Wednesday, December 16, 2015

The Death Penalty, On The Decline In Use, Faced Big Questions In 2015

Oklahoma Department of Corrections Director Robert Patton resigned in the midst of a grand jury investigation over the state's execution procedures.

Sue Ogrocki / AP

WASHINGTON — By the numbers, the use of the death penalty in America continued its decline in 2015, with only 28 executions having taken place and 49 new death sentences imposed this year.

As the number of executions and death sentences dropped, though, attention this year was focused primarily on two issues: the Supreme Court and the drugs states use to conduct executions. Those stories came together throughout the year in the case of Richard Glossip, on death row in Oklahoma for the 1997 murder of a man Glossip says he didn't kill.

Glossip was named first in Oklahoma inmates' lawsuit challenging the state's use of the sedative midazolam in executions when the Supreme Court agreed to hear the challenge. The drug had been employed in three problematic executions in 2014, including the Oklahoma execution of Clayton Lockett.

The court's decision to accept the case slowed down the pace of executions through June, since several states include midazolam in their execution protocol. When the justices upheld the use of the drug at the end of June, however, another, more fundamental issue was raised in the dissenting opinion written by Justice Stephen Breyer.

In the dissent, Breyer — joined by Justice Ruth Bader Ginsburg — suggested the time had come to revisit the larger question of the constitutionality of the death penalty itself. They gave no timeline for a revisitation, though, and the two have not publicly voiced their opposition to allowing states to proceed with executions since then.

As those questions proceeded — with advocates against the death penalty invigorated and preparing to move forward with challenges to death penalty laws — BuzzFeed News began its own, extensive investigation into states' efforts to obtain execution drugs from overseas. Prompted by Nebraska Gov. Pete Ricketts's announcement that his state had reached a deal to obtain sodium thiopental from India, reporting eventually revealed that at least four states — Arizona, Nebraska, Ohio, and Texas — have been attempting to purchase execution drugs from overseas.

Most of the efforts surround Chris Harris, a salesman in India who has sold execution drugs to several states over the past several years. None have ever been used in any executions. In the U.S., meanwhile, all four states have retained the services of Ben England, a former longtime Food and Drug Administration investigator, or his companies in order to advance efforts to get the drugs imported over the warnings of the FDA that doing so would be illegal.

Even in states where overseas drug shipments are not known to be at issue, obtaining execution drugs has been a problem. Virginia had to ask Texas to give it a supply of pentobarbital in order to execute Alfredo Prieto in October. Arkansas's attempt to restart executions there is on hold while inmates challenge a law enabling the state to keep its drug supplier secret.

And in Oklahoma the planned execution of Richard Glossip in September was put on hold shortly before he was due to be executed after it was discovered that the state had obtained the wrong drug. In the weeks the followed, the mix-up led to further discoveries about improper execution drug use, all of which preceded a grand jury investigation and the resignation of the state's director of corrections, Robert Patton, earlier this month.

Although questions about drug supplies will continue in 2016, those states with access to execution drugs are proceeding with executions.

The first execution of 2016 is due to take place on Jan. 7, when Florida is scheduled to execute Oscar Bolin for the 1986 murder of Teri Lynn Matthews.

There were 28 executions in the U.S. in 2015.

There were 28 executions in the U.S. in 2015.

Death Penalty Information Center

Among the executions carried out in 2015 were several that exemplified the challenges the death penalty faces, both for states attempting to carry out executions and for opponents of the punishment.

One of the first executions of the year was the January execution of Charles Warner in Oklahoma. Nine months later, after Richard Glossip's execution was called off because the state had received the wrong drugs, Warner's autopsy revealed the state had actually used the same wrong drug in Warner's execution. The aftermath has been extreme: The state stopped all remaining executions for the year; outside lawyers were brought in as a multi-county grand jury began looking into the issue; the prison warden where executions take place announced her resignation; and, as noted, the state's corrections director resigned earlier this month.

Texas also executed Robert Ladd, whose lawyers pointed to evidence that his IQ was 67, in January.

Death Penalty Information Center

In March, Missouri executed Cecil Clayton over the objections of his lawyers, who argued he was mentally incompetent because of a 1972 sawmill accident that resulted in him losing 20% of the frontal lobe of his brain.

The execution of Lester Bower in June featured a man who had consistently maintained his innocence in a 1983 quadruple homicide and whose lawyers argued that six witnesses agreed with Bower.

The September execution of Kelly Gissendaner in Georgia had initially been set to take place in February but was called off because of a coming storm. The execution was rescheduled for March, but that, too, didn't happen because of concerns about the drugs set to be used in her execution. Initial reports said state officials found the drugs were "cloudy," later clarified as particles having precipitated in the mixture. Although Georgia initially tried to withhold the results of a test looking into what happened, state officials eventually made them public.

On Oct. 1, Virginia executed Alfredo Prieto, a serial killer sentenced to death in Virginia and California. It did so, however, with a Supreme Court application for a stay of execution still pending. Although a state has no legal obligation to hold off on an execution once a death warrant is active unless a stay is granted or executive clemency is granted, the general practice across the country is to wait until pending stay requests have been resolved.

The final execution of 2015 took place in Georgia in the early morning of Dec. 9. Brian Keith Terrell was executed for the 1992 murder of John Watson. Terrell, however, maintained his innocence, and his lawyers argued that the case against him was predicated on false testimony.

After the 2000s began with about 150 death sentences being imposed in a year — a steep drop from the high of 315 death sentences imposed in 1996 — the number has steadily decreased over the past 15 years.

This year, for the first time since the Supreme Court ended its own moratorium on executions in the country in 1976, less than 50 new death sentences have been imposed, new data provided in a report issued by the Death Penalty Information Center on Wednesday shows.

There have been only 49 death sentences imposed this year.

There have been only 49 death sentences imposed this year.

Death Penalty Information Center

In Texas, for example, the first death sentence was not imposed until October. Only two death sentences were imposed in the state all year. In contrast, in an era when nearly 300 death sentences were imposed each year across the country, 48 death sentences were imposed in Texas alone in 1999.

Charles Hamilton Houston Institute for Race and Justice

As Justice Stephen Breyer detailed in his dissenting opinion in Glossip, the imposition of the death penalty is not only a state-by-state penalty. It is, in many ways, a county-by-county penalty.

New analysis from the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School illustrates that point. From 2010 through today, only 10 counties in seven states imposed the death penalty more than five times over that six-year period.

Charles Hamilton Houston Institute for Race and Justice

Despite the decreases in imposition of the death penalty, questions about the death penalty's use — from access to drugs or other execution methods to the constitutionality of the punishment itself — will not easily be ignored.

There remain nearly 3,000 people on death row across the U.S., according to the Death Penalty Information Center, more than half of whom have been sentenced to death in just four states. As of July 1, California had 746 inmates on death row, Florida had 400, Texas had 265, and Alabama had 195.


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