TIME Crime

Ohio Still Isn’t Ready to Start Killing People Again

Oklahoma Execution Protocols
Bottles of midazolam at a hospital pharmacy in Oklahoma City. Midazolam is the common thread in three recent lengthly executions in Oklahoma, Ohio and Arizona, July 25, 2014. Sue Ogrocki—AP

A federal judge has delayed three planned executions amid ongoing legal challenges

A moratorium on executions in Ohio that was set to expire this week has been extended by a federal judge, halting future lethal injections in the state at least until next year.

On Aug. 8, Judge Gregory Frost issued a one-page order extending the moratorium, the Associated Press reports. The temporary freeze was put in place after the prolonged execution of Dennis McGuire, who was sentenced to death for a 1989 rape and murder. In January, McGuire appeared to gasp and snore after being given a two-drug combination of midazolam and hydromorphone that had not been previously used in a lethal injection.

In April, Ohio announced that it would increase the dosages of the two execution drugs. The following month, Frost issued a temporary stay of executions as the state re-examined its lethal injection protocol. The latest order delays three planned executions for September, October and November as legal challenges continue over the two-drug method.

McGuire’s lethal injection was the first of three executions around the U.S. this year that appeared to go awry. In April, the convicted killer Clayton Lockett died of a heart attack after writhing and twitching following his injection with an untested blend of drugs. And on July 23rd, Arizona’s execution of convicted murderer Joseph Wood, using the same drug protocol as Ohio did for McGuire, lasted nearly two hours.

TIME Crime

Missouri Executing Inmates at Record Pace

Michael Worthington is pictured in this handout photo
Michael Worthington, convicted in the 1995 rape and murder of a St. Louis woman, is scheduled to be executed Wednesday. Reuters—Missouri Department of Corrections

Backlogged cases are working their way through the system

Updated 6:58 a.m. E.T. on Aug. 6

An execution Wednesday in Missouri brought the state’s pace of executions near record levels, at a time when problems with lethal injections around the U.S. have led to growing scrutiny of the method.

Death row inmate Michael Worthington was put to death early Wednesday, the first in the U.S. since the nearly two-hour-long execution of Joseph Wood in Arizona that again raised questions about the humaneness of lethal injections. It was the seventh this year for Missouri, the most since 2001.

The execution of Worthington—convicted in 1995 of murdering and raping a St. Louis woman—put Missouri alongside Texas and Florida, which lead the country in executions this year at seven each. The three states combined have now executed 21 of the 27 inmates put to death in 2014. The number of executions this year has been accelerated thanks to a combination of backlogged cases now making their way through the system, inmate appeals that have been exhausted in court, and conservative judicial appointments at the state and federal level.

“It’s kind of a perfect storm,” says Sean O’Brien, a University of Missouri-Kansas City law professor who studies capital punishment.

Missouri had already executed 76 inmates since 1976, the year the Supreme Court reinstated the death penalty, making it fifth among U.S. states behind Texas (511), Oklahoma (111), Virginia (110) and Florida (88).

The most inmates Missouri has executed in one year is nine in 1999. In 2001, it executed seven. But just a few years ago, executions in Missouri were rare. From 2006 to 2012, the state executed just two inmates as it struggled to obtain lethal injection drugs, partly because European pharmaceutical companies began restricting the sale of their products for use in capital punishment.

In May 2012, Missouri announced that it would switch to propofol, an anesthetic. It was the only state to do so, but Missouri never used it. Gov. Jay Nixon stopped the planned lethal injection of Allen Nicklasson in October after the European Union threatened to limit propofol’s export if it was used by prison systems in executions. Fresnius Kabi, a German-based pharmaceutical company, makes the drug—the same drug on which pop star Michael Jackson overdosed in 2009.

In October 2013, the state announced it would start using just one drug—the sedative pentobarbital, and the following month used it in the lethal injection of Joseph Franklin in November and Nicklasson in December. Earlier this year, the Missouri Times reported that the state department of corrections paid $11,000 in cash to obtain the drug from a compounding pharmacy, which is unregulated by the federal government.

Now that the state appears to have an adequate supply of pentobarbital, O’Brien says a backlog of cases is now moving through the system. And inmates’ constitutional challenges are finding little sympathy from federal courts.

“We’re seeing winning motions for requests for stays of execution at the trial level, but the Eighth Circuit vacates those routinely,” O’Brien says, referring to the U.S. Court of Appeals for the Eighth Circuit and adding that a number of conservative judges appointed by President George W. Bush often reverse lower court rulings.

Nixon, a Democrat and death penalty supporter, has also been unwilling to grant clemency in lethal injection cases, many of which the governor worked on as an attorney general for the state.

“He hasn’t ruled on a lot of the clemency petitions before him,” says Susan McGraugh, a St. Louis University law professor. “But the simple answer for why these executions are moving forward is because they can.”

Worthington’s attorneys were still working Tuesday to get a stay of execution through last-minute appeals to the U.S. Supreme Court, which has been largely unwilling to grant stays to death row inmates who argue that their executions shouldn’t go forward based on Eighth Amendment claims. Worthington’s lawyers were attempting to get a stay until a decision is reached in a case in front of the Eighth Circuit brought by Worthington and 14 other Missouri death row inmates who are challenging the secrecy of where the state obtains execution drugs while arguing that lethal injection violates the Eighth Amendment’s ban on cruel and unusual punishment. The court is scheduled to hear the case in early September.

Missouri has yet to be involved in a recent execution gone awry. One massive dose of a drug like pentobarbital has so far appeared to be a more effective way of administering lethal injection than a two-drug combination. The botched executions of Dennis McGuire in Ohio in January and Joseph Wood in Arizona in July both used a two-drug combination of midazolam and hydromorphone. But Kent Gipson, an attorney for Worthington, thinks that Missouri will join those states soon enough.

“It’s just a matter of time before something goes wrong in one of these in Missouri,” Gipson says. “There’s a bigger risk of it happening when it’s all under a veil of secrecy and from an unknown source that isn’t tested.”

TIME Crime

IV Lines Placed Properly in Two Hour Arizona Execution: Doctor

An undated photo of Joseph Rudolph Wood. Wood who was sentenced to death for the killing in 1989 of his ex-girlfriend and her father, was executed by lethal injection in Florence, Arizona on July 23, 2014.
An undated photo of Joseph Rudolph Wood. Wood who was sentenced to death for the killing in 1989 of his ex-girlfriend and her father, was executed by lethal injection in Florence, Arizona on July 23, 2014. Arizona Department of Correction/EPA

The doctor who performed the autopsy on Joseph Wood says the IV lines that delivered the fatal drugs in the prolonged lethal injection were not the problem

A doctor who performed an autopsy on Joseph Wood, the Arizona death row inmate whose July 23 lethal injection lasted almost two hours, says that prison officials properly placed the IV lines that administer the deadly drugs.

The autopsy, performed by Dr. Gregory Hess of the Pima County Medical Examiner’s Office, appears to show that a two-drug combination of hydromorphone and midazolam entered Wood’s veins without incident, according to the Associated Press. The statement appears to foreclose one possible explanation for why Wood’s death took so long. A properly administered lethal injection is supposed to last no more than 15 minutes.

Wood, who was sentenced to die for murdering his ex-girlfriend and her father in 1989, reportedly gasped and snorted during his one hour and 57 minute-long execution. The prolonged episode was the third state-sanctioned killing to go awry this year and has renewed the debate over the legality and morality of lethal injection.

The improper placement of IV lines can lead to drugs leaking into the surrounding tissues rather than going directly into the bloodstream. A preliminary autopsy of Oklahoma death row inmate Clayton Lockett found incorrectly administered IV lines to be the reason his April execution took almost 45 minutes.

 

TIME Crime

America’s Execution Problem

The prolonged execution in Arizona was the third troubled lethal injection death this year. If our most modern form of capital punishment isn't working, what happens to the death penalty?

+ READ ARTICLE

Joseph Wood had been snoring and gasping in the lethal injection chamber at the Arizona State Prison Complex-Florence for more than an hour on July 23 when one of his lawyers placed an emergency call.

“Mr. Wood’s execution started at 1:52,” Robin Konrad, one of the convicted murder’s public defenders, said to Arizona Supreme Court Judge Neil Wake in a last-ditch attempt to have the execution stayed. “He was being sedated at 1:57. Since that time he has been gasping, snoring and unable to breathe and not dying. And we’re asking—our motion asks for you to issue an emergency stay and order the Department of Corrections to start lifesaving techniques as required under their protocol.”

At some point during the execution Wood had been given a second dose of lethal drugs, and the conversation on the emergency conference call hearing turned to whether he could feel pain. Jeff Zick, a lawyer representing the Arizona attorney general’s office, said medical personnel inside the chamber believed that Wood was effectively brain dead. “The brain stem is working but there’s no brain activity,” he said.

About 18 minutes later, as the judge was about to issue a ruling, Zick confirmed that Wood had died. The entire process took one hour and 57 minutes—an extraordinarily long time for a procedure that under normal circumstances lasts no more than 15 minutes.

Wood’s prolonged execution was the third troubled state-sanctioned killing this year. In January, Dennis McGuire, a convicted rapist and murderer, reportedly gasped and snorted through a 25-minute-long lethal injection in Ohio that used a then-experimental cocktail of midazolam and hydromorphone, the two drugs used on Wood in Arizona. In April, Oklahoma’s execution of Clayton Lockett was so poorly administered that it took nearly 45 minutes. President Obama called that episode “deeply troubling” and ordered the Department of Justice to review the process of capital punishment in the U.S.

As these executions renew the debate over the legality and morality of capital punishment, they are also undercutting the rationale for adopting lethal injection in the first place: once considered the most advanced and humane method of doing away with society’s most gruesome criminals, the practice increasingly appears no more safe or effective than its predecessors.

Lethal injection has been in use since 1982, largely without the kind of prolonged executions that have occurred this year. That was by design: it was a procedure developed to take a human life as painlessly as a pet is put to sleep. But the drugs used for the long-established protocol have been increasingly hard to come by as pharmaceutical companies balk for ethical reasons. Facing shortfalls, states have been turning to loosely regulated compounding pharmacies and trying new combinations of drugs.

The result has been a series of experiments, with occasionally disastrous outcomes. And it has meant that lethal injection is now facing the same questions as the electric chair, the gas chamber and the hangman’s rope before it. The difference this time is that there is no obvious substitute.

“The history of capital punishment over the last 100 years is largely a story of the belief in scientific progress,” says Austin Sarat, a professor of political science at Amherst who studies executions in the U.S. “And the story told was the same: the latest method is safe, reliable and more humane than its predecessor. But there is nothing over the horizon that portends that for the American death penalty.”

That’s one reason U.S. 9th Circuit Court Judge Alex Kozinski recently called for bringing back firing squads while acknowledging that executions cannot be neat and tidy. “Executions are, in fact, brutal, savage events, and nothing the state tries to do can mask that reality,” Kozinski wrote in a dissent involving Wood’s case just days before he was put to death. “If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.”

Kozinski’s solution was to stop pretending that a practice so grisly can ever be sanitized:

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true.

Some state lawmakers have also suggested firing squads, and Tennessee recently passed a bill allowing the use of the electric chair if lethal injection drugs are unavailable. But most of the 32 states with capital punishment appear committed to lethal injection. In April, Ohio announced that it was upping lethal injection dosages after a review of McGuire’s execution, but insisted that his lethal injection was “conducted in a constitutional manner.” Results of Oklahoma’s investigation into the exact causes of Lockett’s death have yet to be released.

In Arizona, Governor Jan Brewer said she was “concerned by the length of time it took for the administered drug protocol” to complete the execution and promised a full review of the process, but she denied that Wood was in pain and said he died in a “lawful manner.” In a statement confirming the opening of an investigation July 24, Arizona Department of Corrections Director Charles Ryan called reports that the execution was botched “pure conjecture because there is no medical or forensic evidence to date that supports that conclusion. In fact, the evidence gathered thus far supports the opposite.”

The questions over the use of lethal injection are further complicated by the horrific acts that lead inmates to the death chamber. Lockett was sentenced to die for shooting a young woman and ordering accomplices to bury her alive. Wood was convicted of killing his ex-girlfriend and her father in 1989.

“This man conducted a horrific murder and you guys are going, let’s worry about the drugs,” Richard Brown, a family member of one of Wood’s victims said after the execution. “Why didn’t they give him a bullet, why didn’t we give him Drano?”

Nevertheless, the drumbeat against lethal injection, and capital punishment in general, is growing. Among the critics of Wood’s execution are Arizona Senator John McCain, who called it “torture.”

“Never before, at least in recent American history, have botched executions raised issues of the death penalty itself,” Sarat says. “They have raised questions about the technology, but there was some other method waiting. Today, botched executions fit in with this narrative of the broken machinery of the death penalty.”

TIME justice

Execution Gone Awry Prompts Concern Over Dubious Lethal-Injection Drugs

Arizona Execution Drugs
With the state prison in the background, about a dozen death-penalty opponents pray as they await the execution of Joseph Wood in Florence, Ariz., on July 23, 2014 Associated Press

Many states won't disclose how they obtain the chemicals used in lethal injections, bringing into question the constitutionality of recent executions

There are just over 3,000 prisoners on death row in the U.S., and 32 states where their execution remains a legal course of action. The decision to implement capital punishment in these states is generally accepted as constitutional, so long as its procedure is in line with the Eighth Amendment’s prohibition of cruel-and-unusual punishment.

The execution of Arizona inmate Joseph R. Wood III on Wednesday took nearly two hours to complete, over much of which Wood “gasped and struggled to breathe,” according to a statement released by his defense team. Of the 26 state-sponsored executions committed in the U.S. so far this year, Wood’s was the third to seemingly go awry due to the use of largely experimental lethal chemicals, prompting outrage from those who cite these incidents as evidence that capital punishment is not constitutionally viable given the apparent suffering of its recipients.

“His two-hour struggle to death goes beyond cruel and unusual. It’s torment. It’s something you’d see in third-world and uncivilized societies,” Arizona state senator Ed Ableser told TIME on Wednesday night. “It’s embarrassing to see that our state once again is in the news for everything that is wrong that happens in our government.”

The execution should have lasted no more than 15 minutes; when it became clear to witnesses that Wood’s death would be prolonged, his attorneys unsuccessfully filed an emergency appeal to end the proceedings, the final of several attempts to save his life. On Tuesday, the U.S. Supreme Court had approved the execution after a lower court ruled that Arizona, in refusing to declare how it had obtained the lethal chemicals to be used in the injection, may have violated Wood’s First Amendment rights.

In Woods’ execution, the state used a combination of the sedative midazolam and the painkiller hydromorphone — the same cocktail used by the state of Ohio in the execution of Dennis McGuire in January, in which the inmate floundered and wheezed on a gurney for nearly half an hour before the state pronounced him dead.

In a statement released after Wood’s death, Arizona Governor Jan Brewer said she was “concerned by the length of time” it took for the injection to kill him, and that she has instructed the state’s Department of Corrections to investigate the matter thoroughly.

It’s still not certain whether Woods indeed suffered pain — state officials have insisted that he was comatose throughout the process — but in any case, his prolonged death draws further attention to the efficacy of the lethal chemicals used for capital punishment in the U.S., one of the world’s last developed nations to still punish its worst criminals with death.

States have been struggling to devise new lethal chemicals to be used in capital punishment since 2011, when U.S. and European pharmaceutical companies ceased to manufacture and sell sodium thiopental, an anesthetic compound that has traditionally been essential to America’s execution cocktails. It has been a process of trial and error, of learning from mistakes. The mistakes are those execution attempts that do not transpire according to plan — typically marked by a death that comes more slowly and viscerally than anticipated.

In recent months, the hesitation of certain states to disclose information about the new chemicals has fueled a public skepticism over the exact physiological effects of these drugs on those to whom they’re administered.

“It’s time for Arizona and the other states still using lethal injection to admit that this experiment with unreliable drugs is a failure,” Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project, said in a statement released after Wood’s death. “Instead of hiding lethal injection under layers of foolish secrecy, these states need to show us where the drugs are coming from. Until they can give assurances that the drugs will work as intended, they must stop future executions.”

Nearly a third of all executions involving the sedative used to kill Wood “have had extremely troubling problems,” according to a report released last month by the Death Penalty Information Center.

“Arizona appears to have joined several other states who have been responsible for an entirely preventable horror — a bungled execution,” defense attorney Dale Baich told the press. “The public should hold its officials responsible and demand to make this process more transparent.”

TIME Crime

Inside the Efforts to Halt Arizona’s Two-Hour Execution of Joseph Wood

John Zemblidge
John Zemblidge, right, leads a group of about a dozen death-penalty opponents as they protest the execution of Joseph Wood at the state prison in Florence, Ariz., on July 23, 2014 Associated Press

The inmate's lawyers appealed to state and federal courts to issue an order to resuscitate Wood as he reportedly gasped on the gurney on Wednesday

An hour into Joseph Wood’s execution, as the condemned prisoner gasped for air and struggled to breathe, Wood’s attorneys were filing motions in federal district court and the state supreme court in an attempt to get an order to resuscitate the death-row inmate as he lay on the gurney.

“We were arguing that he was still alive, that we did not know his level of sedation, and that he was still breathing,” says Dale Baich, one of Wood’s attorneys, who witnessed Wednesday’s prolonged execution.

Wood’s lethal injection, almost two hours long, is the third execution this year widely considered “botched,” raising new questions surrounding the efficacy of the method as state officials once again pledge an investigation into why it went awry.

Wood’s lawyers attempted to get a stay for his execution, based initially on First Amendment grounds that Wood, convicted of murdering his ex-girlfriend and her father in 1989, had a right to know the origins of the execution drugs being used. The U.S. Ninth Circuit Court of Appeals sided with Wood and issued a stay, but the Supreme Court lifted it. In a last-minute appeal, Wood’s attorneys argued that the drugs posed a risk of violating the Eighth Amendment’s ban on cruel and unusual punishment, but the Arizona Supreme Court failed to grant a stay.

At 1:52 p.m. on Wednesday, Wood was led into the execution chamber and strapped to the gurney. Midazolam, a sedative, and hydromorphone, used to halt breathing, were administered. About five minutes into the process, Baich says, a medical-team member came into the chamber and announced that Wood was unconscious. But his condition soon changed.

“About two or three minutes later, I noticed his lips moved slightly,” Baich says. “And then two minutes after that, he was gasping for air. He started breathing. And he was pressing up against the restraining straps. And that went on for about an hour.”

Baich says Wood was taking deep, long breaths — “like he was gasping, like he was drowning.” He adds that someone from the department of corrections’ medical staff checked on Wood seven times throughout the two-hour process. Michael Kiefer, a writer for the Arizona Republic, reported that Wood gasped 640 times.

Meanwhile, Baich was filtering information to another attorney, who was filing a motion in U.S. District Court and the Arizona Supreme Court in an attempt to get an order to resuscitate the inmate. Wood died during the hearings.

Arizona Governor Jan Brewer has asked for a review of the state’s lethal-injection process, saying she was “concerned by the length of the time it took” to complete the execution but denied that Wood was in pain.

“One thing is certain, however, inmate Wood died in a lawful manner and by eyewitness and medical accounts he did not suffer,” Brewer said in a statement.

Wood’s execution appeared to be eerily similar to that of Dennis McGuire, a convicted murderer who was executed in Ohio with the same drug combination used in Arizona. McGuire reportedly made snoring noises, similar to the ones made by Wood, during his 25-minute execution. Lethal-injection executions generally take 10 to 15 minutes to complete.

TIME Crime

Arizona Execution Will Move Forward After Last-Minute Appeals

Lethal Injection Execution
Walls Unit in Huntsville prison where lethal injections are carried out on inmates in Huntsville, Texas. Jerry Cabluck—Sygma/Corbis

The court, reluctant to step into the battle over lethal injection, denies a constitutional challenge by Arizona death row inmate Joseph Wood over the secrecy of execution drugs

Updated at 3 p.m. E.T. Wednesday

A rare victory for a death row inmate over the weekend was quashed Tuesday when the Supreme Court lifted a stay of execution for Joseph Wood, who was sentenced to death for the murder of his girlfriend and her father in 1989.

In a three-sentence order, the Supreme Court reversed a judgment by the U.S. Ninth Circuit Court of Appeals that halted Wood’s execution based on the secrecy surrounding where the state obtains the drugs to carry out lethal injection. About a half-hour after Wood was scheduled to be executed, Arizona’s top court announced that it had temporarily halted the execution on appeals. Wood’s lawyers said he did not have proper legal representation. They also claimed that Arizona’s “experimental” lethal injection methods, which include drugs like midazolam that have been used in executions that have gone awry in other states, would violate the Eighth Amendment’s ban on cruel and unusual punishment. But that stay was lifted Wednesday afternoon after the court heard last-minute appeals from Wood’s lawyers, clearing the way for Wood to be executed by lethal injection.

Death row inmates around the U.S. have challenged the constitutionality of their lethal injections, often arguing that the laws and policies shielding drug manufacturers’ identities are unconstitutional. Due to drug shortages and boycotts by pharmaceutical companies, many states in the last few years have obtained lethal injection drugs from compounding pharmacies, which are unregulated by the federal government.

Courts around the country have been largely unreceptive to those arguments. Wood’s case, however, was an exception.

Wood’s lawyers asked the state to halt his execution if it did not provide the origins of the drugs as well as the qualifications of the executioners, relying not on an Eighth Amendment argument regarding the risk of cruel and unusual punishment, but rather a First Amendment defense that Wood had a right to access information about his execution. A U.S. District Court judge in Phoenix initially denied the request, but the Ninth Circuit sided with Wood.

The court denied appeals by the state to lift the stay, sending the case to the Supreme Court, which has been reluctant to step into the ongoing battle over lethal injection.

But while the fate of lethal injection in the U.S. remains uncertain, reverting to an older method of executions got an unexpected endorsement. In a separate opinion by the Ninth Circuit that upheld Wood’s stay of execution before the Supreme Court intervened, Judge Alex Kozinski called lethal injection flawed and proposed bringing back the firing squad.

“If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution,” Judge Kozinski wrote. “The guillotine is probably best but seems inconsistent with our national ethos. And the electric chair, hanging and the gas chamber are each subject to occasional mishaps. The firing squad strikes me as the most promising. Eight or ten large-caliber bullets fired at close range can inflict massive damage, causing instant death every time. … Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood.”

Legislators in several states have proposed bringing back firing squads. Only Oklahoma and Utah currently allow them, according to the Death Penalty Information Center, but only under very limited circumstances.

Wood’s execution was set for Wednesday morning.

TIME Crime

California Judge Rules Death Penalty Unconstitutional

Lethal Injection Execution
Walls Unit in Huntsville prison where lethal injections are carried out on inmates in Huntsville, Texas. Jerry Cabluck—Sygma/Corbis

Uncertainties and delays over executions violate the Eighth Amendment's ban on cruel and unusual punishment, says federal judge

A federal judge ruled California’s death penalty unconstitutional Wednesday, saying uncertainties and delays over executions violate the Eighth Amendment’s ban on cruel and unusual punishment.

In his 29-page decision, U.S. District Judge Cormac Carney, a Republican-appointed judge in Orange County, vacated the death sentence of Ernest Jones, who was sentenced to death in 1995 for the rape and murder of his girlfriend’s mother, while making a lengthy and detailed critique of the death penalty.

“The dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution,” Judge Carney wrote. “Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.”

Since the death penalty was reinstated in California in 1978, more than 900 people have been sentenced to death while only 13 have been executed. More than 90 have died awaiting their executions, and more than 40% have been on death row for longer than 19 years. California currently has 742 inmates on death row, the most in the U.S. according to the Death Penalty Information Center.

Death penalty experts and law professors called the decision unprecedented on Wednesday. “It’s the first time I can think of since the 1970s that a judicial opinion has taken on the death penalty as a whole rather than just the individual,” says Hadar Aviram, a law professor at the University of California Hastings.

It’s unclear how binding the ruling will be outside of the Jones case. Elisabeth Semel of the University of California-Berkeley’s Death Penalty Clinic says the state is likely to appeal to the U.S. Ninth Circuit Court of Appeals, potentially opening up a new chapter in the legal wrangling over the death penalty in California.

“Certainly, prosecutors will argue that the order does not have the effect of ‘automatically’ invalidating the death penalty in the cases of other individuals who have been sentenced to death or who are facing capital prosecution,” Semel wrote in an e-mail. “But also, certainly, there will and must be efforts to give the ruling traction on behalf of other defendants.”

The ruling may also give fresh urgency to calls from anti-death penalty advocates for a state referendum on executions, and may prompt Gov. Jerry Brown to re-evaluate how the system functions. Gil Garcetti, a former Los Angeles district attorney and a spokesperson for SAFE California, an anti-death penalty group, called the decision “historic.”

A spokesperson for the state’s attorney general’s office says it is reviewing the decision.

TIME justice

Oklahoma Death Row Inmates Sue to Stop Executions

Clayton Lockett, who was scheduled to be executed on March 20, 2014 in the 1999 shooting death of Stephanie Nieman.
Clayton Lockett, who was scheduled to be executed on March 20, 2014 in the 1999 shooting death of Stephanie Nieman. Oklahoma Department of Corrections/AP

After the botched execution of Clayton Lockett in April

A group of death row inmates in Oklahoma sued state officials in federal court Wednesday over what they called “unsound procedures” in the state’s execution process.

Citing the botched execution of Clayton Locket and other incidents, more than 20 plaintiffs filed suit claiming Oklahoma’s current method of execution violates the constitutional rights of the condemned. The lawsuit names several corrections officials as defendants, as well as unnamed people such as “Doctor X” and “Paramedic Y” to identify officials that take part in executions.

The plaintiffs assert that the state uses unsound procedures to administer executions and unsound drugs, adding up to a violation of the prohibition against cruel and unusual punishment. under the 8th Amendment.

“We look forward to the full airing of the important issues raised in this case through the discovery process,” Dale Baich, an attorney for one of the death row prisoners, said in a statement.

A spokesperson for the Oklahoma Department of Corrections declined to comment on the matter, telling TIME: “We don’t comment on pending lawsuits.”

States around the country, including Oklahoma, have faced scrutiny in recent years as a shortage of the drugs used in lethal injections has forced officials to look to alternative sources to secure the cocktail of chemicals meant to painlessly kill a convict.

In the 25 minutes it took him to die, Lockett was observed mumbling and rolling his head side to side, apparently in agony. His seemingly agonizing death in April sparked a national outcry about capital punishment.

In January, another man, Michael Wilson, said “I feel my whole body burning,” during the procedure. Anti-death penalty activists have pointed to these examples as evidence that the punishment cannot be carried out humanely. For a time in the wake of Lockett’s death, a de facto moratorium on executions across the country was in place, as officials scrambled to ensure the botched procedure was not repeated. Georgia, Florida and Missouri were the first states to end the unofficial moratorium earlier this month.

TIME Crime

Drug Challenges Are Failing to Halt Executions

Marcus Wellons
Marcus Wellons, convicted of raping and murdering a 15-year-old girls, was executed Tuesday. Wellons was the first inmate put to death in the United States since a botched execution in Oklahoma in April. AP

Courts remain skeptical of legal arguments challenging the constitutionality of lethal injection drugs and their origins

The execution of two inmates late Tuesday night after multiple attempts to halt their lethal injections reveals at least one thing: challenging the constitutionality of executions on the grounds that the origin of the drugs is unknown is failing to gain traction.

Georgia executed Marcus Wellons, convicted of the 1989 rape and murder of a 15-year-old girl, on Tuesday using the sedative pentobarbital. About an hour later, Missouri used the same drug to execute John Winfield, convicted in the 1996 murder of two women. Both states have refused to reveal where they obtained the drug, but it’s likely they received it from compounding pharmacies, which are not subject to the same regulations as drug manufacturers. The executions, which appeared to go as planned, were the first following the botched lethal injection of Clayton Lockett in Ohio in April. Since then, nine executions have been stayed or postponed.

In the last few weeks, lawyers for Wellons and Winfield have tried to stop their lethal injections in part by arguing that the secret origins of the drugs being used risked violating the Eighth Amendment’s ban on cruel and unusual punishment. Lawyers argue that drugs manufactured by compounding pharmacies behind closed doors and with little oversight risk contamination, which could lead to a prolonged or painful death. Inmates around the country are challenging their pending executions based largely on the drugs’ hidden origins and are more often than not running into courts that are unreceptive.

Southern Methodist University law professor Meghan Ryan says many courts are generally skeptical of attempts to halt executions and hesitant to rule on an issue where there’s little precedent from the Supreme Court.

“The arguments being made don’t really track with Supreme Court precedent very well, and a lot of courts are unwilling to make that jump,” Ryan says. “It’s forging into a new area.”

The Supreme Court ruled lethal injection constitutional in 2008, but drug protocols have changed in most states since then. Many pharmaceutical companies have banned sales of drugs to states for executions, forcing prisons to look elsewhere.

Still, Ryan adds that death row inmates have nothing to lose by challenging their executions.

“Maybe they have very good arguments, but courts often view them skeptically because they’re often considered last-ditch efforts,” she says.

Florida plans to execute John Ruthell Henry, convicted of killing his wife and her son, Wednesday evening. A federal appeals court has rejected a bid to delay his execution.

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