[Deathpenalty] death penalty news----USA

[Rick Halperin]

June 30



USA:

Supreme Court Allows Use of Execution Drug


The Supreme Court ruled on Monday against 3 death row inmates who had sought to 
bar the use of an execution drug they said risked causing excruciating pain.

In the process, 2 dissenting members of the court - Justices Stephen G. Breyer 
and Ruth Bader Ginsburg - came very close to announcing that they were ready to 
rule the death penalty unconstitutional. This gave rise to slashing debate with 
Justices Antonin Scalia and Clarence Thomas about the reliability and 
effectiveness of the punishment, a dispute that overshadowed the core issue in 
the case.

The 5-to-4 decision on the execution drug broke along familiar lines, with 
Justice Anthony M. Kennedy joining the court's more conservative members to 
allow its use.

Justice Samuel A. Alito Jr., writing for the majority, said the inmates had 
failed to identify an available and preferable method of execution and failed 
to make the case that the challenged drug entailed a substantial risk of severe 
pain.

>From left, Richard E. Glossip, John M. Grant and Benjamin R. Cole Sr., the 
three prisoners in Oklahoma whose executions the Supreme Court delayed in a 
brief order on Wednesday.

The drug, the sedative midazolam, played a part in 3 long and apparently 
painful executions last year. It was used in an effort to render inmates 
unconscious before they were injected with other drugs that cause severe pain.

Demonstrators opposed to the death penalty expressed their disappointment over 
the Supreme Court's decision allowing the sedative midazolam to be used in 
executions.

In dissent, Justice Sonia Sotomayor, who joined the other 3 members of the 
court's liberal wing, said, "The court's available-alternative requirement 
leads to patently absurd consequences."

"Petitioners contend that Oklahoma's current protocol is a barbarous method of 
punishment - the chemical equivalent of being burned alive," Justice Sotomayor 
wrote. "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 tortured to death or actually burned at the stake."

Justices Breyer, Ginsburg and Elena Kagan joined Justice Sotomayor's dissent.

In a 2nd, more sweeping dissent, Justice Breyer, joined by Justice Ginsburg, 
said it was time to consider a larger issue.

"Rather than try to patch up the death penalty's legal wounds one at a time," 
Justice Breyer wrote, "I would ask for full briefing on a more basic question: 
whether the death penalty violates the Constitution."

In a 46-page dissent that included charts and maps, he said that "it is highly 
likely that the death penalty violates the Eighth Amendment," which bars cruel 
and unusual punishments. He said that there was evidence that innocent people 
have been executed, that death row exonerations were frequent, that death 
sentences were imposed arbitrarily and that the capital justice system was 
warped by racial discrimination and politics.

Justice Breyer added that there was scant reason to think that the death 
penalty deterred crime and that long delays between death sentences and 
executions might themselves violate the Eighth Amendment. He noted that most of 
the country did not use the death penalty and that the United States was an 
international outlier in embracing it.

Justice Scalia responded to what he called "Justice Breyer's plea for judicial 
abolition of the death penalty" by calling it "gobbledygook." The punishment is 
contemplated by the Constitution, Justice Scalia said, and disingenuously 
opposed on grounds created by its opponents.

Criticizing the death penalty on the ground that it is not carried out fast 
enough, for instance, Justice Scalia said, "calls to mind the man sentenced to 
death for killing his parents, who pleads for mercy on the ground that he is an 
orphan."

"We federal judges," Justice Scalia continued, "live in a world apart from the 
vast majority of Americans. After work, we retire to homes in placid suburbia 
or to high-rise co-ops with guards at the door. We are not confronted with the 
threat of violence that is ever present in many Americans' everyday lives. The 
suggestion that the incremental deterrent effect of capital punishment does not 
seem 'significant' reflects, it seems to me, a let-them-eat-cake obliviousness 
to the needs of others. Let the people decide how much incremental deterrence 
is appropriate."

In a 2nd concurrence, Justice Thomas described several cases in which the 
Supreme Court had spared the lives of killers.

"Whatever one's views on the permissibility or wisdom of the death penalty," 
Justice Thomas wrote, "I doubt anyone would disagree that each of these crimes 
was egregious enough to merit the severest condemnation that society has to 
offer. The only constitutional problem with the fact that these criminals were 
spared that condemnation, while others were not, is that their amnesty came in 
the form of unfounded claims. Arbitrariness has nothing to do with it."

The challenge to the execution drug was brought by 4 condemned inmates in 
Oklahoma, who said it did not reliably render the person unconscious and so 
violated the Eighth Amendment. Lower courts disagreed.

Oklahoma and several other states started to use midazolam in executions after 
manufacturers in Europe and the United States refused to sell them the 
barbiturates that were traditionally used to produce unconsciousness.

Justice Alito suggested that condemned inmates should not benefit from the 
shortages, saying that "anti-death-penalty advocates pressured pharmaceutical 
companies to refuse to supply the drugs used to carry out death sentences."

Chief Justice John G. Roberts Jr. and Justices Scalia, Kennedy and Thomas 
joined the majority opinion.

In dissent, Justice Sotomayor said the shortages had produced real risks.

"The execution protocols states hurriedly devise as they scramble to locate new 
and untested drugs," she wrote, "are all the more likely to be cruel and 
unusual - presumably, these drugs would have been the states' 1st choice were 
they in fact more effective."

Lawyers for the Oklahoma inmates, with the support of experts in pharmacology 
and anesthetics, said midazolam, even if properly administered, was unreliable. 
They pointed to 3 executions last year that seemed to go awry.

In April 2014, Clayton D. Lockett regained consciousness during the execution 
procedure, writhing and moaning after the intravenous line was improperly 
placed. In Ohio in January 2014 and in Arizona in July, prisoners appeared to 
gasp and choke for extended periods.

The Supreme Court last considered lethal injections in 2008, in Baze v. Rees, 
when it held that what was then the standard 3-drug combination, using the 
barbiturate sodium thiopental as the first agent, did not violate the Eighth 
Amendment.

The new case, Glossip v. Gross, No. 14-7955, originally included a 4th inmate, 
Charles F. Warner. But he was executed on Jan. 15 after the Supreme Court 
denied his request for a stay by a 5-to-4 vote.

A little more than a week later, the court agreed to hear the remaining 
inmates??? appeals, and a few days after that it stayed their executions.

They are Richard E. Glossip, who was convicted of arranging the beating death 
of his employer; John M. Grant, who was convicted of stabbing a prison 
cafeteria worker to death; and Benjamin R. Cole Sr., who was convicted of 
breaking his 9-month-old daughter's spine, killing her.

"While most humans wish to die a painless death," Justice Alito wrote for the 
majority, "many do not have that good fortune. Holding that the Eighth 
Amendment demands the elimination of essentially all risk of pain would 
effectively outlaw the death penalty altogether."

(source: New York Times)

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

ACLU Comment on Supreme Court Decision in Glossip v. Gross


Cassandra Stubbs, director of the Capital Punishment Project of the American 
Civil Liberties Union, had this comment in response to the Supreme Court's 
decision in Glossip v. Gross:

"Today's 5-4 decision ignores the evidence and endorses a state's right to 
torture people to death absent any other alternative. This reading of the 
Constitution cannot and should not stand. As powerfully set forth in the 
dissent, capital punishment in the United States is unreliable and arbitrary, 
racially biased and geographically skewed. Much of America has turned away from 
the death penalty, leaving only a handful of counties insisting on putting 
people to death. The time has come to end this nation's disastrous experiment 
with capital punishment."

Information about the ACLU's Capital Punishment Project: 
https://www.aclu.org/issues/capital-punishment

(source: ACLU)

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

Symposium: The death penalty lives to fight another day


The story of Glossip v. Gross is that no lethal injection protocol can satisfy 
people who believe there should be no executions. That has always been the 
subtext of the case. And now that the Justices have issued their opinions, it 
has become explicit.

As Justice Alito and others noted at oral argument, the prisoners' claims about 
midazolam are part of a coordinated effort to kill capital punishment by a 
thousand cuts. The prisoners' lead expert witness in Glossip, which ostensibly 
concerned midazolam, played the same role in Baze v. Rees, which ostensibly 
concerned pentobarbital. He unsurprisingly opined that neither should be used 
in executions. The Arizona Public Defender's Office successfully sued the 
federal Food and Drug Administration to deny states the use of sodium 
thiopental in executions. Then the same lawyers argued in Glossip that states 
should use sodium thiopental instead of midazolam because sodium thiopental is 
a better drug. The prisoners and their supporters may be genuinely concerned 
about midazolam, but we shouldn't kid ourselves about their overarching goal.

In my experience, most capital litigation suffers from this disconnect between 
the means and the ends. Death-row inmates raise constitutional claims that, if 
successful, would result in a retrial or a modified execution protocol. But 
what they really want is a de facto life sentence through delay. When Alabama 
changed the first drug in its execution protocol from pentobarbital to 
midazolam, prisoners suing the state just amended their complaints using the 
"find and replace" function. In one method-of-execution case, Alabama agreed to 
change its execution protocol to the method a prisoner said he wanted; the 
prisoner then sued to challenge the constitutionality of his own proposed 
method of execution.

To be clear, I don't begrudge litigants or lawyers for using every means at 
their disposal to delay or avoid an execution. I just think our constitutional 
law should make them be honest about it. Why pretend these disputes are about a 
particular method of execution when they clearly go to the viability of capital 
punishment itself?

Fortunately, the Court in Glossip refused to suspend disbelief. The Court 
affirmed on 2 grounds - 1 broad, and 1 fact-specific. First, the Court held 
that there was no constitutional violation because "the prisoners failed to 
identify a known and available alternative method of execution that entails a 
lesser risk of pain." As the Court explained, one of "the substantive elements 
of an Eighth Amendment method-of-execution claim" is that a prisoner must 
"plead and prove a known and available alternative." Because the prisoners 
could not meet that standard, the Court reasoned that their claim failed as a 
matter of law.

Second, the Court held that the lower court's fact-findings about midazolam 
were not clearly erroneous. Almost every lower court to have considered the 
question has reached the same conclusion: midazolam is capable of rendering 
someone unconscious and, therefore, eliminates any substantial risk of severe 
pain that might be caused by administering the other drugs in a 3-drug 
lethal-injection protocol. Despite the arguments in Justice Sotomayor's 
dissent, a fact-finding that has been reached independently by numerous lower 
courts can hardly be characterized as "scientifically unsupported and 
implausible."

Although the Court could have resolved this case with its fact-specific holding 
about midazolam, it is good for the fair administration of capital punishment 
that it did not. The states did not begin using midazolam in lethal injections 
because good government demanded it. Instead, they changed to midazolam because 
drug manufacturers gave in to anti-death-penalty protests and stopped providing 
the states with thiopental and pentobarbital. And the cycle is continuing; 
manufacturers of midazolam have recently suggested that they will stop 
providing it to states as well. So a fact-bound ruling about midazolam would 
merely have kicked the can down the road.

The Court's 1st holding, on the other hand, should end much of the litigation 
about methods of execution. As my office explained in an amicus brief joined by 
12 other states, the way to ensure that the government can carry out lawful 
executions in this fluid environment is to require plaintiffs to identify a 
readily available alternative to the government's method of execution as a part 
of their Eighth Amendment claim. At the very least, that rule should reduce 
prisoners' incentives to challenge a state's lethal injection protocol as a way 
to prevent their execution. It may also set back the campaign to make execution 
drugs unavailable to the states.

It is telling that Justice Stephen Breyer openly joined the death-penalty 
abolition effort with a dissenting opinion that asks for briefing on the 
constitutionality of capital punishment. I disagree with almost everything 
Justice Breyer says in his dissent. But I think his broader point is well 
taken. It is hard to argue that the death penalty is a strong deterrent when 
capital cases take 25 years to process - in part because of litigation like 
Glossip. On the other hand, I suspect it is also hard to get people excited 
about a death-penalty abolition movement when old age is the leading cause of 
death on California's death row. Maybe if we stopped fighting about how we 
carry out executions, we could more honestly debate whether we should have 
executions at all.

In short, the Court's decision in Glossip should introduce some much-needed 
honesty into litigation about capital punishment. If someone is truly 
challenging the constitutionality of a specific method of execution, then they 
should identify a better alternative. If they can???t or won't, then the courts 
should treat the litigation for what it is: a challenge to the 
constitutionality of the death penalty itself. Either way, the legal system 
will be better off.

(source: Andrew Brasher, scotusblog.com)

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

Fearing Abolition of the Death Penalty, The Supreme Court Upholds Lethal 
Injection


Fearing the United States would abandon its membership in the club of 
death-penalty countries like Iran and China, the Supreme Court ruled that death 
by legal injection is constitutional.

Writing for the majority, Justice Alito said:

For 2 independent reasons, we also affirm. First, the prisoners failed to 
identify a known and available alternative method of execution that entails a 
lesser risk of pain, a requirement of all Eighth Amendment method-of execution 
claims.

Second, the District Court did not commit clear error when it found that the 
prisoners failed to establish that Oklahoma's use of a massive dose of 
midazolam in its execution protocol entails a substantial risk of severe pain.

The 5-4 majority's fear that a ruling against lethal instruction would render 
the death penalty obsolete was obvious during argument. A ruling against death 
would reward those terrible death penalty abolitionists who, Justice Scalia 
blamed during argument, as the villains that made this case possible.

Let's begin with a little background. Most states lethal injection procedures 
used a 3-drug cocktail. The 1st drug makes the inmate unconscious. The 2nd drug 
paralyzes the inmate that also stops his breath. The 3rd drug stops the 
inmate's heart. The drug, sodium thiopental, was used by most states as the 1st 
drug in the protocol. However, drug companies refused to sell that drug for use 
in executions. Most drug companies also refused to sell the 2nd choice, 
phenobarbital, for executions. Oklahoma turned to midazolam that is a sedative 
- not an anesthetic like the 2 preferred drugs are.

According to Scotusblog, Justice Scalia was hopping mad during argument that 
opponents of the death penalty successfully pressured the manufacturers to 
refuse selling drugs to states so that the states could use them to kill 
people.

Justice Scalia whined about the unfairness of companies denying states access 
to the drugs of choice for the 1st step in their 3 step protocol for 
executions. Those terrible people made it harder for states to exercise their 
constitutionally recognized right to kill people.

The States have gone through 2 different drugs, and those drugs have been 
rendered unavailable by the abolitionist movement putting pressure on the 
companies that manufacture them so that the States cannot obtain those 2 other 
drugs.

Then Justice Kennedy asked the plaintiffs' lawyer what weight the court should 
give "the fact that there is a method [to execute prisoners painlessly], but 
that it's not available because of ... opposition to the death penalty?"

This is an interesting point when you consider that state legislatures and 
Congress are doing their utmost to make medically safe abortion unavailable 
because of their opposition to abortion. Efforts to make constitutionally 
protected rights less accessible were of little concern to Kennedy and Scalia 
when the issue was women's reproductive rights. Moreover, just as the case with 
the death penalty, by forcing clinics to close with TRAP laws, they are 
removing the better option for women - in favor of coat hangers and unsanitary 
conditions.

The bottom line is the Supreme Court decided that they aren't going to let 
those bad death penalty abolitionists stand in the way of a state's right to 
kill people But hey, we're still in the death penalty nations club with Iran, 
Saudi Arabia, and China.

(source: Adalia Woodbury, politicususa.com)

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

Lethal injection ruling should bring review of death penalty's legality


In a challenge to Oklahoma's use of the drug midazolam in executions, the U.S. 
Supreme Court on Monday upheld the state against a challenge from death row 
prisoners. But in a dissent to the 5-4 ruling, Justice Stephen Breyer raised a 
new question about the constitutionality of the death penalty.

"I would ask," he wrote, "for a full briefing on a more basic question: whether 
the death penalty violates the Constitution." Were the high court to wade into 
that fundamental issue regarding death as cruel and unusual punishment and thus 
in violation of the Constitution, it would be an epic confrontation.

Breyer's comment came in a strong opposition view in a challenge to Oklahoma's 
use of the drug, which spurred a controversy last year when a prisoner being 
executed appeared to suffer agony in the course of the administration of drugs.

Once again, a state confronted one of a multitude of complications inherent in 
the death penalty, the 1 penalty that once carried out cannot be corrected. The 
main issue, of course, in view of DNA testing and other factors in challenges 
to convictions is that the wrong person can be executed. Such testing, or new 
evidence or recanted testimony, has freed multiple prisoners, including in 
North Carolina.

This state, where lethal injection also is used though the last execution was 
in 2006, also is confronting death penalty challenges, the most recent being 
legislators' attempts to remove a requirement that a doctor be present, which 
many physicians say requires doctors to violate their ethics. Legal experts say 
executions in North Carolina will likely be held up as other legal challenges 
are heard by the courts. That is no loss to justice.

This hopelessly flawed penalty and the process that brings it about are 
expensive, time-consuming for the court system and fundamentally wrong. The 
purpose of the justice system is to bring about exactly that, justice. It is 
not to provide revenge for victims on behalf of the state. Breyer is right. 
There should be a high court debate on the death penalty. It is long overdue.

(source: Editorial, The News & Observer)

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

Justice Breyer Resurrects an Old Debate: Is the Death Penalty Constitutional?


The liberal justice wrote that the death penalty is unreliable, arbitrary, 
cruel and increasingly unusual.

In a blow to what the Justice Clarence Thomas called "death penalty 
abolitionists," the court ruled Monday that Oklahoma's use of the drug 
midazolam in executions did not count as cruel and unusual punishment.

But Monday's ruling also came with a face off between 2 of the court's liberal 
judges (Justices Stephen Breyer, joined by Ruth Bader Ginsburg) and two of the 
court's conservatives (Justices Antonin Scalia and Clarence Thomas) over 
whether the death penalty itself is constitutional.

While Justice Sonya Sotomayor wrote the dissent to Samuel Alito's majority 
opinion, Breyer used his dissent to consider a different question, and it was a 
big one: "whether the death penalty violates the Constitution." In 41 pages, 
not counting appendices, he argued that it's "highly likely that the death 
penalty violates the Eighth Amendment."

"It is impossible to hold unconstitutional that which the Constitution 
explicitly contemplates."----Justice Antonin Scalia

Breyer isn't the 1st justice to argue that capital punishment is 
unconstitutional. In 1976, in his dissent to Gregg v. Georgia, the late Justice 
William J. Brennan wrote:

Death is not only an unusually severe punishment, unusual in its pain, in its 
finality, and in its enormity, but it serves no penal purpose more effectively 
than a less severe punishment; therefore the principle inherent in the Clause 
that prohibits pointless infliction of excessive punishment when less severe 
punishment can adequately achieve the same purposes invalidates the punishment.

Nearly 40 years later, Breyer made four points against the death penalty: it is 
unreliable, given that there have been innocent people put to death; it is 
applied arbitrarily; it is cruel because death row inmates often wait several 
years for their sentence to be carried out; and it is unusual because of its 
declining popularity over the last 40 years.

His fellow justices were unconvinced. Justice Antonin Scalia, in his concurring 
opinion responding to Breyer, wrote that the Eighth Amendment only prohibits 
punishments that add "terror, pain, and disgrace" to an otherwise legal 
punishment. "Rather than bother with this troubling detail, Justice Breyer 
elects to contort the constitutional text," Scalia continued. "Redefining 
'cruel' to mean 'unreliable,' 'arbitrary,' or causing 'excessive delays,' and 
'unusual' to include a 'decline in use,' he proceeds to offer up a white paper 
devoid of any meaningful legal argument." At one point he wrote that the reason 
the court has never challenged the constitutionality of the death penalty is 
because the constitution explicitly mentions capital punishment.

Thomas focused on Breyer's argument that the death penalty is applied 
arbitrarily. In a footnote he took issue with Breyer's argument that he has 
seen "discrepancies for which I can find no rational explanations":

Breyer relied heavily on government data, statistics, criminal justice studies 
and articles online and print publications. To show the the death penalty is 
unreliable, he cites a 2009 New Yorker story on Cameron Todd Willingham, a 
Texas man executed in 2004 but believed to be innocent. To show that it is 
arbitrary, he references studies that show that the race and gender of the 
victim influence the use of the death penalty. To show that the long wait times 
death row inmates face are cruel, he noted that the inmates spend their time in 
solitary confinement, and research that shows the deleterious affects of 
solitary. And to show that the death penalty is unusual, he notes its decline 
over the last 40 years, both in frequency of executions and in the number of 
states that still execute offenders.

Breyer is aware of the argument that capital punishment should be left to the 
states, and noted that in Furman v. Georgia, a 1972 death penalty case, the 
court's ruling against the prisoner's death penalty put pressure on the states 
to outline fair standards for sentencing someone to death.

But, he continued, the issues at stake here are judicial issues, and the states 
still haven't solved the problem. "The answer is that the matters I have 
discussed, such as lack of reliability, the arbitrary application of a serious 
and irreversible punishment, individual suffering caused by long delays, and 
lack of penological purpose are quintessentially judicial matters," he wrote. 
While state legislatures responded with legislation "in the last four decades, 
considerable evidence has accumulated that those responses have not worked."

(source: bloomberg.com)

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

High Court's Ruling, Say Critics, Endorses 'Torturing People to 
Death'----"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 tortured to death, or actually burned at the stake," write dissenting 
justices.


In the most closely-watched death penalty case in years, the U.S. Supreme Court 
on Monday ruled 5-4 (pdf) that Oklahoma can use the controversial and 
experimental execution drug midazolam that was behind the last year's horrific 
killing of 38-year-old man Clayton Lockett - who writhed and groaned for 43 
minutes before ultimately succumbing to a heart attack.

The decision not only gives the approval for states to use a killing method 
that many regard as torture, but it also amounts to an ideological defense of 
the death penalty itself - however cruel. Writing for the majority opinion, 
Justice Samuel Alito stated:

Our decisions in this area have been animated in part by the recognition that 
because it is settled that capital punishment is constitutional, "[i]t 
necessarily follows that there must be a [constitutional] means of carrying it 
out." And because some risk of pain is inherent in any method of execution, we 
have held that the Constitution does not require the avoidance of all risk of 
pain. After all, while most humans wish to die a painless death, many do not 
have that good fortune. Holding that the Eighth Amendment demands the 
elimination of essentially all risk of pain would effectively outlaw the death 
penalty altogether.

The ruling was slammed by dissenting justices as deeply inhumane.

Justice Sonia Sotomayor - joined by Justices Ruth Bader Ginsburg, Stephen 
Breyer, and Elena Kagan - wrote that the majority decision "leaves petitioners 
exposed to what may well be the chemical equivalent of being burned at the 
stake." "[U]nder 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 tortured to death, or actually burned at the stake: because petitioners 
failed to prove the availability of sodium thiopental or pentobarbital, the 
State could execute them using whatever means it designated," the dissent 
states.

In a separate dissent authored by Breyer and joined by Ginsburg, the justices 
question the lawfulness of state executions overall, writing it is "highly 
likely that the death penalty violates the Eighth Amendment."

4 people incarcerated on death row - one of whom has since been executed - 
brought the case Glossip v. Gross, arguing that the state's use of midazolam in 
lethal injections violates the Eighth Amendment prohibition of cruel and 
unusual punishment. The drug has been used in executions across the country due 
to a shortage of other lethal injection drugs - driven by a European boycott of 
the death penalty.

For its lethal injection procedure, Oklahoma uses three drugs: to anesthetize, 
paralyze, and stop the person's heart. The plaintiffs argued that use of 
midazolam as an anesthetic does not adequately protect them against pain, as it 
is a sedative used to treat anxiety and does not have the ability to make 
individuals unconscious.

16 pharmacology professors agreed with this argument in an amicus brief: 
"Midazolam is incapable of rendering an inmate unconscious prior to the 
injection of the second and third drugs in the State of Oklahoma's lethal 
injection protocol."

Meanwhile, the credibility of Oklahoma's key witness, Dr. Roswell Lee Evans, 
was called into question by numerous factors, including his use of 150 pages of 
printouts from drugs.com, a website whose disclaimer indicates its contents are 
"not intended for medical advice, diagnosis, or treatment."

Critics charged that the Supreme Court's decision flies in the face of evidence 
and underscores the cruelty of the death penalty overall.

"Today's 5-4 decision ignores the evidence and endorses a state's right to 
torture people to death absent any other alternative," said Cassandra Stubbs, 
director of the Capital Punishment Project of the American Civil Liberties 
Union, in a press statement released Monday.

"As powerfully set forth in the dissent, capital punishment in the United 
States is unreliable and arbitrary, racially biased and geographically skewed," 
Stubbs continued. "Much of America has turned away from the death penalty, 
leaving only a handful of counties insisting on putting people to death. The 
time has come to end this nation's disastrous experiment with capital 
punishment."

(source: commondreams.org)

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

Death Penalty Foes Predict More Botched Executions After Supreme Court 
Ruling----Oklahoma said it carries out executions responsibly


The continued use of the controversial sedative midazolam to put prisoners to 
death, upheld on Monday by the U.S. Supreme Court, will mean more challenges 
and more botched executions, predicted an official with the American Civil 
Liberties Union.

The case against midazolam was brought by three other death-row inmates in 
Oklahoma after several prolonged executions sparked renewed controversy about 
lethal injections.

"Midazolam doesn't work," said Cassandra Stubbs, the director of the ACLU 
Capital Punishment Project, which works to repeal the death penalty. "They were 
not unconscious."

In the 5-4 decision, the court ruled that the drug, midazolam, could be used in 
executions without violating the Eighth Amendment's prohibition on cruel and 
unusual suffering.

Writing for the majority, Justice Samuel Alito said prisoners objecting to the 
drug's use failed to identify an alternative method that had less risk of pain.

"I think the sweeping holding here that a defendant could be tortured and that 
would be okay unless they are able to come up with an alternative method, I 
think that is a mistake," Stubbs said. "I don???t think the Constitution stands 
for that."

The majority also said that a lower court had not made a mistake when it found 
that the prisoners "failed to establish that Oklahoma's use of a massive dose 
of midazolam in its execution protocol entails a substantial risk of severe 
pain."

Oklahoma's attorney general, Scott Pruitt, said Oklahoma would now set 
execution dates for the three inmates, Richard Glossip, Benjamin Cole and John 
Grant.

"State officials act deliberately and thoughtfully in carrying out this 
responsibility," he said in a statement. "This marks the 8th time a court has 
reviewed and upheld as constitutional the lethal injection protocol used by 
Oklahoma."

Challengers argued because midazolam was not a barbituate, it failed to cause a 
coma-like state, leaving open the possibility that the other drugs injected 
afterward would cause an excruciating death. They had questioned Oklahoma's key 
expert witness who defended the use of the drug but seemed to rely on the 
website, www.drugs.com.

Sister Sister Helen Prejean tweeted: "The Supreme Court's decision in Glossip 
v. Gross allows for continued experimentation on death row inmates. The drug 
doesn't work."

In a dissent, Justice Sonia Sotomayor wrote, "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 tortured to death, or actually 
burned at the stake."

The hearing in the case took place a year after a botched execution in Oklahoma 
captured attention. The prisoner, Clayton D. Lockett, regained consciousness 
and as he writhed and moaned prison, officials tried to stop the execution. He 
died after 43 minutes. State officials later said the intravenous line was 
inserted improperly.

2 other executions, of Joseph Wood in Ohio and Dennis McGuire in Arizona, took 
longer than expected and the inmates were heard gasping.

"I think a lot of the questions about lethal injection will remain because I 
think states have an interest in not engaging in torture under their own state 
constitutions," Stubbs said. "And I fully expect that defendants will continue 
to challenge unconstitutional methods or methods that are torturous."

Stubbs said she hoped that states would stop using midazolam. If they do not, 
the country will see more botched executions, she said.

"There's no reason to have any confidence in midazolam working," she said. "And 
nothing the Supreme Court today says changes that."

The case was the 1st the Supreme Court has considered on lethal injections 
since 2008. At that time, it found that a 3-drug combination in which the 
barbituate sodium thiopental was the 1st to be injected was constitutional.

States have had trouble obtaining some of the drugs because manufacturers have 
refused to sell them for use in executions.

Most states used a 3-drug combination until 2009, but after shortages developed 
they turned to a variety of methods, according to the Death Penalty Information 
Center. 8 states, among them Texas, use a single dose of an anesthetic. 14 
states have used pentobarbital and another 5 plan to use it; 9 states have used 
or plan to use compounding pharmacies as an alternative to manufacturers.

A number of other states have looked at other ways to execute inmates - 
nitrogen gas asphyxiation in Oklahoma, the electric chair in Tennessee and a 
firing squad in Utah.

As for midazolam, Oklahoma, Florida, Ohio and Arizona have used it in 3- or 
2-drug combinations, the Death Penalty Information Center says. Alabama, 
Arkansas, Louisiana and Virginia allow for midazolam, but have not used it.

(source: nbcnewyork.com)