KATHY DILLON to speak at TCADP annual meeting.

TALLAHASSEE CITIZENS AGAINST THE DEATH PENALTY
(TCADP)

ANNUAL MEETING & SPECIAL PROGRAM
THURSDAY, MAY 11, 2006
7:00 PM Read More

News media, witnesses to view entire execution

News media, witnesses to view entire execution

By The Associated Press
Wednesday, April 26, 2006

RENO, Nev. — In response to a lawsuit filed by a newspaper, the Nevada Department of Corrections has agreed to change its procedure for tomorrow night’s scheduled execution of Daryl Mack. Read More

More on Clarence Hill Case

Judges reexamine lethal injections for convicts

In a twist, lawyers argue that the method of execution - not the death penalty itself - is cruel if administered improperly.

By Warren Richey
The Christian Science Monitor
Wednesday, April 26, 2006

Read More

Humaneness of Lethal Injections

Supreme Court Looks at Humaneness of Lethal Injections

By Tony Mauro
The Legal Times
Thursday, April 27, 2006

The Supreme Court on Wednesday seemed reluctant to place too many procedural barriers in the path of death row inmates who want to make last-minute challenges to a state’s method of execution.

Exploring for the first time the humaneness of lethal injections — the method of choice for almost all states that use the death penalty — the justices appeared reluctant to give states carte blanche to use any combination of death-dealing chemicals they choose.

At one point in oral arguments in Hill v. McDonough, Justice Anthony Kennedy suggested that states have “some minimal obligation” to ensure that the chemicals used in legal executions employ the “most humane method” available.

Justice John Paul Stevens, citing a brief filed in the case by three veterinarians, noted that the combination of drugs used by Florida would be prohibited for use in euthanizing dogs and cats.

The case before the Court was brought by Clarence Hill, who was convicted in the 1982 murder of a Pensacola, Fla., police officer during a bank robbery. Decades of appeals were intermittently successful in reversing the sentence, but each time the sentence was restored.

In 2000, Florida changed its method of execution from the electric chair to lethal injection. But Hill did not challenge the procedure until weeks before his scheduled execution date of Jan. 24, 2006. Florida courts denied the challenge, and four days before the execution date, Hill’s lawyers went to federal court, invoking 42 U.S.C. §1983 and claiming that lethal injection would violate their client’s civil rights.

The 11th U.S. Circuit Court of Appeals treated his 1983 claim as the equivalent of a habeas corpus petition and denied it as an improper second or successive petition under the 1996 law that Congress passed limiting habeas. Hours before the scheduled execution, Justice Kennedy granted a stay to allow the appeal over whether and how Hill could challenge the method of execution.

Hill’s lawyer D. Todd Doss of Lake City, Fla., argued that the challenge should be allowed because the execution method was new in the state and questions about its humaneness only recently emerged. He also said the state left him “in the dark” as to precisely what combination of drugs would be used in the execution.

Several justices seemed worried that if an eleventh-hour §1983 suit is allowed, that device could be abused to delay executions every time the state adopts a new combination of chemicals. “I’d be willing to bet,” said Chief Justice John Roberts Jr., that successive civil rights claims would be brought.

Doss said that would not be the case “if the sedative works” and the state’s new formula is constitutional. Doss and other death penalty opponents say the current sequence of drugs used in executions could result in severe pain for inmates.

Florida Assistant Deputy Attorney General Carolyn Snurkowski ran into a buzz saw of harsh questioning when she argued that inmates who challenge a method of execution under §1983 should be required to suggest an alternative procedure.

Justices Kennedy, David Souter and Ruth Bader Ginsburg pressed her repeatedly on the legal source for her assertion. She apologized for seeming “disingenuous” but did not have an answer until Roberts bailed her out with a justification. If an inmate is not required to offer an alternative, Roberts said, the claim would amount to a habeas corpus challenge to the sentence itself.

But several justices seemed to believe that it was not unreasonable for an inmate to invoke the civil rights laws to challenge an execution method, no matter when it occurs in the appeals process.

First developed in Oklahoma in 1977, the three-drug injection method has been adopted in 37 of 38 death penalty states. Though it has been viewed as a more humane alternative to the electric chair and previous execution methods, Human Rights Watch last week issued a report asserting that in fact “there is mounting evidence that prisoners may have experienced excruciating pain during their executions.”

A separate case directly testing the constitutionality of lethal injections is pending before the Court in Abdur’Rahman v. Bredesen. A death row inmate is appealing a decision last October by the Tennessee Supreme Court that upheld lethal injections as constitutional.

Clarence Hill and lethal injection …

Lethal Cruelty

New York Times editorial
Wednesday, April 26, 2006

Lethal injection is considered by some to be a more humane alternative to the electric chair. But the Supreme Court hears arguments today in a case that shines a light on the reality: if lethal injection is poorly administered, it can in fact be particularly barbaric. In today’s case, Clarence Hill, a condemned man, is arguing that it would be unconstitutional for Florida to execute him with what he contends are its flawed lethal injection procedures. The case comes to the court in a tricky procedural posture that poses the question of whether Mr. Hill should be able to bring his claim at all. The court should clear the way for Mr. Hill’s challenge.

We believe that the death penalty is in all cases unconstitutional, and that the Supreme Court should spare Mr. Hill’s life on that ground alone. But even justices who do not share that view should be troubled by a method of execution that may impose tremendous pain on a condemned prisoner in the process of killing him. It appears that Florida’s use of lethal injection can do just that.

In lethal injection, three different chemicals are administered in sequence. The first is an anesthetic, another paralyzes the muscles and stops breathing, and a third stops the heart. Improper administration of the anesthetic can have the ghoulish effect of leaving the prisoner able to feel the tremendous pain of being killed by the poison that is injected into him while rendering him unable to communicate his agony by sound or gestures.

In a “friend of the court” brief, Physicians for Human Rights warned that if the chemicals weren’t used correctly, they could “cause an inmate to suffocate, while consciously experiencing the blinding pain of” a coronary arrest. Meanwhile, it said, “onlookers believe him to be unconscious and insensitive to any pain.”

Lethal injection is used today in nearly every death penalty state, but it is facing increased criticism. In a recent report, Human Rights Watch declared that “there is mounting evidence that prisoners may have experienced excruciating pain during their executions.”

This month, a federal judge in North Carolina delayed an execution until the state found a means of ensuring that the condemned prisoner was unconscious when the second and third chemicals were administered.

Over the years, several justices have concluded that the death penalty is in all cases unconstitutional, including Justice Harry Blackmun, who famously declared, “From this day forward, I no longer shall tinker with the machinery of death.” We agree with Justice Blackmun and hope that the tinkering will someday stop and that the law of the land will recognize that the Eighth Amendment bars capital punishment completely. But even justices who think the Constitution permits capital punishment should find that lethal injections that torture prisoners in the process of killing them are unconstitutional.

Philippine President ordered the commutation of all death sentences to life in prison.

Philippine President Gloria Macapagel-Arroyo [pictured below] ordered the commutation of all death sentences to life in prison, an order that will spare the lives of the 1,205 people on death row. As her nation marked Easter Sunday, she issued the clemencies: “I wish to announce that we are changing our policy on those who have been imposed the death penalty. We are reducing their penalty to life imprisonment. Anyone who falls and makes mistakes has a chance to stand up and correct the wrong he has committed.” Since Arroyo became President in 2001, no death sentences have ben carried out and she has repeatedly issued stays to those facing execution. The Philippines abolished the death penalty in 1987, but it was reimposed by Congress in 1994. Since 1999, when executions resumed, seven people have been executed by lethal injection. The Catholic Church in the Philippines has opposed the death penalty. (Bangkok Post, April 17, 2006).

TCADP Archive finds a home.

TCADP Archive

Over the years TCADP has gathered a small collection of books and
papers on the death penalty. For the first time, this collection
will become accessible to any who are interested. First Presbyterian
Church has agreed to house the TCADP Archive in its Library as a
separate collection. As soon as appropriate procedures for the use of
the Archive are in place, we will post a notice.

Judges Set Hurdles for Lethal Injection

Judges Set Hurdles for Lethal Injection
By ADAM LIPTAK
Published: April 12, 2006

Judges in several states have started to put up potentially insurmountable roadblocks to the use of lethal injections to execute condemned inmates.

Their decisions are based on new evidence suggesting that prisoners have endured agonizing executions. In response, judges are insisting that doctors take an active role in supervising executions, even though the American Medical Association’s code of ethics prohibits that.

A federal judge in North Carolina, for instance, ordered state officials there to find medical personnel by noon today to supervise an execution scheduled for next week. Otherwise, the judge said, he will impose a stay of execution.

“This, of course, will make lethal injections difficult, if not impossible, to perform,” said Dr. Jonathan I. Groner, a professor of surgery at Ohio State University who has studied lethal injections and opposes the death penalty.

A California judge plans to hold hearings on the issue next month, after an execution there was called off for lack of doctors, and the United States Supreme Court will hear arguments this month on whether death row inmates may use a civil rights law to challenge lethal injections as cruel and unusual punishment.

Scores of similar suits, asserting that lethal-injection procedures are illogical and potentially torturous, are pending around the nation. But, until recently, they had met with limited success, said Jamie Fellner, the director of the United States programs for Human Rights Watch, which will issue a report on lethal injections this month.

“When prisoners first started making these challenges,” Ms. Fellner said, “the courts gave them short shrift. They thought these were stalling tactics. And there was not a lot of evidence.”

The recent decisions, by contrast, rely on accounts of witnesses, post-mortem blood testing and execution logs that seem to show that executions meant to be humane have, in fact, caused excruciating pain.

The three chemicals used in lethal injections in about 35 states have long attracted attention for what critics say is their needless and dangerous complexity.

The first chemical in the series is sodium thiopental, a short-acting barbiturate. Properly administered, all sides agree, it is sufficient to render an inmate unconscious for many hours, if not to kill him. The second chemical is pancuronium bromide, a relative of curare. If administered by itself, it paralyzes the body but leaves the subject conscious, suffocating but unable to cry out. The third, potassium chloride, stops the heart and causes excruciating pain as it travels through the veins.

Problems arise, lawyers and experts for the inmates say, when poorly trained personnel make mistakes in preparing the chemicals, inserting the catheters and injecting the chemicals into intravenous lines. If the first chemical is ineffective, the other two are torturous.

In veterinary euthanasia and in assisted suicides in Oregon, a single lethal dose of a long-acting barbiturate is typically used. But corrections officials and their medical experts say using that method in executions would take too long and would subject witnesses to discomfort.

The three chemicals are to be used to execute Willie Brown Jr. on April 21 in North Carolina. Mr. Brown was convicted in 1983 of murdering Vallerie Ann Roberson Dixon, a convenience store employee, in Williamston, N.C. He had a long criminal history and had just been released from a Virginia prison after serving 17 years of an 80-year sentence for armed robbery and shooting a police officer in an effort to escape.

Lawyers for Mr. Brown said in a court filing that all he was asking for was that state officials adopt “a protocol for anesthesia that affords him the same assurance of dying without conscious suffering of excruciating pain that is given to household pets.”

J. Donald Cowan Jr., a lawyer for Mr. Brown, said the state’s reluctance to adopt a simpler protocol was “a little puzzling.” That was especially so, he added, given that Mr. Brown’s legal position amounted to saying, “State, this is how you can execute people properly.”

Doctors helped fashion and promote earlier modes of execution, including the guillotine and the electric chair. Similarly, the original lethal-injection protocol was developed in Oklahoma in 1977 in consultation with state’s medical examiner and an anesthesiology professor. Other states, typically acting through their corrections departments and individual prison wardens, apparently copied the protocol.

Though some states give prisoners a choice between lethal injection and a second method and Nebraska uses only electrocution, lethal injection is the all but universal method of execution in this country. Every state that has made its lethal-injection protocols public uses the three-chemical combination.

Unlike the earlier methods, lethal injections appear to mimic medical procedures and so require doctors’ participation, said Kenneth Baum, a doctor and lawyer who supports the medical oversight of executions. “If the process is medicalized,” Dr. Baum said, “you must have physicians playing a central role in the execution chamber and in analyzing the protocols.”

But the American Medical Association’s ethics code forbids doctors to perform an array of acts at executions, including prescribing the drugs, supervising prison personnel, selecting intravenous sites, placing intravenous lines, administering the injections and pronouncing death.

The code is not legally binding, and doctors in many states have participated in executions, often anonymously. In the recent California case, however, doctors willing to participate in the execution could not be located in time.

Judge Malcolm J. Howard of the Federal District Court in Greenville, N.C., on Friday ordered state officials to make certain that Mr. Brown would be provided with medical personnel capable of ensuring unconsciousness as the second and third chemicals were administered and of “providing appropriate medical care” if Mr. Brown woke up. Judge Howard did not say that the personnel had to be doctors, but medical experts said his meaning was unmistakable.

“He’s describing a physician, specifically an anesthesiologist,” said Dr. Richard J. Pollard, the president of the North Carolina Society of Anesthesiologists.

Noelle Talley, a spokeswoman for the North Carolina attorney general, would not say how the state planned to respond. “We’re still reviewing the judge’s order,” Ms. Talley said.

Judge Howard based his order on what he said were “substantial questions” about the possibility of agonizing death. He noted that post-mortem levels of sodium thiopental in the bodies of four North Carolina inmates executed in the last six months suggested that they might have been conscious as they endured the suffocation and pain caused by the final two chemicals. Prosecutors said the testing might not have been conducted properly.

Judge Howard also noted that three lawyers who had witnessed executions in the state submitted sworn statements saying that some of the condemned men were writhing and gagging during their executions.

“Instead of the quiet death I expected,” one of the lawyers, Cynthia F. Adcock, said in a sworn statement about her client Willie Fisher, who was executed in 2001, “Willie began convulsing. The convulsing was so extreme that Willie’s cousin jumped up screaming.”

Such convulsions are inconsistent with a proper dosage of sodium thiopental, a medical expert for Mr. Brown said.

An appeals court in New Jersey halted executions there in 2004 pending an explanation from corrections officials of an aspect of that state’s lethal injection procedures. “Nothing in the record,” the court said, “suggests medical consultation.” The corrections department has yet to issue new regulations, and the State Legislature adopted a one-year moratorium in January.

Lawyers for a Missouri death row inmate, Reginald Clemons, said they would file their own challenge this month, asking that an anesthesiologist supervise his execution. “The state has chosen to proceed with an execution that requires the use of highly trained medical personnel,” said Jill M. O’Toole, a lawyer with Simpson Thacher & Bartlett in New York. “It’s put itself in this bind.”

A matter of law and death

A matter of law and death
A St. Petersburg Times Editorial
Published April 10, 2006

As much as Gov. Jeb Bush and the Legislature would like to provide death row inmates with representation on the cheap, Florida courts are nobly standing in the way. The latest ruling by a circuit court in Leon County rejects an attempt by lawmakers to punish lawyers who provide their clients with legal assistance beyond a set number of compensated hours. It is a victory for due process and the proper administration of justice.

If this state has learned anything through the multiple exonerations of prisoners through DNA evidence, it is that the criminal justice system is fallible. Providing additional due process before taking a prisoner’s life helps ensure that the right person was convicted and the procedure was fair.

But for years the governor has tried to find ways to handicap the attorneys who do post-conviction death penalty appeals. He and Republican lawmakers have been frustrated by the success rate of the state offices of Capital Collateral Regional Counsel in suspending executions and getting death sentences set aside due to faulty process.

In 2003, Bush engineered the closure of one of the three highly specialized CCRC offices, replacing it with a list of private lawyers who generally had little experience handling death row appeals. The attorneys who signed up to be on the registry had to promise to limit their representation to 840 compensated hours. It was a figure that didn’t come close to the number of hours that an average death penalty case requires, which was closer to 3,000. The idea was to provide a lawyer, but not a very good one. Last year, Florida Supreme Court Justice Raoul Cantero described the legal work of the registry lawyers as “the worst lawyering I’ve seen.”

The cap on fees was a clear attempt to keep attorneys from providing their clients with the full defense they are entitled to and was soon abrogated by the Florida Supreme Court. But not to be outmaneuvered, the Legislature came right back and adjusted the law to bar any attorney who requested fees above the stated maximums from remaining on the state registry. Late last month, Leon Circuit Judge Terry Lewis set aside that provision, too.

There is no reason for the state to appeal this latest ruling. Florida courts are not going to allow the Legislature to direct attorneys to violate their professional responsibilities toward their clients.

Experience has demonstrated that post-conviction death penalty work is most effectively handled by lawyers who specialize in the practice. To its credit, the Legislature is considering legislation (H.B. 325, C.S./S.B. 360) to substantially raise the minimum standards for all registry attorneys. Still, the CCRC model serves justice and Florida’s court system best. The state should reopen the office that was closed.