death penalty

Ohio is preparing to join the ranks of several other states that have enacted provisions to keep secret their execution procedures, The Marshall Project's Maurice Chammah reports. The American Board of Anesthesiology has warned that it might revoke the certificate of any anesthesiologist who participates in an execution. A proposed Ohio law would protect doctors' licenses if they participate in executions. The law also would protect the identity of compounding pharmacies that mix drugs used in lethal injections. There are similar laws in Missouri, Pennsylvania and Arizona, among other states.

Megan McCracken, Eighth Amendment Resource Counsel at the U.C. Berkeley School of Law's Death Penalty Clinic told Chammah that “'when secrecy statutes prevent the courts from reviewing pertinent information about execution procedures, they effectively prevent a determination of whether the execution procedures are constitutional.”'

The Guardian, the Oklahoma Observer, the American Civil Liberties Union and the ACLU of Oklahoma have filed a lawsuit seeking to allow journalists and other witnesses to executions to "see everything that happens from the moment an inmate enters the execution chamber," the Washington Post reports. The lawsuit cites the fact that witnesses were not allowed to see the entirety of the execution of Clayton Lockett, whose botched killing left him writhing and grimacing before he finally died.

After a needle was inserted into Lockett's groin, his vein collapsed and the lethal-injection drugs did not get absorbed into his bloodstream, according to officials. When things went awry, correctional officials lowered the blinds and never lifted them back up, the Post reports. Lockett's final moments were not observed by the public.

I am really struck that, through public records, The Arizona Republic was able to learn that Arizona death row inmate Joseph Wood was injected 15 times with drugs midazolam and hydromorphone over a two-hour period before he was finally pronounced dead. It was supposed to just take two doses to kill him. The Associated Press reported he "gasped more than 600 times over the next hour and 40 minutes." But before Wood was executed he lost his First Amendment fight to find out the details of the state's methods for lethal injections, including where it obtains its supply of the drugs or the executioners' medical qualifications. While the Ninth Circuit put his execution on hold, according to the AP, the Supreme Court lifted the stay. So Wood couldn't get access to information before his execution. But it can be obtained after the fact.

U.S. District Judge Cormac J. Carney has ruled that decades-long delays in carrying out the death penalty sentence of an inmate violates the U.S. Constitution's ban on cruel or unusual punishment, the Los Angeles Times reports. Whether the ruling will be upheld on appeal is uncertain. "'I think it has a shot in the 9th Circuit, but I don't know about the U.S. Supreme Court,'" Gerald Uelmen, a Santa Clara University law professor and who was chairman of a "state commission that concluded the system needed substantially more money to operate effectively," told the LA Times. '"It is conceivable that the U.S. Supreme Court and the 9th Circuit could say California is such an outlier — its system is so dysfunctional, with twice the national delay — that it cannot be sustained,"' Uelmen added.

Last week, a divided Pennsylvania Supreme Court dismissed a case challenging the constitutionality of paying flat fees to Philadelphia defense counsel in capital cases, The Legal Intelligencer's P.J. D'Annunzio reports. Mark Bookman, one of the lawyers who brought the case, told The Legal "'the Pennsylvania Supreme Court had a real opportunity to bring Philadelphia up to, or at least closer to, national standards on how you handle these serious cases. The evidence that this representation is insufficient and has been insufficient for years now is the constant stream of [death penalty] reversals in the state courts and federal courts.”'

The Associated Press reports on U.S. Supreme Court arguments held yesterday on how states evaluate mental disability in order to decide whether murder defendants can be executed. Execution of the mentally disabled is unconstitutional.

"Five justices, enough to form a majority, pointed repeatedly to the margin of error inherent in IQ and other standardized tests. They voiced skepticism about the practice in Florida and certain other states of barring an inmate from claiming mental disability when his IQ score is just above 70," AP also reports. The advocate for  not allowing inmates to be executed when their IQ scores are just above 70 conceded that a score of 76 would preclude an inmate from arguing mental disability.

Brennan Center for Justice's Andrew Cohen wrote in an opinion piece that "not a single national news organization has filed a single motion recently seeking to dissolve or at least diminish the great cloud of secrecy that has sprung up over the past few months over lethal injections in America." But several media organizations went to court to exercise their First Amendment rights to access the police videos of the arrest of Justin Bieber, he wrote.

There should be media efforts to gain information about lethal injections, especially as states are passing laws to restrict information about their death-penalty procedures, Cohen says: "In Georgia, for example, lawmakers last summer passed a secrecy law so broad that it precludes even the state’s own judiciary from having access to information about lethal injection drugs. It was immediately challenged by a death row inmate named Warren Lee Hill—who promptly got a trial judge to enjoin its enforcement—but no media organization that was asked to get involved in the litigation (and some were) chose to do so."

Cohen concludes that First Amendment rights are never more vital "than when the goverment seeks to execute someone in the name of the state--and seeks to do so in darkness."

Last year, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile offenders. Now the Alabama Supreme Court has set out a 14-factor test that judges can use to decide if juveniles convicted of murder can be sentenced to life with or without the possiblity of parole. The Sentencing Law and Policy Blog noted that the Alabama Supreme Court found an opinon from the Pennsylvania Superior Court, Commonwealth v. Knox, helpful in setting out the 14 factors, which include the juvenile's mental-health hisotry, the juvenile's emotional maturity and development and "any other relevant factor related to the juvenile's youth."