Pennsylvania House Votes to Expand Death Penalty as International Controversy Mounts

Pennsylvania's moves in the opposite direction of the prevailing winds of reform.

On April 6, Sister Helen Prejean, author of the book "Dead Man Walking" and the inspiration for the 1995 film of the same name starring Susan Sarandon as a Catholic nun counseling a condemned prisoner, stood before a packed crowd at Chestnut Hill College in Philadelphia to tell her story and urge attendees -- especially young people -- to join efforts to end capital punishment in Pennsylvania.

"As long as we are not active, as long as we don't raise our voice, as long as we don't resist, we too are responsible," said the fiery, 71 year-old abolitionist.

Her talk couldn't have come at a more dubious time for the death penalty in America.

Since Governor Pat Quinn formally abolished capital punishment in Illinois in March, legislators in no less than half-a-dozen states have introduced bills to repeal the death penalty and replace it with life without parole. States where abolitionist legislation is being considered include three of the death penalty's "big four" -- Texas, Florida and Pennsylvania, which together account for nearly a third of the nation's condemned inmates. (California, which leads the nation with 711 prisoners awaiting execution, has no such legislation pending).

Separately, an international scandal involving a key ingredient used to execute inmates has focused world attention on a U.S. practice that remains out of step with much of the developed world.

Earlier this year Illinois-based Hospira, the only American-based manufacturer of the barbiturate sodium thiopental, chose to stop making it rather than promise authorities in Italy - the site of its new manufacturing facility - that its drug wouldn't be used for capital punishment. Until recently sodium thiopental, sold under the brand name Pentothal, was a primary ingredient in the lethal injection cocktails of 34 states.

Hospira was already facing a shortage of key components used in the manufacture of the drug. The decision to cease production sparked a nationwide shortage of sodium thiopental and forced some states to seek the drug from less reputable overseas suppliers, sparking controversy and in some cases legal intervention.

On March 15 the Drug Enforcement Agency seized Georgia's entire stock of sodium thiopental less than a month after attorneys for inmate Andrew Grant DeYoung notified Attorney General Eric Holder that the Georgia Department of Corrections had imported a quantity of the drug without proper registration from the United Kingdom last July. Since December 2011 Britain has enforced export controls on sodium thiopental.

According to records obtained by attorney John Bentivoglio, the drug came from a small, mom-and-pop wholesaler called Dream Pharma, which ran its operations out of a rented space in the back of a driving school in Acton.

Georgia had already executed two men using the drug, both of whom kept their eyes open during the process. An analysis by the UK-based death penalty abolitionist group Reprieve suggests the quality of the sodium thiopental may have been compromised by poor storage, and both inmates were likely partially conscious throughout the execution process -- a grueling experience according to anesthesiologists .

"At last someone is paying attention to the shenanigans that have been going on with the fly-by-night company exporting large quantities of execution drugs from Britain," said Reprieve's Director Clive Stafford Smith, commenting on the DEA's action.

Kentucky and Tennessee responded to the seizure by turning over their entire stocks of sodium thiopental to federal authorities, but at least 5 other states are reported to have acquired the drug overseas. Last week The Times of India revealed that at least 2 states, Nebraska and South Dakota, were using a Mumbai-based company as their supplier; on April 6, the company, Kayem Pharmaceutical, said it would no longer ship the drug to the U.S.

Pennsylvania - where more than 200 condemned inmates sit on death row -- has so far refrained from entering the debate, and no published reports exist outlining its plans as sodium thiopental becomes less available.

Susan McNaughton, communications director at the Pennsylvania Department of Corrections, declined to comment on the supplier of the state's sodium thiopental, or if it maintained a stock of the drug, but said the DOC is "reviewing its options" as to how the issue surrounding the availability of the drug will affect the execution process in Pennsylvania, if at all.

"We have no reason to think that we are not prepared to carry out executions," she said.

A request under Pennsylvania's Right to Know Law for information on who supplies Pennsylvania's execution drugs, whether or not they are stockpiled and how often the stocks are rotated was pending at press time.

The fact that the state hasn't hosted an execution in more than a decade certainly makes the situation seem less than urgent. However, according to the drug's guidelines, the average shelf life for sodium thiopental is 4 years, meaning the state would need to rotate stocks at least that frequently, or would need to order it before an execution proceeds.

Seeking to circumvent the controversy, some prisons have decided to abandon sodium thiopental altogether. Last month Ohio became the first state to execute an inmate with a single dose of pentobarbital - a short-acting barbiturate commonly used to euthanize animals -- while several others states have said they will begin using pentobarbital in place of sodium thiopental as 1 of 3 execution drugs. That decision is already raising challenges from defense attorneys who say the new drug is unproven and that some states, Texas for instance, have not followed the correct protocol for making such a change.

Meanwhile, many European governments have stepped up efforts to ensure they are not complicit in a practice they oppose. On April 1, Germany petitioned the European Union to consider banning sodium thiopental for exportation to countries where it could be used for execution, and legislators in the UK are lobbying the government to add the other 2 drugs commonly used in lethal injections -- potassium chloride and pancuronium bromide -- to the country's list of banned exports. Given European sentiment concerning capital punishment, pentobarbital may one day face the same fate. With as much as 40 % of pharmaceuticals now being made outside the United States, the implications could be reaching.

Death penalty opponents say the international outcry underscores just how isolated the U.S. is from its allies on the issue of capital punishment.

"This is a sign that it's difficult to do the business of killing people when there are others out there who don't want to participate," said Andy Hoover, Legislative Director of the Pennsylvania American Civil Liberties Union.

PA Legislators push alternate death penalty bills

The day before Sister Prejean visited Chestnut Hill, the Pennsylvania House of Representatives unanimously voted to approve a bill that -- if it passes the GOP-controlled Senate -- could see more inmates sent to death row in the Keystone State.

The legislation -- House Bill 317 -- adds two new aggravating factors to the 18 already considered when determining if the death penalty applies to defendants in murder cases, making capital punishment applicable for defendants that commit sexually violent murder while they are registered sex offenders, as well as those who target the elderly and infirm.

"The House is just completely out of step with reality," said Hoover, commenting on the bill. "They are refusing to accept that this is a broken program. The death penalty was made to be used in limited circumstances, but by adding a category for people that are infirm, which lacks definition, the House is expanding it to where it can be applied to most homicides."

The bill's sponsor, Rep. Kerry Benninghoff, a Republican representing parts of Centre and Mifflin Counties, didn't respond to calls and e-mails seeking comment, but in a statement he said the bill is about "justice, protecting law-abiding citizens and keeping dangerous people off the streets."

Two Democratic senators -- Allegheny County progressive Jim Ferlo, and Daylin Leach -- who represents parts of Delaware and Montgomery Counties -- are seeking to end capital punishment in the Commonwealth.

According to Leach, who in February introduced a bill to place a statewide moratorium on executions, the cost of putting people on Death Row where they'll sit for years through endless appeals just doesn't make any sense given the budget crisis currently facing the state. Studies show it costs more than twice as much in appeals, administration and housing to put an inmate to death than to house him or her for the rest of their lives, while polls show waning support across the nation for the death penalty. The most recent numbers in Pennsylvania show that less than half of respondents favor the death penalty when given the alternative option if life without parole.

"The Death Penalty is just another government program that is too expensive and just not working," said Leach, in an appeal to his conservative colleagues.

Since Pennsylvania reinstated the death penalty in 1977, only three executions have been carried out (the last a dozen years ago), and in all three cases the defendants waved their appeals. It's been nearly half a century since the state executed someone who didn't ask to be. Since then at least 20 condemned inmates have died of natural causes.

Nonetheless, Pennsylvania governors from both parties continue to sign dozens of death warrants, making Pennsylvania's Death Row the fourth largest in the nation. Governor Ed Rendell, a Democrat, signed 119 death warrants during his tenure; and newly minted Republican Governor Tom Corbett has already signed four since taking office in January. There are currently 222 inmates awaiting their execution date, more than half of them Black men from Philadelphia County.

Philadelphia District Attorney Seth Williams supports the death penalty but has said he will use it more conservatively than his predecessor Lynn Abraham, who gained a reputation for aggressively pursuing capital murder charges.

According to Tasha Jamerson, a spokesperson for Williams, the DA's office has filed 11 capital cases since Williams took office, and Jamerson reports a "steady decrease in capital prosecutions since 2003."

The American Bar Association has a theory as to why the Keystone State carries out so few executions despite having so many condemned: Pennsylvania is the only state in the nation that provides no post-conviction financial support for defense appeals, meaning defendants are often required to turn to county services and the aid of less-than-able court-appointed attorneys. As a result, cases are often wildly mismanaged, and regularly overturned on appeal at the expense of taxpayers.

Since 1980, more than 200 death sentences in Pennsylvania have been overturned by federal and state courts, and nearly as many death convictions are vacated in Pennsylvania each year as are handed down.

As states across the country rethink their stance on capital punishment, it's fallen to a handful of "true believers" -like Florida, Texas and Ohio to conduct the majority of America's executions. How long Pennsylvania will continue to count itself among this group remains to be seen, but advocates are confident it's not a matter of if, but when the state will abolish capital punishment.

"It might not be on the first try, it might not be on the second try, but if people keep the pressure on eventually we can change this," said Prejean. "Politicians do eventually listen to the people."

A coalition of 15 statewide abolitionist groups, including Pennsylvanians for Alternatives to the Death Penalty (PADP), The Interfaith Alliance of Pennsylvania, Murder Victims' Families for Human Rights, and the ACLU of Pennsylvania is working hard to see that that they do.

"I think with many changes, it's a question of chipping away, little by little and day by day," said Kathleen Lucas, executive director for PADP. "We will get there. Once our legislators see how broken the system is, I believe that they'll do the right thing. The evidence is on our side."

Source: alternet.org, April 16, 2011

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California's lethal injection drug passes lab tests

New execution chamber
at San Quentin prison

The California Department of Corrections and Rehabilitation’s supply of a key lethal injection drug is lab-certified as sterile and sufficiently potent.

Prison officials sent off a share of their sodium thiopental for testing in January to confirm the drug was manufactured properly. The department purchased 521 grams of the anesthetic in October from an obscure pharmaceutical wholesaler in London.

With the reassuring results (report here), perhaps the lone remaining concern about California’s supply is whether it will fall within an expanding federal inquiry. The U.S. Drug Enforcement Administration is investigating how officials in Georgia, Kentucky and Tennessee imported sodium thiopental, the first of a three-drug cocktail that renders condemned inmates unconscious.

Federal agents have taken possession of imported lethal injection drugs from the three states, the Associated Press reported. Sodium thiopental is in extremely short supply in the United States, prompting some states to share their reserves, or to purchase the drug from overseas.

The latter scenario is becoming the new norm for prison systems that rely on that specific anesthetic. But anti-death penalty groups and condemned inmates have raised questions about whether the imported drug meets U.S. quality control standards.

If the drug does not work as intended, inmates would likely experience extreme pain, violating their Eighth Amendment rights against cruel and unusual punishment.

Food and Drug Administration records show Georgia secured its doses [PDF] from the same vendor as California: Dream Pharma, a one-man operation run from the back of a London driving school.

It remains unknown whether California used the same importers to move the drugs from port to prison.

E-mail correspondence between state and federal officials [PDF] show the corrections department sought the DEA's advice on how to legally import the anesthetic last year.

A DEA agent, whose name has been redacted, on Oct. 4 provided Scott Kernan, corrections department undersecretary for operations, with a spreadsheet listing all approved sodium thiopental importers.

A few days earlier, the corrections department tried unsuccessfully to get a waiver that would have allowed it to import the anesthetic itself. John McAuliffe, a corrections department contract employee, was rebuffed by a DEA official, who wrote that such approval would have to come from someone “above him.”

To which, Kernan replied: “When he responds please get a name and number of superior who can approve an exemption for this specific purpose. I’ll call or even get Matt or somebody in Gov’s office to call.”

The “Matt” referenced is likely Matt Cate, the state corrections secretary.

The American Civil Liberties Union of Northern California obtained the records through Freedom of Information Requests to the federal agency. The organization also forced release of more than 1,000 pages of state records on the lethal injection drug by suing CDCR.

No matter how it arrived at San Quentin State Prison, analysis records released this week show the sodium thiopental meets quality standards. The lab report states that pharmacological potency of tested doses was 93.7 percent, with acceptably low levels of heavy metals and impurities.

Source: California Watch, April 11, 2011

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Kentucky and Tennessee Turn Over a Drug Used in Executions

Kentucky and Tennessee turned over their supplies of a drug used in executions to the federal authorities on Friday, weeks after Georgia’s supply was seized because of questions about how it had been imported.

Production of the drug, sodium thiopental, a sedative widely used in lethal injections, was discontinued in January after a shortage that lasted months, leaving many states scrambling to find alternative supplies. The drug, which had been manufactured by Hospira Inc., was used in 34 of the 35 states that carry out lethal injections.

Kentucky’s sodium thiopental was “turned over to the D.E.A. for its use as evidence in a case in another jurisdiction,” Jennifer Brislin, director of communications for the Kentucky Justice and Public Safety Cabinet, said in an e-mail. She would not say where the jurisdiction was or comment on the investigation.

“We are fully cooperating with the D.E.A.,” Ms. Brislin said, referring to the Drug Enforcement Administration.

Kentucky obtained its supply of the drug, enough to carry out three executions, from CorrectHealth, a private Georgia correctional health company, Ms. Brislin said, and the drug’s packaging indicated it had been manufactured by an Austrian company.

In March, the drug enforcement agency seized Georgia’s supply of sodium thiopental weeks after records procured by a defense attorney for a man on death row showed that the state had purchased it from a London supplier operating out of a driving school. A Kentucky defense attorney has also questioned the legality of the state’s supply.

The Justice Department declined to comment.

Dorinda Carter, a spokeswoman for the Tennessee Department of Correction, said the department turned had over 44 vials of the drug. The state did “not purchase any drugs from a foreign supplier,” Ms. Carter wrote in an e-mail.

“There is no allegation that TN has done anything improper,” she wrote.

Tennessee has an execution scheduled for Sept. 13, but Ms. Carter did not say what drug would be used.

American plants stopped making sodium thiopental — one of three drugs used in lethal injections — in 2009. Hospira stopped producing it in January after it was unable guarantee to the authorities in Italy, where it was to be made, that it would not be used for capital punishment.

California and Arizona obtained shipments of the drug from England last fall, but the British government has since refused to export drugs used for execution. The Associated Press reported that at least four other states, including Tennessee, had obtained the drug from overseas.

Source: The New York Times, April 1, 2011

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Kentucky executions could be delayed months, official says

If Kentucky is to continue executing death row inmates, it must find a new source of a drug used in lethal injections or revise the rules to substitute another drug.

The state has lost its supplier of sodium thiopental, an anesthetic used in executions.

Changing the mix of drugs used in an execution would require revising state regulations, a process that would take time and open the door for challenges by defense attorneys and anti-death penalty advocates.

The changes and challenges could take much of the year to resolve, said the Rev. Pat Delahanty, chairman of the Kentucky Coalition to Abolish the Death Penalty.

"I don't think there'll be executions in 2011" in Kentucky, Delahanty said.

Hospira, a Lake Forest, Ill., company, announced last week it would not resume production of sodium thiopental.

Kentucky and other states use the chemical as the 1st one injected during an execution, to render the condemned person unconscious, followed by 2 other drugs to stop the inmate's breathing and heart.

Hospira was the only U.S. provider of sodium thiopental, which nearly all the states with the death penalty use in executions, said Richard Dieter, executive director of the Death Penalty Information Center.

The announcement caught officials in Kentucky and elsewhere by surprise.

"Hospira repeatedly told us that the drug would be available in the 1st quarter of this year," said Lisa Lamb, spokeswoman for the state Department of Corrections. "Since their announcement, we are gathering information on the availability of the drug and are exploring our options."

The state searched unsuccessfully last year for another source of sodium thiopental.

Dieter said he thinks most states will switch to another anesthetic for the executions.

Kentucky's execution regulation, however, specifies the use of sodium thiopental in combination with two other drugs.

That means if the state substitutes another anesthetic or switches to using a single drug, as some states are considering, it would have to put a new regulation into effect.

Dieter said he expects executions to slow down across the nation as states make changes and, inevitably, face lawsuits by death-penalty opponents.

"It's going to take some months, maybe a year" to resolve the issues, he said. "Everywhere, there's going to be challenges."

The inability to get sodium thiopental won't immediately delay any executions in Kentucky. The state is under a court order not to carry out executions.

That order came in a challenge to the state's attempt to execute Gregory Wilson last September.

Wilson was convicted of kidnapping, raping and killing Debbie Pooley, 36, in Northern Kentucky in 1987.

After Gov. Steve Beshear set Wilson's execution for Sept. 16, Wilson's attorneys joined a challenge to the state's execution protocol by other death row inmates.

Franklin Circuit Judge Phillip Shepherd ruled that the regulation spelling out how the state will execute someone conflicted with state law.

The judge also said the protocol doesn't include adequate safeguards to prevent executing a person who is mentally retarded, which is against the law.

Wilson's attorneys have argued the only known test of Wilson's mental capacity showed he was retarded.

Shepherd issued an order barring the state from executing anyone.

The court fight over that order continues.

It will be resolved eventually, however, and state officials on both sides of the death-penalty issue are trying to figure out how to respond to difficulties in getting sodium thiopental.

"The question will be, what process do we have going forward?" said Tim Arnold, a supervisor at the state Department for Public Advocacy.

Some states have explored getting sodium thiopental from other countries.

That would raise a concern about the quality of the drug from foreign sources, Arnold said.

Kentucky has not looked to foreign sources for the drug in the past, said Jennifer Brislin, spokeswoman for the state Justice and Public Safety Cabinet.

Shelley Johnson, spokeswoman for state Attorney General Jack Conway, said 4 Death row inmates are at the stage in their appeals that Conway could ask Beshear to set execution dates for them.

They include Wilson; Ralph Baze, who was convicted of killing Powell County Sheriff Steve Bennett and Deputy Arthur Briscoe in 1992 as they tried to arrest him; and Robert Foley, convicted of murdering 6 people in Laurel County in 2 separate cases.

Johnson declined to identify the 4th man.

Death-penalty opponents hope the shortage of sodium thiopental for executions will create momentum for their call to end executions.

"Lacking the drugs to carry out the death penalty is added evidence that the system is broken," said Delahanty. "Finding another drug, which would require going through the whole regulatory process again, and wasting taxpayer dollars on more litigation, would be the wrong way to go and continue to undermine the credibility of our justice system."

Delahanty said the state law allowing life without parole is enough to protect the public and punish heinous murderers.

Others, however, noted that many people support the death penalty.

States will continue to look for sources of drugs to carry out executions, said Dieter.

"I don't think this is the end of the death penalty," he said.

Source: kentucky.com, January 28, 2011

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Companies won't sell Kentucky lethal injection drug

Amid a nationwide shortage of a lethal injection drug, documents obtained under a freedom of information request show two pharmaceutical companies declined to sell Kentucky a supply of the sedative. 

The state e-mails obtained by The Associated Press show one firm, KRS Global Biotechnology of Boca Raton, Fla., explained it's refusal by saying there was no doctor involved in the purchase of sodium thiopental, even though Kentucky law bars physicians from being involved in administering executions. 

No reason was given in the e-mail traffic between state officials and pharmacists for a canceled order from the other company, Spectrum Chemical and Laboratory Products of Gardenia, Calif. A Spectrum official told the AP the ordered was scrapped when it sold that part of its business last year. 

At least 7 other states that use sodium thiopental for lethal injections have had trouble in recent months finding enough of the drug, whose main U.S. manufacturer has cited supply problems. The shortage has not delayed any executions in Kentucky because they have been on hold since a judge's order in September over an unrelated issue. 

The Kentucky e-mails are the first public record of companies declining to sell the drug to states for executions. 

They show a massive search for any stock of unexpired sodium thiopental, with Kentucky prison officials contacting more than two dozen states, more than a half-dozen chemical companies and even the federal Bureau of Prisons. While Kentucky in June gave Ohio 3 of the 6 grams needed to carry out an execution there, prison officials found no state willing to share their limited supply of the drug with Kentucky. 

"I am beginning to think drug companies and suppliers are not real happy to have to supply us for this use," Phil Parker, warden of the Kentucky State Penitentiary that houses the state's death chamber, wrote in a July e-mail. 

Kentucky started searching for sodium thiopental in January 2010, about 6 weeks after the state Attorney General's office asked the governor to set execution dates in 3 cases. 

By June, it had focused on Spectrum Chemical as the only company with the drug in stock. The state placed an order with Spectrum on June 14 order for 50 grams of the fast-acting sedative, enough to conduct eight executions. But in July, Spectrum called off the deal. 

State officials, in e-mails, said the cancellation came after Spectrum found out the customer was the Kentucky Department of Corrections, not a hospital or clinic, as listed on the department's federal license allowing the drug purchase. 

A pharmacist at Fredonia Pharmacy Corner, an outlet 15 miles from the prison that the state used to buy other drugs, offered to order the sodium thiopental for Kentucky as long as he could tack on a 15 percent markup. Spectrum rejected the order, saying they don't sell to pharmacies. 

The state penitentiary's Parker speculated in an e-mail that Spectrum figured out what the drug would be used for and the link between the pharmacy and the prison. 

"Bottom line is, they are not going to sell to anyone or any entity associated with us," Parker wrote on July 19 to Kentucky Corrections Commissioner LaDonna Thompson. 

Brad Ashby, a former pharmacist at Fredonia Pharmacy Corner, told Parker in an e-mail that Spectrum initially had no issues with selling the drug to him. 

"I made it clear to Spectrum on Friday that we were a pharmacy and they did not say that they couldn't sell to us," Ashby wrote on July 19. "In fact, 'pharmacy' is a choice on their application." 

Ashby declined to comment last week for this story. 

Julie Berryman, president of Spectrum's West Coast division and general counsel, told the AP the company takes no stand on the drug being used for executions. Berryman said the contract with the Kentucky prisons was part of the company whose business was sold to another firm last year and that sale meant the order had to be canceled. 

"We're a business," Berryman told The Associated Press. "We would never decline a sale for political reasons." 

Kentucky then negotiated a $16,000 order with KRS-GBT in September to cover enough of the drug for 6 executions, but the deal fell through because the company insisted that a doctor take part in the acquisition, said Jennifer Brislin, a spokeswoman for the Kentucky Justice Cabinet. 

Having a doctor participate in buying the drug could have violated state law, which forbids physicians from having a role in an execution. 

"The Department of Corrections couldn't comply with that request," Brislin said. 

KRS-GBT did not return messages from the AP seeking comment. 

The 2 companies' refusal to sell sodium thiopental to Kentucky set off a scramble by the Department of Corrections to get some of the dwindling national supply of the drug before the state's remaining stock went bad in October. 

As the search wore on, Parker became less and less optimistic that Kentucky would be able to find the drug, calling Spectrum "our last, best hope" and that he was "at wits end" because no one could say when the chemical would be produced again. 

To distance the purchaser of the drugs from the state, Parker suggested hiring a pharmacist not previously associated with the state to call and order the drug. Prison officials also looked into having the Kentucky State Reformatory, which serves as the prison system's medical center, order the chemicals. 

Attempts by the pharmacist at the Kentucky State Reformatory to purchase the drug were unsuccessful and the plan to hire a pharmacist on contract never came to fruition. 

The primary producer of sodium thiopental, Hospira, Inc., of Lake Forest, Ill., has blamed a national shortage on a lack of raw materials. Hospira and the Food and Drug Administration have said the product should be available early this year. 

Sodium thiopental has been used as an anesthetic in surgery, but many hospitals have switched to propofol to render patients unconscious, leaving very few medical uses for sodium thiopental. 

Officials with Hospira have written to at least two states - Ohio and Mississippi - saying the drug is produced with medical uses, not executions, in mind. 

"As such, we do not support the use of any of our products in capital punishment procedures," Dr. Kees Gioenhout, vice president of clinical research and development, wrote to Ohio prison officials in March. 

While Kentucky law prohibits doctors from taking an active role in executions, there's no similar ban on pharmacists. The American Pharmacist Association, based in Washington, D.C., is opposed to any law or regulation mandating or prohibiting pharmacists from taking part in the lethal injection process, said association spokeswoman Michelle Fritts. 

Kentucky returned to the Fredonia pharmacy to obtain another lethal injection ingredient, potassium chloride. The state got a 3rd part of the lethal brew, pancuronium bromide, from Henry Schein, a Melville, N.Y., company that sells pharmaceuticals and medical products. 

State records obtained by the AP show Kentucky has 500 mg of pancuronium bromide, which causes paralysis, that expires in November and another 150 mg that expires in March 2012. 

Kentucky also has 720 milliequivalents of potassium chloride, which causes cardiac arrest, that expires in February and another 2,250 that expires in February 2012. 

Kentucky's stock of 6 grams of sodium thiopental expired before the state could carry out an execution. A Sept. 16 date for condemned inmate Gregory L. Wilson, convicted in 1988 of kidnapping, raping and killing a woman in northern Kentucky, passed when a judge halted all executions in the state over concerns about how Kentucky evaluated an inmate's mental health before execution. 

Source: Associated Press, January 19, 2011

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States ask Texas to supply ingredient for executions

As the supply of a key drug used in lethal injections dwindles, state officials are knocking on the door of the busiest execution chamber in the country for help.

Some states that have the death penalty have asked Texas for doses of sodium thiopental, the so-called knockout drug, used as part of the three-drug cocktail in executions by lethal injection, accordingto Michelle Lyons, spokeswoman for the Texas Department of Criminal Justice. She would not identify the states that requested assistance.

The state has declined to make its supply available even though all of its 39 available doses are set to expire in March and there are only three executions scheduled in the state before then, Lyons said.

States — including Arizona, Oklahoma, Ohio, Tennessee and Kentucky — have scrambled to acquire the drug.

Sodium thiopental renders the condemned inmate unconscious, so the prisoner does not feel pain. Hospira, the lone federally approved producer of the drug, has said new batches of the substance would not be available until next year.

Lyons said that despite the looming expiration of Texas' extra inventory, "we do not have plans to distribute the drug to other states."

"We have a responsibility to ensure we have an adequate supply of the drug on hand to carry out any executions scheduled in the state of Texas," Lyons said.

States with shortages are trying to find suppliers abroad or proposing radical changes in their execution protocols to deal with the lack of drugs.

•In Oklahoma last week, a federal judge approved the use of pentobarbital, a drug used in euthanizing animals, to replace sodium thiopental in lethal injections. Oklahoma Assistant Attorney General Stephen Krise said the state was "forced" to find an alternative when sodium thiopental became "unavailable."

•In Arizona last month, the U.S. Supreme Court allowed the execution of convicted murderer Jeffrey Landrigan after his attorneys challenged the state's acquisition of sodium thiopental from an undisclosed supplier in Britain.

In Kentucky in August, Gov. Steve Beshear, a Democrat, postponed the signing of two death warrants because of the shortage of sodium thiopental. "The (state's) repeated attempts to obtain additional thiopental have so far been unsuccessful," Beshear said in written statement.

For Oklahoma, the approval of the sodium thiopental substitute represents a departure from a procedure adopted in 1977, when Oklahoma became the first state in the nation to authorize lethal injection as a means of execution, according to the Death Penalty Information Center. (The first lethal injection was actually carried out in 1982 in Texas.)

Krise said the state settled on a plan for an alternative drug — pentobarbital — after "an exhaustive search" to obtain another source of sodium thiopental.

The assistant attorney general said he did not know how many other sources or death penalty states were approached as potential suppliers for additional sodium thiopental. Last month, he said, Arkansas provided the needed dose to carry out the execution of Donald Ray Wackerly, convicted in the 1996 murder of a Laotian immigrant.

Krise said he did not know whether Texas was asked to share its supply.

"I'm sure some states feel uncomfortable giving it out," he said.

Source: CourierPostOnline.com, November 29, 2010

Britain restricts export of lethal injection drug to US

British controls on sodium thiopental export means some US executions could be halted.

Business Secretary Vince Cable has said he will control the export of the anaesthetic drug sodium thiopental for use in capital punishment after campaigners took him to court.

Although it is not the outright ban for which campaigners have called, the move will make it more difficult for executions by lethal injection in a number of US states to go ahead.

A statement from the Department of Business Innovation and Skills said: "In light of new information the Business Secretary has today announced that the British Government will be placing controls on the export of sodium thiopental.

"The order will be made as soon as practicable and once in force, any person exporting this drug will require a licence issued by the Export Control Organisation."

Earlier this month, Cable was accused of "irrationality" at the High Court for his refusal to ban the export of sodium thiopental, which is one of three drugs used during the process of lethal injection.

A lawyer who was arguing the case of two death row prisoners, Edmund Zagorski and Ralph Baze, said that capital punishment was a clear violation of human rights and the UK government was supposed to be seeking to abolish the death penalty worldwide. It was therefore irrational and unlawful for Cable not to ban the sale of sodium thiopental for use in executions.

It seems Cable hopes that imposing export controls on sodium thiopental will strengthen his case.

A control on UK exports of sodium thiopental is likely to result in the staying of executions in a number of US states as there is currently a national shortage of the drug.

The sodium thiopental shortage has affected executions in California, Oklahoma and Kentucky, while Missouri's supply of the drug will expire in January.

The United States' sole manufacturer of the drug, Hospira, is experiencing problems with sourcing the active pharmaceutical ingredient. The company, for the record, disapproves of its product being used as a lethal injection component.

Source: The First Post, November 29, 2010

Former Justice John Paul Stevens Criticizes Death Penalty

WASHINGTON — In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.

But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

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Source: The New York Times, November 28, 2010

Stevens' Powerful Anti-Death-Penalty Views

Former Justice John Paul Stevens (left), who retired from the Supreme Court in June after turning 90, has come out swinging in the past few days against the death penalty. In an appearance on 60 Minutes this past Sunday and a New York Review of Books essay that is now online, Justice Stevens makes the case that capital punishment as it is now administered in the U.S. is hopelessly flawed  and unconstitutional.

In so doing, he is pushing the death-penalty debate just where it needs to go. Supporters and opponents generally argue over whether capital punishment is right in the abstract. The discussion often comes off as little more than late-night dorm-room philosophizing: "Killing is killing, even if the state does it," or "Are you saying that if the allies caught Hitler, they shouldn't have executed him?"

Yet as Justice Stevens frames the question, it isn't whether you believe in a death penalty, it's whether you believe in this death penalty, the one the U.S. is currently using. It is a more relevant issue for those who care if the justice system is doing the right thing, and he makes a compelling case that none of us should.

Justice Stevens, who was appointed by a Republican President, Gerald Ford, has not always opposed capital punishment. In 1976, shortly after he joined the court, he provided a key vote in Gregg v. Georgia, one of a group of cases that ended a de facto death-penalty moratorium that had been in place since 1972. He did not join the most liberal Justices at the time, William Brennan and Thurgood Marshall, who insisted that any executions violated the Eighth Amendment ban on cruel and unusual punishment.

In 2008, Justice Stevens famously changed his mind. In a case challenging Kentucky's method of lethal injection, he said in a separate opinion that the court's decision in 1976 that capital punishment is constitutional was based on a belief that it would be applied in a way that would not be discriminatory, arbitrary, excessive or racially discriminatory. After three decades on the court, it had become clear to him that those conditions were not being met.

In his New York Review of Books essay, Justice Stevens gives a fuller explanation of what made him turn away from the death penalty. As he saw it, the 1976 ruling argued for a careful and narrow use of capital punishment, but since then, the Supreme Court has made its use increasingly less careful and less narrow.

One factor that has Justice Stevens and many other people questioning the death penalty is its unreliability. As Justice Stevens points out, more than 130 people have been exonerated and released from death row since 1973, a number of them based on DNA evidence.

Another chief concern is race. In 1987, a challenge was brought to the death penalty that showed it was being used in a highly disparate way: in Georgia, murderers who killed white people were 11 times more likely to get capital punishment than those with black victims. Justice Stevens, who dissented from that ruling, writes in his essay that the far greater punishment the system imposes for the killing of whites "provides a haunting reminder of once prevalent Southern lynchings."

Justice Stevens is also troubled by the way key procedural rules have been rewritten to make it easier to put people to death. One change involves so-called death-qualified juries -- that is, juries that don't include people who oppose the death penalty. In 1968, the Supreme Court ruled that opposition to the death penalty is not a valid reason to exclude someone from a jury. If you allow jurors to be excluded on this basis, you end up with juries that are much more pro-prosecution, and pro-death penalty, than society as a whole. But three years ago, a bitterly divided Supreme Court undid that ruling -- and cleared the way for death-qualified juries.

Another change is in the use of victim-impact statements. In 1987, the Supreme Court ruled that having a jury hear the often emotionally wrenching stories of victims could unfairly inflame jurors and was inconsistent with the "reasoned decisionmaking we require in capital cases." 4 years later, after turnover among the Justices, the court reversed itself - over Justice Stevens' dissent - and ruled that these statements can be used.

Justice Stevens' critique of death-penalty law is exactly right. It is also badly needed, as the current court is becoming ever more enthusiastic about capital punishment and ever more indifferent to important details -- like how certain we are that the person facing execution is even guilty.

Last year, Justice Antonin Scalia wrapped that indifference in constitutional theory, strongly suggesting in a dissent in a Georgia death-penalty case that there is nothing unconstitutional about executing someone who turns out to be actually innocent, so long as they had a proper trial and appeals process.

A great deal of death-penalty arguments, both pro and con, fall on deaf ears. If you oppose the death penalty as morally wrong, you are not likely to be impressed by reasoned (if flawed) arguments -- that it might deter crime, for example, or that it has long had a central place in western civilization. If you believe in capital punishment, you are unlikely to be moved by someone who simply says the state has no right to take a life.

Justice Stevens' arguments are powerful precisely because they come from someone in the middle of the debate -- a man who long believed capital punishment was constitutional provided it was properly applied. His sharp critique should reinforce the resolve of those who do not support the death penalty and raise unsettling questions for those who do.

Source: TIME Magazine; Adam Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board. Case Study, his legal column for TIME.com, appears every Wednesday, December 1, 2010