Executions

Ohio Executes Gary Otte as State and Federal Courts Decline to Review Use of Death Penalty Against Those Under Age 21

Ohio executed Gary Otte on September 13 after both the United States Supreme Court and the Ohio Supreme Court declined to review his challenge to the constitutionality of applying the death penalty against people who were younger than age 21 at the time of the offense. Otte's lawyer, supervisory assistant federal public defender Carol Wright, said Otte exhibited "abnormal" chest and stomach movements when he was injected with the execution drug, midazolam, showing signs of struggling for air and what she described as "air hunger." Wright attempted to leave the witness room to reach a phone to alert a federal judge to possible problems with the execution, but prison officials delayed her exit for several minutes and it took several more minutes to reach the court. By that time, Otte's stomach movements had ceased and the court declined to intervene. Corrections spokesperson, JoEllen Smith, said the prison "followed proper security protocol, and once [Wright's] identity and intention was verified she was given permission to exit the room." Smith said the execution was "carried out in compliance with the execution policy and without complication." Otte had sought stays of execution from the state and federal courts, asking them to review his claim that his death sentence should be overturned because he was only 20 years old at the time he killed Robert Wasikowski and Sharon Kostura in 1992. Otte's lawyers cited an August 2017 decision by a Kentucky trial court that had found the brain development and maturation of individuals aged 18-20 to be similar in critical respects to that of adolescents under age 18, and had declared the death penalty unconstitutionally cruel and unusual for defendants under age 21. They argued that "[t]he current scientific understanding of adolescent development underscores [that] their moral culpability is reduced making them categorically exempt from the death penalty." The Kentucky trial court issued a second ruling on September 6 that barred prosecutors from seeking the death penalty against an 18-year-old defendant in another case. On Tuesday night, September 12, the United States Supreme Court declined to review the issue and denied a stay of execution. The Ohio Supreme Court followed suit on the morning of September 13. Otte was pronounced dead shortly before 11:00 a.m.

Texas Execution Stayed to Permit Proper Consideration of Intellectual Disability Claim

A Texas appeals court has stayed the August 30 execution of Steven Long (pictured) to provide him an opportunity to litigate a claim that he is ineligible for the death penalty because of intellectual disability. On August 21, the Texas Court of Criminal Appeals issued the stay and remanded Long's case to a Dallas County trial court, directing the court to reconsider his claim of intellectual disability in light of the U.S. Supreme Court's March 2017 ruling in Moore v. Texas. The Texas courts had previously rejected Long's intellectual disability claim, but had applied an overly harsh definition of intellectual disability that was declared unconstitutional in Moore. Long was convicted and sentenced to death in Dallas for the rape and murder of an 11-year-old girl in 2005. Although the U.S. Supreme Court had ruled in Atkins v. Virginia in 2002 that it was unconstitutional to apply the death penalty to a person with Intellectual Disability—then known as mental retardation—and had previously ruled in a Texas case in 1989 that juries must consider a defendant's mental retardation as a potential basis to spare his or her life, Long's trial lawyer did not have him evaluated for mental retardation. In May 2008, his post-conviction lawyers raised the issue in his state habeas corpus proceedings, and the state courts rejected his claim, analyzing the issue under the "Briseño factors," a non-scientific series of questions developed by the state court in the case of Jose Garcia Briseño. Mr. Long then raised—and lost—the issue in the Texas federal district court, with the U.S. Court of Appeals for the Fifth Circuit refusing to consider his appeal. However, on March 28, 2017, the U.S. Supreme Court struck down Texas's use of the Briseño factors, and less than one month later Long filed a petition in the U.S. Supreme Court asking the Court to apply its ruling in Moore to his case. While that appeal was pending and briefing was ongoing, Texas scheduled an execution date for Long during a period in which the Court was in summer recess. Long filed an application for a stay of execution in the Supreme Court. He then filed a new habeas petition in state court on August 3, 2017, reasserting the intellectual disability claim the state courts had initially denied and sought a stay of execution in the Texas Court of Criminal Appeals. The state court wrote, "In light of this new law and the facts of applicant’s application, we have determined that applicant’s execution should be stayed pending further order of this Court." Briefing has been completed on his petition seeking U.S. Supreme Court review, and a decision is expected in early October on whether the Court will review his case. 

Arkansas, Nevada Obtain New Supplies of Drugs, Plan to Carry Out Two Questionable Executions

The states of Arkansas and Nevada have announced that they have obtained new supplies of execution drugs that will permit them to carry out two executions in what critics have called questionable circumstances. On August 4, Arkansas obtained a supply of midazolam—the controversial drug used in botched executions in at least four states—paying $250 in cash to an undisclosed supplier for 40 vials of the drug. Then, on August 17, Attorney General Leslie Rutledge asked Governor Asa Hutchinson to set an execution date for Jack Greene (pictured), described by his lawyers as “a severely mentally ill man [with] well-documented brain damage.” Also on August 17, Nevada—which does not currently have an execution protocol in place—announced that it had obtained drugs to execute Scott Dozier, using a three-drug formula that no state has ever tried before. Dozier—who has waived his appeal rights and volunteered to be executed—is scheduled to die on November 14. In a press statement, Greene’s lawyer, John C. Williams, said “[c]apital punishment should not be used on vulnerable people like the severely mentally ill.” Greene, he said, is mentally incompetent and suffers from delusions that “his spinal cord has been removed and his central nervous system has been destroyed.” Responding to this delusion, Williams said, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain,” often causing himself to bleed. A spokesperson for Hutchinson—who authorized Arkansas’s unprecedented attempt to execute eight prisoners over an eleven-day span in April—has indicated that the governor will set an execution date for Greene. To execute Dozier, Nevada has indicated that it will use an untried combination of diazepam (Valium), fentanyl (an opiod), and cisatracurium (a paralytic). The state has not yet announced how the drugs will be administered. All but one of the prisoners executed in Nevada since 1977 were found to have waived their appeals; Dozier would be the state's 12th death-row prisoner to volunteer to be executed. Nevada recently spent nearly $900,000 on building a new execution chamber.  

Journal of Psychiatrist Who Presided Over 14 Texas Executions Reveals Mental Toll That May Have Contributed to Suicide

As a psychiatrist in the Wayne Unit of Texas' Huntsville prison from 1960 to 1963, Dr. Lee Hartman presided over 14 electric-chair executions. When his grandson, Ben Hartman, a journalist, began investigating Dr. Hartman's life, he discovered journals that chronicle those executions and the psychological toll they took, possibly contributing to Dr. Hartman's suicide in 1964. Dr. Hartman's journals contain basic data on the men who were executed, including their names, race, a summary of the crime, and notes on the execution itself. More profoundly, though, they capture Dr. Hartman's reactions to his experiences and how they shaped his views on the death penalty, leaving him—in his grandson's words—"a determined opponent of capital punishment." In 1962, Dr. Hartman wrote, "The death penalty is irreparable." After the highly-publicized execution of Howard Stickney, a 24-year old who professed his innocence, Dr. Hartman wrote, "Very shook up and angry over whole cruel mess." He had been with Stickney on his scheduled November 10, 1961 execution date as they neared the door to the execution chamber. The journal reports that the phone rang at 12:32 a.m. with news that a judge had granted a 10-day stay of execution. This was "[a]pparently a complete surprise to Stickney," the journal entry says, "who broke down, prayed and wept.” In May of 1962, still professing his innocence, Stickney exhibited "[d]ignity and grace, shook hands with several guards while waiting, didn’t want to take coat off.” The journal reports: "At 12:24, warden returned–no stay, Stickney quietly sat in chair." Three separate jolts of electric current were sent through his body, "1st shock at 12:25–dead at 12:30.” Elsewhere in the journal, Dr. Hartman wrote 19 pages on arguments for and against capital punishment, clearly setting out his views. “The death penalty has a brutalizing and sadistic influence on the community that deliberately kills a member of its group,” he wrote, permitting the public “to vicariously indulge in vicious and inhumane fantasies under socially-acceptable guises.” He wrote: "The death penalty is not applied impartially. There is such surfeit of these cases that to mention them would be redundant. The poor defendant is obviously at a disadvantage and frequently receives the extreme penalty while the wealthier accused escapes a prison term. There is well known discrimination on racial or class lines." Dr. Hartman struggled with depression for many years, spending several months in a mental hospital after working in the prison. In 1964, he committed suicide by taking an overdose of pentobarbital, a drug now used to execute prisoners in Texas.

Independent Pathologist Says Autopsy Reveals Problems With Virginia's Execution of Ricky Gray

Something went wrong during the execution of Ricky Gray (pictured), who was put to death in Virginia on January 18, 2017, according to an independent expert who reviewed the official autopsy report of Gray's death. Dr. Mark Edgar, associate director of bone and soft tissue pathology at the Emory University School of Medicine, reviewed the official autopsy report, which Gray's family obtained from the Virginia medical examiner's office. Dr. Edgar says Gray suffered an acute pulmonary edema during the execution, with liquid in his upper airways and blood entering his lungs while he was still breathing. “The anatomic changes described in Ricky Gray’s lungs are more often seen in the aftermath of a sarin gas attack than in a routine hospital autopsy." Edgar said. "This is of concern especially given the fact that midazolam is not an anesthetic, but a sedative often used for medical procedures requiring conscious sedation and the issue that the compounded drugs used in this case may have lacked potency or been impure.” Virginia's lethal-injection protocol consists of three drugs: midazolam, a sedative intended to render the prisoner unconscious, followed by a paralytic intended to stop the prisoner's breathing, followed by potassium chloride, which stops the prisoner's heart. The use of midazolam in executions is controversial because it is not an anesthetic, it is used in medical settings only for lower levels of sedation rather than to produce full unconsciousness, and its use has been linked to numerous problematic executions. In Virginia, both the midazolam and the potassium chloride are produced by compounding pharmacies whose identities are secret under state law. “This way of dying is intolerable. You can’t control your breathing—it is terrible,” Edgar said. “When it is this severe, you can experience panic and terror and, if the individual was in any way aware of what was happening to them, it would be unbearable.” After Edgar's report was released on July 6, lawyers for William Morva—whose execution was scheduled in Virginia that night—asked Governor Terry McAuliffe for a temporary reprieve. “We believed a reprieve was appropriate to allow time for further investigation to ensure that the Commonwealth carries out future executions—including Mr. Morva’s—in a manner that avoids unnecessary pain and suffering,” explained Rob Lee, one of Morva's attorneys. McAuliffe denied the reprieve, and witnesses reported that Morva made a loud noise after the midazolam was administered and had several sharp contractions of his abdomen. The same three-drug protocol used in Virginia has been proposed for use in Ohio, but is being challenged in court by death-row prisoners. 

Mid-Year Review: Executions, New Death Sentences Remain Near Historic Lows in First Half of 2017

As we reach the mid-point of the year, executions and new death sentences are on pace to remain near historic lows in 2017, continuing the long-term historic decline in capital punishment across the United States. As of June 30, six states have carried out 13 executions, with 30 other executions that had been scheduled for that period halted by judicial stays or injunctions, gubernatorial reprieves or commutation, or rescheduled. By contrast, at the midpoint of 2016, five states had carried out 14 executions, and 25 other executions had been halted. 12 executions are currently scheduled for the rest of 2017, with 8 others already halted, and several more death warrants are expected to be issued. Depending on whether Ohio carries out the five executions pending between now and December, DPIC anticipates a slight increase in executions in the U.S. from 2016's 26-year low. However, even with the spate of four executions carried out in Arkansas from April 20-27—that state's first executions since 2005—there will likely be fewer executions in 2017 than in any other year since 1990. New death sentences also remain near historically low levels. DPIC has confirmed at least 16 new death sentences so far in 2017, a pace very close to the record-low 31 new death sentences imposed in 2016. Florida's abandonment of non-unanimous jury recommendations of death and Alabama's repeal of judicial override of jury recommendations for life are expected to substantially reduce the number of new death sentences in those states. The death sentences of nearly 100 Florida death-row prisoners have been overturned as a result of the state supreme court's declaration than non-unanimous death sentences are unconstitutional, and courts in Delaware and Connecticut have continued emptying those state's death rows after their death penalty statutes were declared unconstitutional. Three people have been exonerated from death row in 2017—Isaiah McCoy in Delaware, Rodricus Crawford in Louisiana, and Ralph Daniel Wright, Jr. in Florida—bringing the number of death-row exonerations in the U.S. since 1973 to 159. There have also been three grants of clemency in the first half of 2017, bringing the national total since 1976 to 283. President Barack Obama granted clemency to federal death-row prisoner Abelardo Arboleda Ortiz and military death-row prisoner Dwight Loving, and Virginia Governor Terry McAuliffe granted clemency to Ivan Teleguz. All three are now serving sentences of life without parole. The U.S. Supreme Court has issued three significant decisions in 2017 in favor of death-row prisoners. On February 22, in Buck v. Davis, the Court granted relief to Duane Buck due to racially biased testimony on the issue of future dangerousness. A month later, in Moore v. Texas, the Court unanimously struck down Texas' outlier practice for determining intellectual disability in capital cases. In McWilliams v. Dunn, the Court found on June 19 that James McWilliams' constitutional rights were violated when Alabama failed to provide him assistance of an independent mental-health expert. The Court ruled against Texas death-row prisoner Erick Davila on June 26.

New Statistical Brief from the Bureau of Justice Statistics Documents U.S. Death Penalty Decline

The nation's death rows are shrinking more rapidly than new defendants are being sentenced to death, according to a new Bureau of Justice Statistics (BJS) statistical brief, "Capital Punishment, 2014–2015." The statistical brief, which analyzes information on those under sentence of death in the United States as of December 31, 2014 and December 31, 2015, documents a continuing decline in executions, new death sentences, and death row populations across the U.S. 2015 marked the fifteenth consecutive annual decrease in the number of prisoners under sentence of death in the U.S. According to BJS, 69 prisoners were admitted to state or federal death rows in 2014 and 49 were admitted in 2015. (DPIC uses a slightly different counting method that reported 73 death sentences imposed in 2014.) The data also indicates that the decline in the size of death row is attributable to factors other than execution. According to BJS, 75 prisoners were removed from death row in 2014 by means other than execution, such as exoneration, the reversal of a conviction or death sentence, commutation, or death by other causes, as compared with 35 who were executed. In 2015, 82 prisoners were taken off death row by means other than execution, while 28 death-row prisoners were executed. Over the two-year period covered by the data, 39 more prisoners were removed from death row by means other than execution than were admitted as a result of new death sentences. The gap between removals from death row and new admissions is expected to widen even further in 2016 and 2017 as a result of record-low death-sentencing rates and prisoners being removed from death row due to death-penalty statutes having been declared unconstitutional in Florida, Delaware, and Connecticut. BJS reports that 2,881 prisoners remained under sentence of death in 33 states and the federal system at the end of 2015. (Click image to enlarge.)

Lawyers Call for Investigation of "Horrifying" Arkansas Execution After Witnesses Report "Coughing, Convulsing"

Calling eyewitness accounts "horrifying," attorneys for Arkansas prisoner Kenneth Williams (pictured) are seeking the preservation of evidence and "a full investigation" into what they described as Williams' "problematic execution." Williams' attorney, Shawn Nolan, said the lawyers had "tried over and over again to get the state to comport with their own protocol to avoid torturing our client to death, and yet reports from the execution witnesses indicate that Mr. Williams suffered during this execution." Media witnesses reported that they observed Williams "coughing, convulsing, lurching, jerking, with sound that was audible even with the microphone turned off" during his execution. According to Associated Press reporter Kelly Kissel, "Williams' body jerked 15 times in quick succession — lurching violently against the leather restraint across his chest." Kissel, who has witnessed ten executions, said, "This is the most I've seen an inmate move three or four minutes in." Nolan called the situation "very disturbing, but not at all surprising, given the history of the risky sedative midazolam, which has been used in many botched executions." A spokesperson for Arkansas Governor Asa Hutchinson dismissed the witness accounts, calling the execution "flawless" and Williams' movement an "involuntary muscular reaction." Nolan characterized the spokesperson's statement as "simply trying to whitewash the reality of what happened." Williams was the fourth person executed in Arkansas in eight days. The state had originally planned to execute eight inmates in eleven days, but courts stayed four of the executions for reasons specific to those prisoners. Experts, including former correctional officials, had warned that the rushed execution schedule increased the risk of problematic executions, and attorneys for the prisoners challenged the use of midazolam as the first drug in the three-drug execution protocol, arguing it would not adequately anesthetize the prisoner. Three days before Kenneth Williams' execution, problems were reported in Arkansas' execution of Jack Jones, but a federal judge allowed the state to proceed with the execution of Marcel Williams on the same night.

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