[Deathpenalty] death penalty news----USA

[Rick Halperin]

July 1


USA:

There's nothing 'enlightened' about executing the innocent


If there was a bright spot in Monday's regrettable Supreme Court decision in 
Glossip v. Gross, it's that at least 2 current justices - Stephen G. Breyer and 
Ruth Bader Ginsburg - are open to the idea that the death penalty is 
unconstitutional. It seems at least possible that Sonia Sotomayor may move in 
that direction as well. Unfortunately, that bright spot was overwhelmed by 
opinions from Clarence Thomas, Antonin Scalia and Samuel A. Alito Jr. that 
indicate they are as adamant as ever about keeping capital punishment around, 
and, at least in the case of Thomas, open to expanding it to include juveniles, 
and for crimes other than murder.

As my colleague Mark Berman pointed out, there was an interesting and sad 
footnote to yesterday's decision. In his dissent, Breyer noted the case of 
Glenn Ford, a Louisiana man who spent 30 years on death row before he was 
finally exonerated and released. Ford died of lung cancer just hours before the 
Glossip decision was released. Despite his exoneration, Ford was never 
compensated for his wrongful conviction or for the unfathomable amount of time 
he spent not only locked up but also awaiting his execution. He was released 
just in time to succumb to lung cancer, all while fighting the state of 
Louisiana for recompense. The man who prosecuted Ford, Mark Stroud, has since 
apologized, asked Ford's forgiveness and declared the death penalty to be an 
"abomination" that "continues to scar the fibers of this society."

Of course, Ford isn't the only death-row inmate to be exonerated. There are 
more than 100 others, just since 1973. He isn't even the only one in Louisiana. 
In Orleans Parrish alone, during the reign of notorious District Attorney Harry 
Connick, four death-row inmates were exonerated, representing 11 % of the 
capital convictions during his tenure. Others were released without being 
granted full exonerations.

On the surface, yesterday's decision in Glossip was about the constitutionality 
of a specific drug now used in some states for lethal injections. But the case 
touched off a broader and contentious discussion among the justices about 
lethal injection and the death penalty in general. Scalia in particular wrote a 
scathing, abrasive opinion that mocks "abolitionists" and bizarrely concludes 
that in opposing capital punishment, Breyer and like opponents of the death 
penalty "oppose the Enlightenment."

Capital punishment presents moral questions that philosophers, theologians, and 
statesmen have grappled with for millennia. The Framers of our Constitution 
disagreed bitterly on the matter. For that reason, they handled it the same way 
they handled many other controversial issues: they left it to the People to 
decide. By arrogating to himself the power to overturn that decision, JUSTICE 
BREYER does not just reject the death penalty, he rejects the Enlightenment. Of 
course, lots of Enlightenment thinkers were well aware of the perils of 
subjecting basic rights to the whims of democracy. (Or as James Bovard once put 
it, "Democracy must be something more than 2 wolves and a sheep voting on what 
to have for dinner.") The driving principle behind the Enlightenment was the 
rejection of blind deference to tradition and authority and instead embracing 
reason, individualism and empiricism. Both Scalia's and Alito's opinions are 
not only dismissive, they're also downright contemptuous of Breyer's use of 
data to show that the death penalty is unequally applied, racially biased and 
ineffective. They reject Breyer's long list of cases in which prosecutors 
and/or police were shown to have manufactured evidence, hidden exculpatory 
evidence and committed other egregious misconduct. Instead, they simply point 
out that the Supreme Court has upheld the constitutionality of the death 
penalty for 40 years, so they aren't about to consider it now. Here, for 
example, is Scalia:

A vocal minority of the Court, waving over their heads a ream of the most 
recent abolitionist studies (a superabundant genre) as though they have 
discovered the lost folios of Shakespeare, insist that now, at long last, the 
death penalty must be abolished for good. Mind you, not once in the history of 
the American Republic has this Court ever suggested the death penalty is 
categorically impermissible.

This is about as thorough a rejection of Enlightenment principles as one can 
imagine a Supreme Court justice articulating. It's a abrupt dismissal of 
empirical data (not even an attempt to grapple with it) in favor of an appeal 
to tradition.

The most compelling argument against the death penalty has always been 
innocence. Scalia undoubtedly knows this, which is why he over the years has 
attacked this argument by both insisting that it's extremely unlikely an 
innocent percent has ever been executed and that, even if it has happened, the 
execution wouldn't be unconstitutional so long as the innocent person was 
afforded due process. The latter argument doesn't tend to go over well. Most of 
us intuitively believe that if the right to due process means anything at all, 
it means you won't be executed for a crime you didn't commit. Or put another 
way, any system that not only allows an innocent person to be executed, but 
also is okay with it after the fact is, by definition, a system unconcerned 
with due process.

But Scalia's 1st claim is increasingly under fire, too. Several journalists - 
most notably David Grann in the New Yorker - have made a compelling case for 
the innocence of Cameron Todd Willingham, who was executed by Texas in 2004. 
The sheer volume of DNA exonerations of death-row inmates suggests that there 
are serious flaws in how we try these cases. Common sense suggests that these 
same flaws also exist in cases for which DNA isn't a factor and therefore 
doesn't provide a safety net for wrongful convictions.

Scalia's vituperative opinion in Thursday's lethal-injection case is 
particularly brazen given the case of Henry Lee McCollum. In the February 1994 
case Callins v. Collins, Justice Harry Blackmun famously announced in his 
opinion that he was fundamentally opposed to the death penalty and that "From 
this day forward, I no longer shall tinker with the machinery of death." In a 
concurring opinion, Scalia mocked Blackmun, and in doing so invoked McCollum.

Justice Blackmun begins his statement by describing with poignancy the death of 
a convicted murderer by lethal injection. He chooses, as the case in which to 
make that statement, one of the less brutal of the murders that regularly come 
before us - the murder of a man ripped by a bullet suddenly and unexpectedly, 
with no opportunity to prepare himself and his affairs, and left to bleed to 
death on the floor of a tavern. The death by injection which Justice Blackmun 
describes looks pretty desirable next to that. It looks even better next to 
some of the other cases currently before us which Justice Blackmun did not 
select as the vehicle for his announcement that the death penalty is always 
unconstitutional - for example, the case of the 11-year old girl raped by 4 men 
and then killed by stuffing her panties down her throat. See McCollum v. North 
Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet 
death by lethal injection compared with that! If the people conclude that such 
more brutal deaths may be deterred by capital punishment; indeed, if they 
merely conclude that justice requires such brutal deaths to be avenged by 
capital punishment; the creation of false, untextual and unhistorical 
contradictions within "the Court's Eighth Amendment jurisprudence" should not 
prevent them. Later that year, the court rejected McCollum's petition. The 
passage above is a common tactic with the Supreme Court's death penalty hawks - 
they'll counter data about innocence, bias and arbitrariness with descriptions 
of particularly brutal crimes. It's a response to data-driven arguments with an 
appeal to emotion.

Henry McCollum was not only Scalia's figurative poster case for lethal 
injection, he became the literal poster case, too. In 2010, the North Carolina 
Republican Party distributed a flier with McCollum's picture in an effort to 
depict longtime state Rep. Hugh Holliman as "soft on crime." It worked. 
Holliman lost to Republican Rayne Brown.

Last year, DNA testing exonerated McCollum of the crime for which he was 
convicted. He spent more than 30 years on death row, including more than 20 
after Scalia declared him the prime example of the justness of the lethal 
injection. Breyer mentioned the McCollum case is in his dissent yesterday but 
was kind enough not to mention Scalia's embarrassing history with the case. For 
his part, Scalia seems unchastened for having advocated for the execution of a 
man who was likely innocent.

I've recently been reading about another case that I think underscores why 
Scalia's opinion yesterday was so misguided. In 1997, the state of Texas 
executed David Wade Spence for the 1982 murders of 3 teenagers near Lake Waco, 
Tex. The case is incredibly bizarre, convoluted and outrageous, and I can't 
possibly do justice to it in a blog post. For the thorough narrative of what 
happened, I recommend this 2014 investigation in Texas Monthly by Michael Hall. 
It's a stunning piece of journalism, meticulously reconstructing a story that 
has been unfolding for more than 3 decades. But here's a quick summary:

Spence and 3 other men were convicted for the murders despite the fact that no 
witnesses saw them near where the bodies were found. Other suspects were seen, 
including some with violent criminal records. But a local deputy named Truman 
Simons got a hunch that a Jordanian immigrant convenience store owner named 
Muneer Mohammad Deeb hired Spence and brothers Anthony and Gilbert Melendez to 
murder a teen girl named Gayle Kelley. Under Simons' theory, Spence and the 
Melendez brothers mistook victim Jill Montgomery for Kelley, killed her, then 
killed the 2 teens who were with her because they were witnesses. The evidence 
against Spence was sparse. There was no hair or blood evidence to link him to 
the crime. There were no eyewitnesses. At first, the case consisted only of 
statements from other inmates who claimed he had confessed to them. Some of 
those inmates later recanted their statements, and some later revealed that 
they gave their statements in exchange for leniency on their own charges, or 
for privileges like conjugal visits. The jailhouse snitch testimony alone 
wasn't enough to persuade prosecutors to charge Spence at the time. It wasn't 
until an assistant DA was able to get 1 more piece of evidence that the DA 
moved forward. From Hall's piece:

It was April 1983; in a few months, the local media would mark the 1-year 
anniversary of the murders, and yet the investigation was still floundering. 
Then Simons got a surprise visit from Ned Butler, an assistant DA who had 
recently been hired to try capital cases. He gave Simons a cryptic message: 
soon, Butler said, he'd be able to tell the deputy whether his theory that 
Spence had killed the teenagers was correct.

Butler, it turned out, was a big believer in forensic odontology, or the study 
of bite marks. He'd made use of the discipline 2 years earlier to help solve a 
violent Amarillo murder in which the killer had bitten his victim. When Butler 
first saw the lake murders file, he immediately asked Salinas if they'd checked 
the bodies for bite marks. After studying the autopsy photos himself, he 
determined that several of the wounds on the girls' bodies did, in fact, look 
as if they'd been made by human teeth. He had a mold taken of Spence's teeth, 
then personally delivered it and the photos to Homer Campbell, a forensic 
odontologist in Albuquerque who had helped solve the Amarillo case. Within 
days, Butler got remarkable news: Campbell was certain that Spence's teeth had 
made the marks.

I wrote a bit about Homer Campbell in my February series on bite mark analysis.

[I]n 1978 . . . the Arizona Supreme Court heard arguments to overturn a 
conviction based on bite mark testimony from Homer Campbell Jr., a 
ABFO-certified forensic odontologist. Campbell told the jury that that the odds 
of anyone other than the defendant leaving the marks he found on the victim's 
breast were "8 on 1 million." On cross examination, Campbell conceded that he 
didn't compute those odds personally. Rather, they were a rough estimate of his 
memory of "articles written in the journals of the American Academy of Forensic 
Sciences." In truth, there was no scientific basis for his estimation 
whatsoever. The court nevertheless found his testimony admissible, and upheld 
the conviction.

Despite the complete lack of scientific research to verify his methods, 
Campbell went on to become a renowned and sought-after expert witness. He would 
later serve as president of the American Board of Forensic Odontologists. He 
worked with the FBI. By the time of Spence's trial he had testified as an 
expert witness in at least 12 states.

Campbell's testimony was critical in winning and preserving both Spence's 
conviction and his death sentence. From Hall's description of the trial:

But the state's case was entirely circumstantial until Campbell, the bite-mark 
expert, took the stand. Using electronically enhanced autopsy photos, the 
odontologist testified that Spence was "the only individual" to a "reasonable 
medical and dental certainty" who could have bitten the women. Hunt and Fuller 
promptly called their own expert, who said the quality of the photos was too 
poor to make a valid comparison. However, though he couldn't say Spence was the 
biter, he also couldn't exclude him. (The medical examiner said she had not 
recognized the bite marks at the autopsy, but she was now certain that some of 
the victims' wounds had a pattern that suggested teeth.) Campbell's words had a 
distinct impact. "We had life-size pictures of the marks and a cast of 
[Spence's] teeth brought into the jury room," remembered 1 juror afterward. 
"The testimony - 'everyone's bite mark is different, like a fingerprint' - was 
very convincing."

Today, even advocates for bite mark analysis eschew such comparisons to 
fingerprinting. (And even claims about the uniqueness of fingerprints are being 
questioned.) But there was particular reason to be suspect of Homer Campbell. 
Again from Hall's article:

[I]n August 1984, just 2 months after Campbell had testified against Spence, he 
made a mistake that called his expertise into question: he positively 
identified the remains of a woman alongside a highway in Arizona as those of a 
missing Florida teenager by comparing the dead woman's teeth with an enhanced 
photo of the teenager's teeth. "They matched exactly," Campbell told a 
reporter. 2 years later, the teenager turned up alive.

In 1993, Spence's lawyers cast further doubt on Campbell's testimony.

Krauss, the odontology expert that Schonemann and Owen hired for their first 
writs, had suggested back in 1991 that the [Spence's attorneys] set up a blind 
panel of odontologists and do a 2-part study: analyze the autopsy photographs 
for marks, then compare the marks with dental molds from Spence and 4 other 
subjects. Now Driggs asked Krauss to set up the study. Krauss did, choosing 5 
experts around the country. He sent them molds and 5-by-7 autopsy photos, 
refusing to enhance the images as Campbell had done because, according to other 
experts, doing so could produce false or misleading results.

The results, as they came in, proved astonishing. Though the experts identified 
several patterns that were possibly bite marks, they couldn't go much further. 
One said the photos were of such poor quality that he refused to compare them 
against the molds. A 2nd wrote that the marks were "more likely than not made 
by insects or artifacts." If the purpose of the exercise, he continued, was to 
match these marks to a set of teeth, "it borders on the unbelievable." A 3rd 
thought that some contusions on one body were "probable human bite marks," but 
he couldn't match any of the molds to them. 2 others did match a mark to one of 
the molds, but it was not Spence's. It belonged to a housewife from 
Phillipsburg, Kansas.

Beginning in the early 1990s, the state's case against Spence began to fall 
apart. Muneer Deeb was eventually given a new trial due to the unreliability of 
the evidence against him. In 1993, 10 years after his conviction, a jury 
acquitted him. He was set free.

But of course the law doesn't require separate jury verdicts to be consistent. 
So even though the man who allegedly hired him to commit the murders had been 
acquitted, Spence was still condemned to die. Some of the jailhouse informants 
who testified against Spence then began to recant as well. The Melendez 
brothers, who had previously confessed and testified against Spence, retracted 
their confessions, claiming that they had been pressured and that they 
confessed to avoid the death penalty. Several officers involved in the initial 
investigation also began to question the conviction. A local millionaire named 
Brian Pardo - who described himself as a Republican and a death penalty 
advocate - took up Spence's cause and funded a separate investigation into his 
conviction. That investigation uncovered yet more troubling behavior by police 
and prosecutors. Spence's case later attracted the attention of "Dateline" and 
New York Times columnist Bob Herbert.

Little of this mattered. Spence was still executed in April 1997. He was 
executed mostly because of Homer Campbell. In rejecting one of Spence's 
last-ditch petitions, 1 Texas appeals court explained that, "[O]ur research has 
not yet led us to a reported case where bite mark evidence has been ruled not 
to be admissible evidence." Or because other courts had admitted bite mark 
evidence, it would admit it, too. In March 1996, the U.S. Court of Appeals for 
the Fifth Circuit upheld Spence's conviction on similar grounds. Judge Edith 
Jones's opinion cited the strength of the bite mark evidence and rejected 
Spence's challenges of its validity. From the opinion:

. . .the State's forensic odontological expert concluded that the bite marks on 
Jill's and Raylene's bodies were inflicted by Spence. Even Spence's rebuttal 
expert in this field could not rule out the possibility that Spence's teeth 
caused the wounds, although he believed there was too little evidence to 
support a firm conclusion.

. . . Spence's argument that Dr. Campbell had misidentified the remains of 
another woman likewise does not expose his testimony against Spence as false.

Spence is simply trying to relitigate this aspect of his defense 11 years too 
late. At trial, Spence introduced his own forensic odontologist, Dr. Gerald 
Vale, a leading expert in the field. Dr. Vale spiritedly criticized Dr. 
Campbell's methodology and conclusions, although, critically, Dr. Vale admitted 
he could not rule out Spence's teeth as the source of the bite marks. Because 
this evidentiary issue was fully and competently aired in the state courts, no 
violation of fundamental fairness under the due process clause has been shown.

The court also rejected the blind test Spence's lawyers had given the other 
bite mark analysts, apparently because the attorneys were late in filing the 
results.

Spence argues that the federal district court erred in excluding reports from 5 
other expert odontologists who concluded that Dr. Campbell's testimony was 
unreliable. But because Spence filed these reports after the district court's 
discovery deadline, without explanation for his untimely filing, the district 
court did not abuse his discretion in refusing to admit the reports.

Finally, Spence's attorneys had proposed alternate theory that the teens had 
been killed in a drug deal gone bad. The prosecution countered that theory by 
introducing bite mark testimony that excluded the suspected drug dealer as the 
teens' killer. The trial court allowed that testimony, a decision that a 
federal district court upheld. The federal appeals court then upheld the 
district court, and included this quote from the opinion:

[t]here is, however, unanimous agreement in the field of scientific odontology 
that if even one point of dissimilarity is found between the suspect's 
dentition and the bite mark, it may be said with certainty that the suspect did 
not make the bite mark. Thus, that suspect may be eliminated.

The problem, of course, is that though there may be "unanimous agreement" 
within the field of odontology about dissimilarities between a suspect's teeth 
and a bite mark, the field of odontology itself has come under fire from the 
broader scientific community. And in this particular case, there was far from 
unanimous agreement among the odontologists consulted by Spence's attorneys 
that the marks found during the autopsy were even human bite marks.

Nearly 20 years after Spence was executed, Campbell's credibility took yet 
another hit - this time due to a truly bizarre series of events. About a year 
after the Lake Waco murders, Spence's mother was raped and murdered in her 
home. Hours after the crime, someone then broke into the home again and rifled 
through some boxes and papers in Spence's old room. Spence's mother had 
recently begun her own investigation into her son's conviction. Some, including 
a local police officer named Jan Price, believed the crimes may have been 
connected. But Simons and the local DA quickly took over the case. And again 
they brought in Homer Campbell. He claimed to have found bite marks on Spence's 
mother that were "consistent with" a man named Joe Sydney Williams. In 1987, 
thanks to Campbell's testimony, Williams and his friend Calvin Washington were 
convicted of raping and murdering Spence's mother. Neither had a direct 
connection to the Lake Waco murders.

There was no real DNA testing back in 1987. And the semen samples in the rape 
kit taken of Spence's mother mysteriously disappeared. But a journalist later 
discovered that vaginal and anal swabs had been taken and preserved in a crime 
lab. In 2000, DNA tests on those swabs excluded both Williams and Washington as 
her rapist. Both men were released from prison.

Within about a year of his testimony against Spence, then, Homer Campbell had 
both mistakenly identified a corpse as a woman who was still living and 
mistakenly matched bite marks to a murder suspect, resulting in the wrongful 
conviction and 13-year imprisonment of 2 innocent men. And yet if all this 
happened again today, it's a near-certainty his or similar testimony would have 
been allowed.

This is why the execution of David Wayne Spence is so relevant to Justice 
Scalia's concurring opinion in Glossip. Bite mark evidence has been roundly 
criticized by the National Academy of Sciences. Competency tests have found 
over and over again that bite mark analysis lacks the predictability, peer 
verification and objectivity to be a bona-fide science, including a recent test 
administered by the leading advocacy group for bite mark analysts. Another 
series of tests have found no scientific evidence to support the fundamental 
underlying assumption of bite mark analysis about the uniqueness of human 
dentition and the ability of human skin to preserve bites in a useful way. To 
date, at least 2 dozen people wrongly arrested or convicted due to bite mark 
analysis have been exonerated, including 4 who had been sentenced to death - 
and that's not including David Wayne Spence. Currently, there are at least 2 
men awaiting execution who were convicted primarily because of bite mark 
analysis.

And yet as of today, no court in the United States has ruled bite mark evidence 
inadmissible. Homer Campbell died with his reputation intact, and his fellow 
bite mark analysts have continued to testify in courts all across America.

Scalia might call the courts' slavish devotion to precedent in the face of a 
growing mountain of evidence about bite mark analysis an important legal 
tradition. He might call the Fifth Circuit's willingness to allow the execution 
of a man for a crime he likely didn't commit because his attorneys didn't file 
the results of their study by a prosecutor's deadline a necessary adherence to 
the rules. He might argue that because all the proper rules and procedures were 
followed, the execution of David Wayne Spence because of a man now known to be 
a fraud gave testimony now known to be scientifically unsound was not a 
violation of Spence's constitutional rights. He may make a similar claim about 
the pending executions of Eddie Lee Howard and Jimmie Duncan.

Scalia can claim all of these things. But what he can't claim - at least not 
convincingly - is that any of this is enlightened.

(source: Radley Balko blogs about criminal justice, the drug war and civil 
liberties for The Washington Post.)

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

Last Words for the Death Penalty


Monday, the Supreme Court Justices delivered their oral opinion summaries in 
the Term's high-profile death penalty decision, Glossip v. Gross. Rather than 
reading from his concurring opinion or from a prepared statement, Justice 
Antonin Scalia -- still frazzled from release of the same-sex marriage cases -- 
appeared to be improvising. He accused Justice Stephen Breyer and Justice Ruth 
Bader Ginsburg of expressing personal "policy preferences," and added that the 
"2 justices are willing to kill the death penalty outright rather than just 
pecking it to death." Why the defensiveness and outrage?

Glossip was a 5-4 victory for death penalty states, which retained leeway to 
use new and untested lethal-injection "cocktails." Scalia was part of the 
majority but he sounded strangely like he was uttering last words. Justice 
Samuel Alito's presentation of the majority opinion was also unusually 
defensive and hostile to the dissenters. Justice Alito insists it is "settled 
that the death penalty is constitutional." In a career-defining dissent, 
Justice Breyer showed just how unsettled the American death penalty remains.

The precise legal question in Glossip was whether states could use midazolam as 
the anesthetic in a three-drug legal-injection cocktail. For years, states used 
sodium thiopental, until suppliers stopped selling it for use in executions. 
Many states turned to pentobarbital, which also became difficult to obtain. 
Oklahoma turned to midazolam, considered more of an anti-anxiety medication 
than an anesthetic. After several "botched" executions, the Supreme Court 
agreed to hear whether improvements to Oklahoma's cocktail -- including a 400 
percent increase the midazolam dosage -- satisfied the Eighth Amendment. 
Holding that it did, the Court seemed to announce a rule that an execution 
could not be Cruel and Unusual under the Eighth Amendment unless there is a 
"known and available alternative method of execution that entails a lesser risk 
of pain." Justice Sotomayor dissented, calling this a "surreal" endorsement of 
inhumane "human experimentation."

Justice Breyer did more. Joined by Justice Ginsburg, he wrote a dissent arguing 
that the death penalty is flat out unconstitutional, and he characteristically 
loaded his opinion with empirical data. In doing so, Breyer and Ginsburg joined 
the ranks of predecessors such as John Paul Stevens and Harry Blackmun who, in 
their later years on the Court, declared they no longer believed that there 
exists a constitutional way to administer capital sentences. In 1994, an 85 
year-old Blackmun penned a memorable single-Justice dissent swearing off his 
participation in capital process: "From this day forward, I no longer shall 
tinker with the machinery of death." For Justices Breyer and Ginsburg, the 
death penalty cannot escape a dilemma's horns -- the procedural protections 
necessary to make the penalty reliable mean that the process takes so long that 
it no longer serves its retributive or deterrent purposes.

For the 1st time in recent memory, the threat sensed by death-penalty 
supporters is palpable. Capital sentencing and execution rates have been 
slowing considerably for a decade. Texas -- Texas -- has not sentenced a single 
person to death in 2015. Virginia, which executed the second highest number of 
prisoners in the modern death penalty era (since 1976), has not imposed a death 
sentence in over 2 years. Justice Breyer noted that seven states have abolished 
the death penalty in recent years, and that others have come to the brink of 
doing so. Justice Breyer described how even, in states such as Texas and 
Virginia that retain the death penalty, a small number of outlier counties 
still account for most capital sentences.

Public opinion has shifted dramatically. Justice Breyer notes that a majority 
of Americans would prefer to punish the worst of the worst by imposing life 
without parole over the death penalty. Innocence is playing a role. Cases with 
false confessions, lying informants, shoddy forensics and eyewitness 
misidentifications have led to a remarkable surge in exonerations, including 
over 140 from death row. Had the Court not ordered further hearings for 
exoneree Anthony Ray Hinton, he might have been wrongly executed because of 
flawed forensic evidence. Last year and after he spent 30 years on death row, 
DNA tests exonerated Henry Lee McCollum, whom Justice Scalia long used as the 
poster-child for why we need the death penalty. Yet the same proceedings that 
so often bring miscarriages of justice to light result in enormous delays in 
carrying out death sentences.

Whatever Glossip's formal holding, the body language of the Justices suggests 
that the death penalty is in a precarious position. The younger Justices 
appointed by Democratic presidents -- Sotomayor and Kagan -- did not join 
Justice Breyer's dissent, but the smart money is that they would vote with 
their senior colleagues if presented with the opportunity to strike the penalty 
down. With four likely votes to invalidate capital punishment, the fate of the 
institution may rest with Anthony Kennedy. That scenario cannot make the 
Court's conservative bloc comfortable, particularly after the last week. 
Meanwhile, in the court of public opinion and on the ground, the death penalty 
is clearly losing support as each year passes.

(source: Brandon L. Garrett, Professor of Law, University of 
Virginia----Huffington Post)

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

What Justice Breyer's Dissent on Lethal Injection Showed About the Death 
Penalty's Defenders


Just after 2 a.m. on Monday, June 29 - some 7 hours before the U.S. Supreme 
Court would reject the latest challenge to the death penalty in Glossip v. 
Gross - former death row prisoner Glenn Ford died in Louisiana. Ford, 65, left 
prison with stage four lung cancer in 2014, after spending almost 30 years 
facing execution for a crime he did not commit. Upon releasing him, the state 
gave Ford a $20 debit card and sent him on his way.

Ford sought redress for his lost decades under the state's compensation law, 
only to be told that Louisiana owed him nothing. Despite the fact that Ford had 
been exonerated, the state attorney general said that under "the law as 
written," he was not "factually innocent." The "same set of facts" that sent 
him to death row for murder, the state insisted, connected him to the crime in 
other ways, thus disqualifying him from any financial award. Ford fought the 
state while fighting for his life, but the cancer, which had gone untreated in 
prison, prevailed in the end. 15 months after leaving prison, Ford died in his 
bed, surrounded by volunteers who had raised money online for his hospice care.

There was little reason to expect Glenn Ford's name to appear in the Supreme 
Court's ruling in Glossip. The case came out of a different state, Oklahoma, 
and focused on a particular contested drug within a specific (and not widely 
used) lethal injection protocol. In its 5-4 decision Monday, the Court 
concluded that this drug, midazolam, despite being linked to a number of 
botched executions, did not violate prisoners' Eighth Amendment rights, because 
there was insufficient proof its use would necessarily put them at risk of an 
agonizing death. (The drug, a benzodiazepine, was chosen to replace 
barbiturates previously used as an anesthetic during lethal injection - for 
more, see my earlier coverage of Glossip here.)

But in an unusual and impassioned dissent, Justice Stephen Breyer read Glenn 
Ford's name from the bench to illustrate why, putting particular execution 
protocols aside, the time has come to reconsider the death penalty altogether. 
"Last year, in 2014, 6 death row inmates were exonerated based on actual 
innocence," Breyer wrote. "All had been imprisoned for more than 30 years." In 
Ford's case, he said, citing a remarkable mea culpa published by the Shreveport 
Times, "the prosecutor admitted that even '[a]t the time this case was tried 
there was evidence that would have cleared Glenn Ford." This same prosecutor, 
Breyer noted, admitted that "at the time of Ford's conviction, he was 'not as 
interested in justice as [he] was in winning.'"

That the United States sends innocent people to die was only one part of 
Breyer's wide-ranging dissent. 40 pages long and rife with data and 
documentation, it strayed from the constitutional question of lethal injection 
to attack the death penalty from every angle - from the "dehumanizing effect of 
solitary confinement" (one thing that makes it cruel), to the ever-dwindling 
number of jurisdictions that continue to apply it (which makes it unusual). The 
conclusion was inescapable. More than 20 years after Justice Harry Blackmun 
ended his Supreme Court tenure with his famed declaration that "I no longer 
shall tinker with the machinery of death," Justice Breyer struck a similar, if 
less eloquent chord. After 2 decades on the bench, he said, he now believes 
"that the death penalty, in and of itself, now likely constitutes a legally 
prohibited 'cruel and unusual punishmen[t].'"

Breyer's dissent, joined by Justice Ruth Bader Ginsburg, was openly mocked by 
his conservative colleagues. Antonin Scalia called it "gobbledygook." Experts 
and the media reported it as noteworthy, but for the purpose of Glossip, 
largely beside the point. Indeed, for all the damning evidence it contained 
showing that the death penalty should be constitutionally intolerable, in 
practical terms, it will do nothing to prevent states from moving forward with 
executions.

Yet Breyer's intervention was important in other ways. The dissent is, on its 
own, a powerful indictment of the death penalty as it stands in 2015 - plagued 
by racial bias, official misconduct, and enormous room for error. But 
especially when placed alongside Glossip's flimsy majority opinion, which 
showed undue deference to a state that has recently tortured prisoners to 
death, it is a document that exposes just how much cruelty and injustice death 
penalty supporters must tolerate in order to defend its continued existence. 
Like states that have hastily adopted dubious new drugs to carry out executions 
by any means necessary, the Court's ruling in Glossip was the logic of a system 
committed to preserving the death penalty at all costs, no matter how shaky the 
rationale.

When it comes to executions, this is nothing new. The Supreme Court has always 
found ways to uphold state killing methods as constitutional, from the firing 
squad to the electric chair - a fact Justice Samuel Alito, in authoring the 
majority opinion, bluntly presented as itself a reason to do the same this time 
around.

But the impact of Glossip is particularly devastating in a couple of ways. Not 
only did the Supreme Court uphold a new ad hoc lethal injection protocol as 
flawed and unscientific as any that came before it, it declared that, going 
forward, prisoners have no right to challenge a method of execution unless they 
can point to a viable alternative - a better way for the state to kill them. 
This "surreal requirement," in the words of dissenting Justice Sonia Sotomayor, 
comes at a time when numerous death penalty states have passed laws declaring 
any information about their execution methods to be secret. Prisoners rightly 
concerned that the state plans to kill them using unreliable drugs thus cannot 
actually prove that the drugs are unreliable - a good way to foreclose on 
future legal challenges to executions.

There is another other tragically backwards result in Glossip. Lethal injection 
was originally devised to work in three parts: the 1st drug was supposed to 
anesthetize the prisoner, while the 2nd drug, a paralytic agent, kept him or 
her frozen in place. And the 3rd, potassium chloride, stopped the heart. It was 
a combination designed to makes executions look more humane on the surface - 
the paralytic, commonly pancoronium bromide, served no other purpose except to 
block any of the physical signs one would commonly expect from a person being 
murdered. But the insidious effect of the drug was also to mask any evidence 
that an execution might be going wrong, meaning that, on occasions where the 
anesthetic did not kick in, prisoners died agonizing deaths - akin to being 
burned alive - while unable to show signs they were suffering.

If there was anything positive about the drug shortages that followed the 
Court's 2008 ruling in Baze v. Rees - which precipitated the recent wave of 
human experimentation using new combinations of lethal injection drugs - it was 
that they led most states to abandon use of the paralytic agent. But now, 
having debated the dubious merits of midazolam as an anesthetic, while spending 
no time discussing the paralytic, the Supreme Court has once more upheld this 
3-part design. With the Court's green light, states will inevitably seek to 
adopt this method. As they do, and as they pair the paralytic with unreliable 
drugs acquired in secret, Americans can expect more botched executions. What we 
don't know is whether we will be able to tell the difference.

>From the day it was argued on April 29, the 1-year anniversary of the harrowing 
execution of Clayton Lockett - a man who writhed and moaned on the gurney as 
Oklahoma tortured him to death - Glossip embodied the farce of trying to defend 
lethal injection as a humane, more enlightened way to kill people. At the Court 
that morning, there was much talk of dosage rates and ceiling effects and GABA 
receptors - the language of biology and medical science.

Yet there was little to conceal the fact that it was ultimately a debate among 
lawyers, one that amounted to absurd speculation masquerading as a serious 
inquiry. No one could explain away the fact that midazolam is primarily an 
anti-anxiety medication, used to treat insomnia, or employed as a sedative for 
minor operations. An amicus brief submitted by 16 professors of pharmacology 
warned that midazolam "is incapable of rendering an inmate unconscious" for the 
purpose of a humane execution. The medical expertise Oklahoma offered to the 
contrary came from a man who had based his research in part on ideas gleaned 
from the website Drugs.com, which warns it is "not intended for medical advice, 
diagnosis or treatment."

Even the tale told by Oklahoma about why midazolam had been adopted in the 
first place turned out to be false - after oral arguments, Buzzfeed revealed 
that the state attorney general blatantly lied in its brief when it claimed 
that it changed its protocol only after a pharmacy refused to supply it with a 
different drug. This lie was not insignificant: Scalia and Alito made clear 
that abolitionists are to blame for the fact that states cannot carry out 
executions as they used to, because of the pressure they have put on 
pharmaceutical companies not to supply drugs for this purpose. This perspective 
underwrites the spiteful opinion in Glossip: If states are resorting to 
imperfect substitutes, it is only because activists have left them no choice.

In Glossip, a determination to preserve the death penalty has once more trumped 
the Court's ostensible obligation to the Eighth Amendment. In the universe of 
the Supreme Court, "it is settled that capital punishment is constitutional," 
Alito wrote, thus, "[i]t necessarily follows that there must be a 
[constitutional] means of carrying it out." Midazolam may have been chosen for 
its availability rather than its efficacy. But if it's good enough for the 
state of Oklahoma, it is good enough for the Court. Meanwhile, in this same 
universe, Breyer's evidence-based dissent is a voice in the wilderness - "a 
white paper devoid of any meaningful legal argument," in Scalia's scornful 
estimation - and names like Glenn Ford are mere footnotes; collateral damage in 
a callous system we keep calling justice, because "the law as written" has 
always said that it is.

(source: firstlook.org)

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

Legalized Torture: Supreme Court Rules in Favor of Cruel Lethal Injections


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The question of whether we, as a nation, should have the death penalty is often 
framed around whether or not a particular defendant deserves to die. As 
prominent scholars in this field have pointed out, the real question may be: Do 
we, as a society, deserve to kill? Does our collective commitment to equity, 
justice, accuracy and understanding allow for the imposition of the ultimate 
punishment for which there can be no margin of error? Or, instead, are we 
willing to tolerate a system that is inevitably influenced by race and poverty 
and cling to the archaic use of excess punishment and legalized vengeance 
instead of providing those in need with services and rehabilitation?

In the Supreme Court's 5-4 decision on June 29 to uphold the use of a 
questionable execution protocol in Oklahoma, virtually all of the justices in 
the majority and concurring opinions referenced the question of whether the 
defendant deserved to die (reaching varied conclusions). However, the Court's 
rendered opinion in Glossip v. Gross also makes clearer than ever before that 
we, as a society, do not deserve to kill.

The issue in Glossip centers on the use of a relatively new protocol in 
executions: the administration of 500 milligrams of midazolam, a sedative, 
followed by a 2nd and 3rd drug intended to kill. The use of midazolam became 
necessary after drug companies refused to provide sodium thiopental and 
pentobarbital (chemicals previously used in lethal injection procedures) to 
correctional facilities seeking to use those chemicals in executions.

In Ohio, Oklahoma and Arizona, 3 prisoners were visibly tortured to death with 
midazolam, as they gasped and writhed in apparent pain for between 10 minutes 
and 2 hours. The Oklahoma execution of Clayton Lockett was aborted midway 
through when it was clear that he was not dying in the manner envisioned by the 
state. This sparked renewed outcry in the continuing debate about whether it is 
possible to carry out executions in a manner consistent with the prohibition 
against cruel and unusual punishment in the Eighth Amendment. Contending that 
midazolam would not reliably render them unable to feel pain, Oklahoma death 
row prisoners filed a motion for a preliminary injunction to prevent scheduled 
and future executions.

Yet rather than confront the torturous nature in which these civilians were put 
to death, the majority and concurring opinions in the Glossip case blame death 
penalty abolitionists for the absence of the drugs that are (at least arguably) 
medically suitable for this purpose.

The crux of the majority opinion is that because the death penalty is 
constitutional, there must be a constitutional way to carry it out, and because 
there must be a constitutional way to carry it out and the petitioners cannot 
offer another available option, this one is good enough.

As Justice Sonia Sotomayor argues in her pointed dissent, the majority's 
insistence on placing the burden of an adequate alternative on the petitioners 
leads to absurd and tragic consequences: "Petitioners contend that Oklahoma's 
current protocol is a barbarous method of punishment - the chemical equivalent 
of being burned alive ... But under the court's new rule, it would not matter 
whether the state intended to use midazolam, or instead to have petitioners 
drawn and quartered, slowly trotted to death or actually burned at the stake."

Justice Stephen Breyer, also in dissent, asks whether, given what we now know, 
there can be any constitutional means to execute a human being.

Together with Justice Ruth Bader Ginsburg, Breyer moves beyond the relatively 
narrow examination of the use of midazolam in executions, to all but conclude 
that regardless of the specific chemicals used, a civilized and enlightened 
society cannot engage in the legal murder of its citizens. Breyer bases his 
dissent on data pertaining to the exonerations of innocent individuals on death 
row, the psychological consequences of awaiting a state-sanctioned sentence of 
death, and the arbitrary nature in which the death penalty is often imposed. He 
also cites disparities in the implementation of the death penalty across 
racial, geographical and poverty lines.

The ultimate question - of whether we, as a society, deserve to render death as 
a punishment - is answered not only by the minority of justices who addressed 
it directly, but also by the troubling analysis of the majority. In ignoring 
virtually all of the deep moral questions that surround the death penalty, 
including the very basic question of whether states can subject their citizens 
to untested torture, the majority's flawed opinion underscores this fundamental 
point: Neither they nor we can morally decide whether and when to take the life 
of another in state-sanctioned executions.

(source: Truthout.org)

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

Death and Medicine: Why Lethal Injection Is Getting Harder


A controversial drug used in lethal injections will not be banned for use in 
the death penalty in the United States. A Supreme Court decision yesterday 
(June 29) found that the sedative had not been proven more "cruel and unusual" 
than the alternatives.

The drug, midazolam, is just the latest to fall under scrutiny as more and more 
of the drugs used in the death penalty become unavailable, pulled from sale to 
prisons by manufacturers who don't want their products associated with 
execution. As a result, corrections facilities have been facing shortages of 
lethal injection drugs for years.

Improvising on the fly, prisons have tried various drug cocktails, botching 
some executions in the process. In January in Ohio, for example, condemned 
murderer Dennis B. McGuire gasped and choked for 25 minutes before expiring. 
Midazolam was used in that execution. The same drug was used in an execution in 
August 2014 in Arizona in which the condemned took almost two hours to die.

Supply and demand

In comments sections on articles about these drawn-out spectacles, one question 
comes up again and again: Why is it so hard to kill someone via lethal 
injection? After all, veterinarians manage to euthanize pets rapidly every day, 
with minimal discomfort. Why aren't those drugs used in executions?

Prison officials think the same way. The problem, however, is not that these 
drugs can't be used on humans, for the most part. It's with supply. Nearly 
every drug that prison officials turn to for lethal injections has been 
restricted from that use by manufacturers.

Traditionally, lethal injections have used a three-drug cocktail: sodium 
thiopental for sedation, pancuronium bromide to paralyze the muscles and 
potassium chloride to stop the heart. In 2011, however, Hospira 
Pharmaceuticals, the only U.S. manufacturer of sodium thiopental, stopped 
making the drug because of its use in executions. That same year, the European 
Union banned the export of sodium thiopental as well as other barbiturate drugs 
used in executions, ruling that companies had to ensure any exports would not 
be used for lethal injections.

Pentobarbital, the barbiturate often used in animal euthanasia, was covered 
under the ban. (The drug is also used in physician-assisted suicides in the 
Netherlands and in Oregon.) 14 states have used the drug in executions, 
according to the Death Penalty Information Center, which advocates against 
capital punishment. But supplies of the drug are limited. Some states, 
including Texas, have turned to anonymous compounding pharmacies, which 
custom-make medications, to get the drug.

Another common drug used both in human anesthesia and in veterinary medicine is 
propofol, which is not a barbiturate. Missouri planned to use this drug in 
lethal injections, but the EU threatened to end exports to the United States, 
and the state's plan was scrapped.

First, do no harm

The supply problem highlights a long-standing issue with the medicalization of 
the death penalty: Doctors are not, generally speaking, on board. The American 
Medical Association (AMA) opposes physician involvement in capital punishment, 
as does the American Board of Anesthesiology (ABA).

"Patients should never confuse the death chamber with the operating room, 
lethal doses of execution drugs with anesthetic drugs, or the executioner with 
the anesthesiologist," J. Jeffrey Andrews, the secretary of the ABA, wrote in a 
commentary in May 2014. "Physicians should not be expected to act in ways that 
violate the ethics of medical practice, even if these acts are legal. 
Anesthesiologists are healers, not executioners."

While prisons can often find physicians to preside over executions, the 
involvement of the medical profession in executions does not always proceed 
smoothly. In 2006, executions in California halted when two anesthesiologists 
resigned from participation in the execution of Michael Morales. They quit 
after finding out that they would be expected to intervene directly if the 
execution procedure went wrong.

"The Morales case unearthed a nagging paradox. The people most knowledgeable 
about the process of lethal injection - doctors, particularly anesthesiologists 
- are often reluctant to impart their insights and skills," wrote Deborah 
Denno, a professor at the Fordham University School of Law, in a 2007 paper on 
medicine and the death penalty.

A doctor was presiding over the June 2014 execution of Clayton D. Lockett, who 
died of heart failure 43 minutes after Oklahoma prison officials began his 
execution. But a medical technician was doing the actual procedure. Witnesses 
reported that it took nearly an hour of poking and prodding before the 
technician gave up on setting a catheter in Lockett's arms, legs or feet, and 
instead tried to place a line through the femoral artery. An independent 
autopsy commissioned by the condemned man's lawyers found that the line was not 
placed properly, perhaps explaining why Lockett appeared to wake up after the 
1st sedative drug was injected.

Execution alternatives

The Supreme Court's pass on midazolam may be moot. In February, a major 
manufacturer of the sedative told the Anniston Star newspaper of Anniston, 
Alabama, that it disapproved of the use of its drug in executions and would not 
sell midazolam to the prison system or to middlemen who sell to prison 
officials. The paper reported that of eight other companies that make the drug, 
at least 6 have policies in place to prevent the substance's use in executions.

If botched executions and drug shortages continue, the future of capital 
punishment is unclear. Tennessee allows the use of the electric chair if lethal 
injection drugs run out; Utah allows the firing squad. Starting in November, 
Oklahoma will use nitrogen gas asphyxiation as its backup method. This method 
works by displacing oxygen in the lungs, causing rapid unconsciousness and then 
death. Nitrogen inhalation has never been used as an execution method, but 
scuba divers exposed to excess nitrogen while diving often report feeling 
giddy.

Electrocution was originally devised as a humane approach to hanging, but after 
executions that required multiple jolts of electricity and occasionally 
resulted in flames and smoke, the method fell out of favor. Nebraska, the last 
state to use the electric chair as its only method of execution, declared 
electrocution unconstitutional in 2008. Some states allow inmates to choose 
this method of death; the last to do so was Robert Charles Gleason, Jr., 
executed in Virginia in January 2013.

Utah banned death by firing squad in 2004, though 1 inmate, Ronnie Lee Gardner, 
died that way, in 2010. Gardner was sentenced before the ban, and thus was 
allowed to choose the firing squad as his method of death. In March 2015, 
however, Utah reinstated the firing squad in the event that lethal injection 
drugs become unavailable.

(source: livescience.com)

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

One Step on the Road to the End of the Death Penalty


Slowly but steadily, America is losing its taste for the death penalty. 
Yesterday's Supreme Court dissent by Stephen Breyer may go down as a landmark 
on America's path to the death penalty's inevitable abolition.

In yesterday's death penalty case, Glossip v. Gross, the Supreme Court held in 
a 5-4 vote that Oklahoma's use of the lethal injection drug midazolam does not 
constitute cruel and unusual punishment, despite some gruesome examples to the 
contrary. (The plaintiff in the case, death row inmate Richard Glossip, wrote 
us a letter about his case, which can be seen here.)

That the court swung conservatively is unremarkable, given its makeup and 
general tendency to follow rather than to lead social conscience. What was 
remarkable, though, was Stephen Breyer's dissent, which amounted to a strong 
and full-throated rejection of the idea that the death penalty can be 
administered in a just way. He bases his rejection not upon pure ideology, but 
upon evidence accumulated over 40 years of American history:

In 1976, the Court thought that the constitutional infirmities in the death 
penalty could be healed; the Court in effect delegated significant 
responsibility to the States to develop procedures that would protect against 
those constitutional problems. Almost 40 years of studies, surveys, and 
experience strongly indicate, however, that this effort has failed. Today's 
administration of the death penalty involves 3 fundamental constitutional 
defects: (1) serious unreliability, (2) arbitrariness in application, and (3) 
unconscionably long delays that undermine the death penalty's penological 
purpose. Perhaps as a result, (4) most places within the United States have 
abandoned its use... it is those changes, taken together with my own 20 years 
of experience on this Court, that lead me to believe that the death penalty, in 
and of itself, now likely constitutes a legally prohibited "cruel and unusual 
punishmen[t]."

Breyer cites "convincing evidence" that "innocent people have been executed" - 
an idea once held up in an abstract way as something that would surely give 
America pause over the death penalty, but which in fact seems to have changed 
few minds in and of itself. He also cites the dozens of exonerations of people 
who had been sentenced to death, widespread flawed forensic testimony in 
capital cases, and statistical analysis pointing to a significant percentage of 
innocent people on death row as things that "suggest a serious problem of 
reliability."

Yes, to say the least.

Breyer says the death penalty is clearly imposed in a manner arbitrary enough 
to render it unconstitutional. "[Studies] indicate that the factors that most 
clearly ought to affect application of the death penalty - namely, comparative 
egregiousness of the crime - often do not, " he writes. "Other studies show 
that circumstances that ought not to affect application of the death penalty, 
such as race, gender, or geography, often do. ' And he turns to his own 
experience reviewing death penalty appeals for decades, which strike him as 
having no solid rationale which distinguishes a person sentenced to die from 
one who is not:

The question raised by these examples (and the many more I could give but do 
not), as well as by the research to which I have referred, is the same question 
Justice Stewart, Justice Powell, and others raised over the course of several 
decades: The imposition and implementation of the death penalty seems 
capricious, random, indeed, arbitrary. From a defendant's perspective, to 
receive that sentence, and certainly to find it implemented, is the equivalent 
of being struck by lightning. How then can we reconcile the death penalty with 
the demands of a Constitution that first and foremost insists upon a rule of 
law?

An honest reading of the evidence contained in Breyer's dissent leaves little 
room for rejecting his conclusion: that the death penalty is both 
unconstitutional, and unjust. Even if you believe that a death penalty can 
exist justly, it is impossible not to acknowledge that here, in America, we 
have failed to find justice in our system of executions.

It's only a matter of time before the death penalty ceases to exist in America. 
It will go down as one of history's many cruel and unjust policies, done in by 
the imperfect march of human enlightenment.

(source: gawker.com)

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

The death penalty survives the Supreme Court - but for how much longer?


This morning the Supreme Court denied the request of 3 Oklahoma prisoners to 
ban a controversial drug used in lethal injections that has been alleged to 
cause a severely painful death. But the most interesting news item to come out 
of the court's decision was the dissenting opinion of Justice Stephen Breyer, 
who proposed that perhaps it is time to confront a bigger question: Whether 
capital punishment itself is a violation of the Eighth Amendment.

Breyer, in an opinion joined by Justice Ruth Bader Ginsburg, said that the 
death penalty may very well constitute cruel and unusual punishment. "Rather 
than try to patch up the death penalty's legal wounds 1 at a time, I would ask 
for full briefing on a more basic question: whether the death penalty violates 
the Constitution."

The actual case before the court stemmed from the highly publicized execution 
of Oklahoma prisoner Clayton Lockett in 2014, which raised serious questions 
about the drugs being used in lethal injections. The Atlantic last month 
offered an in-depth look at Lockett's execution, and I for one had a hard time 
reading the gruesome details. If that type of a death isn't "cruel and 
unusual," I'd hate to see one that is.

The execution of Lockett, and other recent execution horror stories, have 
swayed the opinions of some Americans against the death penalty, giving a boost 
to the longstanding movement to end capital punishment in the United States 
once and for all. Last month, Nebraska became the 19th state in the nation to 
abolish the death penalty. And many prominent Catholic voices, from Sister 
Helen Prejean to Pope Francis, have argued against capital punishment from a 
faith perspective. As Francis put it plainly, the death penalty "contradicts 
God's plan for man and society."

Yet Catholics remain divided on the issue - in fact, all 5 Supreme Court 
justices in the majority on today's ruling against the Oklahoma inmates are 
Catholic. One such Catholic justice, Antonin Scalia, called Breyer's comments 
on abolishing the death penalty "gobbledy gook." (Also of note is the fact that 
the U.S. bishops have, at the time of this writing, not made any statements 
about the death penalty decision; in contrast, they responded almost 
immediately to Friday's Supreme Court ruling on marriage.)

But there is a current among people of faith to work toward ending the death 
penalty, one that reaches across denominations. Justice Breyer even raising the 
question today should give hope to these advocates. The current court may be 
unlikely to strike down capital punishment as a violation of the Eighth 
Amendment even if confronted with such a case, but the day when the death 
penalty is dealt its final blow--either through legislation or judicial ruling 
- may not be too far in the future.

(source: uscatholic.org)

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

In Supreme Court Loss, Death Penalty Foes See an Opening


A strongly worded dissent in the U.S. Supreme Court's narrow decision this week 
upholding the use of an execution drug offered a glimmer of hope to death 
penalty opponents in what they considered otherwise a gloomy ruling. One 
advocate went so far Tuesday as to call it a blueprint for a fresh attack on 
the legality of capital punishment itself.

But even those who see Justice Stephen Breyer's dissent as a silver lining 
think it will take time to mount a viable challenge.

And Breyer's words don't change the fact that the Supreme Court has 
consistently upheld capital punishment for nearly 4 decades. The 5 justices 
forming the majority in Monday's decision made it clear they feel that states 
must somehow be able to carry out the death penalty.

In disagreeing with the 5-4 ruling that approved Oklahoma's use of an execution 
drug, Breyer, joined by Justice Ruth Bader Ginsburg, called it "highly likely 
that the death penalty violates the Eighth Amendment," which protects against 
cruel and unusual punishment.

"It was a sweeping and powerful dissent that issues an invitation that we 
should accept, which is to make the case for why today the death penalty itself 
is no longer constitutional," said Cassandra Stubbs, director of the Capital 
Punishment Project of the American Civil Liberties Union.

"Rather than tinker with these questions of how we should kill, we should be 
asking the more fundamental and the larger question of whether we as society 
should still be executing anyone at all," she added.

In the case that prompted Monday's opinion, death-row inmates in Oklahoma had 
objected to the use of the sedative midazolam after the drug was blamed in 
several botched executions. Their argument was that the drug does not reliably 
induce a coma-like sleep that would prevent them from experiencing the searing 
pain of the paralytic and heart-stopping drugs that follow.

Oklahoma, Florida, Ohio and Arizona have used the drug in killing 13 inmates 
total since the start of 2014, according to the Death Penalty Information 
Center.

Writing for the majority, Justice Samuel Alito said arguments that the drug 
could not be used effectively as a sedative in executions were speculative. He 
dismissed problems in executions in Arizona and Oklahoma as "having little 
probative value for present purposes."

The Supreme Court struck down capital punishment in 1972, and some justices 
thought at the time it would be the end of the death penalty. But many states 
just wrote new laws and the court reinstated it 4 years later.

Stubbs wouldn't speculate when a new constitutional challenge to the death 
penalty might make its way to the Supreme Court, but said it's "on the 
horizon." Already, there has been a trend of decreasing use of the death 
penalty, she said, citing the falling number of executions and new death 
sentences issued.

Multiple factors are driving that trend, including increased awareness of 
exonerations of death row inmates, the costs of bringing capital cases and 
giving juries the option of life without parole, allowing them to impose a very 
serious punishment without death.

The fact that more than 100 death row inmates have been exonerated demonstrates 
that the death penalty is unreliable, Breyer wrote. He also argues that the 
death penalty is imposed arbitrarily, is no longer used by most of the country 
and that it takes far too long to carry out, which undermines any deterrent 
effect.

Those concerns could provide guidance to capital defense attorneys going 
forward about which cases might have the strongest chances of challenging the 
death penalty itself, said Robert Dunham, executive director of the Death 
Penalty Information Center, which opposes capital punishment.

"What Justice Breyer does is go through the defects, not to say this is right 
or this is wrong, but to illustrate how, collectively, they may amount to a 
system that violates the Constitution," he said. "In that sense, the opinion is 
not just an invitation for briefing, but a blueprint for the types of arguments 
that the court would consider in determining whether the death penalty is 
constitutional or unconstitutional."

Cheryl Pilate, a Kansas City-based attorney who has represented a number of 
Missouri death row inmates, said it was clear there's a faction on the court 
that sees fundamental problems with the death penalty that can't be fixed.

"I think Justice Breyer's dissent was a bold and emphatic statement that 
indicates to us that the issues that have been raised repeatedly are getting 
close attention, at least among some justices on the Supreme Court," she said. 
"So we think it bodes well for the long run and in the meantime, there's an 
awful lot of work to do."

(source: Associated Press)

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

I Just Took the Controversial Drug Used for the Death Penalty. Here's What It 
Was Like. The Supreme Court says midazolam works fine for lethal injections. 
Experience says otherwise.


This was a few weeks ago, and I was joking - nervously - with a nurse who had 
just plopped down a vial of midazolam on the table next to me, prompting a 
minor freak-out on my part. Midazolam is the drug implicated in the recent 
string of botched executions by lethal injection - debacles I've spent much of 
the last year writing about. It's also at the heart of this week's Supreme 
Court decision allowing those questionable executions to continue. As I was 
about to undergo minor outpatient surgery in the hospital, receiving a drug 
that's regularly employed by states to help kill people felt horrifyingly 
wrong.

Death penalty abolitionists and many medical groups have decried the 
medicalization of capital punishment - that is, using healing tools to kill 
people through lethal injection. I was on the flip side of that equation: a 
patient getting an execution drug as a healing tool. It felt absurd and scary, 
even though I knew objectively midazolam wasn't going to kill me. Midazolam is 
a sedative, and as the anesthesiologist told me, it is highly effective for 
minor surgical procedures because it wears off fast and yields few side 
effects. Those same properties that made midazolam beneficial to me are 
precisely the reasons it doesn't work so well in executions: The drug (also 
sold as Versed) doesn't put you in a coma-like state, where you're impervious 
to all pain, and the mild unconsciousness it does prompt doesn't last very 
long. For major surgery, and even minor surgery, doctors have to use additional 
drugs to keep you under.

Midazolam worked well for me. I was out for an hour while under the knife. When 
I woke up, I remembered nothing, and my head was clear. But I couldn't help 
wondering if that pleasant sleep I'd just had would have been so pleasant if it 
had been followed by an injection of pancuronium bromide, which states use to 
paralyze an inmate and suffocate him. Or what about a shot of potassium 
chloride, the third drug in most states' three-drug execution cocktail? 
Potassium chloride stops the heart, but its administration can be 
excruciatingly painful. In her dissent this week in the lethal injection case, 
Justice Sonia Sotomayor called it "the chemical equivalent of being burned at 
the stake."

I didn't want to think too long about this. But that was the task handed to the 
Supreme Court: considering whether the sedative effect from midazolam was 
enough to protect an inmate from the pain of being killed with other painful 
drugs. In the 2014 execution of Clayton Lockett in Oklahoma, a dose of 100 
milligrams of midazolam - more than 10 times what I received - wasn't enough to 
keep him from waking up while the executioners pumped potassium chloride into 
his veins. (It didn't help that his incompetent executioners screwed up the 
catheter insertion and punctured his vein.)

Oklahoma now promises to use 500 milligrams of the drug, claiming that this 
dosage should do the job of knocking a man out. But the state really can't say 
for sure. There isn't any scientific research on how much midazolam is required 
to dull the pain of a chemically induced death. The drug is designed to keep 
people alive. One of its most common uses is as a light anesthetic during a 
colonoscopy, which can be done without anesthesia at all. Midazolam's surgical 
dosing is calibrated on a patient's height and weight and other individual 
factors. State execution protocols are a 1-size-fits-all sort of scheme; they 
don't account for variations in weight, health, or past drug abuse history - 
all of which can alter how midazolam might affect a person.

After Oklahoma botched Lockett's execution, lawyers for other death row inmates 
tried to find out how the state came up with this particular dosing scheme, but 
the officials refused to say. For all we know, they took their cues from Conrad 
Murray, Michael Jackson's personal physician.

After my operation, my surgeon, a Los Angeles native, told me that Murray had 
used midazolam on the King of Pop before he died in 2009. It turns out there 
are some similarities between Jackson's treatment and state execution 
procedures. Based on law-enforcement records, People magazine published the 
whole timeline of the days before Jackson's death, showing how Murray 
experimented on him with increasing doses of midazolam, along with other drugs, 
to try to help him sleep. The midazolam, though, didn't work. Jackson remained 
wired. Ultimately, he died from a massive dose of propofol, a commonly used 
surgical anesthetic, and Murray went to jail for involuntary manslaughter.

Not long after Jackson died, death penalty states began struggling to obtain 
the drugs they've historically used to render an inmate unconscious before 
killing him. The manufacturer of sodium thiopental, a powerful anesthetic long 
used in executions, stopped making it so it couldn't be used in executions. In 
2010, the United Kingdom banned its export, and the European Union soon 
followed suit. The European manufacturer of pentobarbital, a drug substituted 
for thiopental, has refused to sell it to American corrections officials for 
executions. Since then, states' efforts to find suitable replacement drugs look 
like they could have come straight out of People.

In 2012, state corrections departments announced plans to use propofol, the 
same drug that killed Jackson. But when Missouri attempted the first lethal 
injection with propofol, the drug manufacturer threatened to stop exporting it 
to the United States, which would have caused a national health care crisis 
because there are no domestic sources of propofol. So the states had to turn to 
something else. That something else was midazolam, a fast-acting anti-anxiety 
medication in the same family as Valium, which doesn't produce the deep 
unconsciousness that thiopental did. It also has a ceiling effect: Larger doses 
don't necessarily produce more sedation, as Murray saw with Jackson.

The midazolam packaging doesn't say how much of the drug would satisfy 
prohibitions on cruel and unusual punishment in an execution. Like Murray, 
state corrections officials seem to have been guessing wildly about an 
effective dosage. When Ohio first used midazolam in January 2014, it gave 10 
milligrams to Dennis McGuire, who proceeded not to die for 24 minutes, during 
which he made snorting and snoring noises and gasped for air, suggesting he 
wasn't unconscious. So the state decided next time it would try 50 milligrams.

But in July of last year, Arizona gave the 50-milligram dose to inmate Joseph 
Wood, in a drug cocktail that included the painkiller hydromorphone. 
Executioners had to inject him 15 times, for a total of 750 milligrams of 
midazolam, over the course of 2 hours, during which he moved around and gasped 
for air before he finally died. Florida, the 1st state to try midazolam in an 
execution, has consistently used 500 milligrams. But its 1st use of the drug 
led to a drawn-out execution in 2013. Other states have now adopted Florida's 
dosage, including Oklahoma, and that's what the Supreme Court evaluated in the 
decision this week.

In upholding the use of midazolam, the court discounted the botched executions 
- nothing cruel and unusual here - and found that the use of a massive dose of 
the drug (without any real scientific guidance) is perfectly fine. It 
essentially allowed the long history of human experimentation by corrections 
officials to continue. Moreover, the court let stand the perverse practice of 
mixing medicine with murder, ensuring that all Americans can experience a 
little taste of the death penalty when they have their colons scoped.

(source: Stephanie Mencimer, Mother Jones)

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

Death penalty justified for killers


In a 5-4 decision, the Supreme Court on Monday upheld the use of a 
controversial lethal injection method in executions. Comments from Facebook are 
edited for clarity and grammar:

Personally, I am opposed to the death penalty. A case can be made for it 
morally, but there have been just too many mistakes caused by human error.

That being said, how come I can go in for surgery and be put to sleep easily 
and painlessly, but we can't put these people to sleep the same way?

-- Andy Hapka

****

The death penalty is a deterrent to crime. People being executed when they did 
not commit the crime is an extremely rare scenario.

-- Larry Hubble

****

The execution of even one innocent person for a crime he or she didn't commit 
is murder. We know that courts and juries do make mistakes and condemn people 
for murders they did not commit. If you value life, are you willing to be party 
to murder?

-- Milo Bendech

****

It is surprising to me that we even debate the death penalty. I am totally for 
it. I cannot understand why we have to make it "comfortable" for the person 
being put to death.

A murderer can commit such heinous crimes in some of the most morbid ways 
possible, and we worry whether he or she is going to feel anything? I think 
they should feel exactly what they did to the people they killed.

-- Harold Filliez

****

Bullet in the head and get it over with, or ban executions completely.

Anyone wanting to see a person in pain for a long time, until the individual 
dies, is the same as these criminals.

-- Oliver Cukor

****

After this ruling, we just need to speed up the execution process so that it is 
carried out in less than 6 months after sentencing. That would put us back on 
the road to establishing justice in the land.

-- Vic Edwards

(source: Letters to the Editor, USA Today)

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

Put the death penalty on trial


Having issued landmark rulings on gay marriage and the Affordable Care Act last 
week, the Supreme Court on Monday tackled another complex legal and social 
question: the death penalty.

This time, however, the majority's 5-4 decision didn't prompt the wild 
celebrations and anguished condemnations sparked by its rulings last week.

The court turned away concerns by Oklahoma death-row inmates who contended the 
use of the sedative midazolam will leave them at risk of severe pain during 
executions, in violation of the Eighth Amendment's prohibition against cruel 
and unusual punishment.

In Glossip v. Gross, the justices affirmed lower court rulings that said the 
prisoners hadn't gone far enough to prove the risk of severe pain. The majority 
also took the disappointing step of making inmates??? lawyers responsible for 
identifying available, less risky alternative methods.

"Because it is settled that capital punishment is constitutional," Justice 
Samuel Alito wrote for the majority, "(i)t necessarily follows that there must 
be a (constitutional) means of carrying it out."

But Justice Stephen Breyer, in a long, impassioned dissent, raised the question 
growing numbers of Americans are asking: Given the mounting evidence of its 
many flaws, is it time for America to abandon the death penalty?

If we can't exercise this most profound form of government power fairly, 
accurately and without torturing the accused on their deathbeds, how can we 
still call it constitutionally valid? Breyer, in his dissent, noted that the 
number of exonerations in capital cases has now risen to 115, with 6 inmates 
exonerated in 2014 alone based on actual innocence.

Breyer wrote, "I believe it is highly likely that the death penalty violates 
the Eighth Amendment. At the very least, the Court should call for full 
briefing on the basic question."

Indeed.

(source: Opinion, The Charlotte Observer)