[Deathpenalty] death penalty news----MO., OKLA., USA

[Rick Halperin]

Jan. 15



MISSOUURI:

Larry Flynt Fights to Shed Light on Missouri's Mysterious Death Penalty 
Drugs----Missouri, like many states, is secretive about the drugs it uses in 
executions.



Publisher and adult-entertainment mogul Larry Flynt - whose Hustler magazine 
has been at the center of many First Amendment-related legal battles since the 
early '70s - is back in federal court. Only this time he's fighting to expose 
not sexy ladies but Missouri's death penalty protocols.

On Wednesday, the 8th Circuit Court of Appeals heard arguments on whether Flynt 
should be able to intervene in a challenge to Missouri's execution methods 
filed by nearly 2 dozen death-row inmates, including the man who attempted to 
murder Flynt and left him paralyzed from the waist down. That man, serial 
killer Joseph Paul Franklin, was executed by the state of Missouri in 2013.

Before Franklin's death, Flynt had campaigned for his clemency. "If it was a 
deterrent, I'd support the death penalty, but it's not," Flynt told the 
Guardian at the time.

Flynt also sought permission to intervene in the inmates' lawsuit, which 
alleged that Missouri lethal-injection methods violated 8th Amendment 
protections against cruel and unusual punishment. Many of the records filed as 
part of the case were sealed, and Flynt wanted these records to be made public. 
A federal judge swiftly denied Flynt's request, holding that without a common 
interest with the inmates, a general interest in the subject matter didn't give 
Flynt standing to intervene.

With the help of the American Civil Liberties Union (ACLU) of Missouri, Flynt 
is now appealing that ruling. ACLU lawyers say it's a matter of of Flynt's 
First Amendment rights. "It could be any publisher, it could be any media 
outlet or any member of the public that's trying to get access to secret court 
records," Tony Rothert, legal director of the ACLU of Missouri, told St. Louis 
Public Radio.

"This case is about whether the media or the public have a right to ask a court 
to unseal records that the court has for some reason decided to keep secret."

The entire process of how Missouri procures and uses execution drugs is 
shrouded in secrecy - and recently scandal. State corrections officials 
repeatedly said that they don't rely on Midazolam, the drug involved in 3 
botched executions in the U.S. last year. "We have no intention to (use 
Midazolam in executions)," Missouri's Director of the Department of 
Corrections, George Lombardi, said in a January 2014 deposition. "We have 
Pentobarbital that we use."

Pentobarbital is, in fact, what the state said would be used to kill Franklin 
in November 2013. But an investigation by St. Louis Public Radio found Missouri 
used Midazolam in all nine executions performed between November 2013 and 
September 2014.

If the state can't even be forthright about which drugs it is using, it's no 
wonder it keeps secret where the drugs from. But Missouri is far from the only 
state to obfuscate the origins of death-penalty drugs.

Part of the issue stems from the fact that European drugmakers won't sell to 
state corrections departments if they plan to use the drugs for executions. 
This has created an execution drug shortage in America. States don't really 
like to talk about how they're coping with this.

Because the drugs used in executions are still sold to U.S. entities for other 
purposes (including sometimes to state corrections' hospitals), it's possible 
some of them are still finding their way to death row inmates. States may also 
look to compounding pharmacies, which are pharmacies that don't manufacture 
drugs themselves but combine different drugs or alter the ingredients to tailor 
meds to individualized needs.

Correctional departments in places such as Missouri and Louisiana argue that 
state law allows the identity of those involved with executions to be kept 
confidential, and this includes the makers of execution drugs. Lawyers for 
condemned prisoners say without openness about the drugs used, there's no way 
to tell whether an execution is cruel or humane. And folks such as Flynt say 
the public has a right to know, too.

Last year several news organizations, including the Associated Press and 
Guaridan U.S., filed a separate suit seeking to shed sunlight on Missouri's 
lethal injection drugs. The state's Department of Corrections said this info 
was unavailable "pursuant to the state secret doctrine." The Missouri Supreme 
Court has previously rejected such a doctrine.

14 media organizations, including The Washington Post and The New York Times, 
are supporting Flynt's fight to force more disclosure. A lawyer for the groups 
argued yesterday that Flynt should be allowed to join the inmates' lawsuit on 
First Amendment grounds. If the 8th Circuit rules in Flynt's favor, this will 
merely give him permission to intervene and ask that court records be unsealed. 
The case would likely be remanded to the district court for a decision on 
whether to actually unseal them.

(source: Elizabeth Nolan Brown is a staff editor at Reason.com)








OKLAHOMA:

Oklahoma Plays Torture Roulette With Lethal Injection



The logical response to Clayton Lockett's bloody, pain-filled, unconstitutional 
execution in Oklahoma 8 months ago would be to prevent such torture from 
happening again. But Oklahoma has another idea for its first execution since 
Lockett's. Instead of learning from its mistakes, the state will administer 
midazolam, the same drug used in Lockett's horribly botched execution.

Barring intervention from the courts or the governor, Oklahoma will execute 
Charles Warner tonight. The state will give Warner midazolam as if it worked 
for Lockett, as if it had produced the state of "deep unconsciousness" the U.S. 
Supreme Court has recognized as a vital step before the other, excruciatingly 
painful drugs in the lethal protocol. But the medical use of midazolam is to 
relieve anxiety, not put people to sleep. Midazolam has failed not only in 
Oklahoma but also in Ohio, Arizona, and Florida. With that track record, 
midazolam should be retired from lethal injection, everywhere, forever. Indeed, 
Ohio has wised up and dropped the drug from its protocols. But Oklahoma 
persists, playing torture roulette tonight with Warner, who originally had been 
scheduled to be executed right after/the same night as Lockett.

Though midazolam is a relatively new drug in the lethal injection scene, it 
quickly earned a troubling reputation. Florida was the 1st to experiment with 
midazolam, in the execution of William Happ, despite warnings that the drug 
would not work. Even after he was ruled unconscious, he moved his head back and 
forth, suggesting that he was in fact conscious for the administration of the 
extremely painful drugs that followed.

After receiving a drug combination that included midazolam, Dennis McGuire in 
Ohio took over 20 minutes to die. He moved, clenched his fist, and gasped.

Joseph Wood in Arizona was given an extraordinary amount of midazolam in that 
state's experimental 2-drug protocol -15 doses - yet his execution lasted for 
more than 2 hours. He gulped and gasped hundreds of time for air.

Not only will Oklahoma use midazolam again, it will then administer vecuronium 
bromide, a drug meant to paralyze Warner. This will make it impossible to know 
if he is experiencing pain when the final lethal drug is administered.

In Mr. Warner's case and others, legal challenges to the states' unregulated 
experimentation have largely fallen on deaf ears, despite botch after botch. 
Earlier this week, the 10th Circuit denied Warner's request to stop his 
execution, and his case now moves to the U.S. Supreme Court.

Enough is enough. In the 7 years since the U.S. Supreme Court upheld the 
constitutionality of a lethal injection drug protocol in Baze v. Rees, states' 
protocols have completely changed. In response to pharmaceutical companies 
electing to make their products unavailable for use in executions, states have 
turned to untested, novel drug combinations. No state, in fact, still uses the 
protocol in Baze, which the court approved largely on the assurance that the 
prisoner would be unconscious before the lethal drugs were administered and 
would therefore not experience the severe pain they're known to cause. Given 
the recent problems with midazolam, we have every reason to doubt that Warner 
will be unconscious. Under these troubling conditions, Warner's execution 
carries a substantial risk of harm.

We can only hope that the U.S. Supreme Court is listening and will stop 
Warner's execution until Oklahoma can prove conclusively that its lethal 
injection protocol meets constitutional standards. It's time for the human 
experimentation to end.

(source: Cassandra Stubbs, Director, ACLU Capital Punishment Project & Anna 
Arceneaux, Staff Attorney, ACLU Capital Punishment----ACLU)








USA:

Do Veterans with PTSD Really Belong on Death Row?



On Tuesday night, Georgia executed Vietnam War veteran Andrew Brannan for 
murdering Sheriff Deputy Kyle Dinkheller in January 1998. The dashboard camera 
in Dinkheller's patrol vehicle captured their confrontation: Dinkheller pulled 
Brannan over for speeding, and Brannan's reaction escalated rapidly from 
taunting Dinkheller to screaming at him, culminating in a firefight that left 
Dinkheller dead. The video, which has been uploaded to YouTube more than once, 
has been seen more than 1 million times. In addition to capturing the horror of 
Dinkheller's final moments, the video shows how unhinged Brannan appeared. At 
one point, Brannan tells Dinkehller "shoot my ass," then dances with his arms 
in the air, singing, "Here I am, here I am, here I am." A moment later, Brannan 
advances on Dinkheller, screaming, "I am a goddamn Vietnam combat veteran," 
before returning to his car to get his rifle. The Washington Post reported that 
the video has been shown to police in training "as an example of how quickly 
roadside stops can spin out of control."

Brannan was diagnosed with post-traumatic stress disorder in 1984 and, later, 
bipolar disorder. His defense team invoked his diagnoses in an attempt to avoid 
the death penalty. In 1986, the Supreme Court outlawed the execution of the 
mentally ill. In order to be executed, a person has to understand both what 
capital punishment means and why he is receiving it. A condition like chronic 
schizophrenia, where a person might experience frequent dissociation, could 
disqualify him. With a diagnosis like PTSD, where symptoms can include 
flashbacks, self-destructive behavior, and aggression, the ruling's application 
is less clear. A person could hypothetically commit a crime during a flashback 
or experience a violent rage because of his condition, and temporarily lose 
touch with reality. But it's extremely difficult to establish that a person's 
PTSD is relevant to his crime, and that it should be relevant to his 
sentencing.

Brannan's execution was the country's 1st in 2015. It happened despite how far 
our country has come in terms of recognizing PTSD as a debilitating disorder; 
despite Brannan's known bouts of mental illness that, as the Post reported, 
landed him in the hospital "repeatedly" before he killed Dinkheller; and 
despite the fault that lies, at least somewhat, with a system that enables a 
person, even after being diagnosed with serious mental illness, to still 
possess a firearm. But Brannan isn't the 1st veteran diagnosed with PTSD to be 
executed, and it seems unlikely he'll be the last. In 1999 and 2002, 2 Vietnam 
War veterans diagnosed with PTSD were executed in California and Missouri, 
respectively. Another sits on death row in North Carolina.

In 2010, the Journal of the American Academy of Psychiatry and the Law 
published an article called "Combat Veterans and the Death Penalty: A Forensic 
Neuropsychiatric Perspective." It warned, "With our nation's present conflicts, 
a new generation of veterans are returning home, many of whom have substantial 
psychopathology and are encountering significant barriers in accessing care." 
The paper calls for a "legislatively or judicially enacted, narrow, categorical 
exclusion [from the death penalty] for combat veterans who were affected by 
PTSD or TBI [traumatic brain injury] at the time of their capital offenses." 
Unfortunately, determining if a veteran has PTSD and if his condition 
influenced his behavior in a particular moment is not as straightforward as 
this recommendation.

The article acknowledges this. It describes the physical differences found in 
the brains of veterans with PTSD, as opposed to healthy civilians and veterans 
without PTSD, concluding that "PTSD and TBI appear to cause neurobiological 
dysfunction that threatens the capacity to inhibit violent behavior." But, the 
article continues, "there is no medical or scientific literature of a study 
that has effectively tested this hypothesis." (As I've written, we also don't 
have evidence that repeated concussions affect violent behavior.) In the end, 
all we have are stories of veterans harming or killing loved ones, themselves, 
acquaintances, or even strangers, and the alarming statistical probabilities of 
these stories.

Also working against a vet's case are the nuances of PTSD, once it is 
diagnosed. As Arizona State University Professor Betsy Grey writes in 
"Neuroscience, PTSD, and Sentencing Mitigation" for the Cardozo Law Review, 
"More problematic is assessing the validity of a PTSD diagnosis in a particular 
context." Grey writes:

Most of the evidence for the diagnosis comes from interviews with the 
defendant, which leads to concerns about the trustworthiness of a particular 
diagnosis. Put simply, there are concerns that an individual who raises a claim 
of PTSD after committing a crime might be faking symptoms in order to avoid 
criminal punishment. But even if concerns about malingering in particular cases 
and the validity of PTSD as a legitimate diagnosis can be overcome, it is 
difficult to establish a causal connection between the disorder and the alleged 
criminal act because a defendant's claim that he suffered a PTSD dissociative 
flashback while committing a crime can only be demonstrated by the defendant's 
own testimony. Further, some studies have suggested a potential for 
"confirmatory" bias when a clinician is aware of an individual???s exposure to 
a stressor. In other words, if, for example, an expert knows that a particular 
defendant served in combat while in the military, the expert is more likely to 
find symptoms and diagnose that defendant with PTSD.

If our understanding of how PTSD affects veterans does not catch up to the rate 
at which we are producing veterans with PTSD (particularly from our ongoing 
engagements in the Middle East), we're only likely to put more veterans clearly 
struggling with mental illness on death row. A diagnosis of PTSD should have 
guaranteed Brannan adequate mental health services, instigated precautionary 
measures to keep his community safe while he underwent treatment (like removing 
his firearm after his diagnosis), and affected his sentencing in the event of a 
crime committed during his illness. In fact, until we know more about PTSD and 
violent behavior, governors might consider staying all executions of veterans 
with the diagnosis, regardless of when they received it. We should worry about 
carrying out executions as scheduled only after we have executed certain PTSD 
treatment, safety, and research goals.

(source: Naomi Shavin is a reporter-researcher at The New Republic)

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

Death Penalty In The US: Which States Still Practice Capital Punishment And 
What Methods They Use

The U.S. Supreme Court will decide this week whether Oklahoma can execute 
Charles Frederick Warner, who is scheduled to receive a lethal injection on 
Thursday at the Oklahoma State Penitentiary in McAlester. Warner was convicted 
in 2003 of 1st-degree rape and murder for the death of an 11-month-old girl.

"Oklahoma's current execution protocol creates a substantial risk of severe 
pain, needless suffering and a lingering death," Warner's attorney Dale Baich 
told CNN. Warner would receive a 3-dose lethal injection of midazolam, 
vecuronium bromide and potassium chloride. Baich appealed to the Supreme Court 
on Wednesday to halt Warner's execution pending further review of the state's 
death penalty methods. "Of particular concern is the use of midazolam, which 
has been involved in several extremely problematic executions, including the 
gruesome and horrific execution of Clayton Lockett in Oklahoma and the 2-hour 
prolonged death of Joseph Wood in Arizona in July 2014," Baich said.

Capital punishment in the U.S. has waned in recent years following public 
outcry after several botched executions involving lethal injections in which 
the inmates showed signs of pain or struggle. Last year saw the fewest 
executions in the U.S. in 20 years. Additionally, death sentences in 2014 were 
the lowest in 4 decades, however the practice is still legal in 32 states. 
California led the country with the most death sentences last year, at 14, 
followed by Florida and Texas with 11.

18 states and the District of Columbia do not practice capital punishment. The 
last state to abolish the death penalty was Maryland in 2013, however the 
repeal was not retroactive, meaning the state's 5 inmates sentenced to death 
row before the law was changed still face execution. The U.S. government and 
military legal systems can also execute people, and there are currently 69 
people awaiting execution as of October of last year.

Lethal injection has been the primary method of capital punishment since 1976, 
the year a national moratorium on the death penalty was lifted. Of all the 
executions carried out in the U.S. in the past 40 years, 1,220 of them were by 
lethal injection, according to the Death Penalty Information Center. 
Electrocution was the 2nd most common method at 158 executions and is still 
authorized in 8 states. 11 inmates have been killed by gas chamber since 1970, 
3 by hanging and 3 by firing squad.

Despite seemingly primitive methods of execution like hanging and firing squad 
still technically being allowed in a handful of states, lethal injection is the 
primary method in all death penalty states, although legislation proposed in 
Alabama would reinstate the electric chair as the primary execution method. All 
35 executions in 2014 were done by lethal injection.

(source: IB Times)