Saturday, January 29, 2011

In Case You Were Wondering

A week ago, I asked what they were going to do now that Hospira will no longer make thiopental.  It was, of course, a rhetorical question.
We already knew some of the answer. Arizona and Georgia managed to lay in supplies from Dream Pharma, a dealer located in the Elgone Driving Academy in London.  (Nope, not making it up; and there it is.)  Georgia may actually have got its through the generosity of Arizona.  Nebraska has 500 grams from India.  Other states have their own stockpiles, but they're running low and have expiration dates.  
Meanwhile, Oklahoma substituted pentobarbital for thiopental in its three-drug sequence, and Ohio is planning a March killing with pentobarbital alone.  As Alan Johnson reported in the Columbus Dispatch, the only U.S. manufacturer, Lundbeck Inc., isn't happy about it.  According to Lundbeck's VP for communication, Sally Benjamin Young, the company sent a protest letter to Ohio's DRC.  She wouldn't release the letter itself.
However, Young said the company told state prison officials that it is "adamantly opposed" to the use of its product, sold under the trade name Nembutal, for capital punishment. "We urged them to discontinue using it for this purpose.
"Lundbeck is dedicated to saving people's lives," Young said. "Use of our products to end lives contradicts everything we're in business to do."
Prisons spokesman Carlo LoParo said the state will not heed the company's warning and will use the new drug as planned.
And while Ohio can change its drugs and protocol by fiat of the Director of the Department of Rehabilitation and Correction, it's not so easy everywhere.  AP, which laid out the problem in an article yesterday, makes the point.
In Kentucky, where the entire stockpile of sodium thiopental has expired, a switch requires an administrative process that typically lasts six months. Similar hurdles exist in California, Maryland and Nebraska.
Even states that require only a prison official sign off on a switch — including Texas, Ohio and Tennessee — could face a flurry of challenges.
"You can't just switch pentobarbital for sodium thiopental and proceed as if nothing has changed," said Ty Alper, the associate director of the death penalty clinic at the University of California-Berkeley. "There's likely to be litigation and courts will have to satisfy themselves that it will result in a humane execution."
So it's a mess.  Which is kind of what we knew.
I've said it before.  It's hard to kill people nicely.
Want another example?
Put the drugs aside.  How do you deal with the unexpected problems that arise along the way?  That was part of the question faced by Judge Gregory Frost in Columbus, Ohio.
Judge Frost has been overseeing the federal litigation surrounding Ohio's lethal injection since 2004.  That includes the drugs and the execution methodology and the teams of executioners and the like.  It also includes the mess arising from the failed effort to kill Rommell Broom.  That means he's got a whole boatload of issues in front of him.  Yesterday he ruled on a few.
Execution Access Order                                                            
The interesting part here is the discussion of the right to counsel of the person being executed beginning around page 8.
Say you're on the gurney and something goes horribly, unpredictably, wrong.  Tough, is essentially the state's position.  Well, not exactly said the judge.
In supporting their motions for summary judgment, Defendants state in their briefing that
rely not only on plaintiffs’ lack of a right to counsel’s presence under the Sixth and Fourteenth Amendments, but also on undisputed facts that defendants have not prevented counsel from witnessing executions and have not denied counsel the ability to contact the courts and persons outside the institution after the execution commences.
(ECF No. 861, at 6.) As already discussed, the Court disagrees with a portion of Defendants’ rationale but not with the dispositive outcome of the witness argument, and as set forth below, the Court concludes that Defendants are correct in regard to the contacting the courts argument. What proves problematic for Defendants is that portion of Plaintiffs’ claims that Defendants’ quoted summary omits, the ability of an inmate to confer with his or her counsel. It is this essential linking component that makes the presence of counsel of any potential value to an inmate and that renders meaningful the ability of counsel to access a court on an inmate’s behalf. The problem is that the circumstances created by the protocol and the custom and practices create an environment that can likely suppress the timely assertion of non-frivolous constitutional claims.
OK, so there's some right of access.  Inmate can consult with counsel.  Just how, of course, remains an open question.  Frost isn't about to micromanage the protocol.  But the fact that it may be inconvenient doesn't mean the state doesn't have to find a way.
Such access is no doubt without an administrative cost. Defendants present in their
briefing a laundry list of questions that they posit would arise from a conclusion that there is an applicable right in the execution context to access counsel in order to access the courts. It is perhaps unclear to this Court what analytic function Defendants intend these slippery slope problem scenarios to serve. A possible inference is that, by highlighting the potentially often inconvenient consequences of affording inmates their constitutional rights, Defendants seek to persuade this Court not by constitutional analysis but by pragmatic cautions that exist distinct from the words of the Constitution. The Court may be missing Defendants’ point, however, because certainly it cannot be Ohio’s position that mere bureaucratic convenience is the measure of the reach of the Constitution. Defendants’ reliance on what they deem “considerable practical reasons” for deciding that the Constitution applies in this context thus proves unpersuasive.
I want to repeat a part of the penultimate sentence.
[C]ertainly it cannot be Ohio’s position that mere bureaucratic convenience is the measure of the reach of the Constitution.
Heavens forfend.  No.  Ohio would never make such an argument.  Not Ohio.  Well, yeah, Ohio.  And every other state.  And the feds.  And too often the courts.
So I need to say this last part.
Frost not only said it was nonsense.  He seems to have meant it.  Good for him.
Of course, it's not a final ruling.  He denied the state summary judgment.  Actual access remains, technically, an open question.
So if you were wondering, the death penalty system is a mess.  Nobody knows just how the killing will go.  Nobody knows for sure what will happen next.
What we know is that it keeps getting harder and messier.
Gov. Quinn still hasn't decided what to do about signing the abolition bill in Illinois.
Ohio still plans to murder Frank Spisak on Feb. 17.

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