US considers reviving old-fashioned executions

Utah's contraption for executions by firing squad

Most states abandoned those execution methods a generation ago

St Louis: With lethal-injection drugs in short supply and new questions looming about their effectiveness, lawmakers in some death penalty states are considering bringing back relics of a more gruesome past: firing squads, electrocutions and gas chambers.

Most states abandoned those execution methods more than a generation ago in a bid to make capital punishment more palatable to the public and to a judicial system worried about inflicting cruel and unusual punishments that violate the Constitution.

But to some elected officials, the drug shortages and recent legal challenges are beginning to make lethal injection seem too vulnerable to complications.

“This isn’t an attempt to time-warp back into the 1850s or the wild, wild West or anything like that,” said Missouri state Rep Rick Brattin, who this month proposed making firing squads an option for executions. “It’s just that I foresee a problem, and I’m trying to come up with a solution that will be the most humane yet most economical for our state.”

Brattin, a Republican, said questions about the injection drugs are sure to end up in court, delaying executions and forcing states to examine alternatives. It’s not fair, he said, for relatives of murder victims to wait years, even decades, to see justice served while lawmakers and judges debate execution methods.

Like Brattin, a Wyoming lawmaker this month offered a bill allowing the firing squad. Missouri’s attorney general and a state lawmaker have raised the notion of rebuilding the state’s gas chamber. And a Virginia lawmaker wants to make electrocution an option if lethal-injection drugs aren’t available.

If adopted, those measures could return states to the more harrowing imagery of previous decades, when inmates were hanged, electrocuted or shot to death by marksmen.

States began moving to lethal injection in the 1980s in the belief that powerful sedatives and heart-stopping drugs would replace the violent spectacles with a more clinical affair while limiting, if not eliminating, an inmate’s pain.

The total number of US executions has declined in recent years — from a peak of 98 in 1999 to 39 last year. Some states have turned away from the death penalty entirely. Many have cases tied up in court. And those that carry on with executions find them increasingly difficult to conduct because of the scarcity of drugs and doubts about how well they work.

In recent years, European drug makers have stopped selling the lethal chemicals to prisons because they do not want their products used to kill.

At least two recent executions are also raising concerns about the drugs’ effectiveness. Last week, Ohio inmate Dennis McGuire took 26 minutes to die by injection, gasping repeatedly as he lay on a gurney with his mouth opening and closing. And on Jan. 9, Oklahoma inmate Michael Lee Wilson’s final words were, “I feel my whole body burning.”

Missouri threw out its three-drug lethal injection procedure after it could no longer obtain the drugs. State officials altered the method in 2012 to use propofol, which was found in the system of pop star Michael Jackson after he died of an overdose in 2009.

Oregon Gas Chamber

The anti-death penalty European Union threatened to impose export limits on propofol if it were used in an execution, jeopardizing the supply of a common anesthetic needed by hospitals across the nation. In October, Gov Jay Nixon stayed the execution of serial killer Joseph Paul Franklin and ordered the Missouri Department of Corrections to find a new drug.

Days later, the state announced it had switched to a form of pentobarbital made by a compounding pharmacy. Like other states, Missouri has refused to divulge where the drug comes from or who makes it.

Missouri has carried out two executions using pentobarbital - Franklin in November and Allen Nicklasson in December. Neither inmate showed outward signs of suffering, but the secrecy of the process resulted in a lawsuit and a legislative inquiry.

Michael Campbell, assistant professor of criminal justice at the University of Missouri-St Louis, said some lawmakers simply don’t believe convicted murderers deserve any mercy.

“Many of these politicians are trying to tap into a more populist theme that those who do terrible things deserve to have terrible things happen to them,” Campbell said.

Richard Dieter, executive director of the Death Penalty Information Centre in Washington, D.C., cautioned that there could be a backlash.

“These ideas would jeopardize the death penalty because, I think, the public reaction would be revulsion, at least from many quarters,” Dieter said.

Some states already provide alternatives to lethal injection. Condemned prisoners may choose the electric chair in eight states: Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia. An inmate named Robert Gleason Jr was the most recent to die by electrocution, in Virginia in January 2013.

Arizona, Missouri and Wyoming allow for gas-chamber executions. Missouri no longer has a gas chamber, but Attorney General Chris Koster, a Democrat, and Missouri state Sen. Kurt Schaefer, a Republican, last year suggested possibility rebuilding one. So far, there is no bill to do so.

Delaware, New Hampshire and Washington state still allow inmates to choose hanging. The last hanging in the US was Billy Bailey in Delaware in 1996. Two prisoners in Washington state have chosen to be hanged since the 1990s — Westley Allan Dodd in 1993 and Charles Rodman Campbell in 1994.

Firing squads typically consisting of five sharpshooters with rifles, one of which is loaded with a blank so the shooters do not know for sure who fired the fatal bullet. They have been used mostly for military executions.

Since the end of the Civil War, there have been three civilian firing squad executions in the US, all in Utah. Gary Gilmore uttered his famous final words, “Let’s do it” on Jan. 18, 1977, before his execution, which ended what amounted to a 17-year national moratorium on the death penalty. Convicted killers John Albert Taylor in 1996 and Ronnie Lee Gardner in 2010 were also put to death by firing squad.

Utah is phasing out its use, but the firing squad remains an option there for inmates sentenced prior to May 3, 2004.

Oklahoma maintains the firing squad as an option, but only if lethal injection and electrocution are deemed unconstitutional.

In Wyoming, Republican state Sen. Bruce Burns said death by firing squad would be far less expensive than building a gas chamber. Wyoming has only one inmate on death row, 68-year-old convicted killer Dale Wayne Eaton. The state has not executed anyone in 22 years.

Jackson Miller, a Republican in the Virginia House of Delegates, is sponsoring a bill that would allow for electrocution if lethal injection drugs are not available.

Source: The Associated Press, January 28, 2014

U.S. states could turn to firing squads if execution drugs scarce

(Reuters) - Lawmakers for at least two U.S. states say they should conduct executions by firing squad if opposition to capital punishment by pharmaceutical companies makes it hard to obtain drugs for lethal injections.

States have turned to pharmacies that customize drugs and adopted untested new mixes after supplies of traditional execution drugs were cut off by manufacturers opposed to their use for the procedure.

The debate over lethal injections was reignited on Thursday when an inmate gasped and convulsed violently during his execution in Ohio as the state used a two-drug method for the first time in the United States.

Missouri state Representative Rick Brattin, said Friday the controversy over lethal injections forces families of murder victims to wait too long for justice so he introduced his bill Thursday to add "firing squad" as an execution option.

"A lot of folks may picture the 1850s and everyone lining up to shoot, but the reality is that people suffer with every type of death," said Brattin, a Republican. "This is no less humane than lethal injection."

Missouri, which is scheduled to execute an inmate in late January, uses lethal injection by statute and permits execution by gas, a method it has not used since 1965.

The United States has executed more than 1,300 prisoners since it resumed the death penalty in the 1970s, nearly 1,200 by lethal injection. Only Utah has used firing squads, executing three inmates that way since 1977, the last in 2010.

Brattin's bill follows a measure Republican Wyoming state Senator Bruce Burns introduced last week to add firing squad as an execution option for the state if drugs are not available.

"If I had my choice, I would take the firing squad over lethal injection," Burns said.

Wyoming law also allows inmates to be gassed, but the state does not have a gas chamber, Burns said.

Richard Dieter, executive director of the Death Penalty Information Center, which tracks the use of capital punishment, said the firing squad proposals show the desperation some lawmakers have to find a way around the issues raised by lethal injection.

Utah uses firing squads only at the inmate's option and is phasing out the method, Dieter said. Two death row inmates in Utah still have the firing squad option, he said.

Source: Reuters, January 18, 2014

Ohio inmate "not entitled to a pain-free execution"

Ohio's state execution team is finalising plans to dispatch a convicted murderer and rapist on death row using a never-before-tried combination of two drugs which defence lawyers say threatens to leave him writhing in agony from "air hunger" before he loses consciousness and expires.

The way was cleared for the execution of Dennis McGuire, 53, when a federal judge in Columbus ruled on Monday (local time) that concerns about how the new cocktail would work were not enough to issue a stay even as he acknowledged that it amounted nonetheless to a death chamber "experiment" by the state.

Ohio and other death penalty states have been struggling to keep executions going because supplies of pentobarbital traditionally used in a three-drug mix have all passed their sell-by dates thanks to its Danish manufacturer prohibiting its sale to US prison services. The European Union has also threatened to restrict sales of Propofol, a leading anaesthetic used in hospitals, were US death chambers to use it instead.

In Wyoming, state Senator Bruce Burns, a Republican, said he was tabling proposals to replace death by lethal injection with the firing squad in his state because of the drug shortage crisis. Using marksmen to empty death row would be preferable, he said, than the alternative - building a gas chamber.

Controversy is also raging in Oklahoma following what appears to have been the botched execution last week of Michael Lee Wilson based on his last words uttered after the injection process had begun: "I feel my whole body burning." Exactly what went wrong is unclear because the state is not saying.

The two-drug formula that Ohio has turned to - the sedative midazolam followed by the painkiller hydromorphone - was to have been used for the first time late last year on another inmate, Ronald Phillips. His execution was postponed at the last minute because of uncertainty over whether his request that his organs be donated after death could legally be granted.

Thus McGuire, convicted of the 1989 rape and fatal stabbing of Joy Stewart in western Ohio, is now set to be the guinea pig, barring any last-minute stay by the US Supreme Court or state governor.

In court filings earlier, defence lawyers had contended that "McGuire will experience the agony and terror of air hunger as he struggles to breathe for five minutes after defendants intravenously inject him with the execution drugs". They also suggested that because McGuire suffers from severe sleep apnea the risk of his struggling to fill his lungs for air before he passes out will be increased.

In his ruling on Monday, the US district judge Gregory Frost said he saw no convincing evidence of a "substantial risk" that McGuire would suffer the "severe pain" trying to fill his lungs on the death stretcher that would put his execution at odds with the constitutional prohibition of "cruel and unusual punishment".

Almost in the same breath, however, he added that there is "absolutely no question that Ohio's current protocol presents an experiment in lethal injection processes... To pretend otherwise, or that either of the experts or this Court truly knows what the outcome of the experiment will be, would be disingenuous."

In its filings to the judge, the state's Attorney General's office did not deny the combination might cause discomfort but added: "You're not entitled to a pain-free execution".

Both the Governor, John Kasich, and the Ohio Parole Board have already rejected pleas for clemency for McGuire. Separately, his lawyers appealed to the Supreme Court to issue a stay on the grounds that the jury at his trial were insufficiently informed of the severe difficulties of his child hood.

In making his firing squad proposal, Wyoming's Senator said it was partly about money. "Frankly it's one of the cheapest [options] for the state."

Source: The New Zealand Herald, January 15, 2014

Wyoming lawmaker proposes firing squads for execution

CHEYENNE, Wyo. (AP) — A Wyoming lawmaker is pushing to allow use of the firing squad to execute condemned state inmates if constitutional problems or other issues ever prevented the state from using lethal injection.

Sen. Bruce Burns, R-Sheridan, said Monday that state law currently calls for using a gas chamber if lethal injection is unavailable.

"The state of Wyoming doesn't have a gas chamber currently, an operating gas chamber, so the procedure and expense to build one would be impractical to me," said Burns, a member of the Senate Judiciary Committee.

"I consider frankly the gas chamber to be cruel and unusual, so I went with firing squad because they also have it in Utah," Burns said. He's introduced the bill for consideration in the legislative session that starts Feb. 10 in Cheyenne.

"One of the reasons I chose firing squad as opposed to any other form of execution is because frankly it's one of the cheapest for the state," Burns said. "The expense of building a gas chamber I think would be prohibitive when you consider how many people would be executed by it, and even the cost of gallows."

Burns said his bill addressed the possibility that the state could have to find a substitute for using lethal injection because a number of states are running short of the chemicals used for lethal injection.

In Missouri, for example, the state auditor is undertaking a probe of the Missouri Department of Corrections over its use of a new death penalty drug. That state for years had used a three-drug blend to perform executions until pharmaceutical companies stopped selling those drugs to prisons.

Missouri has executed two inmates in recent months using the sedative pentobarbital and plans a third execution later this month. The drug comes from a compounding pharmacy in Oklahoma not licensed to do business in Missouri.

The pace of inmate executions is much slower in Wyoming, which has only one inmate on death row and last executed an inmate in 1992.

Inmate Dale Wayne Eaton, 68, is challenging the constitutionality of the death sentence he received in 2004 for the rape and murder of 18-year-old Lisa Marie Kimmell of Billings, Mont. The Wyoming Supreme Court already has upheld Eaton's conviction, but a federal court has put the execution on hold for the past several years while it considers his appeal.

Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said Monday he believes Wyoming could face constitutional challenges if it tried to use the firing squad as its only method of execution.

Dieter said Utah has offered inmates the choice of being executed by firing squad but said the state is phasing out the punishment. He said mandating the use of the firing squad if lethal injection were unavailable, as Burns seeks to do, would be a different matter.

"That I think would raise concerns in the federal courts, perhaps the state courts, about whether and unusual, perhaps a cruel and unusual punishment is being inflicted," Dieter said. "I don't know how the ultimate ruling would come down, but I think there be delays as that case got considered and it might even go up to the Supreme Court. This would be unusual. This is not what Utah has done."

Source: Associated Press, January 13, 2014

Lawyers for Wyoming's lone death row inmate explore new defense

CHEYENNE — A federal judge on Monday approved more testing for Dale Wayne Eaton, Wyoming’s lone death row inmate, after his lawyers said his IQ may be low enough that he could be covered by a federal ban against executing people with intellectual disabilities.

Monday’s announcement from Eaton’s team that they intend to investigate whether he has a mental disability lays out a new possible avenue of attack on his death sentence after nearly a decade of state and federal appeals.

The U.S. Supreme Court in 2002 banned the execution of a “mentally retarded offender” on the grounds that it violates the Constitution’s prohibition against cruel and unusual punishment.

Eaton, 68, is challenging the constitutionality of the state death sentence he received in 2004 for the rape and murder of 18-year-old Lisa Marie Kimmell of Billings, Mont. The Wyoming Supreme Court already has upheld his conviction and his life hangs on the success of his federal appeal.

Eaton’s lawyers don’t dispute he killed Kimmell. She disappeared in 1998 while driving across Wyoming, and her body was found later in the North Platte River.

The investigation stalled until 2002, when DNA

evidence linked Eaton to the case while he was in prison on unrelated charges. Investigators then found Kimmell’s car buried on Eaton’s property in Moneta, west of Casper.

Until now, Eaton’s lawyers in his federal appeal have hammered on their claim that Eaton’s original state court defense team didn’t develop “mitigation evidence.” They say his lawyers failed in their constitutional obligation to present information about Eaton’s past that would have underscored his humanity and possibly convinced at least one juror not to sentence him to death.

U.S. District Judge Alan B. Johnson of Cheyenne has blocked out several weeks for a hearing later this summer to hear evidence that Eaton’s legal team has unearthed about his tortured family background and legal and personal history.

Eaton’s lawyers have filed statements in court from many people who knew him, saying he lived a tough life and was living alone in filth and poverty in an old school bus on the Moneta property around the time Kimmell was killed.

At the end of this summer’s hearing, Johnson will have to decide whether Eaton’s original state court jury might have spared him the death penalty if his original legal team had done a better job of presenting his personal history. More federal appeals appear likely, regardless.

Missouri lawyer Sean O’Brien, a law professor and death penalty specialist, is on the team of lawyers representing Eaton. O’Brien told Johnson on Monday that recent expert review of tests performed on Eaton raised the intellectual disability concern.

O’Brien said one expert in San Diego reviewed the results and concluded that Eaton’s IQ may be in the 70s. A score of 100 is average intelligence.

“Our experts are telling us that they can’t rule out intellectual disability,” O’Brien said. The experts say they need to perform more tests and investigations, O’Brien said.

Johnson approved Eaton’s lawyers’ request for $14,000 for further testing to determine whether his IQ is low enough that his execution would be barred. Depending what further testing shows, O’Brien said Eaton’s team may file more legal paperwork which he said could lead to more legal proceedings possibly later this year.

Eaton’s lawyers said they filed a written motion with Johnson last week laying out their concerns about Eaton’s possible disability and stating the need for more testing. They said they marked the filing so that only the judge and lawyers for the state — not the public — could review it.

Lawyer David Delicath of the Wyoming Attorney General’s Office told Johnson that he hadn’t seen the motion before Monday’s court hearing. He said that the state courts already had ruled that Eaton was competent to stand trial.

“If the issue is that he’s not competent to face execution, then there’s a state procedure to address that,” Delicath said. “And I think the state should have the first opportunity to address that.”

Source: AP, June 18, 2013

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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Execution date set in February for Wyoming's only death-row inmate

A judge says Dale Wayne Eaton, Wyoming's only death-row inmate, is scheduled to be put to death on Feb. 12.

Natrona County District Judge David Park set the date during a death warrant hearing on Monday.

Diane Courselle, director of the University of Wyoming's Defender Aid Program, says they'll go to federal court to ask for a stay of execution.

Eaton has been on death row since 2004 for the kidnapping, rape and murder of 18-year-old Lisa Marie Kimmell, who disappeared in 1988 while driving from Denver to Billings, Mont.

The Wyoming Supreme Court has twice rejected appeals filed by Eaton's attorneys.

Source: Associated Press, December 16, 2009

Matthew Shepard 10 years later: A community remembers

What happened in Laramie on Oct. 7, 1998, changed how this Wyoming community would be viewed by people from around the world.

10 years ago, 21-year-old Matthew Shepard was found tied to a split-rail fence in an undeveloped area just east of the city limits. He had been beaten, robbed and left to die.

Within hours of Shepard's discovery, people from around the country descended on Laramie, looking for a glimpse into the story behind the crime.

It didn't take long before clues from a series of seemingly unrelated crimes were put into perspective and 2 Laramie men, Aaron James McKinney and Russell Arthur Henderson, were arrested and charged with attempted murder, kidnapping and aggravated robbery. Their girlfriends, Chasity Vera Pasley, 20 and Kristen Leann Price, 18, were arrested and charged with being accessories after the fact.

Police said the women helped dump bloody clothing and initially lied about their whereabouts. All but Price appeared in Albany County Court on Oct. 10, just 3 days after Shepard was found.

5 days later, on Oct. 12, Shepard succumbed to his injuries in Poudre Valley Hospital in Fort Collins, Colo.

Charges against the 2 men were amended and they now faced murder with the possibility of the death penalty.

Shepard's death and the clues that led law enforcement to the arrest and eventual plea and conviction of 2 Laramie men brought even more people into town.

Television crews dotted the area surrounding the courthouse and on the University of Wyoming campus, where Shepard was a student.

On Dec. 9, Price and Pasley pleaded not guilty to accessories after the fact in Shepard's murder.

The charges against Price were later dismissed.

Pasley changed her plea following a 17-minute hearing in District Court Dec. 24. On May 21, 1999, Pasley was sentenced to 15-24 months for accessory after the fact of murder, kidnapping and aggravated robbery.

Attorneys for McKinney and Henderson asked that they not be tried together. Albany County Attorney Cal Rerucha concurred and a trial date for Henderson was set.

On April 5, 1999, as the district court trial for Henderson, 21, was about to begin, he entered into a plea agreement.

Instead of going to trial, Henderson pleaded guilty to the crime and was sentenced to 2 life sentences.

The sentences were to run consecutively life without parole in exchange for a guilty plea.

A trial date for the 2nd suspect, McKinney, 21, was set.

During McKinney's trial, evidence was presented and witnesses testified to what they knew about the relationship between the defendant and the victim. Rerucha carefully detailed his case against McKinney, outlining the events of the evening before Shepard was found. Testimony from witnesses and law enforcement interviews with the suspects set the scene from the time Shepard and the 2 Laramie men met in a local bar through the events that led to their arrests.

The jury was convinced that the evidence was strong enough and returned a guilty verdict for McKinney.

The penalty phase of the hearing was set and just before the proceedings began, the prosecuting attorney announced that the death penalty had been removed and a recommendation for life without parole had been made.

Both men were ordered to serve their sentences in the Wyoming State Penitentiary in Rawlins.

Since his incarceration, Henderson has filed a petition requesting a new trial.

His request was denied by the Wyoming State Supreme Court.

McKinney and Henderson were relocated and are now serving out their sentences in penitentiaries in other states.

Source: Laramie Boomerang

Background information:

Matthew Wayne Shepard (December 1, 1976 – October 12, 1998) was a gay American student at the University of Wyoming who was murdered near Laramie on the night of October 6 – October 7, 1998. Shepard died at Poudre Valley Hospital in Fort Collins, Colorado, on October 12, 1998, from severe head injuries. His murder brought national as well as international attention to the issue of hate crime legislation at the state and federal levels.

Russell Arthur Henderson pleaded guilty to felony murder and kidnapping, allowing him to avoid the death penalty. Aaron James McKinney was convicted of felony murder and kidnapping. Henderson is currently serving two consecutive life sentences and McKinney is serving the same but without the possibility of parole.

Shortly after midnight on October 7, 1998, 21-year-old Shepard met McKinney and Henderson in a bar. McKinney and Henderson offered Shepard a ride in their car. Subsequently, Shepard was robbed, pistol whipped, tortured, tied to a fence in a remote, rural area, and left to die. McKinney and Henderson also found out his address and intended to rob his home. Still tied to the fence, Shepard was discovered eighteen hours later by a cyclist, who at first thought that Shepard was a scarecrow. At the time of discovery, Shepard was still alive, but in a coma.

Shepard suffered a fracture from the back of his head to the front of his right ear. He had severe brain stem damage, which affected his body's ability to regulate heart rate, body temperature and other vital signs. There were also about a dozen small lacerations around his head, face and neck. His injuries were deemed too severe for doctors to operate. Shepard never regained consciousness and remained on full life support. As he lay in intensive care, candlelight vigils were held by the people of Laramie.

He was pronounced dead at 12:53 A.M. on October 12, 1998 at Poudre Valley Hospital in Fort Collins. Police arrested McKinney and Henderson shortly thereafter, finding the bloody gun as well as the victim's shoes and wallet in their truck.

The two men had attempted to get their girlfriends to provide alibis.

Henderson and McKinney were not charged with a hate crime, as no Wyoming criminal statute provided for such a charge. The disturbing and brutal nature of Matthew Shepard's murder prompted calls for new legislation addressing hate crime, urged particularly by those who believed that Shepard was targeted on the basis of his sexual orientation.

The anti-gay Westboro Baptist Church of Topeka, Kansas, led by Fred Phelps, picketed Shepard's funeral as well as the trial of his assailants, displaying signs with slogans such as "Matt Shepard rots in Hell", "AIDS Kills Fags Dead" and "God Hates Fags". When the Wyoming Supreme Court ruled that it was legal to display any sort of religious message on city property if it was legal for Casper's Ten Commandments display to remain, Phelps attempted and failed to gain city permits in Cheyenne and Casper to build a monument "of marble or granite 5 or 6 feet (1.8 m) in height on which will be a bronze plaque bearing Shepard's picture and the words: "MATTHEW SHEPARD, Entered Hell October 12, 1998, in Defiance of God's Warning: 'Thou shalt not lie with mankind as with womankind; it is abomination.' Leviticus 18:22."

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Matthew Shepard Foundation