Washington: King County Public Defender welcomes moratorium on executions

WA Gov. Inslee

David Chapman, interim Public Defender for King County, issued the following statement on Governor Jay Inslee's announcement Tuesday to place a moratorium on executions in Washington state:

"I'm deeply encouraged by Governor Inslee's decision to place a moratorium on executions in our state. This was a courageous move on his part and an important one, as it affords us an opportunity to begin a much-needed statewide discussion about this controversial and costly penalty. Questions abound about whether the death penalty is fair or equitable and about whether we, as a society, want state-sanctioned violence to be our answer to violence in our society. The Innocence Project, meanwhile, has proven that our system of justice is fallible. And once a person is executed, exoneration is meaningless.

"Governor Inslee has given us the time-out we need to begin this conversation and address these critical issues. I applaud his courage and his leadership."

Source: Maple Valley Reporter, Feb. 16, 2014

Washington Gov. Jay Inslee Suspends Death Penalty

Gov. Jay Inslee said Tuesday he was suspending the use of the death penalty in Washington state, announcing a move that he hopes will enable officials to "join a growing national conversation about capital punishment."

The Democrat said he came to the decision after months of review, meetings with family members of victims, prosecutors and law enforcement.

"There have been too many doubts raised about capital punishment, there are too many flaws in this system today," Inslee said at a news conference. "There is too much at stake to accept an imperfect system."

Inslee said that the use of the death penalty is inconsistent and unequal. The governor's staff briefed lawmakers about the move on Monday night and Tuesday morning.

Inslee's moratorium, which will be in place for as long as he is governor, means that if a death penalty case comes to his desk, he will issue a reprieve, which isn't a pardon and doesn't commute the sentences of those condemned to death.

"During my term, we will not be executing people," said Inslee, who was elected in 2012. "Nobody is getting out of prison, period."

Last year, Maryland abolished the death penalty, the 18th state to do so and the sixth in the last six years.

Nine men await execution at the Washington State Penitentiary in Walla Walla. The state Supreme Court just last month rejected a petition for release from death row inmate Jonathan Lee Gentry, sentenced for the murder of a 12-year-old girl in 1988. Gentry could be the first execution in the state since September 2010, when Cal Coburn Brown died by lethal injection for the 1991 murder of a Seattle-area woman. A federal stay had recently been lifted in Gentry's case, and a remaining state stay on his execution was expected to be lifted this month.

The decision by the governor comes following a recent decision by the state Department of Corrections, which is in the process of changing its execution protocol to allow witnesses to executions to see the entire process, including the insertion of intravenous catheters during a lethal injection.

The new witness protocol, currently a draft that is in its final stages of approval, includes the use of television monitors to show the inmate entering the death chamber and being strapped down, as well as the insertion of the IVs, which had both previously been shielded from public view.

Through public disclosure requests, The Associated Press had sought information about any potential changes to the execution protocols. State corrections officials spoke with the AP about the new procedures late last month.

The change is in response to a 2012 federal appeals court ruling that said all parts of an execution must be fully open to public witnesses. That ruling was sparked by a case brought by The AP and other news organizations who challenged Idaho's policy to shield the insertion of IV catheters from public view, in spite of a 2002 ruling from the same court that said every aspect of an execution should be open to witnesses.

Source: AP, Feb. 11, 2014

Washington Governor Inslee’s remarks announcing a capital punishment moratorium

Feb. 11, 2014

Good morning.

I’m here today to talk to you about an important criminal justice issue.

WA Governor Inslee

Over the course of the past year, my staff and I have been carefully reviewing the status of capital punishment in Washington State.

We’ve spoken to people in favor and strongly opposed to this complex and emotional issue, including law enforcement officers, prosecutors, former directors of the Department of Corrections, and the family members of the homicide victims.

We thoroughly studied the cases that condemned nine men to death. I recently visited the state penitentiary in Walla Walla and I spoke to the men and women who work there. I saw death row and toured the execution chamber, where lethal injections and hangings take place.

Following this review, and in accordance with state law, I have decided to impose a moratorium on executions while I’m Governor of the state of Washington.

Equal justice under the law is the state’s primary responsibility. And in death penalty cases, I’m not convinced equal justice is being served.

The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred.

Let me acknowledge that there are many good protections built into Washington State’s death penalty law.

But there have been too many doubts raised about capital punishment. There are too many flaws in the system. And when the ultimate decision is death there is too much at stake to accept an imperfect system.

Let me say clearly that this policy decision is not about the nine men currently on death row in Walla Walla.

I don’t question their guilt or the gravity of their crimes. They get no mercy from me.

This action today does not commute their sentences or issue any pardons to any offender.

But I do not believe their horrific offenses override the problems that exist in our capital punishment system.

And that’s why I am imposing a moratorium on executions. If a death penalty case comes to my desk for action, I will issue a reprieve.

What this means is that those on death row will remain in prison for the rest of their lives. Nobody is getting out of prison -- period.

I have previously supported capital punishment. And I don’t question the hard work and judgment of the county prosecutors who bring these cases or the judges who rule on them.

But my review of the law in Washington State and my responsibilities as Governor have led me to reevaluate that position.

I recognize that many people will disagree with this decision. I respect everyone's beliefs on this and have no right to question or judge them.

With my action today I expect Washington State will join a growing national conversation about capital punishment. I welcome that and I’m confident that our citizens will engage in this very important debate.

I’d like to tell Washingtonians about what lead me to this decision.

First, the practical reality is that those convicted of capital offenses are, in fact, rarely executed. Since 1981, the year our current capital laws were put in place, 32 defendants have been sentenced to die. Of those, 19, or 60%, had their sentences overturned. One man was set free and 18 had their sentences converted to life in prison.

When the majority of death penalty sentences lead to reversal, the entire system itself must be called into question.

Second, the costs associated with prosecuting a capital case far outweigh the price of locking someone up for life without the possibility of parole.

Counties spend hundreds of thousands of dollars – and often many millions -- simply to get a case to trial.

And after trial, hundreds of thousands of dollars are spent on appellate costs for decades.

Studies have shown that a death penalty case from start to finish is more expensive than keeping someone in prison for the rest of their lives – even if they live to be 100 years of age.

Third, death sentences are neither swift nor certain. Seven of the nine men on death row committed their crimes more than 15 years ago, including one from 26 years ago. While they sit on death row and pursue appeal after appeal, the families of their victims must constantly revisit their grief at the additional court proceedings.

Fourth, there is no credible evidence that the death penalty is a deterrent to murder. That’s according to work done by the National Academy of Sciences, among other groups.

And finally, our death penalty is not always applied to the most heinous offenders.

That is a system that falls short of equal justice under the law and makes it difficult for the State to justify the use of the death penalty.

In 2006, state Supreme Court Justice Charles Johnson wrote that in our state, “the death penalty is like lightening, randomly striking some defendants and not others.”

I believe that’s too much uncertainty.

Therefore, for these reasons, pursuant to RCW 10.01.120, I will use the authority given to the Office of the Governor to halt any death warrant issued in my term.

I will take your questions.

http://governor.wa.gov/news/speeches/20140211_death_penalty_moratorium.pdf

Washington state to increase access to executions

Washington state will allow witnesses to executions to see the entire process, including the insertion of intravenous catheters during a lethal injection, state officials told The Associated Press.

The new witness protocol, currently a draft that is in its final stages of approval, includes the use of television monitors to show the inmate entering the death chamber and being strapped down, as well as the insertion of the IVs, which had both previously been shielded from public view. The new technology has already been installed, and officials say the protocol will be finalized within the next week.

Through public disclosure requests, the AP had sought information about any potential changes to execution protocols. State corrections officials spoke with the AP about the new procedures this week. The change is in response to a 2012 federal appeals court ruling that said all parts of an execution must be fully open to public witnesses. That ruling was sparked by a case brought by the AP and other news organizations who challenged Idaho's policy to shield the insertion of IV catheters from public view, in spite of a 2002 ruling from the same court that said every aspect of an execution should be open to witnesses.

"We have been working on this for many, many months," Dan Pacholke, assistant secretary of the prisons division at the state Department of Corrections, said Wednesday.

Pacholke said they have been researching the technology needed to make the change and followed the process currently used by Arizona, which provides an overhead view via TV monitor of the IV insertion during an execution.

"It really does provide greater viewing capacity to the witnesses," he said. "It's going to take an overhead view to provide the view that the court wants."

Under the draft proposal, which is currently under final review within the Department of Corrections, witnesses will watch the inmate enter via monitors from behind a closed curtain to the death chamber, according to Corrections Secretary Bernie Warner. The curtain will be lifted after the inmate is strapped down, and the inmate will be given an opportunity to make a final statement. The curtain will close again, and the insertion of the IVs will be done via TV monitor. The curtain will rise again after the needle has been inserted.

Warner said that while some minor changes could still be made to the draft proposal, the main changes concerning full viewing access for witnesses will not.

The San Francisco-based 9th Circuit Court of Appeals originally ruled in 2002 on witness viewing during an execution, and that ruling applied to the 9 Western states in the court's jurisdiction. But until the 2012 ruling, 4 states initially kept part of subsequent executions away from public view: Arizona, Idaho, Washington and Montana.

The states had argued the policy was necessary to protect the anonymity of the execution team. Open government and journalism groups countered that witnessing all aspects of an execution is the only way to determine if it is being properly carried out. The media also argued there was a First Amendment right to view the entire process.

Arizona and Idaho changed their procedures as a result of the 2012 ruling that same year. Arizona now uses video monitors to show the IV insertion, but Idaho witnesses see the inmate strapped to the table and the insertion of the IVs through a window. According to an execution protocol approved last year in Montana, IVs are still inserted out of view of the witnesses.

Katie Ross, an attorney who has handled death-penalty cases and is director of the Washington Death Penalty Assistance Center, said that the move by the department is important for transparency of the entire process.

"Everything the state is doing when they're in the process of killing a human being should be scrutinized," she said. "When mistakes are happening, the media, as well as the witnesses present, should be able to see that and accurately report it."

9 men await execution at the Washington State Penitentiary in Walla Walla. No executions have occurred since the 2012 ruling, and none are currently scheduled. But the state Supreme Court just last week rejected a petition for release from death row inmate Jonathan Lee Gentry, sentenced for the murder of a 12-year-old girl in 1988. Gentry could be the 1st execution in the state since September 2010, when Cal Coburn Brown died by lethal injection for the 1991 murder of a Seattle-area woman.

"This is the most extreme criminal justice sanction handed out by the courts, and this seriousness is not lost on those of us involved," Pacholke said. "Our objective is to carry out the sanction administered by the court and do so consistent with the most recent court rulings."

Source: Associated Press, January 30, 2014

Washington: Execution date set for man in 1997 murder

TACOMA, Wash. — The man who raped and murdered a 65-year-old Tacoma woman in 1997 now has his execution date set.

But prosecutors warn that while execution is scheduled for Dec.17, Cecil Davis will likely stay alive for years as the case moves through appeals.

The prosecutor originally asked execution to be set for Jan. 25, the 17th anniversary of Yoshiko Couch's horrific murder in her Tacoma home. However, certain laws around when the paperwork was received forced the date to be much sooner.

Davis declined to say anything in court.

"The method of execution shall be by intravenous injection or at your election if you wish, hanging by the neck until you're dead.," Judge Ron Culpepper informed him.

"We rarely seek the death penalty and when we do it's in the most egregious of cases," Pierce County prosecutor Mark Lindquist said.

Seventy-eight people, all men, have been executed in Washington since 1904, the date the state uses as a reference point.

Right now eight men, including Davis, are waiting on death row.

The most recent execution was Cal Brown in 2010 for the torture, rape and murder of a Burien woman, Holly Washa, almost two decades before.

Lindquist doesn't expect Davis' execution for another five to 10 years.

"You're saying there are many other steps he can take still?" KIRO 7 said.

"He's exhausted one level of appeals -- but there's another level, and then another level," he said.

"You cannot bring the person back under our system of justice," defense attorney Eric Nielsen said. "We give every opportunity for somebody to fight for their life."

Death penalty cases are costly. The state spent more than $97,000 just on the physical execution of Brown in September, not counting the all the other court costs from appeals.

Source: kirotv.com, November 22, 2013

Washington state: Proposed bills would eliminate death penalty

Bills proposed by lawmakers that would eliminate the death penalty in Washington state were referred to committee Monday.

Both House Bill 1504 and its companion Senate Bill, SB5372, were referred to respective law and judicial committees. If passed, the joint bill would put a stop to all state-ordered executions and make the maximum penalty for a crime lifetime incarceration.

State Reps. Reven Carlyle, D-Seattle, Tina Orwall, D-Des Moines, and Maureen Walsh, R-Walla Walla, were 3 of the 15 sponsors of the house bill. They released a statement in support of the bill Tuesday, saying "that life has value and that the death penalty is below us as a civilized society."

"We believe the death penalty is immoral, unfairly implemented and appeals to society's most violent instincts rather than love and compassion," the statement read.

Supporters of the bill argued putting an end to capital punishment saved the state millions of dollars in judicial costs accrued through a convict's appeal process. The state spends far more in the appeals process for death row inmates than lifetime incarceration, state legislators said.

A report released in 2011 showed the state spent an average of $1.2 million on death penalty cases, versus an average of $89,000 for cases involving life without parole.

Though bills eliminating the death penalty have failed previously failed in the state legislature, lawmakers supporting the bill may hope a national shift in attitude regarding the punishment could spur dialogue.

A recent PEW Research Center study showed the majority of the public still supports the death penalty, with 62 % in favor and 30 % opposed. However, the numbers have narrowed considerably since 1996, when 78 % of the population supported capital punishment.

"As we weep in pain for victims of horrific, unimaginable crimes, we also hope and pray that one day our state will join a community of states and nations to eliminate this unwise policy," co-sponsors of the bill said in a statement.

It is unknown if House Judiciary Committee or Senate Law and Justice Committee will hear the bills. If hearings take place, there will be a later meeting to vote on the bill in committee before going to a floor vote.

Washington state has executed 5 people since 1976. There are 7 individuals on death row.

Source: q13fox.com, January 29, 2013

U.S.: Five Western states shielding part of executions

BOISE, Idaho – A San Francisco-based federal appeals court ruled in 2002 that every aspect of an execution should be open to witnesses, from the moment the condemned enters into the death chamber to his final heartbeat.

The ruling established what was expected of the nine Western states within the court's jurisdiction. A decade later, five of the states have kept part of each execution away from public view, according to an Associated Press review and death penalty experts.

Idaho, Arizona, Washington, Montana and Nevada have conducted 15 lethal injections since the ruling, and half of each procedure has been behind closed doors.

That means that a small group of witnesses, including members of news organizations who act as representatives of the public, do not see, for instance, the insertion of the IVs that deliver the fatal drug mixture.

The practice comes at a time when the method itself has drawn greater scrutiny, from whether the drugs are effective to whether the execution personnel are properly trained.

The states that limit access say they do so to protect the anonymity of the execution team, which may include emergency medical technicians, military medics or others trained to insert IVs. Open government and journalism groups argue that witnessing all aspects of an execution is the only way to determine if it is being properly carried out.

The AP and 16 other organizations on Tuesday sued the state of Idaho to force officials to open the entirety of their executions, arguing that the news media and by extension the public has a First Amendment right to view all steps of lethal injections.

"This lawsuit is really all about obtaining access to the entire execution process for viewing purposes," said Chuck Brown, the attorney representing the news organizations. "It's very important in a society such as ours to have full transparency in regards to the exercise of government authority."

Idaho Department of Correction spokesman Jeff Ray said late Tuesday the department had not yet had a chance to review the lawsuit, and that the state's attorneys would respond to the claims in court.

Several high-profile cases since 2006 have raised questions about the way states conduct lethal injections.

In two instances in Ohio, one of the few states that allow witnesses to see the entire process, corrections staff couldn't find a vein. In one of those cases, officials halted the execution and the inmate remains on death row. With news organizations present, the experiences of the inmate, Romell Broom, were widely reported.

In another case, in Florida in 2006, which does not allow viewing of the IV insertions, executioners pushed the needles through Angel Nieves Diaz's target veins and into the soft tissue beneath. He had to be given a second dose and took 34 minutes to die — more than twice the normal time.

Historically, the public was able to watch executions from start to finish, said Trina Seitz, a death penalty expert at Appalachian State University.

Over time, executions became more private as technology advanced. Electrocutions, for example, can't be done in a rainy prison yard for safety reasons, so they were moved inside, said Stuart Banner, a legal historian at UCLA's School of Law.

Still, journalists have always been reserved a spot among the witnesses, Seitz said, so they could report the death back to the public.

In the 1990s, several news organizations attempted to get on the witness list for the lethal injection of William Bonin in California. Bonin was dubbed the "Freeway Killer" for the serial murders of 14 young men and boys.

Those who did witness the execution were unsure about what they saw.

Bonin was already strapped to a gurney with IV tubes attached when the death chamber's curtains were drawn open. He barely moved, and his eyes were closed. A few silent minutes passed, and then he was pronounced dead.

The California First Amendment Coalition sued, saying the limited access violated the public's first amendment rights to view executions. California officials argued the restriction was necessary to preserve the execution team's anonymity.

In 2002, the 9th U.S. Circuit Court of Appeals rejected that argument, saying there were other ways to protect their identity. Execution team members could wear surgical masks, hats and gloves, the court noted.

"Independent public scrutiny — made possible by the public and media witnesses to an execution — plays a significant role in the proper functioning of capital punishment," the judges ruled.

The ruling applies to a region that stretches from Montana to Hawaii and Alaska. Alaska, Hawaii, Guam and the Northern Mariana Islands do not have the death penalty, and Oregon currently has a moratorium on executions. Only California has followed the ruling.

Outside the region, there are 27 states that use lethal injection. Ohio changed its rules in 2004 after the American Civil Liberties Union threatened to sue. For 25 years, Georgia has allowed a reporter to act as a "monitor" during the process, while other witnesses enter the viewing chamber later.

In Idaho, when made aware of the 2002 court ruling, state officials said the decision did not apply to their procedures. "The circumstances of the case are unique to California," said Idaho deputy attorney general for prisons, Mark Kubinski. But Kubinski, other state attorneys, the governor's office and corrections officials have refused to say exactly why.

Kubinski said the protocol balances the public's right to witness executions with the state's obligation to carry it out "in a safe and professional manner, while maintaining respect and dignity for all parties."

During Idaho's most recent execution, Paul Ezra Rhoades, who was convicted of killing three people in 1987, could not be seen as he was brought into the death chamber. When the curtains were drawn, IVs were already connected.

When asked by a reporter about what happened before the curtains were opened, the corrections director, Brent Reinke, said the procedure was somber and professional and described how the IVs and other equipment was inserted.

Rhoades' attorneys had sued in federal court, arguing that Idaho's death penalty protocol created the opportunity for several excruciating errors. Of most concern was incorrect IV placement, which could leave him paralyzed but conscious.

The legal scholars contacted by the AP who reviewed the California court case said it would be difficult to find a ruling that applies more closely to Idaho's policies.

Jen Moreno, a staff attorney with the Death Penalty Clinic at the University of California's Berkeley Law, said the ruling sets precedent for all states within the 9th Circuit and that the non-complying states would likely be forced to change their policies if they were challenged in federal court.

Moreno said the process of setting the IVs is the most crucial part of lethal injection because, if it is done incorrectly, the rest of the execution can go awry.

"The fact that the states are hiding one of the most important parts of the execution, setting the IV, really means that what the public does see is not going to be very telling of whether it was a humane execution," she said.

Source: AP, May 23, 2012

AP, news groups sue Idaho over execution access

The execution scene from
"Dead Man Walking" (1995) with
Sean Penn and Susan Sarandon

BOISE, Idaho (AP) — The Associated Press and 16 other organizations sued the state of Idaho on Tuesday to force officials to let witnesses watch executions from start to finish, arguing that the media has a First Amendment right to view all steps of a lethal injection execution.

The group asked a U.S. District Court judge to require the state to increase witness access to its executions, starting with the upcoming execution of Richard A. Leavitt, a convicted killer scheduled to be put to death on June 12.

The AP was joined in the lawsuit by the Idaho Press Club, Idahoans for Openness in Government, the Idaho Statesman, The Times-News, Lewiston Tribune, Moscow-Pullman Daily News and The Spokesman-Review.

Also joining was Pioneer Newspapers, which owns several newspapers including the Idaho Press-Tribune, the Idaho State Journal, the Rexburg Standard Journal and others.

Idaho, like most states with lethal injection, bars witnesses from watching as a condemned inmate is brought into the execution chamber, strapped to the table and has IVs inserted into his or her arms. The news organizations say reporters must be able to view executions from start to finish so they can accurately report the events — and any complications that may emerge — to the public.

Some death row inmates have challenged the constitutionality of lethal injection executions in court, contending that the insertion of the IVs can be easily botched, causing severe pain for the condemned.

"This lawsuit is really all about obtaining access to the entire execution process for viewing purposes. It's very important in a society such as ours to have full transparency in regards to the exercise of government authority," said Chuck Brown, the attorney representing the news organizations.

The states that grant access to part of the death penalty process say they do so to protect the anonymity of the execution team. Idaho Department of Correction spokesman Jeff Ray said the department had not yet had a chance to review the lawsuit, and that the state's attorneys would respond to the claims in court.

The lawsuit relies heavily on a 2002 San Francisco-based federal appeals court ruling that found that witnesses should be allowed to view executions from the moment the condemned enters the death chamber until their final heartbeat.

Since the ruling, only one state under the court's nine-state jurisdiction is following it: California, where the case arose. Idaho, Arizona, Washington, Montana and Nevada have all barred witnesses from the first half of lethal injection executions.

Most states nationwide do the same. Of the 27 states that have lethal injection outside of the circuit's jurisdiction, only Ohio and Georgia allow witnesses to see the entire process.

The lawsuit comes at a time when questions have been raised about whether the lethal cocktail of drugs used in the procedure is effective and whether the execution staff is properly trained.

The Idaho organizations decided to sue after state officials limited access to the execution of Paul Ezra Rhoades. Put to death in November, Rhoades was the first person to be executed in the state in 17 years, and only the second in the last half-century. Media interest in the event was intense, and the department selected four journalists to view the proceedings.

But none of the witnesses were allowed to watch as Rhoades entered the death chamber, was strapped to the execution table and had IVs inserted in his arms.

That portion was of particular interest because in the weeks preceding his death, Rhoades had argued in federal court that those initial steps were the most likely to go awry. His lawyers said an improperly inserted IV could cause him extreme pain.

At the time, Idaho Department of Correction officials maintained that the first steps of the execution had to be kept private to protect the anonymity of the execution team.

The 2002 9th U.S. Circuit Court of Appeals case was brought by the California First Amendment Coalition against California Department of Correction officials. The court found that preventing reporters — and through them, the public — from viewing all aspects of executions is an unconstitutional violation of the First Amendment.

The news media must be allowed to witness executions in their entirety so that the public can have an informed debate about whether execution by lethal injection meets the evolving standards of decency present in a maturing society, the court found.

"To determine whether lethal injection executions are fairly and humanely administered, or whether they ever can be, citizens must have reliable information about the 'initial procedures' which are invasive, possibly painful and may give rise to serious complications," Judge Raymond Fisher wrote for the unanimous three-judge panel that heard the case.

Source: AP, May 23, 2012

Washington: Court throws out death sentence of accused double-murderer

The state Supreme Court on Thursday reversed the conviction and death sentence of a man accused of killing his wife and business partner and called for a new trial in his double murder case.

In an 8-1 ruling, the state high court said that Darold Stenson's rights were violated because the state "wrongfully suppressed" photographs that raised questions about mishandling of evidence as well as an FBI file that wasn't provided to the defense until 2009, years after Stenson was convicted.

Stenson was sentenced to death in 1994 for the 1993 slaying of his wife, Denise, and a business partner, Frank Hoerner, at Stenson's Clallam County exotic bird farm.

Sheryl McCloud, an attorney for Stenson, said she was pleased that the court so overwhelmingly sided with their position.

"I was just so gratified that the court was willing to make a decision that might be unpopular but is really necessary given what we discovered almost 20 years after the conviction about the evidence being so unreliable," McCloud said.

The high court noted that other than 2 key pieces of evidence that tied Stenson to the shootings, the remainder of evidence provided at trial was "largely circumstantial." Those 2 pieces of evidence - gunshot residue found inside the front pocket of the jeans Stenson was wearing when officers arrived, and blood spatter on the front of those jeans "consistent with Hoerner's blood protein profile" - were at the heart of Stenson's most recent appeal to the high court.

At issue were photographs showing sheriff's Detective Monty Martin wearing Darold Stenson's jeans with the right pocket turned out and Martin's ungloved hands and an FBI file indicating an agent who testified did not perform a gunshot residue test, which the court said was implied at the trial.

Stenson had claimed that he kneeled next to Hoerner's body, accounting for the blood on the jeans. But an expert witness called by the prosecution had testified that was not possible.

"Had the FBI file and photographs been properly disclosed here, Stenson's counsel would have been able to demonstrate to the jury that a key exhibit in the case - Stenson's jeans - had been seriously mishandled and compromised by law enforcement investigators," wrote the majority for the high court, led by Justice Pro Tem Gerry Alexander.

Clallam County Prosecuting Attorney Deborah Kelly said she was deeply disappointed by the decision.

"It is my firm belief that all involved in the investigation and prosecution of this case acted conscientiously and in good faith towards a just outcome. It is an utter tragedy for the victim's family that they are forced to relive this."

Kelly said she expected a retrial on murder charges but would consult with the family about whether to seek the death penalty again.

Stenson has long claimed he didn't commit the murders. When Stenson called authorities in 1993 to report the deaths, he suggested that his business partner, Frank Hoerner, had killed Denise Stenson and then shot himself in another room. Prosecutors have said Stenson, struggling financially and in dire business straits, shot the 2 in order to collect $400,000 in life insurance.

Stenson has filed multiple appeals to his death sentence, and courts have stayed his execution 3 times, most recently in 2008 when he was less than 2 weeks from a scheduled execution.

In January 2011, a Superior Court judge ruled that the prosecuting attorney did not meet its legal obligation to provide the evidence to the defense but also found it wouldn't have changed the outcome of the trial, something the high court disagreed with in its ruling Thursday.

The high court noted that it had already once affirmed both of Stenson's convictions and the death sentence in 1997, and has since rejected four prior personal restraint positions filed by Stenson.

But the current petition cited due process violations of the so-called Brady rights. Those rights are named after the Supreme Court's Brady v. Maryland case, which says prosecutors violate a defendant's constitutional rights by not turning over evidence that could prove a person's innocence. The high court on Thursday said that those rights were violated.

"We are left with the fact that constitutionally significant mistakes were made in Stenson's trial, resulting in imposition of the ultimate punishment without the full benefit of due process protections," the majority opinion read.

Alexander was joined on the majority in Thursday's ruling by Chief Justice Barbara Madsen, Justices Charles Johnson, Debra Stephens, Tom Chambers, Charles Wiggins, Mary Fairhurst and Justice Pro Tem Teresa Kulik.

Justice Jim Johnson, the lone dissenter, argued that the Supreme Court has "reviewed and affirmed both guilt and sentence over the intervening 18 years" since Stenson was sentenced.

"The interests of finality in justice to provide peace for the families of Stenson's victims argue for the same result," he wrote.

With Stenson's death sentence now overturned, 7 men remain on death row at the state penitentiary. Washington state's last execution was in September 2010, when Cal Coburn Brown died by lethal injection for the 1991 murder of a Seattle-area woman. He was the 1st Washington inmate executed since 2001, after spending nearly 17 years on death row.

Since 1904, 78 men have been put to death in Washington.

Source: Associated Press, May 11, 2012

Behind execution of Gary Haugen, controversy swirls around the drugs used and who administers them

Executions by lethal injection are supposed to be quick, painless and more humane than the gas chamber or gallows.

The condemned rests on a hospital gurney. Technicians attach heart monitors and place intravenous lines, usually in each arm. When the time comes, an executioner in another room pushes the plunger on a syringe connected to the IV line, delivering a barbiturate anesthetic to induce a coma within seconds. Two more injections quickly follow: pancuronium bromide to stop breathing and potassium chloride to arrest the heart.

Oregon, preparing to execute convicted murderer Gary Haugen on Dec. 6, uses this 3-drug lethal injection, as do nearly all of the 34 death penalty states. But the killing method remains controversial. Critics say poor understanding of the drugs' effects and executioners' lack of medical training has led to botched cases and a likelihood of extreme suffering in some instances.

"A firing squad probably causes less pain and suffering," says Dr. Jonathan Groner, a pediatric surgeon in Columbus, Ohio, and outspoken critic of medicalized executions. "Lethal injection looks like outpatient surgery, so people are willing to allow it."

But Dr. David Dershowitz, an anesthesiologist in Worcester, Mass., who has served as an expert witness for states imposing the death penalty, says the initial dose of anesthetic should reliably obliterate all sensation and perception of pain. Controversy persists because independent researchers aren't allowed to see detailed records of executions, says Dr. David Waisel, an anesthesiologist and medical ethicist at Boston Children's Hospital.

"Departments of corrections hide their data, so we have no idea how often problems occur, or what kinds of problems occur," says Waisel, who has testified as an expert witness for defendants facing the death penalty.

"I suspect that if lethal injection was done well, it would be painless. If it's done poorly it's very, very inhumane."

Death penalty opponents, including Amnesty International and the ACLU of Oregon, petitioned Gov. John Kitzhaber to halt executions in Oregon until the state completes a review of the effectiveness of the three-drug method. Corrections Department officials and the governor have declined to comment on the petition.

Companies that make the drugs are also raising objections. The head of Lundbeck Inc., a Danish drug company "adamantly opposed" to the use of its pentobarbital anesthetic for lethal injections, wrote to Oregon prisons Director Max Williams in July asking Oregon to stop using it.

Unlikely start

The lethal injection era began in 1977, a year after the U.S. Supreme Court lifted a moratorium on the death penalty. Oklahoma lawmakers wanted a more humane and less expensive alternative to the electric chair or gas chamber. The head of anesthesiology at Oklahoma Medical School recommended the use of a short-acting barbiturate anesthetic in combination with a paralytic agent. Oklahoma's chief medical examiner recommended the addition of a third drug, potassium chloride, used in bypass surgery to temporarily stop the heartbeat. Until recently, the drugs cost about $200 per execution but rose to more than $1,000 with companies such as Lundbeck cutting off the supply.

Oklahoma spent no time or money to study the effects of the three-drug combination. Nevertheless, it rapidly caught on in the U.S. Death penalty laws in Oregon and other states use nearly the same language Oklahoma used to specify how lethal injections are done, notes Fordham University law professor Deborah Denno.

"By virtue of coming up with a method of execution that makes an inmate look serene, comfortable, and sleeping during the death process, the death penalty in this country was rescued," Denno said in a round-table discussion published by the New England Journal of Medicine in 2008. "The presence of doctors, their involvement, and the association with medicalizing the procedure enhanced its constitutional acceptability."

Executions gone wrong

In the years since Texas carried out the 1st lethal injection execution in 1982, several clearly have gone wrong.

Some witnesses to the execution of Angel Diaz in Florida in December 2006 said he appeared to gasp and grimace and his eyes remained open for 24 minutes after executioners began the series of drugs; his death took 34 minutes. Monitoring equipment shows when an inmate's heart stops beating. A physician usually certifies the death. Florida corrections officials told an investigating panel that Diaz did not appear to be in pain, although the paralytic drug could have prevented outward expression. An autopsy revealed chemical burns from the drugs spreading 11 to 12 inches around the intravenous sites on both arms. A medical examiner concluded that both IV lines missed the veins and slowly infused the drugs under the skin.

Executions have taken up to 90 minutes to bring death because of failure to establish or maintain IV lines. In September 2009, technicians in Ohio failed to insert an IV for two hours during the planned execution of Romell Broom.

"At one point, Broom, 53, lay back on his bed, covered his face with his hands, and cried. Another time, while sitting up, he was seen grimacing as the execution team appeared to seek a vein around his ankles," reported Bill Benedict, a Cleveland Plain Dealer journalist. Officials halted the execution, and Broom remains on death row.

Problems so obvious to witnesses are unusual; by one estimate, the frequency is about 4 to 5 percent. But some researchers say the paralytic drug may hide cases in which anesthetics failed to block sensation because of an inadequate dose or misplaced IV.

Suffering could be extreme, Groner says. "You just can't tell."

In such cases, "Death by suffocation would occur in a paralyzed inmate fully aware of the progressive suffocation and potassium-induced sensation of burning," Dr. Leonidas Koniaris of the University of Miami Miller School of Medicine and others concluded in a 2007 research article.

In a study of post-mortem toxicology reports from Arizona, Georgia, North Carolina and South Carolina, Koniaris and colleagues concluded that concentrations of anesthetic in the blood were lower than that required for surgery in 43 of 49 executed inmates, and 21 inmates had concentrations consistent with awareness.

So far, courts have rejected arguments the three-drug lethal injection violates the Constitution's ban on cruel and unusual punishment. They lean heavily on a 2008 Supreme Court opinion that "Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual."

More expertise needed

Nevertheless, 2 states, Washington and Ohio, stopped using the 3-drug protocol last year, in part to sidestep ongoing legal challenges. The use of a large dose of an anesthetic alone provides "less chance for error," Washington corrections spokesman Chad Lewis told The Oregonian earlier this month.

The Oregon Corrections Department released new rules Thursday meant to minimize the chance of mishaps. The rules call for the use of at least 2 medical professionals who "are licensed, have proper training and experience in the preparation and insertion of IVs." The rules don't specify what kind of medical caregiver.

The rules direct the medical team to evaluate the inmate to identify veins suitable for IVs before the day of execution, and on the day of execution ensure proper functioning of the IVs by a slow infusion of saline. If problems arise, a "supervising qualified medical professional" is supposed to determine whether to try a different IV site or technique. After injection of the anesthetic, the rules call for a consciousness check -- response to sounds or brushing of the condemned inmate's eyelashes -- before executioners deliver the paralyzing agent and potassium chloride.

States' efforts to enlist more highly trained physicians or nurses face a big obstacle. Physician and nursing organizations have firmly stated it is unethical to participate in lethal injection. American Medical Association guidelines prohibit almost every type of involvement: Physicians should not attend or observe executions, give technical advice, select injection sites, start intravenous lines, prescribe or prepare the drugs or inspect or test lethal injection devices. Last year, the American Board of Anesthesiology decided that involvement in lethal injection is grounds to revoke an anesthesiologist's board certification.

Some physicians and nurses assist nevertheless, usually anonymously. Emergency medical technicians, prison hospital orderlies, and phlebotomists fill the gap when professionals with more training are not available, such as in Illinois and Kentucky where laws bar doctors from the execution chamber.

Drug companies are making it increasingly difficult for U.S. prison authorities to obtain the drugs used to kill. Until this year, Oregon and other death penalty states used the anesthetic sodium thiopental. But in January, the only U.S. supplier, Hospira Inc. of Lake Forest, Ill., stopped selling the drug. When states began ordering thiopental from a British company, the government there banned its export to prevent its use in lethal injections.

States quickly began buying and using another anesthetic, pentobarbital. Lundbeck took steps in July to block distribution to prisons in death penalty states. But Oregon had already purchased enough pentobarbital to carry out Haugen's execution.

Source: The Oregonian, November 20, 2011

Mississippi executes Benny Joe Stevens

The state of Mississippi executed death row inmate Benny Joe Stevens (left), 52, at 6:22 p.m. today.

Stevens was convicted in 1999 of killing his ex-wife, Glenda Reid; her husband, Wesley Lee Reid; her 11-year-old son, Dylan Lee; and Lee's 10-year-old friend Heath Pounds.

He used his final moments to ask his victims' family members for forgiveness.

"What I've taken from God and you, I can't replace,'he said. I'm sorry."

Prior to his execution, Mississippi Department of Corrections Commissioner Chris Epps said Stevens expressed remorse over the crime, particularly the deaths of the 2 children.

"None of them deserved what I did,"Epps recalled.

The U.S. Supreme Court and Gov. Haley Barbour denied Stevens' last-ditch pleas for clemency.

Still, Epps said he remained talkative throughout the day. Stevens, who had no infractions during his time behind bars, showered and took a sedative - Valium - before being led to the execution room.

Stevens becomes the 1st condemned inmate to be put to death this year in Mississippi and the14th overall since the state resumed capital punishment in 1983.

Stevens becomes the 15th condemned inmate to be put to death this year in the USA and the 1249th overall since the nation resumed executions on January 17, 1977.

Sources: Clarion Ledger, Rick Halperin, May 11, 2011

Mississippi execution uses sedative for first time

WASHINGTON — Benny Joe Stevens, who was convicted of killing four people, including two children, has been executed by the state of Mississippi with a drug normally used to euthanize animals.

Stevens, 52, was pronounced dead at 6:22 pm (23:22 GMT) at the state penitentiary in the town of Parchman, according to Mississippi prison officials.

It was the first time the southern state had used the sedative pentobarbital instead of sodium thiopental, whose US manufacturer recently said it was no longer making the drug. Pentobarbital is also used in assisted suicides in two US states and as an animal euthanasia.

Mississippi is the latest US state to adopt pentobarbital as part of a three-drug protocol after Louisiana, Oklahoma, Texas and soon Alabama.

Pentobarbital, which produces an unconscious state, is followed by an injection of pancuronium bromide, which paralyzes the inmate, and finally potassium chloride, which stops the heart.

Ohio and the state of Washington use one single, massive dose of pentobarbital. The Danish company that makes the drug, Lundbeck Inc., has said it opposes the drug's use in executions.

The US Supreme Court denied a stay of execution, prison officials said.

Stevens appealed to the Mississippi Supreme Court over the change from sodium thiopental to pentobarbital, but his appeal was rejected last week.

Stevens was condemned to death for the 1999 murder of his ex-wife, Glenda Reid, Reid's husband, Wesley Reid, their 11-year-old son Dylan and the boy's friend Heath Pounds, in a mobile home park in rural Marion County following a custody dispute over Stevens' daughter.

The daughter, Erica, was wounded, and was a witness against Stevens in his trial.

Source: AFP, May 11, 2011
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U.S.: 13 states including Alabama ask Justice Department aid in obtaining scarce execution drug

The Justice Department says it's reviewing a request by 13 states looking for the government's help obtaining supplies of a scarce execution drug.

States are scrambling to find enough sodium thiopental after its sole U.S. manufacturer ceased production and some overseas supplies dried up.

The states asked U.S. Attorney General Eric Holder Jan. 25 for help identifying sources for the drug or making federal supplies available to states. The states that signed the letter are: Alabama, Colorado, Delaware, Florida, Idaho, Mississippi, Missouri, Nevada, Oregon, Tennessee, Utah, Washington and Wyoming.

Arizona, Arkansas, California, Georgia and Tennessee have sought supplies in England, while Nebraska purchased a batch from India.

Justice Department spokeswoman Alisa Finelli says the agency will review the letter.

Source: Associated Press, Feb. 8, 2011

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Hospira to Stop Making Lethal-Injection Drug

The sole U.S. maker of a key execution drug has decided to permanently halt production of the drug, which could lead many states to face delay in carrying out the death penalty.

The decision made on Friday by Hospira Inc. caps months of controversy over thiopental sodium, an anesthetic that has long been used by states as a part of a cocktail of drugs administered during a lethal injection.

Hospira's decision puts a wrench in the nation's capital-punishment system. States can attempt to use another anesthetic in place of thiopental, but such a switch likely would need to be approved by courts and possibly state legislators.

Many states have run out of thiopental, forcing prison officials to delay executions. The drug shortage followed a 2009 decision by Hospira to suspend production due to manufacturing issues.

The Lake Forrest, Ill., company had planned to resume producing thiopental in the first quarter of 2011 at a company plant in Liscate, Italy. But in December, the Italian parliament issued an order binding the government to ensure that Hospira's Italian-made thiopental would not be used in lethal injections.

In the face of that opposition, Hospira ultimately decided to exit the thiopental market, said company spokeswoman Tareta Adams. "This will be a challenge for [medical] customers and we regret that," Ms. Adams said. "But we don't want to put our Italian facility at risk that the product will be misused" by U.S. prisons.

Hospira, she said, has had discussions with its drug distributors to see if the companies could block the drug from being sold to prisons, but Hospira ultimately decided there was no way to ensure the drug would not be "misused" by prisons.

Late last year, a drug used to euthanize animals was approved for use in capital punishment in Oklahoma. The shortage of thiopental sodium had prompted the state to seek court clearance to use pentobarbital as a substitute.

U.S. District Judge Stephen Friot in November approved the use of pentobarbital and denied requests to delay the executions of two Oklahoma inmates, whose attorneys had protested its use.

The state has said in court filings that veterinarians regard pentobarbital "as an ideal anesthetic agent for humane euthanasia in animals" and that it is "substantially" similar to thiopental.

Judge Friot's ruling could prompt other states to use pentobarbital, and thus prevent delays in capital punishment. In the early 1970s, Oklahoma was the first state to approve the use of thiopental in capital punishment, and it later become the nationwide standard for lethal injections.

Source: The Wall Street Journal, January 21, 2011

How Italian Catholics pulled the plug on US executions

The news has broken today that the sole US manufacturer of a key drug used in lethal injections will cease production because authorities in Italy, where the drug was to be made, wanted a guarantee that it wouldn't be used to put inmates to death.

Hospira Inc. of Lake Forest, Ill, had decided to switch production of the anaesthetic sodium thiopental from its North Carolina plant to Liscate, outside of Milan. But the Italian Parliament wanted the company to control the product's distribution to prevent it being used for executions. Hospira decided it couldn't make that promise and has decided to suspend production -- potentially throwing the death penalty system in the US into disarray.

But what's missing from today's reports is that behind the Italian Parliament's insistence is a lay Catholic movement dedicated -- among many other things - to the eradication of the death penalty around the world. The Rome-based Community of Sant'Egidio had been engaged in discussions with Hospira's Italian subsidiary, Hospira SL, which led to meetings with the Foreign Affairs minister, Franco Frattini, and the Ministry of Health. The result of those meetings was an agreement that the production of the drug in Italy would have to be for strictly therapeutic purposes. The company has long deplored its use in executions, and said it regretted the need to cease production.

Hospira's choice to end production because it couldn't give that guarantee was described as "highly responsible" by Sant'Egidio's spokesman, Mario Marazziti, who said: "It highlights the point that therapeutic drugs and doctors should never be used to bring about death".

Sodium thiopental is already in short supply after the British government last November also banned the UK manufacture of the drug following a campaign by the British NGO Reprieve. According to the Wall Street Journal's law blog, Hospira's decision means the death penalty system in the US "is potentially thrown into turmoil". States can attempt to use another anaesthetic instead -- Oklahoma, for example, has switched to a drug used to euthanise cats and dogs -- but it involves seeking clearance from the courts, which is likely to delay executions.

There is a lesson here about globalization. It's not just the market that's gone global. It's civil society pressure, too.

Source: America Magazine, January 21, 2011


States Face Shortage of Key Lethal Injection Drug

The sole American manufacturer of an anesthetic widely used in lethal injections said Friday that it would no longer produce the drug, a move likely to delay more executions and force states to adopt new drug combinations.

The manufacturer, Hospira Inc., of Lake Forest, Ill., had originally planned to resume production of the drug, sodium thiopental, this winter at a plant in Italy, giving state corrections departments hope that the scarcity that began last fall would ease.

But the Italian authorities said they would not permit export of the drug if it might be used for capital punishment. Hospira said in a statement Friday that its aim was to serve medical customers, but that “we could not prevent the drug from being diverted to departments of corrections” and the company did not want to expose itself to liability in Italy.

Hospira does not have domestic facilities that can make sodium thiopental, said Daniel Rosenberg, a spokesman, and has decided to “exit the market.” No other American companies manufacture the drug, which has largely been supplanted by alternatives in hospitals but is used by 34 of the 35 states that use lethal injection to carry out the death penalty. An average of 55 executions have taken place annually over the last 10 years, with 46 last year and 52 in 2009, virtually all of them by lethal injection.

During what had been described as a temporary halt to production last year, scarcity of sodium thiopental led to delays in scheduled executions in at least two states, California and Oklahoma.

The extent to which execution schedules will be further disrupted by the drug shortage is not yet clear, but it could be considerable. In many states, adopting a new protocol for lethal injections requires formal proposals, public comment and often challenges in court — a process that can take months or more, said Richard Dieter, executive director of the Death Penalty Information Center. But in others, switching drugs might be done more quickly, by administrative fiat.

Lethal injections commonly involve a sequence of three drugs that is set by state regulations: an anesthetic — sodium thiopental in every state but Oklahoma — intended to prevent pain, followed by a muscle relaxant and a drug that stops the heart.

As the shortage became acute last fall, California and Arizona obtained shipments of sodium thiopental from England, but the British government has since refused to allow exports of drugs for use in capital punishment, a policy that is under consideration by the entire European Union.

Those were two of several special shipments to corrections departments permitted by the Food and Drug Administration in 2009 and 2010, said Christopher Kelly, a spokesman for the agency. “No shipments are currently being held,” Mr. Kelly said on Friday.

Texas, which carries out more executions than any other state, has an aging stock of sodium thiopental that will expire in March, leaving it unusable.

“There currently are four executions scheduled in Texas — two in February, one in May and one in July,” said Michelle Lyons, director of public information at the Texas Department of Criminal Justice. “At this time, we have enough sodium thiopental on hand to carry out the two executions scheduled in February. In March, our supply of this particular drug is set to expire.”

“The Texas Department of Criminal Justice will explore other options, including possibly seeking an alternate drug for use in Texas’ lethal injection process,” she said in an e-mail.

Two states, Ohio and Washington, use only one drug, sodium thiopental, which is fatal at larger doses for executions.

“What I can tell you is Ohio does have enough sodium pentothal to carry out the execution scheduled in February,” said JoEllen Smith, a spokeswoman for the Ohio Department of Rehabilitation and Correction, using an alternate name for the drug. “But beyond that we are going to decline to comment on our supply of the lethal injection drug.”

Officials in Washington said that they had not had time to consider how to adapt to the news that sodium thiopental will no longer be available. The state has seven people on death row, but no executions are currently scheduled.

Officials in Arizona, where 134 people are on death row, said they had enough sodium thiopental for five executions, although none are currently scheduled.

Many states are expected to follow the lead of Oklahoma, substituting pentobarbital — another, more easily available anesthetic — in a similar three-drug sequence.

Pentobarbital is widely used in veterinary medicine and is also used in legal human euthanasia in Oregon. Death penalty opponents challenged the switch last year in Oklahoma, arguing that the effectiveness of pentobarbital in preventing pain during executions had not been proved. But a federal judge sided with the state, which has since used the new drug in three executions.

Jerry Massie, a spokesman for the Oklahoma Department of Corrections, said the department orders the drug through a “private pharmacist” but would not specify who.

Only one company, Lundbeck Inc., now markets injectable pentobarbital in the United States, according to the F.D.A., but the agency said it was not aware of any shortage.      

Source: The New York Times, January 22, 2011
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Oklahoma executes John David Duty with drug used to euthanize animals

John David Duty

WASHINGTON — A US state executed a convicted murderer with an animal drug for the first time because of an anesthetic shortage, in a move critics panned as a test on a human guinea pig.

Oklahoma executed John Duty, 58 -- who in 2001 strangled his 22-year-old cellmate, Curtis Wise, while serving three life sentences -- with pentobarbital, normally used by veterinarians to put animals to sleep.

"The procedure started at 6:12 pm our time (0012 GMT). John Duty was pronounced dead at 6:18pm," Jerry Massie, a spokesman for the Oklahoma Department of Corrections, told AFP.

"His last words were: 'To the family of Curtis Wise: I'd like to make my apology. I hope one day you'll be able to forgive me, not for my sake but for your own... Thank you, Lord Jesus. I'm ready to go home,'" Massie said.

The Death Penalty Information Center, a Washington-based group that monitors capital punishment, confirmed that Duty was the first death row inmate to be executed using the drug.

For months now, several US states have struggled to find supplies of sodium thiopental -- the first and most crucial of three drugs used in lethal injections -- after its sole US manufacturer Hospira ran out of stock.

The company will resume production of the drug early next year, forcing some states to suspend executions and others to import the drug from other states or from overseas with government approval.

Oklahoma's decision to use the animal drug was approved by a US court last month in a ruling that may lead other states to adopt the procedure.

The appeals court found that the amount of pentobarbital to be used was "sufficient to induce unconsciousness in an inmate and indeed would likely be lethal in most, if not all, instances."

Capital punishment specialists meanwhile warned that the drug had not been properly vetted and might not keep inmates unconscious during the more painful subsequent injections that kill them.

And Duty's lawyers had expressed fears in court documents that their client would be used as a "guinea pig" to test the new method of execution.

In its response, Oklahoma stressed that, since pentobarbital has been widely used on animals and as a human anesthetic, its use on inmates is "hardly experimental."

Source: AFP, December 16, 2010

Drug used in Okla. execution could gain wider use

MCALESTER, Okla. (AP) — Death penalty experts say a sedative Oklahoma used to execute an inmate that is commonly used to euthanize animals could become more popular.

That's because of a nationwide shortage of a key ingredient in several states' lethal injection formulas.

John David Duty is believed to be the first person in the United States whose execution included the use of pentobarbital. The 58-year-old was pronounced dead at 6:18 p.m. Thursday at the Oklahoma State Penitentiary.

Oklahoma and several other states traditionally have used the barbiturate sodium thiopental to put an inmate to sleep. They then use two other drugs to paralyze the muscles and stop the heart.

But the only U.S. maker of sodium thiopental, Hospira Inc., says new batches won't be available until "the first quarter" of next year.

Source AP, December 17, 2010


Oklahoma executes man using new drug combination

Oklahoma State Penitentiary

Oklahoma man executed with drug mix that includes sedative commonly used to euthanize animals

Oklahoma officials executed a convicted murderer Thursday [Dec. 16, 2010] using a drug combination that includes a sedative commonly used to euthanize animals, after a nationwide shortage of a key ingredient forced the state to tinker with the usual formula.

John David Duty was pronounced dead at 6:18 p.m. at the Oklahoma State Penitentiary.

The 58-year-old, who was sentenced to die for strangling his cellmate nearly a decade ago, is believed to be the first person in the United States whose execution included the use of pentobarbital.

Duty and 2 other death-row inmates had challenged the state's decision to use pentobarbital, arguing it could be inhumane because a person could be paralyzed but still aware when a painful 3rd drug is administered to stop the heart. On Tuesday, a federal appeals court upheld a ruling against the other 2 inmates. Duty did not take part in the appeal.

Several states have been scrambling since Hospira Inc. -- the only U.S. manufacturer of the barbiturate normally used in executions -- said new batches of sodium thiopental could be available "in the first quarter" of next year.

Oklahoma obtained a dose of sodium thiopental from Arkansas for its last execution in October, but couldn't secure any more, said Oklahoma Department of Corrections spokesman Jerry Massie.

Executions have been delayed in California, Arkansas, Tennessee and Maryland as a result of protocol changes, including the use of new drugs, said Richard Dieter, executive director of the Death Penalty Information Center. In Ohio and Washington, laws were passed to allow for the use of sodium thiopental alone, he said.

But Oklahoma's law calls for the use of a fast-acting barbiturate to be administered 1st, which gave the state the flexibility to use pentobarbital, Massie said.

"I think Oklahoma is the only state where this issue has come to a head over a new drug," Dieter said. "The other states that haven't been able to do it, it's because the state courts wanted more time to review the overall protocol changes."

Experts testified at a November federal court hearing that no other U.S. state uses pentobarbital during executions. Massie and Dieter both said before Thursday's execution that they believed Duty would be the 1st U.S. inmate put to death using the drug.

"I have not seen that (pentobarbital) has been used before in this context,'" Dieter said. But, he noted, "Some states don't say exactly what drugs are used and have kept that out of the public eye.'"

Duty becomes the 3rd condemned inmate to be put to death this year in Oklahoma and the 94th overall since the state resumed capital punishment in 1990. Only Texas (464) and Virginia (108) have executed more inmates than Virginia since the death penalty was re-legalized in the US on July 2, 1976.

Duty becomes the 46th inmate to be put to death this year in the USA and the 1234th overall since the nation resumed executions on January 17, 1977.

Sources: Associated Press & Rick Halperin, December 17, 2010