
government usually pays for both sides, because felonious defendants are mostly 
indigent and can’t pay the fees, which result in these cases costing millions 
of dollars per case. It is an enormous cost to the taxpayers, who are footing 
the bill.

It is understandable that the victim’s families want vengeance—an eye for an 
eye and a tooth for tooth, but at the end of the day, it’s not going to bring 
back their loved ones. Although I have never been a proponent of the 
death-penalty, I find myself empathizing with families who have lost loved 
ones, because some of these crimes are so heinous, but then I think that 
killing is too good for the perpetrator. It’s too easy to just stick a needle 
in someone’s arm and let them go to sleep. It may bring some form of closure to 
the family, but then I come back to the conclusion that spending life in prison 
is the more effective punishment—living every day knowing that you will never 
see the light of day outside of the prison walls, and knowing that you will die 
and be buried in the prison cemetery is something that an offender has to live 
with every day. They ought to be made to suffer. That is real punishment.

Then, there is the problem with race and the death-penalty. Studies have shown 
that the race of the victim and the race of the perpetrator plays a big part in 
who lives and who dies, and that should never be the case. Blacks are more 
likely to be given the death penalty if the victim is white and whites are more 
likely to be given jail time, not even life, if the victim is black. It is just 
a microcosm of the racial dynamics that has existed in America for hundreds of 
years. It shouldn’t matter what color the victim or the perpetrator is, but 
everyone knows that it does, which exposes a serious flaw in the death penalty 
laws in America.

Since the death penalty was reinstated in 1976, more than 1400 individuals have 
been executed. During that time, 156 people have been exonerated from death row 
after they have been found to be innocent. That is an astonishing number that 
should send a chill through all Americans who believe that America is a just 
nation. This shows that mistakes have been made, and these mistakes have led to 
the undeniable truth that some innocent people have been executed. For this 
reason alone, capital punishment should be done away with.

At the end of the day, the death penalty, state sanctioned killing, capital 
punishment, or whatever you want to call it, is an antiquated, unfair, unjust 
and costly form of punishment. Recent studies have found that death penalty 
cases cost taxpayers 1.5 million dollars on average, while life sentences cost 
taxpayers half that amount, which is a surprising fact for many Americans to 
wrap their arms around. It is wasteful and taxpayers should not have to bear 
these ever-increasing costs. Life in prison should be life in prison, with no 
chance of parole. That would avoid even the chance that innocent people will be 
executed by the state. Jack Aurora, an expert on death penalty cases, asks this 
question: “Shouldn’t the state be equally concerned about time and money? Life 
sentences without parole would serve us much better, but we are fixated on a 
process that drains government resources. And to what advantage?” And that’s my 
take.

(source: Opinion, Prentiss Smith, Shreveport Times)