The previous method of execution included a three-drug protocol applied intravenously.  The first change to the execution procedure includes the adoption of a one-drug protocol, using thiopental sodium alone, applied intravenously.  Pancuronium bromide and potassium chloride will no longer be used as a part of the process.  In the event that an IV site cannot be established or maintained, then I have authorized the use of an intramuscular injection of midazolam and hydromorphone as a back-up means of carrying out the execution.

Apparently, Ohio is the first state to move to a one-drug procedure, which prompted an interesting comment from one observer:

“This is a significant step forward,” said Ty Alper, Associate Director, Death Penalty Clinic, U.C. Berkeley School of Law. “Paralyzing inmates before executing them – so we can’t tell whether they are suffering – is a barbaric practice, and Ohio should be commended for stopping it.”

Ohio Public Defender Tim Young, however, maintains that problems still exist:

“I would like to congratulate the State of Ohio, as it has finally recognized that by going to a single, massive dose of an anesthetic, it will greatly reduce the risk of torturing people to death.  I continue to have concerns, however, that there are no limits on how long or how many times the execution team can try to gain IV access.”

Ohio's execution chamber, located at the Southern Ohio Correctional Facility. (Image from Getty Images.)

Today was a complicated day for Ohio.  Specifically, it was a complicated day for those officeholders responsible for implementing and judging Ohio’s death penalty process — and for those seeking an insight into the future of Ohio’s death penalty.

In recent months, Governor Ted Strickland (D) has overruled his Parole Board’s recommendation to grant clemency to Jason Getsy, who was executed on Aug. 18, and finally put a stop to the attempted execution of Romell Broom on Sept. 15 after the execution team failed over a two-hour period to access a vein to inject him with the lethal drugs.  The botched attempt at executing Broom led the editorial board of The New York Times to state that “every state should use this shameful moment to question whether they ought to be putting people to death at all.”

And today did begin with the U.S. Court of Appeals for the Sixth Circuit issuing a stay of the scheduled execution of Lawrence Reynolds, yet another Ohio Death Row inmate.

The 2-1 panel opinion from the Sixth Circuit would have put a halt to the October 8 execution of Reynolds.  Ohio Attorney General Richard Cordray (D), however, took quick action to attempt to keep the execution on schedule by asking the U.S. Supreme Court to lift the stay.  Before the Supreme Court could take action on the request, though, Strickland granted a reprieve that put off the execution for several months — but did nothing to answer the current questions surrounding Ohio’s implementation of the death penalty.

* * * * *

In the Sixth Circuit opinion (pdf), Judge Boyce Martin, noted that the state has “experienced serious and troubling difficulties in executing at least three inmates, most recently Romell Broom.”  He went on to describe the potential constitutional questions raised by these difficulties and noted that U.S. District Court Judge Gregory Frost is to consider those issues regarding Broom.  Martin went on:

Given the important constitutional and humanitarian issues at stake in all death penalty cases, these problems in the Ohio lethal injection protocol are certainly worthy of meaningful consideration.  Judge Frost is best positioned to conduct a comprehensive review of these issues for both Reynolds and Broom.

As such, the opinion would have effectively stayed Reynolds’ execution until Judge Frost heard and considered the validity of Ohio’s implementation of its execution protocol in regards to Broom and Reynolds.

Judge Cole concurred in this opinion, and Judge Sutton dissented. Cole sensibly noted:

[T]he State has agreed not to attempt another execution of Broom until the district court can reconsider the matter.  In this context, where allowing the process to run its course could result in the severest of consequences, it is more prudent to allow the district court to take these new circumstances into consideration [for Reynolds as well].

Judge Sutton, a reliably conservative* judge, dissented in allowing the stay because he is “not persuaded” that the “recent failed Broom execution” creates a Supreme Court claim “with any prospect of success.”  Sutton additionally was concerned that due to the blanket nature of the majority’s opinion, he feared the ruling would result, effectively, in a blanket moratorium on executions until the Broom case was resolved.  In explaining that, however, Sutton appeared also to make clear his displeasure with Ohio’s recent implementation of the death penalty.  Sutton wrote:

No doubt, the Governor himself has the right to impose a moratorium.  And a case could be made that it would be reasonable to do so.  But the question is whether the Eighth Amendment requires the Governor to take this approach.  A reasonable thing to do is not necessarily a constitutionally mandated thing to do. . . .

As an individual, I might prefer to live in a State that does not have a death penalty or at least one where it is less frequently imposed.  But the Constitution allows the people to make policy mistakes, if policy mistakes they are, and correct them for themselves over time, and we should let that process run its course unless or until their representatives cross a cognizable constitutional limit.

The majority held that there was a possibility that such a limit already had been exceeded and, hence, the stay was issued.

* * * * *

Soon thereafter, Ohio Attorney General Richard Cordray — who has inserted himself into the death penalty process and death penalty discussions repeatedly in his brief tenure as attorney general to support the death penalty — filed an application (pdf) in the U.S. Supreme Court seeking to vacate the stay.  He wrote:

The Governor of Ohio could conceivably determine that the executions of prisoners like Reynolds scheduled in the future should also be delayed, pending further review of the State’s procedures.  By the same token, the State’s interest in the execution of final criminal judgments is compelling, and such interest could reasonably be found to override the indefinite delay of future executions, for the possible overhaul of procedures that are constitutionally adequate.  What is important is that the State be free to make these critical choices, where a federal court’s stay of a prisoner’s execution is not justified as a matter of law.

Cordray argued, in other words, that the state’s interest in seeing its criminal judgments enforced “reasonably” could be found to be more important than delaying an execution due to take place while a trial court is examining the constitutional implications of a failed execution attempt in the state.

The matter, though, was put to rest before the Supreme Court could act on Cordray’s application because Governor Strickland took the step that both Judge Sutton and Attorney General Cordray mentioned by granting a reprieve to Reynolds until March 9, 2010.

The warrant itself is disconcerting in its mention of the details of the failed Broom execution — and the state’s response:

Nonetheless, and although not legally or constitutionally required to do so, since September 15, the Department [of Rehabilitation and Correction] has been working to establish a back-up or alternative lethal injection protocol that would be available should those responsible for carrying out executions for the State ever again be unable to access a sustainable vein at the time of an execution.

As such, Strickland granted the reprieve in order to allow DRC the time to establish and train for this back-up process.  Strickland also granted a preemptive reprieve to Darryl Durr — whose execution was set for Nov. 10 — until April 20, 2010.

In response, Attorney General Cordray did issue a final volley today, via a statement:

In capital cases, we continue to press the state’s legal position in the courts and we are confident that it is sound.  We understand that these reprieves have been granted on the basis of operational concerns and we respect that; but continue to think that, on legal grounds, the state’s position will ultimately be upheld.

After all that happened today, we are left in Ohio with a reprieve of upcoming executions but a desire on the part of the governor to resume executions as soon as DRC can devise and the execution team can be trained on “back-up” execution protocols and a belief on the part of the attorney general that, legally speaking, there’s not even a need for these temporary reprieves.  And neither official is taking heed of The New York Times‘ recommendation to “question whether they ought to be putting people to death at all.”

* * * * *

* = None of the judges’ ultimate conclusions on the panel are inconsistent with their ideological and/or judicial views.  Judge Boyce Martin is extremely liberal, as an e-mailer noted, and Judge Cole’s opinion, ultimately, was not all that surprising.  I only raised the issue of Judge Sutton’s general judicial disposition to explain why I was somewhat surprised by the comments he made about what might be a reasonable action for the governor to take and his personal views regarding the death penalty.

Broom

On Tuesday afternoon, Gov. Ted Strickland finally had to put a stop to a botched execution attempt.  According to the Columbus Dispatch, Romell Broom’s execution was delayed after 18 failed attempts by the state-employed EMTs to find suitable veins so they could kill Broom.

Here, care of Marc Kovacs, is some awkward Strickland time, as he attempts to explain how the EMTs’ inability to find a vein represents no failure of training on the EMTs’ part and no problems of cruel or unusual punishment in the system more broadly.

Ohio A.G. Cordray and Gov. Strickland (Image from Cordray for Ohio.)

Ohio Attorney General Richard Cordray, a Democrat whose conservative position on the death penalty I previously have noted, appears to have played a significant role in Governor Ted Strickland’s rejection of the Parole Board’s 5-2 vote for clemency for Jason Getsy.

Per the Tribune Chronicle’s Chris Bobby (and via Doug Berman), this is only the third time the Parole Board has recommended clemency since the re-imposition of the death penalty.  It is the first time the governor has rejected that recommendation.

From the Tribune Chronicle:

Finally, [Trumbull County Prosecutor Dennis] Watkins also got an endorsement from Ohio Attorney General Richard Cordray, who in a last minute letter to Strickland said that Getsy ”is not the kind of individual who is deserving of special mercy in the clemency process.

”Getsy’s request for clemency should be evaluated based on his own culpability, and not based on what evidence was available to be presented or how it may have been interpreted in a co-defendant’s case. We feel strongly that this is not a justifiable basis for commuting the death sentence on the facts of this case and we believe the precedent set by the Parole Board here would be detrimental to Ohio’s system of justice,” Cordray wrote.

A.G. Cordray’s office released a copy of the memo, dated August 5, which I am making available here (pdf).  Cordray wrote:

In the final paragraph of its conclusion, the [Parole Board] majority recommends that, “In imposing a death sentence, it is imperative that we have consistency and similar penalties imposed upon similarly situated co-defendants.”  What the Board seems to be asking for is a practical impossibility.  Under the Board’s theory of justice, if two people clearly deserve a death sentence but only one person receives it, then the other person should also have his death sentence vacated.  That, of course, is wrong.  If two people both deserve death, they both should receive a death sentence.  But there is no way to force juries to impose death, or to even ensure that juries will not acquit based on mistake, leniency, or compromise.

A few things here.  First of all, any question about Cordray’s policy position on the death penalty is cleared up with this paragraph.  He is plainly and unambiguously arguing that there are, under our system, too few executions.  And Cordray blames this on our legal system’s built-in protections.  The jury system, given strong force in the Supreme Court’s Apprendi line of cases, is one of Cordray’s targets.  Earlier, a newspaper reported that he blamed “participants in the system doing their best to delay cases” for death penalty problems.

Second, a lawyer’s use of “of course,” as with “clearly” or “obviously,” always should be met with skepticism.  And the assumed premise that anyone “clearly deserve[s] a death sentence” is telling, and more than a bit disturbing.

Third, and although Cordray explains his thoughts on why it is a “practical impossibility,” death penalty opponents would agree — but assert that those prosecutorial and juror judgments and determinations that result in inconsistent verdicts and sentences are, in fact, one of the significant problems of the death penalty.

Fourth, Cordray injected himself into this case.  He was not the prosecutor, and he clearly was not acting in his capacity as the lawyer to the Parole Board.  The letter references no request of the governor for this opinion, and — despite the “Attorney-Client Communication” label in the header — it appears that Cordray wanted this letter out in the public domain.

The real question that I have is: Was this done to provide cover for Strickland’s denial of clemency, or was this an uninvited injection of Cordray’s politics into the death penalty process?

Getsy is to be executed on Tuesday.

Getsy

From the Plain Dealer, disappointing news today:

COLUMBUS, Ohio — Ohio Gov. Ted Strickland has denied clemency for the triggerman in a 1995 murder-for-hire scheme, overriding the state parole board’s recommendation for mercy.

Strickland decided against clemency for 33-year-old Jason Getsy, scheduled to die Tuesday for the shooting death of Ann Serafino in suburban Youngstown. . . .

Stebbins says he was disappointed that Strickland didn’t follow the recommendation of the parole board, which voted 5-2 in favor of mercy last month.

The board said Getsy should not be executed while others involved in the crime who were equally guilty received lesser sentences.

The Plain Dealer earlier reported that the call for clemency from the parole board is rare, but also noted that both Strickland, a Democrat, and former Gov. Taft, a Republican, accepted previous calls for reprieve from the board.

From the Dayton Daily News, on the governor’s choice, prior to his decision:

Cathleen Burnett, associate professor of criminal justice at the University of Missouri-Kansas City, said that the Getsy recommendation was “gutsy” and that while the governor may feel pressure from both sides, he should exert leadership.

“It is the mark of quality leadership to do the right thing in ensuring that fairness is maintained throughout the criminal justice system,” she said.

There is a lot of info out there right now about the hate crimes bill, known as the Matthew Shepard Act.  I didn’t want to just pile on and post the same thing as everyone else, but what I thought could be helpful is an unpacking of, as Doug Berman would say, all the “there” that’s there.  There are five main issues being discussed with the hate crimes bill:

1. The House hate crimes bill and the conference committee.
2. The F-22 funding in the Defense Department reauthorization bill.
3. The death penalty amendment, as well as the other Sessions amendments, added to the Senate’s Matthew Shepard Act amendment.
4. The ACLU’s speech/association concerns with the Senate language.
5. The Thune gun amendment possibility to the DOD reauthorization.

First, let’s remove almost all the specifics and talk about process.  Assuming that the Senate approves a Defense reauthorization bill, which it eventually will, the House and Senate will appoint conferees to join a conference committee that will hash out differences of the bill.

As such, the House’s stand-alone version of hate crimes, voted on in April, will not, technically speaking, be on the table.  As a source familiar with the process said, the fact that the House passed the stand-alone bill will be great leverage to include the hate crimes measure in the conference committee’s version of the bill.  But the House version is not the starting point for hate crimes measure in the conference committee; the Senate version is the only hate crimes measure that officially is included in the conference committee’s competing bills.  Of course, conferees are free to do a lot to the legislation during the process of reconciling the House and Senate versions of the Defense reauthorization, so a lot can happen.

Now, as to the specifics.

One of the biggest hurdles faced by the hate crimes bill — the F-22 funding — was cut on a 58-40 vote from the Senate version of the bill today.  As Kerry Eleveld points out, though, we’re not yet completely out of the weeds on this point, because there is a Statement of Administration Policy (SAP) that recommends a veto if even the lesser amount — $369 million of funding for the F-22 program — included in the House version makes it into the final bill.  In today’s briefing, Kerry updates the world that any such funding in the final bill will result in a presidential veto.  As such, it’s all gotta go in conference, or Obama’s spokesman says he’ll veto it.

Next is the death penalty provision.  The LGBT organizations, as I noted last night, appear to believe that there is a good chance the conference committee will remove the death penalty language and other Sessions amendments from the bill.  The fact that the committee that heard the bill in the House specifically voted down such a death penalty amendment is sure to help in getting at least that proposal removed.  The overwhelming Democratic majority of the conference committee also bodes well for the removal of these “poison pill” amendments.

The ACLU and HRC are having a bit of sparring over the association/speech protections in the Senate version of the bill.  The Senate version simply states that the bill does not impact First Amendment protections.  As the ACLU pointed out, though, the House version contains a specific provision preventing evidence solely relating to exercise of speech and associational rights.  Chris Anders, the ACLU’s senior legislative counsel, said in a release:

Unless amended to block evidence of speech and association not specifically related to a crime, the Senate hate crimes amendment could chill constitutionally protected speech and association. . . . We urge Congress to instead adopt the House version of the hate crimes bill, which protects both civil rights and free speech and association.

David Smith, HRC’s vice president of programs, said, “The Senate bill contains an explicit provision stating that the bill does not limit constitutionally protected speech, expressive conduct, or activities” and that each version of the bill protects free speech but in different ways.  This distinction, between an evidentiary exclusionary rule, as in the House version, or the restatement of First Amendment protections, as in the Senate version, will likely be dependent on the specifics of which members are chosen for the conference committee.  If I had it to choose, I would choose the House version for the simple reason that my general aim is to provide for compromises that increase legislative support whenever they do not diminish the value of the legislation in any significant way.

The final hurdle is the gun amendment being offered by Sen. Thune, which “would allow gun owners to supersede state and local laws restricting their transportation.”  Democrats in the Senate are fighting the amendment, but it’s not quite clear whether they even have the support of Senate Majority Leader Harry Reid.  As in the case of the Sessions amendments, it appears that the aim, should it be passed, is for this amendment to be removed in conference committee.

The bottom line is, of course, that legislation is one hell of a sausage-making process.  Although the hate crimes bill is not out of the woods, it is likely to make it through.  There will be a Defense reauthorization bill, passed by both houses and signed by the President — even should it, though it seems unlikely, go through a veto.  The strong Senate vote to include hate crimes in that bill, when coupled with the House’s stand-alone vote in favor, strongly counsel in favor of the hate crimes measure making it through as a part of that bill, regardless of whatever sausage-making difficulties remain.

All that said, be on the lookout for announcement of conferees and action steps, from groups and bloggers all around, to be taken in that regard.

Matthew Shepard

In 1999, a little more than a year after the killing of Matthew Shepard, his parents, Dennis and Judy Shepard, took an action “to begin the healing process” for the community and, in fact, the country after his death.  As the Los Angeles Times reported at the time, Matthew’s “parents . . . interceded to save the life of his killer” in a deal made on the eve of killer Aaron McKinney’s trial “that [sent him] to prison for life while sparing him the death penalty.”

Today, however, the U.S. Senate took a swipe at that legacy by burdening, on a voice vote, the Matthew Shepard Act with a death penalty provision offered by a Senator opposed to the bill.  The bill was added last week as an amendment to the Defense Department reauthorization act.  The problems our nation faces in addressing criminal justice in this country, however, were on full display as Senators, both Republican and Democratic, failed to oppose the death penalty “poison pill” amendment for fear of being seen as “weak on crime.”

Sen. Jeff Sessions, in a move that does not befit a U.S. Senator, put forth an amendment to the legislation — which he strongly opposes — to add the death penalty as a punishment for hate crimes under certain circumstances.  Michael Cole, with HRC, noted the amendment’s possibility, and HRC’s opposition to it, on Saturday at HRC’s blog.

This is, simply, an amendment brought in bad-faith in an attempt to break apart the coalition that is supporting this bill — particularly groups like the Leadership Conference on Civil Rights.  As LCCR and many other coalition organizations, including the leading LGBT organizations, noted in a letter sent earlier today to Senators:

The HCPA was first introduced in 1997, but no version of the bill has ever included the death penalty. Senate and House sponsors of the bill and the very broad coalition of supporters have always opposed adding the death penalty to this legislation. The House of Representatives approved its very similar version of this measure, HR 1913, the Local Law Enforcement Hate Crime Prevention Act, without the death penalty on April 29 by a vote of 249-175. An amendment to add the death penalty was defeated at the House Judiciary Committee markup.

Despite that, the measure passed by a voice vote today.

The response from the LGBT groups was swift — yet understated.  From HRC’s Joe Solmonese: “We urge Congress to eliminate these unwelcomed amendments and send the Matthew Shepard Act to the President’s desk quickly.”  From NCLR’s Kate Kendell: “This provision can and must be removed in conference committee.”  From the Task Force’s Rea Carey: “There is still time to strike the amendment from the Department of Defense authorization bill when it shifts to conference committee.”

It’s unfortunate that the political ramifications of voting against the death penalty — even when brought by those opposing the legislation to which they are attempting to add it — are still strong enough that senators are afraid to voice their opposition to it.  Instead, everyone hopes that it will just be quietly removed by the conference committee.

That’s all well and good, but today’s action was a sad affront to Matthew Shepard’s memory and his father’s words, shared a decade ago in a courtroom in Wyoming, as reported by the LATimes:

Dennis Shepard read a lengthy, emotional statement in court Thursday, calling his 21-year-old gay son his hero and citing his special gift for helping people. As he spoke haltingly, pausing to wipe tears, many in the courtroom openly wept, including members of the jury.

Addressing McKinney, Shepard said: “I would like nothing better than to see you die, Mr. McKinney. However, this is the time to begin the healing process. To show mercy to someone who refused to show any mercy. Mr. McKinney, I am going to grant you life, as hard as it is for me to do so, because of Matthew.”

Whoever is on the conference committee for the reauthorization bill must do whatever is needed to remove the Sessions amendment and restore dignity to this bill named to honor Matthew Shepard’s memory.

Cordray tells The Associated Press on Wednesday that, even if lengthy appeals result in a new trial, it’s difficult to feel justice can be achieved because so much has changed over time.

Cordray also says it’s a bogus argument to say the death penalty should be eliminated because cases take too long and cost too much.

Cordray, a Democrat, says there are plenty of participants in the system doing their best to delay cases and it’s not justifiable to then complain about the length of appeals.

Too bad.  It’s one thing to defend the law, which is the proper role of an A.G., regardless of his or her view; it’s another thing to be a Democrat providing pro-death penalty folks with fodder like this.  It’s not a full statement of his policy view, but it definitely leans closer to a pro-death penalty policy than I’d prefer to see.  Of course, this could be selective paraphrasing, and he could have said some helpful stuff as well.  I’d love to see Cordray explain more fully where he stands on the death penalty as policy.

[UPDATE: Here is Ohio's Capital Crimes Annual Report (PDF), issued today, which notes that more than half (50.6%) of Ohio's death row inmates are black and nearly two-thirds (62%) of the victims in pending cases were white.]

Per the Ohio Department of Rehabilitation and Corrections Web site, the last year in which hanging was the method of execution in Ohio was 1897.  Hanging was ended as Ohio’s method of execution one hundred and twelve years ago.  Yet, today, the Ohio State Bar Association has decided that a noose is a a good visual for a Continuing Legal Education workshop on “Death Penalty Defense: Trials and Appeals.”

It would be one thing if this was a random workshop from a random organization about the death penalty.  But this isn’t.  This is the Ohio State Bar Association providing education for lawyers on the current criminal justice system.

Bad call, OSBA.