Christopher Zoukis's Blog - Posts Tagged "convicted-murderer"
Sedative’s Humaneness and Availability Raise Issues for Executions
Lawyers for a convict scheduled for execution in Virginia Jan. 18 are challenging a newly sourced sedative that the state plans to use in its three-drug protocol for lethal injections. Doubts about the drug’s effectiveness, and the difficulties obtaining it have already caused other states to discontinue its use or postpone executions.
Ricky Javon Gray is scheduled to be executed for the murders of two young girls during a Richmond home invasion in which he also killed their parents. He has also been implicated in three other killings. Gray’s lawyers argue that the state’s method of lethal execution – which uses the sedative midazolam to render the condemned inmate unconscious, followed by the administration of two other drugs — first to effect paralysis and then stop the heart – is so cruel and unusual that it violates the U.S. Constitution’s Eighth Amendment.
They also claim Virginia’s planned first-in-the-nation use of compounding pharmacies to make two of the drugs that it needs for its execution method, purchased at a reported cost of $66,000 for two scheduled executions, calls for review by state appeals courts, and if necessary, by the highest court in the land. Virginia has passed a law allowing the state-regulated compounding pharmacy in question be allowed to keep its identity confidential.
A state appeals court judge will hold a Jan. 3 hearing on the matter. Whatever the ruling, it’s likely to prompt a request to the U.S. Supreme Court for a stay of sentence and a review of the constitutional issue. If the case reaches the high court, it will likely find sharp divisions there. The Court’s 5-4 Glossip v. Gross decision in 2015 rejected a challenge by three Oklahoma death row-inmates to the three-drug protocol.
In several recent executions, inmates given midazolam had protracted and apparently at least semi-conscious deaths, but the high court majority held that the inmates had neither proved the method caused severe pain nor identified a more humane practicable method. Of the four dissenting justices in Glossip, two (Stephen Breyer and Ruth Bader Ginsburg) signaled they’d welcome a case squarely challenging the death penalty as so cruel, arbitrary, error-prone or time-consuming as to be unconstitutional.
Even if use of midazolam survives legal challenges, obtaining it is becoming more difficult. European pharmaceutical firms now routinely refuse to sell products for use in executions, due to a European Union ban on exports for that purpose. And U.S. producers are also reluctant to supply lethal drugs, fearing adverse publicity. Pharmacy groups in this country have also discouraged their members from supplying drugs for lethal injections.
Short supplies and litigation recently led Arizona to drop the use of midazolam, and Ohio has postponed indefinitely its next three executions until a legal challenge to a lethal drug source confidentiality law similar to Virginia’s can be decided. Executions carried out in 2016 have fallen to the lowest level since 1991, with only 20 carried out, and all but four of those took place in just two states, Georgia and Texas, of the 31 states allowing the death penalty.
For some states, like Florida and Oklahoma, 2016 was the first year since the mid-1990s that they have not put any inmates to death. In addition, death sentences were handed down nationwide in only 30 cases, the fewest since 1972. Even so, in this year’s elections residents in three states (California, Nebraska and Oklahoma) voted to reject curbs on capital punishment.
Ricky Javon Gray is scheduled to be executed for the murders of two young girls during a Richmond home invasion in which he also killed their parents. He has also been implicated in three other killings. Gray’s lawyers argue that the state’s method of lethal execution – which uses the sedative midazolam to render the condemned inmate unconscious, followed by the administration of two other drugs — first to effect paralysis and then stop the heart – is so cruel and unusual that it violates the U.S. Constitution’s Eighth Amendment.
They also claim Virginia’s planned first-in-the-nation use of compounding pharmacies to make two of the drugs that it needs for its execution method, purchased at a reported cost of $66,000 for two scheduled executions, calls for review by state appeals courts, and if necessary, by the highest court in the land. Virginia has passed a law allowing the state-regulated compounding pharmacy in question be allowed to keep its identity confidential.
A state appeals court judge will hold a Jan. 3 hearing on the matter. Whatever the ruling, it’s likely to prompt a request to the U.S. Supreme Court for a stay of sentence and a review of the constitutional issue. If the case reaches the high court, it will likely find sharp divisions there. The Court’s 5-4 Glossip v. Gross decision in 2015 rejected a challenge by three Oklahoma death row-inmates to the three-drug protocol.
In several recent executions, inmates given midazolam had protracted and apparently at least semi-conscious deaths, but the high court majority held that the inmates had neither proved the method caused severe pain nor identified a more humane practicable method. Of the four dissenting justices in Glossip, two (Stephen Breyer and Ruth Bader Ginsburg) signaled they’d welcome a case squarely challenging the death penalty as so cruel, arbitrary, error-prone or time-consuming as to be unconstitutional.
Even if use of midazolam survives legal challenges, obtaining it is becoming more difficult. European pharmaceutical firms now routinely refuse to sell products for use in executions, due to a European Union ban on exports for that purpose. And U.S. producers are also reluctant to supply lethal drugs, fearing adverse publicity. Pharmacy groups in this country have also discouraged their members from supplying drugs for lethal injections.
Short supplies and litigation recently led Arizona to drop the use of midazolam, and Ohio has postponed indefinitely its next three executions until a legal challenge to a lethal drug source confidentiality law similar to Virginia’s can be decided. Executions carried out in 2016 have fallen to the lowest level since 1991, with only 20 carried out, and all but four of those took place in just two states, Georgia and Texas, of the 31 states allowing the death penalty.
For some states, like Florida and Oklahoma, 2016 was the first year since the mid-1990s that they have not put any inmates to death. In addition, death sentences were handed down nationwide in only 30 cases, the fewest since 1972. Even so, in this year’s elections residents in three states (California, Nebraska and Oklahoma) voted to reject curbs on capital punishment.
Death Row Inmate’s Sentence Appeal Allowed After Expert Testified Race Makes Him More Likely to Offend Again
The U.S. Supreme Court decided Texas inmate Duane Buck can keep arguing for a new hearing on his death sentence, because at his original sentence hearing, a psychologist testified Buck, as an African-American, was more likely to commit a future violent crime.
At that time, Texas death sentence law required a jury to find that a convict posed a likely future danger to the community. At Buck’s hearing, an expert witness, psychologist Dr. Walter Quijano, opined there was only a “low” likelihood Buck would commit further violence if given a life sentence rather than executed, but added that statistics showed Buck’s race “increased the probability” he would commit another violent crime. Buck didn’t challenge the verdict, but attacked the sentence as tainted by the racial comments.
Defending the sentence, Texas argued that the facts of Buck’s case made it less likely racially-charged testimony would prejudice the case, as his crimes were particularly “horrific” (the 1995 double murder of his former girlfriend, gunned down in front of her young children, and her new boyfriend, plus the nonlethal shooting of his own stepsister).
The state also argued it couldn’t be blamed, since Buck’s own lawyer had offered the psychologist as a witness at the sentencing hearing. Besides, it was too late to raise the issue of ineffective counsel, which Buck’s lawyer hadn’t raised in the first post-conviction appeal.
Writing for a six-member majority in the Feb. 22 decision in Buck v. Davis, Chief Justice John Roberts found Buck entitled to have a lower court review the sentence, because he had shown ineffectiveness of counsel; Texas had already admitted error in allowing Dr. Quijano’s testimony about six other defendants, and given them new sentencing hearings, but refused to do so for Buck.
Roberts’ decision swept away the state’s objections, reversing prior decisions by a federal district court and a federal appeals court on numerous issues: what constitutes ineffective representation by counsel, the standard of review for challenging an earlier sentencing decision, and how an inmate can show “extraordinary circumstances” needed to challenge a sentence belatedly.
What mattered, in Roberts’ view, wasn’t which side introduced Quijano’s testimony, but the likelihood it could have affected one or more jurors’ views on the key issue of whether Buck would reoffend. His ruling gives Buck a renewed chance to try to persuade the lower court (which earlier rejected his appeal) to reopen the sentencing hearing.
In a harsh dissent, Justices Clarence Thomas and Samuel Alito said the majority opinion “bulldozes procedural obstacles and misapplies settled law” to justify the desired result, but takes comfort that the new decision, due to “highly unusual” facts, is likely to have scant precedential value.
It’s not the Court’s first set-to on Buck’s case. In 2011, in Buck v. Thaler, the high court passed up an earlier chance to hear a review petition from Buck, when four justices couldn’t be mustered to vote to take the case. Then, in unusual actions, Justices Sotomayor and Kagan issued a dissent from the decision not to hear the case, and Justices Alito, Scalia and Breyer published an explanation why they voted against hearing the case — saying Buck couldn’t challenge statements by his own witness and they agreed with lower court decisions.
At that time, Texas death sentence law required a jury to find that a convict posed a likely future danger to the community. At Buck’s hearing, an expert witness, psychologist Dr. Walter Quijano, opined there was only a “low” likelihood Buck would commit further violence if given a life sentence rather than executed, but added that statistics showed Buck’s race “increased the probability” he would commit another violent crime. Buck didn’t challenge the verdict, but attacked the sentence as tainted by the racial comments.
Defending the sentence, Texas argued that the facts of Buck’s case made it less likely racially-charged testimony would prejudice the case, as his crimes were particularly “horrific” (the 1995 double murder of his former girlfriend, gunned down in front of her young children, and her new boyfriend, plus the nonlethal shooting of his own stepsister).
The state also argued it couldn’t be blamed, since Buck’s own lawyer had offered the psychologist as a witness at the sentencing hearing. Besides, it was too late to raise the issue of ineffective counsel, which Buck’s lawyer hadn’t raised in the first post-conviction appeal.
Writing for a six-member majority in the Feb. 22 decision in Buck v. Davis, Chief Justice John Roberts found Buck entitled to have a lower court review the sentence, because he had shown ineffectiveness of counsel; Texas had already admitted error in allowing Dr. Quijano’s testimony about six other defendants, and given them new sentencing hearings, but refused to do so for Buck.
Roberts’ decision swept away the state’s objections, reversing prior decisions by a federal district court and a federal appeals court on numerous issues: what constitutes ineffective representation by counsel, the standard of review for challenging an earlier sentencing decision, and how an inmate can show “extraordinary circumstances” needed to challenge a sentence belatedly.
What mattered, in Roberts’ view, wasn’t which side introduced Quijano’s testimony, but the likelihood it could have affected one or more jurors’ views on the key issue of whether Buck would reoffend. His ruling gives Buck a renewed chance to try to persuade the lower court (which earlier rejected his appeal) to reopen the sentencing hearing.
In a harsh dissent, Justices Clarence Thomas and Samuel Alito said the majority opinion “bulldozes procedural obstacles and misapplies settled law” to justify the desired result, but takes comfort that the new decision, due to “highly unusual” facts, is likely to have scant precedential value.
It’s not the Court’s first set-to on Buck’s case. In 2011, in Buck v. Thaler, the high court passed up an earlier chance to hear a review petition from Buck, when four justices couldn’t be mustered to vote to take the case. Then, in unusual actions, Justices Sotomayor and Kagan issued a dissent from the decision not to hear the case, and Justices Alito, Scalia and Breyer published an explanation why they voted against hearing the case — saying Buck couldn’t challenge statements by his own witness and they agreed with lower court decisions.
High Court Rebuffs Inmate’s Challenge to Execution Drug
Despite dissent by two justices, in Arthur v. Dunn, the U.S. Supreme Court refused to consider a Feb. 21 appeal by an Alabama death-row inmate claiming midazolam, a controversial sedative used in the lethal injection process, may produce protracted, unbearable pain.
Thomas Arthur, was convicted of murdering his girlfriend’s husband in 1982, although his first two trials were reversed on appeal, and he did not receive a final death sentence until 1992. Arthur then requested to be executed by firing squad rather than by lethal injection. When corrections officials denied that request, Arthur went to federal court, arguing Alabama’s use of midazolam violated the Eighth Amendment’s ban on cruel and unusual punishment.
Citing precedents from earlier unsuccessful challenges to the use of midazolam, a federal district court in Alabama and the Atlanta-based 11th Circuit federal appeals court ruled against Arthur, who unsuccessfully sought Supreme Court review. As is customary, the Court did not announce its reasons for not accepting the appeal, but Justice Sonia Sotomayor, joined by Justice Stephen Breyer, took the unusual step of filing an 18-page dissent to explain why they thought the high court should have heard the appeal.
In an earlier case challenging use of midazolam, the high court had ruled 5-4 in Glossip v. Gross, a 2015 case from Oklahoma that there was not sufficient evidence the drug brought a substantial risk of severe pain. Further, the court said, inmates seeking to challenge an execution method as unconstitutionally cruel must not only show it would produce extreme pain, but also that there was also a “known and available” alternative executionmethod with a significantly lower risk of pain.
Justice Sotomayor’s dissent in the latest case called the standard set in the Glossip decision a “macabre challenge,” since it requires the inmate to show a less painful way for him to be put to death in order to bring a challenge to an arguably unconstitutional method allowed under state law. The circuit court’s decision held Arthur had not shown execution by firing squad was expressly authorized by Alabama law.
After rehearsing anecdotal and scientific evidence against midazolam use (not considered by the federal appellate court) and disputing whether that court had correctly gauged whether firing squad execution was in fact available in Alabama, the Supreme Court dissenters argued the Glossip standard would allow any state to escape scrutiny of its execution methods by simply outlawing any other proposed alternative.
That could preclude capital punishment issues from ever being fully considered by the courts, they argued, and thus dampen the discussion in courts and state legislatures as to exactly which “methods of execution the Constitution tolerates.”
Last November the Supreme Court blocked a scheduled execution date for Arthur, with Chief Justice John Roberts supplying the fifth vote needed for that extraordinary action. At the time, Roberts said he believed the execution ought to proceed, but explained he had joined four justices seeking the stay of execution as a “courtesy,” to provide time for the high court to decide whether it wanted to hear the appeal. Now that the appeal has ended, the Court’s stay is automatically lifted, leaving Alabama free to execute Arthur by lethal injection at its discretion.
Thomas Arthur, was convicted of murdering his girlfriend’s husband in 1982, although his first two trials were reversed on appeal, and he did not receive a final death sentence until 1992. Arthur then requested to be executed by firing squad rather than by lethal injection. When corrections officials denied that request, Arthur went to federal court, arguing Alabama’s use of midazolam violated the Eighth Amendment’s ban on cruel and unusual punishment.
Citing precedents from earlier unsuccessful challenges to the use of midazolam, a federal district court in Alabama and the Atlanta-based 11th Circuit federal appeals court ruled against Arthur, who unsuccessfully sought Supreme Court review. As is customary, the Court did not announce its reasons for not accepting the appeal, but Justice Sonia Sotomayor, joined by Justice Stephen Breyer, took the unusual step of filing an 18-page dissent to explain why they thought the high court should have heard the appeal.
In an earlier case challenging use of midazolam, the high court had ruled 5-4 in Glossip v. Gross, a 2015 case from Oklahoma that there was not sufficient evidence the drug brought a substantial risk of severe pain. Further, the court said, inmates seeking to challenge an execution method as unconstitutionally cruel must not only show it would produce extreme pain, but also that there was also a “known and available” alternative executionmethod with a significantly lower risk of pain.
Justice Sotomayor’s dissent in the latest case called the standard set in the Glossip decision a “macabre challenge,” since it requires the inmate to show a less painful way for him to be put to death in order to bring a challenge to an arguably unconstitutional method allowed under state law. The circuit court’s decision held Arthur had not shown execution by firing squad was expressly authorized by Alabama law.
After rehearsing anecdotal and scientific evidence against midazolam use (not considered by the federal appellate court) and disputing whether that court had correctly gauged whether firing squad execution was in fact available in Alabama, the Supreme Court dissenters argued the Glossip standard would allow any state to escape scrutiny of its execution methods by simply outlawing any other proposed alternative.
That could preclude capital punishment issues from ever being fully considered by the courts, they argued, and thus dampen the discussion in courts and state legislatures as to exactly which “methods of execution the Constitution tolerates.”
Last November the Supreme Court blocked a scheduled execution date for Arthur, with Chief Justice John Roberts supplying the fifth vote needed for that extraordinary action. At the time, Roberts said he believed the execution ought to proceed, but explained he had joined four justices seeking the stay of execution as a “courtesy,” to provide time for the high court to decide whether it wanted to hear the appeal. Now that the appeal has ended, the Court’s stay is automatically lifted, leaving Alabama free to execute Arthur by lethal injection at its discretion.
