Saturday, December 16, 2006
California Coverage
Now, we move to California and reaction to Judge Fogel's opinion. Again, we'll start with the New York Times story reporting on yesterday's bicoastal developments.
Deborah W. Denno, an authority on execution at the Fordham University Law School, said Judge Fogel’s decision was “both bold and safe.”
“Judge Fogel’s decision is the most definitive response so far in concluding that a state’s lethal injection protocol, in its current form, is unconstitutional under the Eighth Amendment,” Professor Denno said.
Even as Judge Fogel issued a withering critique of the way California executes condemned inmates, he invited the state to submit a revised protocol to remedy the shortcomings. Similarly, Mr. Bush suggested that executions in Florida might resume after his panel gives its final report in March.
Judge Fogel found that prison execution teams had been poorly screened and had included people disciplined for smuggling drugs and with post-traumatic stress disorder. Moreover, the team members are poorly trained and supervised, he said.
Record keeping is spotty, the judge found, and the chemicals used are sometimes improperly prepared. The death chamber, he added, is badly lighted and overcrowded.
“Defendants’ actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation,” Judge Fogel wrote. “This is intolerable under the Constitution.”
Judge Fogel also noted concerns about the chemicals that California, Florida and 35 other states use. The protocols vary slightly, but almost all call for a series of three chemicals. The first is a barbiturate to render the inmate unconscious. The second is a paralyzing agent that makes the inmate unable to speak, move or breathe. The third is potassium chloride, which stops the heart.
Both sides in California agreed that it would be unconstitutional to inject a conscious person with either or both of the second two chemicals. The paralyzing agent would leave the inmate conscious while he suffocated, and potassium chloride is extremely painful.
The two sides also agreed that if the first drug was effective, using the others did not violate the constitution.
Judge Fogel suggested a way out. Were inmates executed in the same way that animals were euthanized, solely by an anesthetic, that would, he wrote, “eliminate any constitutional concerns, subject only to the implementation of adequate, verifiable procedures to ensure that the inmate actually receives a fatal dose of the anesthetic.”
The Los Angeles Times has, " Ruling halts state method of execution."
Fogel, who visited the death chamber in San Quentin and held a four-day hearing in San Jose in September, said the case generated evidence that "is more than adequate to establish a constitutional violation."
His decision was replete with stinging criticisms of state officials for failing to take the necessary steps to correct problems in the procedure — steps the judge urged them to take in February.
"Given that the state is taking a human life, the pervasive lack of professionalism in the implementation" of the lethal injection protocol is "at the very least deeply disturbing," Fogel wrote.
Morales' execution was scheduled for February, but the state postponed it after being unable to meet conditions imposed by the judge, who became concerned that the procedure was not working correctly.
"As this court noted" in its February order, "anomalies in six execution logs raise substantial questions as to whether certain inmates may have been conscious when pancuronium bromide or potassium chloride was injected," Fogel wrote. "These substantial questions remain unanswered."
The Sacramento Bee has, "Judge: Rethink lethal injection."
Fogel made it clear that Friday's opinion is not his final judgment, and he ordered the state to advise him within 30 days whether it intends to review and revise the procedure.
The judge said he is prepared to rule in the state's favor if the Governor's Office comes up with a proper method of administering three drugs that guarantees "a constitutionally adequate level of anesthesia."
If the governor is willing to revise the process, Fogel said, he also wants to be told how long that might take.
"It sounds like the judge is saying, 'You've made progress, but you're not there yet,' " Stanford law professor Robert Weisberg said. "I guess that this will just continue to get negotiated, and the state will make the adjustments that he wants."
Lethal injection issues in California and Florida show the need to improve the procedures, but do not threaten them altogether, he said.
The San Francisco Chronicle has, "Judge issues ultimatum to state on executions."
Fogel said he would declare the state's lethal-injection system unconstitutional if it is not changed. But he stressed that he was condemning neither capital punishment nor lethal injection itself, which is the exclusive or preferred method of execution in all of the 38 death-penalty states except Nebraska, which uses the electric chair.
"The use of lethal injection in executions represents an evolution from earlier methods such as hanging, electrocution and lethal gas that now are viewed by most jurisdictions as unduly harsh,'' Fogel said. He observed that, when properly administered, lethal injection "results in a death that is far kinder than that suffered by the victims of capital crimes.''
The state's "implementation of lethal injection is broken, but it can be fixed,'' Fogel said.
Gov. Arnold Schwarzenegger's office indicated that the state would try to do so.
The San Jose Mercury News has, "Fix needed to resume executions."
Legal experts consider the California case crucial because of the unprecedented amount of evidence presented, raising the possibility Morales' challenge could ultimately force the U.S. Supreme Court to settle whether lethal injection passes constitutional muster. The Supreme Court has never outlawed a method of execution.
Since last spring, Fogel has accumulated a wealth of evidence from both sides, holding a weeklong hearing in September to hear hours of testimony on the pros and cons of California's system of executing inmates.
Morales' lawyers have argued that California's lethal injection procedure has few safeguards to ensure an inmate is put to death humanely, offering testimony from former San Quentin execution team members who acknowledged they were not trained to carry out the task.
The central argument against the state's procedure is that the combination of three drugs masks the possibility that the inmate experiences excruciating pain during an execution. In particular, critics have warned that the first drug may not succeed in rendering an inmate fully unconscious and that the second drug, pancurium bromide, masks evidence that the final and fatal drug, potassium chloride, causes searing pain before death.
At various points in Friday's ruling, Fogel expressed frustration with the state's approach to executions and its lackluster response to the judge's invitation to offer solutions earlier in the case. The judge called the state's recent reluctance to cure problems ``self-defeating'' if it wants to enforce the state's death penalty.
Continued Florida Coverage
Let's start with the New York Times, "Florida Governor Halts the Death Penalty." It covers developments in both Florida and California. Here, we'll highlight Florida coverage. In the next post, we'll focus on California.
Gov. Jeb Bush yesterday suspended all executions in Florida, citing a troubled execution on Wednesday and appointing a commission to consider the humanity and constitutionality of lethal injections.
Hours later, a federal judge ruled that the lethal injection system in California violated the constitutional prohibition of cruel and unusual punishment.
“Today has been the most significant day in the history of the death penalty in America in many years,” said Jamie Fellner, director of United States programs for Human Rights Watch. “These developments show that the current lethal-injection protocols pose an unacceptable risk of cruelty.
“The way states have been killing people for the last 30 years has yielded botched execution after botched execution.”
The Jacksonville Times-Union carries AP coverage, "Florida governor suspends executions."
In Florida, medical examiner Dr. William Hamilton said Wednesday's execution of Angel Nieves Diaz took 34 minutes - twice as long as usual - and required a rare second dose of lethal chemicals because the needles were inserted clear through his veins and into the flesh in his arms. The chemicals are supposed to go into the veins.
As a result of the chemicals going into Diaz's arms around the elbow, he had an 12-inch chemical burn on his right arm and an 11-inch chemical burn on his left arm, Hamilton said.
Hamilton, who performed the autopsy, refused to say whether he thought Diaz died a painful death.
"I am going to defer answers about pain and suffering until the autopsy is complete," he said. He said the results were preliminary and other tests may take several weeks.
Jonathan Groner, associate professor of surgery at The Ohio State University College of Medicine, who has written several articles on lethal injection, said he believed the process would have been excruciating.
"When the IV is not in the vein and the fluids are injected under the skin, it can cause a lot of pain," Groner said.
Groner added that chemically induced burns are agonizing.
"It would feel like your arms are on fire," he said.
The Miami Herald has, "Gov. Bush orders hold on executions."
Diaz was the 21st person executed under Bush, a record high for Florida governors.
His death marks a new chapter in the state's troubled history of executions. During the years the state used electrocution, smoke and flames erupted from two inmates' heads, and another man's nose bled profusely while he was strapped in the chair. Those high-profile cases led Florida lawmakers in 2000 to institute the reputedly less painful lethal-injection process.
The Orlando Sentinel has, "Bush halts executions to review procedures."
However, Dr. Jonathan Groner, an Ohio surgeon who has written extensively about lethal injection, said Diaz's execution amounts to "death by torture."
"This is a major disaster. If they can't get an IV in, then it doesn't matter how much drug they give him," Groner said.
Groner said the drugs flowing into Diaz's tissues would have been extremely painful, from the pressure exerted by the syringe and from the drugs themselves, especially potassium chloride, the third and final one administered.
The St. Petersburg Times has "Gov. Bush halts executions."
The problems prompted Bush to form a four-person team to investigate the execution. On Friday, Bush ordered the assembly of a second team to study whether the lethal injection protocols used in Florida should be revised.
Friday likely will go down as a landmark day in death penalty history, legal experts said.
"I think you can almost say at this point that the Diaz case has changed the implementation, if not the existence, of the death penalty in the state of Florida," said Charles Rose, a professor at the Stetson University College of Law. "I will hazard a prediction that we will not put people to death in Florida by the same fashion again."
The Palm Beach Post has "State death penalty halted."
Ken Goodman, director of the University of Miami bioethics program, said "no doctor or nurse should be involved in this process."
"I don't know who these people are doing this, but if they are licensed to practice medicine or nursing, they have abandoned their core values and are betraying their profession," Goodman said.
Deborah Denno, a Fordham University law professor who has testified in several lethal injection cases, said botched injections are "a common problem."
"This problem has been going on for decades," she said. "What it says is that legalized forms of execution have to be conducted in such a way that those very requirements almost ensure disaster."
Deborah Denno on Judge Fogel's Decision
Fordham University Law School Professor Deborah Denno had this comment on Judge Fogel's order:
Judge Fogel's decision is bold and incisive. It is the most
comprehensive decision in the country to determine that a state's
lethal injection protocol, in its current form, is "intolerable"
and unconstitutional under the Eighth Amendment. The decision goes
into impressive detail explaining the reasons for the court's
conclusion, as well as all the evidence that the court reviewed to
reach it.
To remedy California's intolerably flawed lethal injection process,
Judge Fogel put the onus squarely on the Governor's office. The
Governor can meet that challenge in several ways.
The Governor could establish a commission on lethal injection like
that ordered by Gov. Bush of Florida. Or the Governor could order
hearings of the type requested by Mr. Morales in his recently filed
challenge to the California Department of Corrections' failure to
conduct administrative hearings before promulgating the lethal
injection procedures.
Whether the Governor's Office can respond to the challenge it has
been given and promote the development of a protocol that rectifies
the problems that have dogged lethal injection remains to be seen.
I credit Judge Fogel for a well-reasoned decision that takes the
design of an execution protocol away from the Department of
Corrections and encourages the Governor to institute a meaningful
review that can address the currently grievously flawed system.
Denno is perhaps the foremost academic examining contemporary lethal injection issues. You can view some of her most recent work at the Social Science Research Network (SSRN), including the 2002 paper, "When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What it Says About Us," and her 2006 paper, "The Lethal Injection Quagmire: How Medical Participation and Procedures Have Changed the Face of Executions."
Friday, December 15, 2006
Morales Opinion Issued
Judge Fogel's 15 page opinion is here, in Adobe .pdf format. Here's the pertinent order, footnotes removed:
Defendants may proceed with the execution scheduled for February 21, 2006, provided that they do one of the following: 1) Certify in writing, by the close of business on Thursday, February 16, 2006, that they will use only sodium thiopental or another barbiturate or combination of barbiturates in Plaintiff’s execution.
2) Agree to independent verification, through direct observation and examination by a qualified individual or individuals, in a manner comparable to that normally used in medical settings where a combination of sedative and paralytic medications is administered, that Plaintiff in fact is unconscious before either pancuronium bromide or potassium chloride is injected. Because Plaintiff has raised a substantial question as to whether a person rendered unconscious by sodium thiopental might regain consciousness during the administration of pancuronium bromide or potassium chloride, the presence of such person(s) shall be continuous until Plaintiff is pronounced dead. With respect to this alternative:
(a) A “qualified individual” shall be a person with formal training and experience in the field of general anesthesia. The nature and extent of such training and experience shall be set forth in a declaration submitted to the Court on or before the close of business on Wednesday, February 15, 2006. Plaintiff may file any comments he may have with respect to the qualifications of such person(s) not later than 12:00 noon on Thursday, February 16, 2006. The Court will advise the parties as to whether it finds the person(s) to be qualified by the close of business on Thursday, February 16, 2006.
(b) The person(s) may be employees of the Department of Corrections and Rehabilitation.
(d) During the execution, the person(s) may wear appropriate clothing to protect their anonymity.
If Defendants reject both of the alternatives described above, a stay of execution will issue without the necessity of further proceedings. In that event, the Court will hold an evidentiary hearing on the merits of Plaintiff’s claims on Tuesday, May 2, 2006, and Wednesday, May 3, 2006. The Court will issue a briefing schedule and orders with respect to discovery should that become necessary.
The Court will retain jurisdiction with respect to Defendants’ implementation of the remedy provided for herein. This order otherwise is intended to be final for purposes of appellate review.
We'll update with news coverage as soon as reports become available.
Ruling in Morales California LI Challenge Imminent
I understand that Federal District Jeremy Fogel will be issuing his ruling shortly in the challenge to California's lethal injection procedure. It was raised by death row inmate Michael Morales. Judge Fogel held four days of hearings hearings in late September and provided time for additional briefing by both sides. Coverage of the hearing, and other developments, can be found here.
Moratorium in Florida
With the issuance of Executive Order 06-260 earlier today, Florida Governor Jeb Bush created the Commission on Administration of Lethal Injection. The Commission is charged with reviewing the method in which lethal injection protocols are administered.
The order also creates a moratorium on executions in Florida. Section 8 of the order states:
Until the Commission has issued its findings and recommendations and the appropriate revisions to the Department of Corrections’ procedures and protocols have been adopted, or until further executive order, no further death warrants shall be signed.
We'll update with a link to the order as soon as it becomes available.
Bush leaves office January 2nd. He'll be replaced by George Crist, the state's current Attorney General. In a post earlier today, we linked to the Tampa Bay Tribune's article " Execution Puts Crist to Test." Here's the LINK again.
The State of Illinois continues to operate under the moratorium established by former Governor George Ryan because of a wave of exonerations. The State of New Jersey has a moratorium mandated by state legislators pending a review of that state's application of capital punishment. Governor Parris Glendening imposed a moratorium in Maryland in 2002, because of questions of geographic and racial disparities in death sentences. Robert Ehrlich lifted that moratorium after becoming governor in 2003.
Several states, including California and Missouri, have de facto moratoriums because of legal challenges to their lethal injection procedures.
Thanks to Kristin Houle for sending the text of the Executive Order.
Initial Autopsy Results Indicate Problem with Diaz Execution
AP, via the Orlando Sentinel, reports on the initial results on an autopsy performed on executed inmate Angel Diaz. LINK
The execution of Angel Nieves Diaz took 34 minutes because officials botched the insertion of the needles that delivered the lethal chemicals, a medical examiner said Friday.
Gov. Jeb Bush responded to Dr. William Hamilton's preliminary findings by halting the signing of more death warrants until a commission he created to examine the state's lethal injection process completed its final report by March 1.
Hamilton, who performed an autopsy Thursday, said needles pierced two veins and then went into soft tissue in Diaz's arms.
"More likely than not, the perforation of the veins occurred very early in this process," Hamilton said. "The autopsy findings were different than any other lethal injections."
Hamilton also said that although there were records that Diaz had hepatitis, his liver appeared normal. State corrections officials said after Wednesday's execution that Diaz had liver disease, which caused him to metabolize the lethal drugs more slowly.
The Role of Supreme Court Law Clerks in the Certiorari Process
"The Supreme Court's Gatekeepers," is one part of SCOTUS Blog's current "Ask the Author" post with David Stras of th University of Minnesota Law School.
This Review Essay compares and evaluates two recent books on Supreme Court Law clerks, Courtiers of the Marble Palace by Todd Peppers and Sorcerers' Apprentices by Artemus Ward and David Weiden. Both books add to the understanding of the role of law clerks within the Supreme Court - Courtiers through its primarily historical approach and Sorcerers' Apprentices through its more ambitious statistical approach.
This Review Essay also reports the results from the first empirical examination of every pool memo from four Terms of the Supreme Court: October Terms 1984, 1985, 1991 and 1992. Three characteristics of the cert pool become apparent: (1) it is stingy with respect to making grant recommendations; (2) it emphasizes objective criteria of certworthiness in making its recommendations, such as the presence of lower court conflict; and (3) there is statistical evidence suggesting that its recommendations are correlated with the eventual decisions made by the Court on petitions for certiorari.
A Question Doug Berman Has Asked Before
"Is it finally time for Congress to do something about lethal injection problems," at his Sentencing Law & Policy blog. LINK
Eight months ago in this post, I urged Congress to consider whether and how it could do something to address the lethal injection mess unfolding in state and federal courts. (I expanded upon these points in this article in the annual Cato Supreme Court Review). As recently detailed here and here, the mess continues to grow all over the country, and last night's botched Florida execution of Angel Diaz (basics here) is the latest disturbing development.
And:
I am never a big fan of federal involvement in state matters. But, recalling Congress's active role in last year's hub-bub over Terry Schiavo, I continue to wonder where we can find the vocal "culture of life" advocates when we need them?
Also, Karl Keys has commentary on the Diaz execution and links to several blogs, here.
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