Fordham Law


Weeks after botched Oklahoma execution, multiple executions scheduled for 24-hour window

Deborah Denno in The Washington Post, June 17, 2014

Media Source

Weeks after botched Oklahoma execution, multiple executions scheduled for 24-hour window
 
By Mark Berman
 
It has been seven weeks since an inmate was executed in the United States. The last time it happened was on April 29, a botched execution in Oklahoma that drew considerable criticism and cast a bright spotlight on the issues surrounding capital punishment as it currently exists in this country.
 
Since that incident, other executions were halted, some with just hours to spare. There are currently four executions scheduled during a 24-hour period from Tuesday night to Wednesday night, though it’s unclear how many of these will actually occur. (At least one is likely to be stayed, while the Supreme Court on Tuesday night denied requests to stay two of the other executions.) Still, on Tuesday night, the U.S. saw its first execution in nearly two months.
 
Here’s a rundown of the executions that are scheduled as well as what has happened since the botched Oklahoma execution. (We will update this post when new developments occur, either in the form of legal challenges or executions being carried out.)
 
Marcus Wellons was executed in Georgia late Tuesday night, the first execution in the United States since a high-profile botched execution in Oklahoma.
 
Wellons was sentenced to death for raping and murdering India Roberts, 15, in 1989. He was found guilty and sentenced in 1993. He had been scheduled to be executed by lethal injection on Tuesday at 7 p.m., but a flurry of legal activity delayed the execution for several hours.
 
A federal judge and the state’s Board of Pardons and Paroles had both declined his requests for clemency. Attorneys for Wellons filed an appeal to the U. S. Court of Appeals for the 11th Circuit in Atlanta on Tuesday afternoon, arguing that the state’s refusal to reveal details about the drug that will be used in the injection as well as information about the people who will carry it out means attorneys and the courts can’t determine whether the execution will violate the Eighth Amendment.
 
That appeal was denied, though one of the judges wrote in a concurring judgment that the state’s secrecy was “disturbing.”
 
Following that, the Georgia Supreme Court denied a motion for a stay of execution. Wellons’s attorneys filed a motion for a stay of execution with the U.S. Supreme Court, but that was denied shortly after 10:30 p.m.
 
In denying Wellons’s appeals, the Supreme Court removed the last legal barriers between Wellons and lethal injection. The appeals were denied by the full court with no recorded dissent. You can read the brief denials here, here and here. In Georgia, a state board — rather than the governor — is responsible for granting clemency, and that board denied clemency for Wellons on Monday.
 
Wellons was executed at the Georgia Diagnostic and Classification Prison in Jackson, located about 45 minutes south of Atlanta.
 
His execution was first reported by Alan Blinder of the New York Times. None of the media witnesses reported seeing anything unusual, other than a guard fainting. While an official initially told reporters that the execution took more than an hour, witnesses said later that it didn’t take nearly that long.
 
Wellons declined to request a special final meal, so his last meal was the prison’s usual tray of shepherd’s pie and various side dishes, according to the Georgia Department of Corrections.
 
Georgia used to carry out lethal injections using a three-drug combination, but the state changed its execution protocol in July 2012. Now executions are carried out using only the drug pentobarbital, which had previously been one of the three drugs Georgia used in executions.
 
Wellons became the 54th person executed in Georgia since 1976. He was the first person executed in the state this year and the first executed in Ohio since Feb. 21, 2013.
 
Missouri
 
John Winfield was executed by lethal injection early Wednesday morning. Winfield was sentenced to death in 1998 for shooting and killing two women in an attack that also saw him blind his ex-girlfriend.
 
A federal judge last week agreed to stay his execution, seemingly halting the lethal injection. This came after Winfield’s attorneys argued that prison officials in Missouri intimidated a prison employee who would have supported Winfield’s clemency efforts. Chris Koster, the Missouri attorney general, filed a motion to dismiss the stay. The U.S. Court of Appeals for the Eighth Circuit vacated the stay on Tuesday afternoon, leaving the execution in the hands of Gov. Jay Nixon or the U.S. Supreme Court. Winfield’s attorneys filed a motion to the Supreme Court on Tuesday requesting a stay.
 
The Supreme Court denied Winfield’s requests shortly before 11:30 p.m. Tuesday night. All four appeals were denied by the full court on Tuesday night, though on one of the denied appeals, Justice Sonia Sotomayor noted that she would have granted the stay. You can find the brief denials here, here, here and here. Gov. Jay Nixon denied the request for clemency a short time later.
 
Winfield was executed with an intravenous dose of pentobarbital, which Missouri adopted as its sole lethal injection drug last year. His attorneys had filed appeals criticizing the secrecy surrounding the state’s lethal injection process.
 
Several media outlets, including the Associated Press, filed a lawsuit last month to try to get Missouri to release more information about where the state is obtaining its drugs. Missouri Attorney General Chris Koster also spoke out against the secrecy surrounding the process in a recent speech.
 
Missouri has executed 75 people since 1976. Winfield was the fifth person executed in the state this year, more executions than the state carried out between 2006 and 2013.
 
Florida
 
John Henry is scheduled to be executed on Wednesday at 6 p.m. Henry was convicted of stabbing and killing his wife and her son in 1985, a crime that occurred while he was out on parole after stabbing his previous wife.
 
Florida executes inmates using lethal injection or the electric chair at the Florida State Prison in Starke, located about 50 minutes southeast of Jacksonville. Inmates can choose electrocution, but lethal injection is the primary method (as it is in every state with capital punishment).
 
Lethal injections in Florida utilize three drugs (midazolam hydrochloride, vecuronium bromide and potassium chloride), according to the Florida Department of Corrections. Florida is one of two states that has used midazolam as the first drug in the three-drug combination, reports the Death Penalty Information Center. The other is Oklahoma, which first used it during the botched execution of Clayton Lockett in April.
 
The Florida Supreme Court dismissed an appeal from Henry last week. This appeal argued that Henry has an intellectual disability that should prevent the execution.
 
Pennsylvania
 
Lewis Jordan’s execution was scheduled for Wednesday at 7 p.m., though it is expected that the sentence will be stayed. Jordan was sentenced to death in 2009 for shooting and killing Charles Cassidy, a Philadelphia police officer, on Oct. 31, 2007. Jordan shot Cassidy after the officer walked into a Dunkin’ Donuts as Jordan was robbing it. Pennsylvania Gov. Tom Corbett signed Jordan’s execution warrant in April.
 
Pennsylvania executes inmates using lethal injection at the State Correctional Institution Rockview, located up the road from Pennsylvania State University in State College. The state last used its electric chair in 1962; it switched to lethal injection in 1995, carrying out an execution with lethal injection for the first time that same year, according to the Pennsylvania Department of Corrections. As of June 1, Pennsylvania had 190 people on death row.
 
Corbett signed Jordan’s execution warrant in April, setting the execution for June 18. But it is expected that this execution will be stayed because of the various appeals still available to Jordan’s attorneys. (A spokesman for the office of Corbett’s general counsel told the Philadelphia Daily News that this process could take anywhere from five to 15 years.)
 
Pennsylvania has executed three people since 1976. If he is executed, Jordan will be the first person executed in the state since 1999.
 
Since Oklahoma
 
On April 29, Clayton Lockett was scheduled to be the 20th person executed in the U.S. so far this year. But the execution was botched, with Lockett grimacing, writhing and visibly in pain, witnesses said. The execution was called off, but he still died a short time later. As news of the Oklahoma execution spread, it drew criticism from death penalty opponents as well as President Obama and the United Nations.
 
The impact was fairly immediate, at least for Oklahoma. The state had planned to follow Lockett’s execution with the execution of Charles Warner later that night, but Warner’s sentence was delayed — first for two weeks and then for six months. (Lockett was sentenced to death for shooting a woman after beating, robbing and raping her and other people. Warner was sentenced to death for raping and murdering an 11-month-old child.) Oklahoma Gov. Mary Fallin called for a review of the state’s execution protocols, while the head of the state’s Department of Corrections asked for all executions to be put on hold until the procedures can be revamped.
 
“It seems like Oklahoma has legally thrown everyone through a loop,” said Deborah W. Denno, a professor at Fordham University and an expert on the death penalty. “It seems to make courts take everything with a greater caution.”
 
An independent autopsy found that the problems with Lockett’s execution stemmed from a failure to properly place the IV. (The state has yet to release the results of its official autopsy or review.) But the execution, which involved Oklahoma using a new drug protocol for the first time, also highlighted other death penalty issues that have caused problems nationwide in recent years.
 
A shortage of the drugs needed to carry out lethal injections has caused states to scramble as they looked for new drugs, resulting in some states effectively winging it when it comes to these executions. (For example, the first four executions in the U.S. this year involved four states using four different drug combinations.) Other states have contemplated bringing back older methods of execution like firing squads, with Tennessee opting last month to make the electric chair available for more executions.
 
There have been two executions that came very, very close to occurring since the Oklahoma one, but both were halted by court action with little time to spare. Texas had prepared to carry out the first execution since the Oklahoma episode, but a court halted that because of the inmate’s intellectual impairment. Next, Missouri had planned an execution that was stopped by a judicial back-and-forth before the Supreme Court ultimately halted it.
 
The death penalty’s use is on the decline in the U.S., with the average number of executions falling to 44.3 per year between 2006 and 2013, down from 71.1 per year between 1997 and 2005. Meanwhile, Americans do continue to favor the death penalty, but support for it has declined considerably over the last two decades.