States Hesitate to Lead Change on Executions

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FreeJP Posted: 01-03-2008 10:48 AM

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 States Hesitate to Lead Change on Executions
NEW YORK TIMES By ADAM LIPTAK

When a state panel recommended last April that Tennessee abandon the
three chemicals used in executions across the nation in favor of the
single drug usually used in animal euthanasia, the state¹s corrections
commissioner said no.

Though the move would have simplified executions and eliminated the
possibility of excruciating pain, the commissioner, George Little, said
Tennessee should not be ³out at the forefront² of a decision with
³political ramifications,² according to recently disclosed evidence in
a death row inmate¹s lawsuit.

Mr. Little¹s decision helps illuminate one of the questions lurking
behind the year¹s most eagerly anticipated death penalty case: Why have
states so doggedly and uniformly clung to an execution method with the
potential to inflict intense pain when a simpler one is readily
available?

When the Supreme Court hears arguments on Monday in Baze v. Rees, the
Kentucky case that has led to a de facto national moratorium on
executions, it will mostly be concerned with the question of what
standard courts must use to assess the constitutionality of execution
methods under the Eighth Amendment, which bars cruel and unusual
punishment.

But beyond that is the more practical question of why all 36 states
that use lethal injections to execute condemned inmates are wedded to a
cumbersome combination of three chemicals.

The answer, experts say, seems to be that no state wants to make the
first move. Having proceeded in lock step to adopt the current method,
which was chosen in part because it differed from the one used on
animals and masked the involuntary movements associated with death,
state governments would prefer that someone else, possibly the courts,
change the formula first.

³The departments of correction are dug in,² said Deborah W. Denno, an
authority on methods of execution at the Fordham University Law School.
³There¹s safety in numbers. But if one state breaks from that, the
safety in numbers starts to crumble.²

³If you change,² Professor Denno continued, ³you¹re admitting there was
something wrong with the prior method. All those people you were
executing, you could have been doing it in a better, more humane way.²

In the Baze case, lawyers for John D. Rees, the Kentucky corrections
commissioner, said the three-chemical combination was safe and painless
and produced a dignified death. Using only a single barbiturate, they
said, was untested, could result in distressing and disruptive muscle
contractions, and might take a long time. The method is the one most
commonly used for pets, sometimes in combination with a sedative.

Lawyers for the Kentucky inmates, Ralph Baze and Thomas C. Bowling,
said a barbiturate would bring on fatal cardiac arrest ³within a matter
of minutes.² They conceded that muscle contractions were possible, but
said that inmates were strapped down and that witnesses could be told
that the movements did not indicate pain. And they said the
three-chemical combination, which is not used in veterinary euthanasia,
was itself once untested.

Mr. Baze is on death row for killing a sheriff and a deputy sheriff who
were trying to serve him with a warrant. Mr. Bowling is there for
killing a couple whose car he had damaged in a parking lot.

Lethal injection protocols nationwide were copied from one developed in
Oklahoma in 1977 ‹ the year after the Supreme Court reinstituted the
death penalty ‹ based on advice from a medical school professor to a
state senator. They call for a short-acting barbiturate to render the
inmate unconscious, followed by a paralytic and then a chemical to stop
the heart.

If the first chemical works, there is no dispute that the process is
quick and painless. If it does not, there is no dispute that the inmate
will suffer intense and terrifying pain. But because the inmate is
paralyzed, it may not be possible to tell whether the first drug worked.

When Texas was considering whether to adopt the Oklahoma protocol in
the late 1970s, the medical director of Texas¹ corrections department,
Dr. Ralph Gray, consulted a veterinarian in Huntsville, Tex., Dr. Gerry
Etheredge.

³I told him,² Dr. Etheredge recalled Wednesday, ³that in veterinary
medicine when we euthanized an animal most of us used pentobarbital, a
general anesthetic, which is very potent and long-lasting, and we
overdosed it and everything went smoothly. It was very safe, very
effective and very cheap.²

Dr. Gray, who has since died, had only one objection, Dr. Etheredge
recalled. ³He said it was a great idea except that people would think
we are treating people the same way that we¹re treating animals. He was
afraid of a hue and cry.²

Texas adopted Oklahoma¹s three-chemical combination and started using
it to execute inmates in 1982.

These days, opponents of that protocol make the opposite argument of
the one Dr. Gray feared. They say that death row inmates deserve to be
treated at least as well as animals.

Two other states have considered revising the three-chemical
combination.

In March, a Florida commission appointed to study lethal injections
endorsed the three-chemical combination. But it indicated uneasiness
about the second drug in the combination, pancuronium bromide, a
paralytic that, used alone, would leave the inmate conscious but
suffocating and unable to cry out.

The Florida commission urged the state to explore ³more recently
developed chemicals² to substitute for the paralytic drug that might
³make the lethal injection execution procedure less problematic.²

In May, a California commission issued a report saying it had
considered recommending a single drug, which has ³the advantages of
being simpler to administer and virtually eliminates the potential for
pain.² But the commission rejected it because a single-chemical
protocol s untested, may result in involuntary muscle movements and
might take a long time.

The Tennessee committee saw it differently.

³The primary advantage of the one-drug protocol,² according to its
draft report in April, ³is that it is much simpler to administer.² It
also ³has the advantage of eliminating both of the drugs which, if
injected into a conscious person, would cause pain,² the report added.
³All of the medical experts consulted by the state were very supportive
of the one-drug protocol,² it said.

Indeed, Judge Aleta A. Trauger of Federal District Court in Nashville
said in a decision in September, ³No medical testimony supports the
proposition that the one-drug protocol causes any suffering or that it
prolongs the pronouncement of death.²

In that decision, Judge Trauger barred the execution of Edward J.
Harbison, who is on death row for beating a woman to death in a
burglary in 1983. Judge Trauger found that the corrections commissioner
was ³deliberately indifferent to the plaintiff¹s excessive risk of
pain² because he rejected the use of a single drug.

That decision is on appeal.

Judge Trauger appeared unimpressed with the testimony of Mr. Little,
the corrections commissioner. She said Mr. Little had ³at first denied
that the protocol committee recommended to him the one-drug protocol²
but ultimately admitted that it had.

At a hearing in September, Judge Trauger questioned Mr. Little directly
about his statement that political considerations had played a role in
his decision to retain the three-chemical combination.

³Did you mean that the governor might look soft on execution or soft on
convicted murderers if he went to a one-drug-protocol?² Judge Trauger
asked. ³He might be pandering to the anti-death-penalty people?²

Mr. Little said no, but he did not elaborate. He did say, according to
the notes of Steve Elkins, the governor¹s lawyer, that the one-chemical
protocol could be a fallback if the courts struck down the
three-chemical combination. ³Vice versa, no fallback,² the notes said.

A spokeswoman for Mr. Little said he had no comment beyond what he had
said in court. A spokeswoman for the attorney general declined to
comment, citing the pending litigation.

Some experts on executions say the debate over which chemicals to use
is the wrong one. States have adopted a process that appears humane
because it looks like medical treatment, Professor Denno said. But
looks can be deceiving, she added.

³To me,² Professor Denno said, ³the firing squad is the most humane and
perceived to be the most brutal.²

December 26, 2007
U.S. Disparity in Executions Grows as Texas Bucks Trend
NEW YORK TIMES By ADAM LIPTAK
This year¹s death penalty bombshells ‹ a de facto national moratorium, a
state abolition and the smallest number of executions in more than a decade
‹ have masked what may be the most significant and lasting development. For
the first time in the modern history of the death penalty, more than 60
percent of all American executions took place in Texas
<http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessio
ns/texas/index.html?inline=nyt-geo> .
Over the past three decades, the proportion of executions nationwide
performed in Texas has held relatively steady, averaging 37 percent. Only
once before, in 1986, has the state accounted for even a slight majority of
the executions, and that was in a year with 18 executions nationwide.
But enthusiasm for executions outside of Texas has dropped sharply. Of the
42 executions in the last year, 26 were in Texas. The remaining 16 were
spread across nine other states, none of which executed more than three
people. Many legal experts say the trend will probably continue.
Indeed, said David R. Dow, a law professor at the University of Houston
<http://topics.nytimes.com/top/reference/timestopics/organizations/u/univers
ity_of_houston/index.html?inline=nyt-org> who has represented death-row
inmates, the day is not far off when essentially all executions in the
United States will take place in Texas.
³The reason that Texas will end up monopolizing executions,² he said, ³is
because every other state will eliminate it de jure, as New Jersey did, or
de facto, as other states have.²
Charles A. Rosenthal Jr., the district attorney of Harris County, Tex.,
which includes Houston and has accounted for 100 executions since 1976, said
the Texas capital justice system was working properly. The pace of
executions in Texas, he said, ³has to do with how many people are in the
pipeline when certain rulings come down.²
The rate at which Texas sentences people to death is not especially high
given its murder rate. But once a death sentence is imposed there, said
Richard C. Dieter, the executive director of the Death Penalty Information
Center, prosecutors, state and federal courts, the pardon board and the
governor are united in moving the process along. ³There¹s almost an
aggressiveness about carrying out executions,² said Mr. Dieter, whose
organization opposes capital punishment.
Outside of Texas, even supporters of the death penalty say they detect a
change in public attitudes about executions in light of the time and expense
of capital litigation, the possibility of wrongful convictions and the
remote chance that someone sent to death row will actually be executed.
³Any sane prosecutor who is involved in capital litigation will really be
ambivalent about it,² said Joshua Marquis, the district attorney in Clatsop
County, Ore., and a vice president of the National District Attorneys
Association. He said the families of murder victims suffered needless
anguish during what could be decades of litigation and multiple retrials.
³We¹re seeing fewer executions,² Mr. Marquis added. ³We¹re seeing fewer
people sentenced to death. People really do question capital punishment. The
whole idea of exoneration has really penetrated popular culture.²
As a consequence, Mr. Dieter said, ³we¹re simply not regularly using the
death penalty as a country.²
Over the last three years, the number of executions in Texas has been
relatively constant, averaging 23 per year, but the state¹s share of the
number of total executions nationwide has steadily increased as the national
totals have dropped, from 32 percent in 2005 to 45 percent in 2006 to 62
percent in 2007.
The death penalty developments that have dominated the news in recent months
are unlikely to have anything like the enduring consequences of Texas¹
vigorous commitment to capital punishment.
A Supreme Court
<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme
_court/index.html?inline=nyt-org> case concerns how to assess the
constitutionality of lethal injection protocols. While it is possible that
states may have to revise the ways they execute people, executions will
almost certainly resume soon after the court¹s decision, which is expected
by June.
Similarly, New Jersey¹s abolition of the death penalty last week and Gov.
Jon Corzine
<http://topics.nytimes.com/top/reference/timestopics/people/c/jon_s_corzine/
index.html?inline=nyt-per> ¹s decision to empty death row of its eight
prisoners is almost entirely symbolic. New Jersey has not executed anyone
since 1963.
And while the total number of executions in 2007 was low, it would have been
similar to those in recent years but for the moratorium, if extrapolated to
a full year.
There do seem to be slight stirrings suggesting that other states might
follow New Jersey. Two state legislative bodies ‹ the House in New Mexico
and the Senate in Montana ‹ passed bills to abolish capital punishment, and
in Nebraska, the unicameral legislature came within one vote of doing so.
Texas has followed the rest of the country in one respect: the number of
death sentences there has dropped sharply.
In the 10 years ending in 2004, Texas condemned an average of 34 prisoners
each year ‹ about 15 percent of the national total. In the last three years,
as the number of death sentences nationwide dropped significantly, from
almost 300 in 1998 to about 110 in 2007, the number in Texas has dropped
along with it, to 13 ‹ or 12 percent.
Indeed, according to a 2004 study by three professors of law and statistics
at Cornell published in The Journal of Empirical Legal Studies, Texas
prosecutors and juries were no more apt to seek and impose death sentences
than those in the rest of the country.
³Texas¹ reputation as a death-prone state should rest on its many murders
and on its willingness to execute death-sentenced inmates,² the authors of
the study, Theodore Eisenberg, John H. Blume and Martin T. Wells, wrote. ³It
should not rest on the false belief that Texas has a high rate of sentencing
convicted murderers to death.²
There is reason to think that the number of death sentences in the state
will fall farther, given the introduction of life without the possibility of
parole as a sentencing option in capital cases in Texas in 2005. While a
substantial majority of the public supports the death penalty, that support
drops significantly when life without parole is included as an alternative.
Once an inmate is sent to death row, however, distinctive features of the
Texas justice system kick in.
³Execution dates here, uniquely, are set by individual district attorneys,²
Professor Dow said. ³In no other state would the fact that a district
attorney strongly supports the death penalty immediately translate into more
executions.²
Texas courts, moreover, speed the process along, said Jordan M. Steiker, a
law professor at the University of Texas
<http://topics.nytimes.com/top/reference/timestopics/organizations/u/univers
ity_of_texas/index.html?inline=nyt-org> who has represented death-row
inmates.
³It¹s not coincidental that the debate over lethal injections had traction
in other jurisdictions but not in Texas,² Professor Steiker said. ³The
courts in Texas have generally not been very solicitous of constitutional
claims.²
Indeed, the Supreme Court has repeatedly rebuked the state and the federal
courts that hear appeals in Texas capital cases, often in exasperated
language suggesting that those courts are actively evading Supreme Court
rulings.
The last execution before the Supreme Court imposed a de facto moratorium
happened in Texas, and in emblematic fashion. The presiding judge on the
state¹s highest court for criminal matters, Judge Sharon Keller, closed the
courthouse at its regular time of 5 p.m. and turned back an attempt to file
appeal papers a few minutes later, according to a complaint in a
wrongful-death suit filed in federal court last month.
The inmate, Michael Richard, was executed that evening.
Judge Keller, in a motion to dismiss the case filed this month, acknowledged
that she alone had the authority to keep the court¹s clerk¹s office open but
said that Mr. Richard¹s lawyers could have tried to file their papers
directly with another judge on the court.

http://www.nytimes.com/2007/12/27/opinion/27thu1.html
New York Times Editorial,
December 27, 2007
State Without Pity

It is a shameful distinction, but Texas is the undisputed capital of
capital punishment. At a time when the
rest of the country is having serious doubts about the death penalty, more
than 60 percent of all American
executions this year took place in Texas. That gaping disparity provides
further evidence that Texas's
governor, Legislature, courts and voters should reassess their addiction to
executions.

As Adam Liptak reported in The Times on Wednesday, in the last three years,
Texas's share of the
Nation's executions has gone from 32 percent to 62 percent. This year, Texas
executed 26 people. No other
state executed more than three.

It is not that Texas sentences people to death at a much higher rate than
other states. Rather, Texas has
proved to be much more willing than others to carry out the sentences it has
imposed.

The participants in Texas's death penalty process, including the governor
and the pardon board, are more
enthusiastic about moving things along than they are in many states. Texas's
system also contains some
special features, like the power of district attorneys to set execution
dates. Prosecutors are likely to be more
eager than judges to see an execution carried out.

While Texas has been forging ahead with capital punishment, many other
states have been moving away
from it. New Jersey abolished the death penalty this month, and other states
have been considering doing
the same thing. Illinois made headlines a few years ago when its governor,
troubled about the number of
innocent people who had been sent to death row, put in place a moratorium on
executions.

These states have had good reasons for their doubts. The traditional
objections to the death penalty
remain as true as ever. It is barbaric -- governments should simply not be
in the business of putting people to
death. It is imposed in racially discriminatory ways. And it is too subject
to error, which cannot be corrected
after an execution has taken place.

In recent years, two other developments have undercut the public's faith
in capital punishment.

There has been a tidal wave of DNA exonerations, in which it has been
scientifically proved that the wrong
people had been sentenced to death. There is also increasing awareness that
even methods of execution
considered relatively humane impose considerable suffering on the condemned.

The Supreme Court will hear arguments next month in a case about whether
the pain caused by lethal
injection is so great that it violates the Eighth Amendment injunction
against cruel and unusual punishment.
Those who study the death penalty say that if current trends continue,
eventually almost all of the nation's
executions will occur in Texas. That is not a record any state should want.
Some states, such as Illinois
and New Jersey, have already had wide-ranging discussions about what role
they want the death penalty to
play in their criminal justice system. Texas is long overdue for such a
debate.

If it is unwilling to abolish the death penalty, which all states should
do, Texas should at least take a hard
look at a system that still produces so many executions and is so wildly out
of step with the rest of
the country.
Copyright 2007 The New York Times Company
http://www.nytimes.com/2007/12/27/opinion/27thu1.html?_r=1&oref=slogin
<http://www.nytimes.com/2007/12/27/opinion/27thu1.html?_r=1&amp;oref=slogin>

http://www.latimes.com/news/opinion/la-oe-beiser1jan01,0,3022746.story?coll=
la-opinion-rightrail
From the Los Angeles Times
Falling out of love with death
Though a majority of Americans back capital punishment, surveys find growing
unease over it.
By Vince Beiser

January 1, 2008

The media are abuzz over the 40th anniversary of 1968, the year that saw so
much change in this country. But one of the most extraordinary of those
changes has been almost completely forgotten: 1968 was the first year in the
history of the United States that not a single prisoner was executed. Today,
we're getting closer than we have in decades to matching that milestone.

Forty years ago, the death penalty was dying off. With the injustices
highlighted by the civil rights movement prominent in the public
consciousness, polls found that more Americans opposed capital punishment
than supported it. Several states had banned the practice starting in the
early 1960s, and prominent leaders, from then-presidential candidate Robert
Kennedy to local politicians, were denouncing it. Even the U.S. attorney
general at that time, the nation's top law enforcement official, called for
its abolition. In a 1968 ruling, a Supreme Court justice dismissed death
penalty advocates as a "distinct and dwindling minority." That year, the
number of annual executions, which had been slipping into the single digits,
hit zero. Finally, in 1972, the Supreme Court effectively banned executions.

But just a few years later, the nation began an astonishing about-face. The
Supreme Court reopened the door to capital punishment in 1976, launching an
era in which the U.S. didn't just bring back the death penalty, it
feverishly embraced it. By the 1990s, a record majority of Americans favored
capital punishment. Opposing it had become political suicide for any major
candidate. Courts were handing down hundreds of death sentences every year,
and dozens of new crimes were being made capital offenses in state after
state. By the start of the new millennium, thousands of men and women were
languishing on death row, and the number of executions shot up to nearly 100
a year.

What happened? By the mid-1970s, much of middle America was deeply uneasy
about how the very fabric of society seemed to be unraveling. Drug use and
crime were rising; minorities, women and homosexuals were demanding more
power and respect. And the mighty United States was humiliated, first in
Vietnam and later by Iranian hostage-takers.

In this milieu, politicians increasingly learned that crime could pay -- for
them. From federal candidates to county sheriffs, would-be officeholders
began vying to out-tough each other on law-and-order issues. One result was
the extension of the death penalty to dozens of new crimes, along with
cutbacks on appeals and other protections for capital defendants.

Today, however, the nation is again losing its enthusiasm for capital
punishment. Executions nationwide are effectively on hold until the U.S.
Supreme Court takes up a case later this month on whether lethal injection
is unconstitutionally inhumane. If the court rules that it is, states can,
of course, find some other way to end convicts' lives. But Americans are
increasingly queasy about doing so, no matter how it's done.

Although about two-thirds of all Americans still support capital punishment
in principle, that number is considerably lower than what it was just five
years ago. In practice, we're ever more reluctant to impose it. That's
largely because of the more than 100 men and women who have been freed from
death row in recent years, thanks to DNA testing and other advances. That
shocking proof of the system's fallibility also has made juries, judges,
prosecutors and politicians much more wary about pushing for the ultimate
punishment. In 1996, courts handed down 317 death sentences; last year, that
number plummeted to 110, according to the Death Penalty Information Center.
And in December, New Jersey became the first state in 40 years to abolish
its death penalty. At least two other states are considering doing likewise.

According to Amnesty International, 133 countries have abolished the death
penalty. Last month, the United Nations voted for a worldwide moratorium on
capital punishment.

As far back as the 1960s, almost every industrialized nation had abandoned
the death penalty as a barbaric and pointless anachronism. The U.S. in 1968
was on track to do the same -- not because the Supreme Court forced it on
us, but because we as a nation had decided it was a bad idea. Support for
the death penalty hasn't always been a fact of American life. That's
something worth remembering in this new year.
Vince Beiser is a California-based writer who often writes on criminal
justice issues.

http://www.kansascity.com/105/v-print/story/424378.html

Posted on Sun, Dec. 30, 2007
Race emerges as a death penalty issue
By TONY RIZZO; The Kansas City Star

Across the nation, death chambers sit idle while the U.S. Supreme Court
mulls the viability of lethal injection.

But it¹s another less-publicized death penalty issue that in the long
run may prove to have a much larger impact on who dies and who decides
if they should.

The issue is race. Earlier this month, the Supreme Court heard
arguments in the appeal of a black man from Louisiana convicted by an
all-white jury. In his case, the prosecutor admonished jurors to not
let the defendant get away with murder like O.J. Simpson.

Beyond the prosecutor¹s closing-argument theatrics looms his alleged
desire to strike blacks from the jury. It highlights what many see as
the ongoing racial disparity in how capital punishment is meted in this
country.

Whether real or perceived, when black defendants face a jury with no
black faces in it, particularly in a case involving the question of
life or death, they are often left with the feeling of being unfairly
judged, according to some attorneys and death penalty researchers.

³Perception is reality,² said Kansas City defense attorney John P.
O¹Connor. ³The perception of justice is often as important as justice
itself.²

The current debate about whether the chemicals used in lethal injection
can lead to undue pain and suffering is a peripheral issue that will
work itself out, said Richard Dieter, executive director of the Death
Penalty Information Center.

³Race and the death penalty is a much more fundamental issue,² Dieter
said.

Blacks are disproportionately represented on the nation¹s death rows.
And blacks who kill whites are overwhelmingly more likely to be
executed than blacks who kill other blacks or whites who kill blacks.

Since 1976, when capital punishment in its current form was
established, 223 black defendants have been put to death for killing
white victims, according to records maintained by the information
center. During that same period, only 15 white defendants have been
executed for killing black victims.

This year, of the 14 black defendants put to death, victims were white
in 10 of those cases. Twenty-two whites have been put to death this
year. None of the victims was black.

³The existing data clearly suggest that many of the death sentences are
a product of racial discrimination,² Dieter wrote in a 1998 study of
race and the death penalty. ³There is no way to maintain our avowed
adherence to equal justice under the law while ignoring such racial
injustice in the state¹s taking of life.²

Unfairly excluding blacks as jurors ³undermines public confidence in
the fairness of our system of justice,² the U.S. Supreme Court noted in
a landmark 1986 decision.

Though noting that a defendant has no right to have anyone of his own
race on a jury, the court said that the state cannot use race as the
basis for removing someone from the jury pool.

³By denying a person participation in jury service on account of his
race, the state also unconstitutionally discriminates against the
excluded juror,² the court reasoned.

That ruling required that before an attorney can exercise a
³peremptory² strike to remove someone during jury selection, he must be
able to provide a race-neutral basis for the strike.

But legal theory does not always translate to practical application in
the courtroom.

O¹Connor said that he knows of several cases where prosecutors have
³contrived² reasons to remove black jurors.

In a decision handed down earlier this year in a case that O¹Connor
tried, the Missouri Court of Appeals ruled that the reason prosecutors
provided to strike a black person from the jury in a murder case was
³pretextual² and that they ³engaged in purposeful discrimination.² As a
result, the court overturned the conviction of defendant Lance
Livingston.

That is the same argument raised by lawyers for the Louisiana man whose
case the Supreme Court recently heard.

Prosecutors provided race-neutral reasons for using strikes to remove
all five blacks from the jury. But defense attorneys say the
prosecutor¹s words and deeds - including the O.J. analogy - betray his
true racial motivation.

The court is expected to rule by summer.

³I think the Supreme Court considers it an important issue,² Dieter
said. ³They can send a message that we¹re going to monitor this
closely.²

O¹Connor said he thinks the Supreme Court eventually may have to do
away with peremptory strikes entirely to prevent attorneys from playing
games with jury selection.

While peremptory strikes long have been a part of the American justice
system, the Missouri Court of Appeals said in the Livingston case:

³The right of a party to peremptorily strike a juror must always give
way to a right of a citizen to participate in our judicial system
without regard to race, gender or national origin.²
To reach Tony Rizzo, call 816-234-4435 or send e-mail to