History > 2014 > USA > Justice > Death penalty (I)

Amber McGuire, left,

recounted the execution of her father, Dennis McGuire,

alongside her sister-in-law Missie McGuire

at a news conference Friday in Dayton, Ohio.

Kantele Franko/Associated Press

After a Prolonged Execution in Ohio,

Questions Over ‘Cruel and Unusual’

NYT

17 January 2014

http://www.nytimes.com/2014/01/18/us/
    prolonged-execution-prompts-debate-over-death-penalty-methods.html

A Prolonged Execution in Arizona

Leads to a Temporary Halt

 

The New York Times

JULY 24, 2014

By FERNANDA SANTOS

and JOHN SCHWARTZ

PHOENIX — The Arizona attorney general on Thursday called a temporary halt to executions in the state, a day after the convicted killer Joseph R. Wood III died one hour and 57 minutes after his execution began. Death penalty experts said it was one of the longest times it has taken in the United States for drugs to kill a condemned man.

But Charles L. Ryan, the director of the state’s Department of Corrections rejected the notion that the execution was botched, despite the fact that the procedure of death by lethal injection usually takes about 15 minutes. He said in a statement that an autopsy by the Pima County medical examiner, concluded on Thursday, found that the intravenous lines were “perfectly placed,” “the catheters in each arm were completely within the veins” and “there was no leakage of any kind.”

“I am committed to a thorough, transparent and comprehensive review process,” Mr. Ryan said.

Some witnesses to Mr. Wood’s execution said that he gasped, seemingly for air, more than 600 times as he died. “The movement was like a piston: The mouth opened, the chest rose, the stomach convulsed,” wrote one witness, Michael Kiefer, a reporter for The Arizona Republic. Others — a representative of the attorney general’s office, plus relatives of the two people Mr. Wood killed — characterized what they saw as more like snoring.

At an emergency hearing via conference call in Federal District Court, lawyers and a judge discussed Mr. Wood’s brain activity and whether he was suffering, according to a transcript. Mr. Wood died before the hearing ended.

The episode has once again stoked the debate over the kinds and source of the drugs used in executions and led the state to promise an investigation. Mr. Wood’s execution was the fourth troubled one this year, and his injection was a two-drug combination — hydromorphone, an opioid painkiller that suppresses breathing, and midazolam, a sedative — that was used in a prolonged execution in Ohio in January.

In the case of Mr. Wood, “Irrespective of whether there was suffering, just given the description, an execution is not supposed to take this long — it went on far longer than it was supposed to,” said Deborah W. Denno, a law professor at Fordham University and a death penalty opponent who has studied execution methods. And the reactions of Mr. Wood during the process, she said, “are atypical of an execution that’s supposed to be performed properly.”

Dr. Mark J. Heath, an anesthesiologist at Columbia University and an expert on lethal injection, said that based on the information available, it was impossible so far to say exactly what happened. One possibility, he said, is that “the drugs don’t behave in a way that we would expect when given in high dosage.” Because they have never been used in such high dosages in any context other than lethal injections, their effects cannot be tested, “so everyone is working in the dark,” he said.

Indeed, the amount of the drug midazolam given in different states varies widely. Florida uses 500 milligrams, while Ohio initially said it would use 10 milligrams and moved up to 50 after the troubled execution in January of Dennis B. McGuire, who appeared to gasp and snort in the 26 minutes it took him to die. Oklahoma uses 100 milligrams; Arizona used 50 milligrams. A second possible explanation is that the intravenous lines were improperly placed and the drugs did not flow properly into the bloodstream, but that mistake would most likely have left Mr. Wood awake on the gurney for a longer time than reports suggest. “I don’t think that happened, but it’s definitely possible,” Dr. Heath said.

Still another possibility, and one that might be more likely, he said, is the problem known as retrograde injection, which occurs when proper safeguards are not taken and drugs injected into an intravenous line flow backward into the I.V. bag. Those precautions against backflow would be harder to notice in the sometimes-dim light of the room where the execution workers do their jobs. A third potential problem for the execution is that “we don’t know the chain of custody of the drugs” and how they were kept, Dr. Heath said.

After the execution of Clayton D. Lockett in Oklahoma in April, in which the inept administration of drugs prompted Mr. Lockett to writhe in pain, President Obama directed the Justice Department to review how executions are conducted, calling the episode “deeply troubling.” A Justice Department spokeswoman said Thursday that the investigation was “underway and ongoing.”

Some argue the debate over drugs misses the point. In a legal opinion that preceded the execution, Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, dissenting from the court’s decision to deny a full hearing over a panel’s granting of a temporary stay of execution for Mr. Wood, said that death by lethal injection should be replaced by more “foolproof” methods, preferably firing squads. Judge Kozinski referred to drug-induced deaths as a “misguided effort to mask the brutality of executions by making them look serene and peaceful.”

In a telephone interview on Thursday, Judge Kozinski declined to talk directly about the Wood execution, but said that in general, “bodies are different, and people react differently to the medicine” in lethal injections. “I think mishaps are inevitable” with drugs, he added, “unlike bullets.” Besides, he said, “These medicines are not made to kill people — they are made to heal.”

As manufacturers refused to sell to states the barbiturates traditionally used in executions, supplies dried up and the states had to improvise. They looked for other drugs to replace the old three-drug protocol, which included medication that acted directly to stop the heart, and also other sources, like compounding pharmacies, which are lightly regulated by the Food and Drug Administration.

In Arizona, the federal public defender’s office, which represented Mr. Wood, sued the state to get it to reveal the source of the drugs and won a fleeting victory when the appellate court granted a temporary stay. But then, on Tuesday, the Supreme Court allowed the execution to proceed.

Mr. Wood was convicted of fatally shooting his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz, at their auto repair shop in Tucson in 1989. After the execution on Wednesday, Ms. Dietz’s brother-in-law, Richard Brown, scolded reporters, saying that Mr. Wood “smiled and laughed at us, and then went to sleep.” He added: “So all you people who think that these drugs are bad? Well, to hell with you guys. You guys need to look at the big picture.”

Gov. Jan Brewer has ordered the State Corrections Department to review the process in the execution, even as support for the death penalty remains strong there. Meanwhile, Stephanie Grisham, a spokeswoman for Attorney General Tom Horne of Arizona, said that Mr. Horne would not issue any warrants of execution until the review was complete, “as a matter of caution.”

Dale A. Baich, an assistant federal public defender representing Mr. Wood, also called for an investigation, but he insisted that it be carried out independently. “There is far too much that we don’t know at this point,” like the choice of drugs and amounts, as well as the “qualifications of the execution team,” Mr. Baich said Thursday. “Only an independent investigation can provide the transparency needed following an execution cloaked in secrecy that went wrong.”
 

Fernanda Santos reported from Phoenix,
and John Schwartz from New York.

A version of this article appears in print on July 25, 2014,
on page A16 of the New York edition with the headline: A Prolonged Execution in Arizona Leads to a Temporary Halt.

    A Prolonged Execution in Arizona Leads to a Temporary Halt, NYT, 24.7.2014,
    http://www.nytimes.com/2014/07/25/us/
    a-prolonged-execution-in-arizona-leads-to-a-temporary-halt.html

Arizona Takes Nearly 2 Hours

to Execute Inmate

 

JULY 23, 2014

The New York Times

By ERIK ECKHOLM

In another unexpectedly prolonged execution using disputed lethal injection drugs, a condemned Arizona prisoner on Wednesday repeatedly gasped for one hour and 40 minutes, according to witnesses, before dying at an Arizona state prison.

At 1:52 p.m. Wednesday, one day after the United States Supreme Court overturned a stay of execution granted by a federal appeals court last Saturday, the execution of Joseph R. Wood III commenced.

But what would normally be a 10- to 15-minute procedure dragged on for nearly two hours, as Mr. Wood appeared repeatedly to gasp, according to witnesses including reporters and one of his federal defenders, Dale Baich.

State officials insisted that Mr. Wood had been comatose throughout the procedure and did not suffer.

In a bizarre twist, Mr. Wood’s lawyers filed an emergency appeal to a Federal District Court to halt the procedure as Mr. Wood lay on the gurney, and they even called Justice Anthony M. Kennedy of the United States Supreme Court.

“He is still alive,” the lawyers said in the district court appeal, filed just after 3 p.m. “This execution has violated Mr. Wood’s Eighth Amendment right to be executed in the absence of cruel and unusual punishment. We respectfully request that this court stop the execution and require that the Department of Corrections use the lifesaving provisions required in its protocol.”

Mr. Wood died before the district court responded, while Justice Kennedy turned down the request to halt the procedure by telephone while Mr. Wood was still alive, said Robin Konrad, a lawyer for Mr. Wood.

At 3:39 p.m., one of the defense lawyers placed an emergency call to three justices from the Arizona Supreme Court, which had authorized the execution at the last minute. But 10 minutes later, Mr. Wood lay dead.

“I can tell you, he was snoring,” said Stephanie Grisham, a spokeswoman for the Arizona attorney general who was a witness. “There was zero gasping or snorting, and that’s just the truth. He was asleep.”

Mr. Wood was executed for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz.

Some family members of the victims said they were not concerned about the execution method, The Associated Press said.

“This man conducted a horrific murder and you guys are going, ‘Let’s worry about the drugs,’ ” Richard Brown, brother-in-law of Debra Dietz, told The A.P. “Why didn’t they give him a bullet? Why didn’t we give him Drano?”

Gov. Jan Brewer of Arizona said that she was concerned about the length of time the execution took.

“While justice was carried out today, I directed the Department of Corrections to conduct a full review of the process,” she said. “One thing is certain, however: Inmate Wood died in a lawful manner, and by eyewitness and medical accounts he did not suffer. This is in stark comparison to the gruesome, vicious suffering that he inflicted on his two victims — and the lifetime of suffering he has caused their family.”

But state officials offered no immediate explanation for why the procedure dragged out so long.

The events in Florence, Ariz., on Wednesday bore eerie parallels to a botched execution in Oklahoma in April, which also followed unsuccessful appeals to force the state to reveal more details about lethal drugs. In Oklahoma, Clayton D. Lockett visibly gasped and writhed on a gurney for several minutes, then later died of what state officials said was heart failure.

In that case, preliminary indications are that the catheter was improperly placed, spilling the execution drugs into Mr. Lockett’s tissue rather than into his veins so that he was only partly sedated before receiving a partial dose of a painful heart-stopping drug.

Arizona officials said they were using the same sedative that was used in Oklahoma, midazolam, together with a different second drug, hydromorphone, a combination that has been used previously in Ohio. Similar problems were reported in the execution in Ohio in January of Dennis McGuire, using the same two drugs. He reportedly gasped as the procedure took longer than expected.

Capital punishment by lethal injection has been thrown into turmoil as the supplies of traditionally used barbiturates have dried up, in part because companies are unwilling to manufacture and sell them for this purpose.

Arizona officials, like those in Oklahoma and several other states, have turned to new drug combinations and refused to reveal the manufacturers, saying this would lead them to stop providing the drugs.

Mr. Wood’s lawyers won a short-lived victory on Saturday, when the United States Court of Appeals for the Ninth Circuit, in San Francisco, said his execution must be delayed until the state revealed the source of the drugs and specific details about the training of those carrying out the execution.

But on Tuesday, the United States Supreme Court overturned the stay.
 

Ian Lovett and Fernanda Santos contributed reporting.

A version of this article appears in print on July 24, 2014,
on page A1 of the New York edition with the headline:
Arizona Takes Nearly 2 Hours to Execute Inmate.

    Arizona Takes Nearly 2 Hours to Execute Inmate, NYT, 23.7.2014,
    http://www.nytimes.com/2014/07/24/us/
    arizona-takes-nearly-2-hours-to-execute-inmate.html

Execution in Arizona

Is Approved by Justices

 

JULY 22, 2014

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court on Tuesday allowed the execution of an Arizona inmate to proceed, lifting a stay from a federal appeals court that had been based on the secrecy of the state’s lethal-injection protocol.

The Supreme Court’s order was three sentences long and said little more than that the lower court had been wrong to stop the execution.

But the move was consistent with the Supreme Court’s reluctance to intercede in the growing turmoil in the capital justice system caused by drug shortages and boycotts that have made it difficult for states to obtain the chemicals for lethal injections.

States have responded to the shortages by using new chemicals, some obtained from lightly regulated compounding pharmacies. Lawyers for condemned inmates have said they need information about the new protocols in order to challenge the execution methods as violating the Eighth Amendment’s ban on cruel and unusual punishment.

The Arizona case concerned Joseph R. Wood III, who is on death row for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz. He is scheduled to be executed on Wednesday.

As Mr. Wood’s execution date approached, his lawyers asked corrections officials for information about their plans. The officials said they meant to use two chemicals, midazolam and hydromorphone, but they refused to identify the manufacturers or suppliers of the chemicals or to describe the qualifications of the personnel who were to administer them.

On Saturday, a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that the state’s response might have violated Mr. Wood’s rights under the First Amendment to have access to the information.

“More information about the drugs used in lethal injections can help an alert public make better informed decisions about the changing standards of decency in this country surrounding lethal injection,” Judge Sidney R. Thomas wrote for the majority. He added that the execution could proceed once the state turned over the information.

In dissent, Judge Jay S. Bybee called the majority’s identification of a First Amendment right of access to information in these circumstances “a dramatic extension of anything that we or the Supreme Court have previously recognized.” Even if such a right existed, he added, it would not justify a stay of execution.

“The information already released by the state enables informed debate about the lawfulness and propriety of Arizona’s two-drug cocktail,” Judge Bybee wrote.

A version of this article appears in print on July 23, 2014,
on page A14 of the New York edition with the headline: Execution In Arizona Is Allowed By Justices.

    Execution in Arizona Is Approved by Justices, NYT, 21.7.2014,
    http://www.nytimes.com/2014/07/23/us/
    execution-in-arizona-is-approved-by-justices.html

A Lifetime on California’s Death Row

JULY 20, 2014

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

“How has it gone on this long?” Justice Antonin Scalia asked a lawyer for the State of Florida during oral arguments in March on a condemned inmate’s appeal. The legal issue in that case had to do with how states define intellectual disability, but Justice Scalia was troubled that Freddie Lee Hall had been on Florida’s death row for more than three decades.

In that same session, Justice Anthony Kennedy noted that the last 10 people executed by the state had spent an average of 24.9 years on death row.

“Do you think that that is consistent with the purposes of the death penalty,” Justice Kennedy asked the state’s lawyer, “and is it consistent with sound administration of the justice system?”

Last Wednesday, in an unrelated case, a federal judge in California answered that question with a resounding no. The state’s death-penalty system is “so plagued by inordinate and unpredictable delay,” wrote United States District Judge Cormac Carney, that it violates the Eighth Amendment’s ban on cruel and unusual punishment.

In a remarkable ruling overturning the death sentence of Ernest Dewayne Jones, who was sentenced in 1995 for the murder of his girlfriend’s mother, Judge Carney, an appointee of President George W. Bush, pointed out that of the more than 900 people California has sentenced to death since 1978, 13 have been executed. More than 40 percent of the rest have been on death row for at least 19 years, and the backlog is growing.

The judge found that the delays are primarily due not to inmates’ repeated appeals, as is often assumed, but to the state’s own foot-dragging and underfunding of its indigent defense system.

California law provides for an automatic appeal of all death sentences, but it takes three to five years before death-row inmates — all of whom are indigent — are even assigned a lawyer. It takes four more years for the lawyer to go through the voluminous trial record and file an appeal, and two to three years for the State Supreme Court, which hears only 20 to 25 death-penalty appeals per year, to schedule oral arguments.

Tack on another three to five years for state habeas corpus petitions, which bring claims that often don’t arise in the first appeal, such as ineffective assistance of counsel. Add 10 for federal habeas corpus claims, and the result is what Judge Carney charitably called a “completely dysfunctional” system.

Executions that are so long delayed and so rarely carried out, the judge wrote, are “antithetical to any civilized notion of just punishment.” They neither deter future crimes nor serve society’s interest in retribution for past ones — two common rationales given by supporters of capital punishment. Whether an inmate is executed depends not on the nature of the crime or even the date of his sentence, the judge said, but on “arbitrary factors” like the length of his various appeals.

California is, of course, far from alone on the issue. Nationwide, the average time from sentencing to execution is almost 16 years, and executions have hit all-time lows as states fight litigation on multiple fronts. (Because of continuing litigation over the state’s lethal-injection protocol, California has not executed anyone since 2006.)

States including Florida, Alabama and North Carolina have responded to similar delays by moving to streamline death-row appeals. But speed is not the point if it comes at the expense of accuracy. As Judge Carney said, “death is a punishment different in kind from any other,” and so requires more careful scrutiny than any other.

That extra scrutiny is “vitally important,” the judge pointed out: Half of California’s death sentences that were reviewed by a federal court were eventually vacated.


A version of this editorial appears in print on July 21, 2014, on page A16 of the New York edition with the headline: A Lifetime on California’s Death Row.

    A Lifetime on California’s Death Row, NYT, 20.7.2014
    http://www.nytimes.com/2014/07/21/opinion/
    A-Lifetime-on-Californias-Death-Row.html

Court Delays Execution

Over Secrecy With Drugs

 

JULY 20, 2014

The new York Times

By ERIK ECKHOLM

A federal appeals court has delayed the imminent execution of an Arizona man, saying he has a legal right to details about the lethal injection drugs to be used and about the qualifications of the execution team.

The ruling on Saturday, by a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, contrasted sharply with recent decisions by other state and federal courts defending states’ rights to keep information about drug sources secret.

“This is the first time a circuit court has ruled that the plaintiff has a right to know the source of execution drugs,” said Jennifer Moreno, an expert on lethal injection law at the Death Penalty Clinic of the University of California, Berkeley, School of Law.

The appeals court ruling came four days before the scheduled execution of Joseph Wood, who was convicted of the killings of two people and sentenced to death.

But Arizona officials were not backing down. On Sunday, the state appealed to the Ninth Circuit for reconsideration by a wider panel of judges and it appeared possible that the state would appeal all the way to the United States Supreme Court if necessary.

Federal or state courts in places including Georgia, Louisiana, Missouri, Oklahoma and Texas have permitted executions to take place despite similar challenges to secrecy about drug manufacturers. So far, the Supreme Court has refused to intervene. The Arizona case reflects the growing turmoil in the administration of capital punishment as the supply of traditionally used drugs has dried up, mainly because companies are unwilling to sell them for executions. States are trying out new drug combinations and scrambling for secret sources, while lawyers for the condemned have argued that they have a right to know precise details about drug origins and quality.

In April, Oklahoma’s effort to execute Clayton Lockett turned into a fiasco, forcing the state to suspend executions while it re-evaluates its procedures. Mr. Lockett writhed in agony for minutes, then later died from apparent heart failure. Preliminary indications were that the catheter delivering a combination of drugs was not inserted properly, resulting in delivery of partial doses into his bloodstream.

Mr. Wood was sentenced to death for the 1989 murders of his estranged girlfriend, Debra Dietz, and her father. He was scheduled to be executed on Wednesday. Lacking its two preferred execution drugs, Arizona officials said they would use a combination of the drugs midazolam and hydromorphone, which has been used by Ohio.

The state said it obtained drugs approved by the Food and Drug Administration with expiration dates in the fall of 2015, but refused to reveal the manufacturers and batch numbers. It also refused to provide details about the qualifications of those who would administer the drugs, saying this could lead to disclosure of their identities.

Lawyers for Mr. Wood, led by Dale Baich, a federal public defender in Phoenix, challenged the secrecy, arguing that it violated their client’s First Amendment rights of access to public proceedings. A Federal District Court sided with the state, but on Saturday, the appeals panel ruled that Mr. Wood “has presented serious questions going to the merits of his claim,” according to the majority opinion, written by Judge Sidney R. Thomas.

Arizona’s secrecy, he wrote, “ignores the ongoing and intensifying debate over lethal injection in this country, and the importance of providing specific and detailed information about how safely and reliably the death penalty is administered.”

In a dissent, Judge Jay S. Bybee said the court had drastically expanded the “right of access” and had misused the First Amendment “as the latest tool in this court’s ongoing effort to bar the state from lawfully imposing the death penalty.”
 

A version of this article appears in print on July 21, 2014,
on page A11 of the New York edition with the headline:
Court Delays Execution Over Secrecy With Drugs.

    Court Delays Execution Over Secrecy With Drugs, NYT, 20.7.2014,
    http://www.nytimes.com/2014/07/21/us/
    court-delays-execution-over-secrecy-with-drugs.html

Missouri Execution on Hold

After Late Stay Granted

JULY 16, 2014

1:41 A.M. E.D.T.

The New York Times

By THE ASSOCIATED PRESS

BONNE TERRE, Mo. — A Missouri execution has been delayed until at least midday Wednesday after a federal judge granted a last-minute stay.

John Middleton was scheduled to die one minute after midnight Wednesday for killing three people in rural northern Missouri in 1995. Less than two hours before the execution, U.S. District Judge Catherine Perry granted a stay, ruling that there was enough evidence of mental illness that a hearing should be held.

Courts have established that executing the mentally ill is unconstitutional.

Missouri Attorney General Chris Koster appealed to the 8th U.S. Circuit Court of Appeals, but that court adjourned for the night without a ruling.

The state could execute Middleton at any time Wednesday if the stay is lifted.

It was a confusing end to a day that saw a flurry of court actions. Perry first granted a stay early Tuesday, but it was overturned by the appeals court. The U.S. Supreme Court refused to overturn the appeals court ruling, and also declined to halt the execution on several other grounds, including the contention by Middleton's attorneys that he was innocent of the crimes.

Middleton's attorneys then went back to Perry, who once again granted a stay. However the appeals court eventually rules, the case is likely to end up again in the U.S. Supreme Court.

The death warrant expires at midnight Thursday, so if Middleton is not executed by then, the Missouri Supreme Court would have to set a new date. State witnesses and media were told to report back to the prison by 10:30 a.m.

Middleton, 54, would be the sixth man put to death in Missouri this year — only Florida and Texas have performed more executions in 2014 with seven each.

He was convicted of killing Randy "Happy" Hamilton, Stacey Hodge and Alfred Pinegar out of concern that they would tell police about Middleton's methamphetamine dealing. Middleton's girlfriend, Maggie Hodges, is serving life in prison after pleading guilty to second-degree murder in all three cases.

Middleton's attorneys contend that the wrong man was arrested, citing new evidence that included a witness who came forward in February.

"We're looking at a situation where if (Middleton) had zealous representation at trial he likely would have been acquitted," attorney Joseph Perkovich said.

Koster disagreed. "The time for enforcement of Missouri's criminal judgment against John Middleton is long overdue," Koster wrote in a court response on Tuesday.

Middleton was a meth dealer in sparsely-populated northern Missouri in the mid-1990s. After several drug suspects were arrested on June 10, 1995, he allegedly told a friend, "The snitches around here are going to start going down."

A day later, according to court records, Middleton and his girlfriend met Hamilton and Hodge on a gravel road. Prosecutors said Middleton shot and killed them both and put the bodies in the trunk of Hamilton's car.

Pinegar, another meth dealer, was shot in the face on June 23, 1995. His body was found in a field near Bethany.

Middleton allegedly told acquaintances about his exploits. He was charged in all three killings and convicted in 1997.

A witness with another story emerged this year.

In February, a man whose name is not disclosed because he fears retribution signed an affidavit saying that two rival meth dealers drove him to a rural area soon after Pinegar's death and accused him of being a snitch. He said the men showed him Pinegar's body, saying, "There's already been three people killed. You want to be number four?"

The new witness said the two dealers then beat him unconscious with a baseball bat and raped his girlfriend.

Harrison County Sheriff Josh Eckerson agreed to take a new look at the case, but said his investigation found no evidence to back up the new assertions. He is convinced that Middleton was the real killer.

    Missouri Execution on Hold After Late Stay Granted, NYT, 16.7.2014,
    http://www.nytimes.com/aponline/2014/07/15/us/
    ap-us-missouri-execution-middleton.html

Georgia Inmate Is Put to Death

in First U.S. Execution

Since Botched Procedure

JUNE 18, 2014
The New York Times
By ALAN BLINDER

JACKSON, Ga. — Marcus A. Wellons, who was convicted in the 1989 rape and murder of a teenage girl, was executed at a Georgia prison on Tuesday, becoming the first inmate put to death in the United States since a botched execution in Oklahoma seven weeks ago prompted renewed questions about capital punishment.

A spokeswoman for the Georgia Department of Corrections said that the execution began at 10:41 p.m., and that Mr. Wellons was pronounced dead more than an hour later, at 11:56 p.m. Media witnesses described a shorter procedure.

A journalist who witnessed the execution, Rhonda Cook of The Atlanta Journal-Constitution, said a prison official fainted shortly before Mr. Wellons was declared dead. But she said there had been no other abnormalities.

Mr. Wellons apologized for his crime, Ms. Cook said. “I ask and hope that you will find peace with my death,” she quoted him as saying. He later said, “I’m going home to be with Jesus.”

The execution took place well after the scheduled start time of 7 p.m. State officials had delayed the execution of Mr. Wellons, 58, while the United States Supreme Court considered his final appeal.

Before the execution in this city southeast of Atlanta, law enforcement officials in fluorescent vests and riot gear stood guard at the prison’s entrance.

Although the state acknowledged that it used a substantial dose of a single drug — pentobarbital, a barbiturate — from a compounding pharmacy to execute Mr. Wellons, many of the procedures surrounding his death were kept secret. A state law that took effect last summer and was upheld in May by the State Supreme Court allowed the authorities in Georgia to withhold information about the people and companies involved in executions.

That secrecy was a subject of one of Mr. Wellons’s many appeals in the federal and state courts, which continued well into Tuesday. Defense lawyers argued that the confidentiality exposed Mr. Wellons to the threat of a cruel and unusual punishment because they could not evaluate the qualifications of members of the execution team or the safety record of the compounding pharmacy.

But in a 10-page ruling that the federal appellate system allowed to stand, Judge Timothy C. Batten Sr. of the Federal District Court in Atlanta ruled that Georgia had a “compelling need” for secrecy. He also said that the authorities in Georgia had “a strong interest” in ensuring the execution was properly handled.

“Botched executions lead to embarrassment, investigations, bad press and, perhaps worst of all for the individuals involved, the knowledge that they caused an individual needless pain and suffering,” Judge Batten wrote in a ruling issued on Monday.

The execution of Mr. Wellons followed the botched one of Clayton D. Lockett in Oklahoma on April 29, an episode that President Obama described as “deeply troubling” and prompted him to seek a Justice Department review of capital punishment.

Oklahoma officials had planned a second execution for the same night, but postponed it after Mr. Lockett appeared to endure agonizing pain before he died of a heart attack. The state authorities said that Mr. Lockett’s vein had collapsed during the procedure, and an autopsy commissioned by his lawyers and released last week said the execution team had not properly placed an intravenous line. The findings of an autopsy ordered by the state have not been made public.

Two other inmates in the United States were scheduled for execution within a day of Mr. Wellons’s death. A federal appellate court lifted a stay of execution for John Winfield, a Missouri inmate, on Tuesday evening, and the Supreme Court later refused to halt the execution. He was executed early Wednesday, according to The Associated Press.

Florida has an execution scheduled for Wednesday evening, and the courts have so far turned back requests for a stay.

Mr. Wellons’s execution came more than 21 years after a jury in metropolitan Atlanta convicted him of raping and then murdering a 15-year-old neighbor, India Roberts. The night before the attack, Mr. Wellons’s girlfriend ended her relationship with him, and Mr. Wellons became “distraught and unbalanced” in the hours that followed, a federal appeals court later wrote.

Mr. Wellons mounted a defense related to mental illness during his trial, but he did not elicit testimony from any psychological experts during the guilt or innocence phase of the proceedings.

A version of this article appears in print on June 18, 2014,

on page A18 of the New York edition with the headline:

Georgia Inmate Is Put to Death in First U.S. Execution

Since Botched Procedure.

    Georgia Inmate Is Put to Death in First U.S. Execution
    Since Botched Procedure, NYT, 18.6.2014,
    http://www.nytimes.com/2014/06/18/us/
    georgia-inmate-is-put-to-death-in-first-us-execution-since-botched-procedure.html

A Boy’s Execution, 70 Years Later

Seeking Justice for George Stinney

JUNE 15, 2014
The New York Times
By JESSE WEGMAN
The Opinion Pages | Editorial Notebook

On the first page of the official sentencing report for George Stinney Jr., the outline of a boy is visible in a short string of numbers. Age: 14. Height: 5-1. Weight: 95. His complexion is listed as Black, his religion as Baptist, his occupation as None. Next to Build one word is typed: Small.

On March 24, 1944, George was arrested and charged with the murder of two young white girls, Betty June Binnicker and Mary Emma Thames, who were found beaten to death in a ditch in rural Clarendon County, S.C.

One month later he was tried and found guilty. He was executed on June 16, 1944 — the youngest person to be put to death in the 20th century. He was so small that the guards struggled to strap him to the electric chair, and the jolt of electricity knocked the mask from his face.

The sentencing report states that George Stinney was “legally electrocuted.” But to call what happened legal is to say only that this boy’s fate was decided in a courtroom, by a judge and jury, rather than by a throng of angry men with a rope.

In truth, George Stinney was lynched in slow motion.

The execution took place less than three months after his arrest. The lawyer representing the boy had never represented a criminal defendant before, and called no witnesses in his defense. The trial lasted three hours, followed by a 10-minute deliberation by the jury that sentenced him to die.

“I don’t think they cared whether he was guilty or innocent,” said Bryan Stevenson, executive director of the Equal Justice Initiative in Montgomery, Ala., which represents indigent death-penalty defendants in the South. “If they had proof-positive evidence that he was not guilty, I don’t think that would’ve changed anything.”

There is strong evidence that George Stinney was in fact innocent, and that his arrest and prosecution were riddled with unconstitutional errors and misconduct. In January, a coalition of lawyers and civil-rights advocates made these arguments before a South Carolina court to either retry or exonerate him, 70 years after his execution.

According to one of George’s sisters, Amie Ruffner, she and George were together all afternoon on the day of the murders, and had encountered the two girls only briefly. But the authorities never spoke to Amie or any other member of the Stinney family — they had been run out of town on the day of George’s arrest.

“My father came home and started packing up stuff to go,” said George’s other sister, Kathrine Robinson, who was 10 at the time. “We didn’t know what was going on. All I know is George was not there.” She never saw him again.

At trial, the sole piece of incriminating evidence was the word of the local police chief, who testified that George “made a confession and told me where a piece of iron about 15 inches long were.” No warrant had been issued for his arrest, and no lawyer was at his questioning.

Not that George Stinney’s court-appointed lawyer did anything to help. The lawyer, a tax commissioner, failed, among other things, to challenge the makeup of the jury, which was all white in a county that was nearly three-quarters black. He failed to cross-examine the prosecution’s witnesses, or to call Amie or any other witness who could have confirmed George’s alibi. And he failed to appeal the death sentence.

Six decades after the execution of George Stinney, the Supreme Court categorically banned the death penalty for minors. But elements of the case still echo today. Some states are trying to short-circuit the capital appeals process so that executions can happen more quickly.

“That need to punish in a lethal way still animates so much of what we’re doing in this country,” Mr. Stevenson said. The Third Circuit Court in Clarendon County has yet to rule on the case.

A version of this editorial appears in print on June 16, 2014,

on page A18 of the New York edition with the headline:

A Boy’s Execution, 70 years later.

    A Boy’s Execution, 70 Years Later, NYT, 15.6.2014,
    http://www.nytimes.com/2014/06/16/opinion/seeking-justice-for-george-stinney.html

Court Rules

Against Florida I.Q. Rule

in Death Cases

MAY 27, 2014
The New York Times
By ADAM LIPTAK

WASHINGTON — The Supreme Court on Tuesday ruled that Florida had adopted too rigid a cutoff in deciding who is eligible to be spared the death penalty on account of intellectual disabilities.

“Florida seeks to execute a man because he scored a 71 instead of 70 on an I.Q. test,” Justice Anthony M. Kennedy wrote for the majority in a 5-to-4 decision. He was joined by court’s four more liberal members.

When the court barred the execution of people with mental disabilities in 2002 in Atkins v. Virginia, it largely let the states determine who qualified. Tuesday’s decision, Justice Samuel A. Alito Jr. wrote for the four dissenters, represented a “sea change” in the court’s approach.

Justice Kennedy responded that closer supervision of the states was warranted given the nature of the punishment.

“The death penalty is the gravest sentence our society may impose,” he wrote. “Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.”

The case, Hall v. Florida, No. 12-10882, arose from the 1978 murder of Karol Hurst, who was 21 and seven months pregnant when Freddie L. Hall and an accomplice forced her into her car in a supermarket parking lot. She was found in a wooded area, where she had been beaten, sexually assaulted and shot.

There was significant evidence in school and court records that Mr. Hall was “mentally retarded,” the term that was used at the time. Before the Supreme Court’s decision in the Atkins case, a trial judge found that there was “substantial evidence” that Mr. Hall “has been mentally retarded his entire life.”

After the Atkins decision, Mr. Hall challenged his death sentence, relying in part on the earlier state court determinations.

The Atkins decision gave states only general guidance. It said a finding of mental retardation required proof of three things: “subaverage intellectual functioning,” meaning low I.Q. scores; a lack of fundamental social and practical skills; and the presence of both conditions before age 18. The court said I.Q. scores under “approximately 70” typically indicate retardation

A Florida law enacted not long before the Atkins decision created what Mr. Hall’s lawyers called an “inflexible bright-line cutoff” requiring proof of an I.Q. of 70 or below. In 2012, the Florida Supreme Court ruled that Mr. Hall was eligible to be executed because his I.Q. had been measured at various times as 71, 73 and 80.

That approach, Justice Kennedy wrote, had at least two flaws. One was that it failed to take account of standard errors of measurement. “An individual’s score is best understood as a range of scores on either side of the recorded scores,” he wrote.

The second problem, he said, was that a rigid cutoff excludes consideration of other evidence. “Intellectual disability is a condition, not a number,” he wrote.

Justice Alito protested that this changed the rules announced in Atkins, which required both low scores and more practical proof. He was also harshly critical of the court’s reliance on the views of medical experts, saying the majority had overruled part of the Atkins decision “based largely on the positions adopted by private professional organizations.”

The Supreme Court assesses whether given practices are barred by the Eighth Amendment’s prohibition of cruel and unusual punishment by considering, in the words of a 1958 decision, the “evolving standards of decency that mark the progress of a maturing society.” In doing so, Justice Alito said, it had always “meant the standards of American society as a whole.”

“Now, however,” he wrote, “the court strikes down a state law based on the evolving standards of professional societies, most notably the American Psychiatric Association.”

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas joined the dissent.

The majority and dissenting opinions clashed over statistics and over how many states had laws similar to Florida’s. By Justice Kennedy’s count, Kentucky and Virginia have adopted a fixed cutoff of 70 by statute, and Alabama by court decision. Five other states, he said, have laws open to the same interpretation.

Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion. In earlier decisions limiting the use of the death penalty and other harsh punishments under the Eighth Amendment, Justice Kennedy has often joined the court’s liberal wing. He wrote several of those decisions, sometimes using the soaring language that marked his majority opinion on Tuesday.

“The Eighth Amendment’s protection of dignity,” he wrote, “reflects the nation we have been, the nation we are, and the nation we aspire to be. This is to affirm that the nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force.”

The court returned Mr. Hall’s case to the lower courts for a fresh assessment of his condition. “Freddie Lee Hall may or may not be intellectually disabled,” Justice Kennedy wrote, “but the law requires that he have the opportunity to present evidence of his intellectual disability, including deficits in adaptive functioning over his lifetime.”

    Court Rules Against Florida I.Q. Rule in Death Cases,
    NYT, 27.5.2014,
    http://www.nytimes.com/2014/05/28/us/
    court-rules-against-florida-iq-rule-in-death-cases.html

A Specter of Past Executions

Resurfaces in Tennessee

MAY 23, 2014
The New York Times

A man who had shot to death his four young children, for reasons known only to him, sat in the wooden chair reserved for him at the Riverbend Maximum Security Institution in Nashville. His body was strapped tight and his head was freshly shaved, to enhance the conductivity.

I could see him, but he could not see me. We sat perhaps 30 feet apart, on opposite sides of a one-way glass partition that separated those who would walk away that September night in 2007 from one man who would not.

The electric chair had not been used in Tennessee since 1960, a reflection of a nation’s discomfort with a procedure that had come to be seen as gruesome, if not cruel. But the condemned man, Daryl Holton, 45, had been given a choice between lethal injection and electrocution. To the dismay of prison officials, he had chosen the latter — again, for reasons known only to him.

After he imparted some final, cryptic words, his scalp was dampened with salted water that dripped down his impassive face and onto his white cotton shirt. A leather cap lined with copper mesh was placed on his head. A power cable was attached to that cap.

Then a small black shroud was affixed to that leather cap, covering his face. I still do not know whether this was to protect a last shred of his dignity, or to keep us witnesses from seeing the face of a state-administered death.

Soon, 1,750 volts shot through the inmate’s body; it lurched and dropped, as the shroud faintly fluttered. Another jolt followed. Then flutter-free stillness.

For a generation now, the electric chair, dogged by gruesome accounts of botched electrocutions, has been generally displaced by lethal injection as this country’s preferred form of execution. But the recent scarcity of lethal-injection drugs has prompted some death-row states, including Utah and Wyoming, to consider retro-style solutions. Firing squads, for example.

But Tennessee made the first concrete move this week by effectively dusting off its electric chair, which has not been used since the execution of Mr. Holton, and which is said to contain oaken pieces dating to the gallows.

On Thursday, Tennessee’s Republican governor, Bill Haslam, signed into law a bill that allows for electrocution if the drugs for lethal injection are not available. The governor has not elaborated on his reasoning. But his spokesman, David Smith, said in an email that the bill had passed overwhelmingly in the Tennessee General Assembly, with the legislature feeling strongly “that the state should have an alternative option if lethal injection was not available.”

Electricity, by contrast, is never in short supply.

Tennessee’s decision is breathtakingly regressive, according to Deborah W. Denno, a professor at Fordham University School of Law and a national expert on capital punishment. States have historically gone to new methods of execution, she said, from hanging to electrocution, to lethal gas, to lethal injection.

“But they’re going backwards,” Ms. Denno said of Tennessee. “They’re going back to using a method of execution that was basically rejected because it was so problematic. That’s never happened before.”

The first execution by electrocution was of a convicted murderer, William Kemmler, in New York in 1890. News accounts described the singeing of hair, the charring of flesh where electrodes had been attached. It was botched.

Still, for generations afterward, the electric chair loomed in the public consciousness as the ultimate deterrent, so powerful that lights dimmed when the switch was thrown. The Chair: a piece of furniture designed without comfort in mind, and nicknamed “Old Sparky” even by many of those who had to take a seat.

But society grew uneasy with The Chair. When the method of lethal injection was introduced in the late 1970s, states began rushing to this death-penalty alternative — in part because it was considered to be cheaper and more humane.

The troublesome electrocutions continued, with flames shooting out of one man’s head in Florida, and blood pouring from another’s eyes and nose in Virginia.

In 1999, Florida’s electrocution of Allen Lee Davis — convicted of murdering a pregnant woman and her two young daughters — caused blood to pour from his face and burned his head and body. When the United States Supreme Court made plans to explore the case, Florida quickly passed a law to allow death-row inmates to opt for lethal injection.

And, in 2008, the Supreme Court of Nebraska — the last state in which electrocution was the sole form of execution — declared the electric chair to be cruel and unusual punishment. Writing for the majority, Justice William M. Connolly said, “The evidence shows that electrocution inflicts intense pain and agonizing suffering.”

Electrocutions, by choice of the condemned person, have continued in a few states. Since Mr. Holton’s death in 2007, there have been four: the last in January 2013, in Virginia.

But in recent months, lethal injections have fallen under increasing scrutiny. States have had difficulty obtaining the necessary drugs — a scarcity created in part by European drug manufacturers that are declining to have their medications oil the apparatus of death.

Just last month, Oklahoma halted a lethal injection in mid-execution when the condemned man, a convicted killer named Clayton D. Lockett, began writhing in pain. He died a short time later.

Even against this disturbing backdrop, Tennessee’s decision to revert to the electric chair seems regressive, given the practice’s long, ugly history.

“This is a method that the states themselves got away from, and I think for good reasons,” said Richard C. Dieter, the executive director of the Death Penalty Information Center. “They were seen as barbaric, and this could lead to more censure, more public discomfort, more legal challenges.”

“The attempt is to keep executions going,” he added. “But it might have a reverse effect.”

On that long-ago night in Nashville, procedures were followed to the script of a 68-page document called “Execution Procedures for Electrocution.”

The blinds to the witness room dropped. The power cable was disconnected. A physician confirmed the death. And a disembodied voice announced that the sentence had been carried out, so please exit.

The witnesses filed out into the hazy, early-morning darkness. We gathered in a scrum to compare notes on what we had seen and, in my case, not yet comprehended.

A version of this article appears in print on May 24, 2014,

on page A13 of the New York edition with the headline:

A Specter of Past Executions Resurfaces in Tennessee.

    A Specter of Past Executions Resurfaces in Tennessee,
    NYT, 23.5.2014,
    http://www.nytimes.com/2014/05/24/us/
    a-specter-of-past-executions-resurfaces-in-tennessee.html

Alito Orders

Suspension of Execution

in Missouri

MAY 20, 2014
The New York Times
By THE ASSOCIATED PRESS

BONNE TERRE, Mo. — Justice Samuel A. Alito Jr. of the United States Supreme Court late Tuesday issued an order halting the planned execution of a Missouri inmate.

Justice Alito’s order did not offer an explanation of why he had suspended the scheduled execution of Russell Bucklew, but it indicated that he or the Supreme Court would have more to say about the matter.

The order was issued shortly after the full United States Court of Appeals for the Eighth Circuit lifted a stay of execution granted hours earlier by a three-judge panel of that court. The panel had issued the stay over concerns that a rare medical condition Mr. Bucklew has could cause him undue suffering during the lethal injection.

Mr. Bucklew was scheduled to die by lethal injection at 12:01 a.m. Wednesday.

The 2-to-1 ruling by the panel said Mr. Bucklew’s “unrebutted medical evidence demonstrates the requisite sufficient likelihood of unnecessary pain and suffering beyond the constitutionally permissible amount inherent in all executions.”

The execution would have been the first in the nation after a botched lethal injection in Oklahoma last month left a condemned man writhing on a gurney before he died of a heart attack more than 40 minutes after the procedure began.

Mr. Bucklew, 46, has a congenital condition known as cavernous hemangioma that causes weakened and malformed blood vessels, as well as tumors in his nose and throat.

Mr. Bucklew told The Associated Press by telephone last week that he was scared of what might happen.

“The state does not have the right to inflict extreme, torturous pain during an execution,” said one of his lawyers, Cheryl Pilate. “We still hope that Mr. Bucklew’s grave medical condition and compromised airway will persuade the governor or a court to step back from this extremely risky execution.”

A version of this article appears in print on May 21, 2014,

on page A20 of the New York edition with the headline:

Alito Orders Suspension of Execution in Missouri.

    Alito Orders Suspension of Execution in Missouri, NYT, 20.5.2014,
    http://www.nytimes.com/2014/05/21/us/
    citing-illness-court-blocks-execution-in-missouri.html

Confronted on Execution,

Texas Proudly Says It Kills Efficiently

 

MAY 12, 2014
The New York Times
By MANNY FERNANDEZ
and JOHN SCHWARTZ

HUNTSVILLE, Tex. — If Texas executes Robert James Campbell as planned on Tuesday, for raping and murdering a woman, it will be the nation’s first execution since Oklahoma’s bungled attempt at lethal injection two weeks ago left a convicted murderer writhing and moaning before he died.

Lawyers for Mr. Campbell are trying to use the Oklahoma debacle to stop the execution here. But many in this state and in this East Texas town north of Houston, where hundreds have been executed in the nation’s busiest death chamber, like to say they do things right.

For two years now, Texas has used a single drug, the barbiturate pentobarbital, instead of the three-drug regimen used in neighboring Oklahoma. Prison administrators from other states often travel here to learn how Texas performs lethal injections and to observe executions. Texas officials have provided guidance and, on at least a few occasions, carried out executions for other states.

Even the protesters and television cameras that used to accompany executions here have, in most cases, dissipated. “It’s kind of business as usual,” said Tommy Oates, 62, a longtime resident who was eating lunch last week at McKenzie’s Barbeque, about one mile from the prison known as the Walls Unit. “That sounds cold, I know. But they’re not in prison for singing too loud at church.”

More than any other place in the United States, Huntsville is the capital of capital punishment. All of the 515 men and women Texas has executed since 1982 by lethal injection and all of the 361 inmates it electrocuted from 1924 to 1964 were killed here in the same prison in the same town, at the red-brick Walls Unit. Texas accounts for nearly 40 percent of the nation’s executions.

So many people have been put to death and so often — in January 2000, seven people were executed in 15 days — that people here take little notice.

Gov. Rick Perry is a staunch defender of the state’s record, saying that “in Texas for a substantially long period of time, our citizens have decided that if you kill our children, if you kill our police officers, for those very heinous crimes, that the appropriate punishment is the death penalty.” On NBC’s “Meet the Press” recently, he added, “I’m confident that the way that the executions are taken care of in the state of Texas are appropriate.”

Some of those who condemn the state grudgingly agree that it kills with efficiency — from initial slumber into cessation of breathing — even though a prisoner who died of lethal injection in April was reported to have said, “It does kind of burn.”

“Texas’s death chamber is a well-honed machine,” said Robert Perkinson, the author of “Texas Tough: The Rise of America’s Prison Empire,” a critical history of the Texas prison system.

David R. Dow, a law professor at the University of Houston who has represented more than 100 death row inmates during their appeals, explained the state’s record of seeming success simply. “When you do something a lot, you get good at it,” he said, adding archly, “I think Texas probably does it as well as Iran.”
 

‘Almost Second Nature’

In Huntsville, a city of 40,000 that cuts through pine forests along Interstate 45, the Walls prison sits like a fortress in the heart of town, roughly half a mile from City Hall, the county courthouse and the campus of Sam Houston State University. Huntsville is part college town, part prison town — there are seven state prisons, including Walls, in the Huntsville area, as well as the headquarters of the state prison agency, the Texas Department of Criminal Justice.

But many residents do not dwell on the pace of executions. “Unless the high-profile cases are going on, you don’t really know until you read about it the next day in the paper or you hear it on the news that an execution was going on,” said Heike Ness, 48, an insurance agent.

Some of those who work in the system are proud of their expertise. Jim Willett, who was the warden at the Walls prison from 1998 to 2001, oversaw 89 executions. Staff members who prepare prisoners for execution are trained and skilled, he said. The “tie-down team” that straps the prisoners onto the table “can take that man back there and put those straps on perfectly and easily in 30 seconds,” he said. “This may sound odd to an outsider, but they take pride in what they do.” He added, “They’ve done it so often that it’s almost second nature to them.”

Mr. Willett, now retired from the prison, is director of the Texas Prison Museum, about three miles from the Walls prison, which celebrates the institution and, to an extent, its history of execution. It received 31,280 visitors last year.

It was built to resemble a state prison and has a replica guard tower in one corner of the building. The electric chair that was used until 1964 is there, displayed behind a protective glass barrier with a sign that reads, “Attention: Please do not enter past the rope or attempt to touch ‘Ol’ Sparky.’ An alarm will sound if you do try to enter.”

Mr. Willett said he was not haunted by his time supervising executions, but he was touched by it and drained by it.

Since 1976, Texas has carried out more executions than six other states combined — Alabama, Florida, Georgia, Missouri, Oklahoma and Virginia — all of which have some of the busiest death chambers.
 

A Question of Methodology

On Monday, an appeal by Mr. Campbell’s lawyers to stop the execution reached the United States Court of Appeals for the Fifth Circuit in New Orleans. The lawyers cited the “horrifically botched” execution in Oklahoma, where Clayton D. Lockett writhed and moaned on the table until prison officials halted the procedure. Mr. Lockett died 43 minutes after the delivery of drugs into a vein in his groin began. Oklahoma has declared a six-month stay of the next execution.

The lawyers focused on efforts by states to restrict information about the source of lethal drugs, arguing that “secrecy” is the “common denominator” between Oklahoma and Texas.

Last Friday, Judge Keith P. Ellison of the United States District Court for the Southern District of Texas denied Mr. Campbell’s request for an injunction because of prior rulings, but he urged the Fifth Circuit “to reconsider its jurisprudence that seems to shield crucial elements of the execution process from open inquiry.”

Greg Abbott, the Texas attorney general, has opposed the request to stop the execution, arguing in a brief on Monday that Texas’ execution protocol is “vastly different” from Oklahoma’s, and that pentobarbital has been used successfully in 33 executions in Texas. He wrote that testing showed the batch of the drug to be used, which came from a compounding pharmacy, was potent and “free of contaminants.”

Texas has declined to disclose how its drug is tested for potency and purity.

State officials say that Texas is not like Oklahoma partly because it uses a single drug, the barbiturate pentobarbital, instead of the three-drug series employed north of the Red River. This approach, along with other protections for prisoners in the process, was favored by a new report on the death penalty from The Constitution Project, a group that includes supporters and opponents of capital punishment.

Maurie Levin, a lawyer who has worked on death penalty cases and who is one of Mr. Campbell’s lawyers, said in an interview that “Texas doesn’t have some kind of magic touch.”

She added, “There’s nothing that says we can’t trust Oklahoma, but we can trust Texas.” The risks of mistakes, she said, “are exponentially greater when executions are carried out in secret.” In fact, she noted, Oklahoma’s publicly available protocol is far more detailed than the one provided upon request from Texas.

A Texas execution in April has raised questions. Jose Villegas, 39, who was convicted of fatally stabbing his ex-girlfriend, her young son and her mother, reportedly complained of a burning sensation as a lethal injection began to take effect. Texas argued that the Supreme Court has ruled that the Constitution “does not require the elimination of all risk of pain,” only that the method not be “sure or very likely to cause serious illness and needless suffering.”

Opponents of the death penalty question Texas’ reputation. Austin D. Sarat, an Amherst College professor who has studied the death penalty, put the state’s rate of mishaps at about 4 percent, slightly higher than Oklahoma’s, if difficulty in finding a vein is included in the calculation.

One of the botched executions was that of Raymond Landry Sr. in December 1988. Two minutes after prison officials began administering the drugs, a tube attached to a needle inside Mr. Landry’s right arm began leaking and shooting the drugs across the death chamber toward the witness room. The warden then pulled a curtain to block the view. When the curtain reopened 14 minutes later after prison officials had apparently reinserted the needle, Mr. Landry was motionless with his eyes half-closed, according to The Associated Press. Three minutes later, two doctors arrived and declared him dead.

Texas’ 10-page execution protocol requires each “drug team” to have “at least one medically trained individual,” whether a certified medical assistant, emergency medical technician, phlebotomist, paramedic or military corpsman.

Rick Halperin, the director of the Embrey Human Rights Program at Southern Methodist University in Dallas and the former president of the Texas Coalition to Abolish the Death Penalty, said he is tormented by the attitudes in Texas. “If you do raise the questions as to the morality of this,” he said, “you are immediately painted as if you are unsympathetic to the plight of the families who lost loved ones and sympathetic to violent felons.”
 

Shifting Views

Support for the death penalty in Texas runs higher than in the rest of the country; in a May 2012 University of Texas-Texas Tribune online poll, 53 percent of Texas voters said they supported the death penalty for murder over life imprisonment without the chance for parole. A Quinnipiac University telephone poll conducted in May 2013 found that 48 percent of American voters favored the death penalty over a life term for people convicted of murder.

In the late 1990s, 40 to 50 death sentences a year were being handed down in Texas; since 2010 the number has fallen below 10 a year, according to the Death Penalty Information Center, a group that opposes the death penalty.

Part of the reluctance to sentence people to death springs from the more than 140 high-profile exonerations in the state in recent years, including a dozen death row inmates; there have also been questions about the guilt of some executed prisoners. The State Legislature allowed juries to impose sentences of life without parole for capital crimes in 2005.

One person who has no qualms about seeing Mr. Campbell die is Israel Santana, a cousin of Alexandra Rendon, Mr. Campbell’s victim. Mr. Santana is a criminal defense lawyer in Houston and has defended people on capital murder charges.

But not in this case. In 1991, Mr. Campbell and his co-defendant, Leroy Lewis, kidnapped Ms. Rendon, raped her, then took her out into a field and told her to run for her life, the state said. Mr. Campbell tried to shoot her in the head but missed; he then shot her in the back and left her for dead.

“She had her whole future ahead of her,” Mr. Santana said, “and this guy took it away without a second thought.”

He plans to drive to Huntsville on Tuesday to be a witness at the execution. “I’m a deacon in my church,” he said. “I’m taught I must forgive.” Still, he allowed, “I will not lie and say there’s not a battle within me.”

He added, “I’m sure in my heart, before the needle is put in, I’ll forgive him.”

A version of this article appears in print on May 13, 2014,

on page A1 of the New York edition with the headline:

Confronted on Execution, Texas Proudly Says

It Kills Efficiently.

    Confronted on Execution, Texas Proudly Says It Kills Efficiently,
    NYT, 12.5.2014,
    http://www.nytimes.com/2014/05/13/us/
    facing-challenge-to-execution-texas-calls-its-process-the-gold-standard.html

Panel Urges One-Drug Lethal Injections

MAY 7, 2014
The New York Times
By ERIK ECKHOLM

Days after President Obama said a bungled execution in Oklahoma was “deeply disturbing” and called for a review of how fairly the death penalty was used, a bipartisan panel of legal experts has urged sweeping changes in what it calls the “deeply flawed” administration of capital punishment.

“I support the death penalty for guilty people but not for innocent people,” said a leader of the panel, Mark White, a Democrat who oversaw 19 executions as the governor of Texas from 1983 to 1987. “We run the real risk today of executing innocent people.”

The committee, which finished its report before the Oklahoma execution on April 29 and was scheduled to release it on Wednesday, is calling on states to stop using the troubled three-drug sequence commonly used for lethal injections. It said that approach carried an unacceptable risk of causing pain and suffering, as it apparently did in Oklahoma last week when an insufficiently sedated prisoner writhed and mumbled for several minutes before dying of heart failure.

Instead, the report says, executions should be carried out with large doses of a single anesthetic or barbiturate, the same method used in doctor-assisted suicides in states like Oregon.

Many medical experts agree, but an acute shortage of traditional barbiturates, mainly because manufacturers refuse to provide them for executions, has led states to scramble for secret suppliers and try out new drug combinations. Mr. White said in an interview that it was up to the states to find a humane method.

The report, “Irreversible Error,” was written by experts assembled by The Constitution Project, a research and advocacy group in Washington. The panel included supporters and foes of capital punishment and was led by Mr. White, Gerald Kogan, a former chief justice of the Florida Supreme Court, and Beth A. Wilkinson, a former federal prosecutor. It included former state attorneys general, judges and corrections officials.

Capital punishment remains available in 32 states, although the annual number of executions is in decline.

In another sign of fallout from Oklahoma’s botched execution last week, lawyers for Robert James Campbell, who is scheduled to be executed on May 13 in Texas, filed a request on Tuesday for a delay, based on what they called the “unimaginably torturous conduct” in the Oklahoma execution last week of Clayton D. Lockett.

Though Texas will use one drug, in line with the Constitution Project panel’s recommendation, it has kept the source secret, leading to what Mr. Campbell’s lawyers called “a substantial risk that Mr. Campbell’s execution could be as horrific as Mr. Lockett’s.”

Most of the new report focused on what the group called ongoing procedural deficiencies in the imposition of death sentences.

It called for relaxing constraints on the review of exculpatory evidence after a person has already been convicted, for federal standards for forensic laboratories and for universal videotaping of interrogations to help weed out false confessions.

It devoted considerable attention to what it called the inconsistent application of a 2002 Supreme Court ruling that the death penalty should not be applied to intellectually disabled defendants.

The group called for a presumption, subject to challenge, that a person with an IQ below 75 should receive the exemption. It noted that Florida, one of the leading states for executions, adopted a strict IQ cutoff of 70, “even if all examining experts conclude, using the clinical definition, that the person is in fact intellectually disabled.”

The committee also cited the case in Georgia of Warren Hill, who was sentenced to death for killing his cellmate. A court held that he had been shown to be disabled by a “preponderance of evidence” but not “beyond a reasonable doubt,” as required by state rules that the panel called too stringent.

The state plan to proceed with Mr. Hill’s execution has been delayed by a challenge to the state law that calls the source of execution drugs a “state secret.”

The report said: “Lack of adequate counsel to represent capital defendants is likely the gravest of the problems that render the death penalty, as currently administered, arbitrary, unfair and fraught with serious error.”

States including Alabama, Pennsylvania and Texas, it said, often compensate capital defense lawyers so poorly that a proper defense is “nearly impossible.”

States should analyze data for signs of racial disparities in capital punishment, one of the concerns raised by President Obama, the report said.

The group recognized a dilemma in its call for the involvement of better-trained doctors and other medical technicians in the administering of lethal drugs. Most doctors and nurses abide by the American Medical Association’s policy forbidding participation in executions.

But the risks of mistakes without well-trained personnel are so great, the panel said, that states should delay executions unless trained professionals are available.

A death penalty advocacy group, the Criminal Justice Legal Foundation, issued a statement criticizing the Constitution Project as one-sided and its report as failing to note that the main problem with capital punishment was that the appeals process delays it for far too long.

A version of this article appears in print on May 7, 2014,

on page A17 of the New York edition with the headline:

Experts Urge One-Drug Lethal Injections.

    Panel Urges One-Drug Lethal Injections, NYT, 7.5.2014,
    http://www.nytimes.com/2014/05/07/us/panel-urges-one-drug-lethal-injections.html

Obama Orders

Policy Review on Executions

MAY 2, 2014
The New York Times
By PETER BAKER

WASHINGTON — President Obama declared this week’s botched execution in Oklahoma “deeply disturbing” and directed the attorney general on Friday to review how the death penalty is applied in the United States at a time when it has become increasingly debated.

Weighing in on a polarizing issue that he rarely discusses, Mr. Obama said the Oklahoma episode, in which a prisoner remained groaning in pain after sedatives were apparently not fully delivered, underscored concerns with capital punishment as it is carried out in America today. While reiterating his support for the death penalty in certain cases, Mr. Obama said Americans should “ask ourselves some difficult and profound questions” about its use.

Within hours, the Justice Department outlined a relatively narrow review focused on how executions are carried out rather assessing the entire system. But given Mr. Obama’s broader comments, supporters and opponents wondered whether he might be foreshadowing an eventual shift in position by the time he leaves office, much as he dropped his opposition to same-sex marriage in 2012.

“In the application of the death penalty in this country, we have seen significant problems — racial bias, uneven application of the death penalty, you know, situations in which there were individuals on death row who later on were discovered to have been innocent because of exculpatory evidence,” Mr. Obama told reporters. “And all these, I think, do raise significant questions about how the death penalty is being applied.”

Whether Mr. Obama’s concerns lead to policy proposals remained far from certain, but the administration review comes at a time when the use of the death penalty has begun to recede in the United States. The number of executions has fallen by half since its modern peak in 2000, while a half-dozen states have abolished capital punishment over the last seven years and others have imposed moratoriums or are exploring legislation to repeal it.

The federal government has effectively imposed its own moratorium on carrying out executions since 2010 while trying to figure out issues surrounding the drug cocktail commonly used for lethal injection. The Justice Department said Friday that it would build on that assessment.

“At the president’s direction, the department will expand this review to include a survey of state-level protocols and related policy issues,” said Brian Fallon, a department spokesman.

For Democrats, opposition to the death penalty has been considered politically untenable at the national level ever since Michael S. Dukakis cost himself support with a clinical answer during a 1988 presidential debate about whether he would support it if his wife were raped and killed.

But critics argue that the times have changed with reports of racial disparity and DNA evidence exonerating some on death row. Sixty percent of the American public still backs the death penalty for those convicted of murder, but support has fallen to the lowest level in more than 40 years, according to Gallup.

For his part, Mr. Obama has been more willing to address issues like racial disparity and other problems in the criminal justice system since his re-election. He is currently planning to use his clemency powers to release hundreds and perhaps even thousands of drug convicts serving long sentences for less serious infractions.

“I suspect this being his last term, there could be ulterior motives to weaken the death penalty system,” said David B. Muhlhausen, a criminal justice researcher at the conservative Heritage Foundation. “People who believe in the death penalty should be very concerned about this.”

For now, Mr. Obama said his position had not changed.

“The individual who was subject to the death penalty had committed heinous crimes, terrible crimes,” he said of the Oklahoma inmate. “And I’ve said in the past that there are certain circumstances in which a crime is so terrible that the application of the death penalty may be appropriate — mass killings, the killings of children.”

Oklahoma authorities were trying to carry out two executions on Tuesday night when the first one went awry. Clayton D. Lockett, convicted of the murder of a 19-year-old woman whom he shot and buried alive, started writhing in pain as he received the lethal injection drugs, and died later. The second execution was called off.

Mr. Lockett’s ordeal prompted a lawyer for a Missouri death row inmate to ask state corrections officials to videotape her client’s execution scheduled for this month to record any suffering.

Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty, applauded Mr. Obama’s resolve to investigate concerns about Oklahoma and the use of capital punishment more generally.

“The significant thing is the president as a person who supports the death penalty is expressing these concerns,” she said. “The president is not alone among those who support the death penalty who say this execution crossed the line and has other concerns.”

Mr. Obama has long said he supports capital punishment for the most shocking crimes, but he has also questioned its effectiveness. In his book “The Audacity of Hope,” he wrote that “the evidence tells me that the death penalty does little to deter crime.” After student and professional journalists in his home state of Illinois came up with evidence of an innocent man on death row and other problems with the system, Mr. Obama, as a state senator, decided to take on the issue.

He worked closely with disparate sides in the long-running debate, including prosecutors, the police and the American Civil Liberties Union, to push through legislation requiring that interrogations in homicide cases be electronically taped to cut down on false confessions. He also opposed adding more crimes to the list of those eligible for death sentences.

But Mr. Obama has not sought more expansive restrictions at either the state or federal level. During his 2008 campaign for president, he disagreed with a Supreme Court decision ruling the death penalty unconstitutional in the case of a child who was raped but not murdered.

The attorney general, Eric H. Holder Jr., whom he has now tasked to review the matter, though, has been an open opponent of capital punishment. During his confirmation hearings, Mr. Holder said he disagreed with the death penalty personally but would enforce the law. He has approved seeking it in fewer than 5 percent of cases where it was eligible, according to the Justice Department, but did sign off on pursuing death sentences in cases such as that of Dzhokhar Tsarnaev, the accused Boston Marathon bomber.

Mr. Holder has expressed concern about the disparity of those sitting on death row, and those who know him said he would be eager to have a chance to conduct a broader review of the penalty.

What action the federal government could take on capital punishment is up for debate since most death sentences are applied at the state level. But many state corrections officials follow federal protocols for executions, and some advocates on both sides said Washington could set a tone for the rest of the nation.

In recent years, New York, New Jersey, New Mexico, Illinois, Connecticut and Maryland have abolished the death penalty. The governor of Washington State declared in February that no executions would take place while he remained in office, following a similar move by the governor of Oregon in 2011. Last year, Colorado’s governor issued an indefinite reprieve in the only case on his watch.

A version of this article appears in print on May 3, 2014,

on page A1 of the New York edition with the headline:

Obama Orders Policy Review on Executions.

    Obama Orders Policy Review on Executions, NYT, 2.5.2014,
    http://www.nytimes.com/2014/05/03/us/
    flawed-oklahoma-execution-deeply-troubling-obama-says.html

Three-Drug Protocol Persists

for Lethal Injections,

Despite Ease of Using One

MAY 1, 2014
The New York Times
By DENISE GRADY

Terminally ill people who want to die can take drugs to end their lives peacefully. Ailing pets are put down humanely every day. Clearly, the technology exists to bring about a quick and painless death.

Why, then, do executions by lethal injection sometimes become troubling spectacles? The death in Oklahoma on Tuesday of Clayton D. Lockett, amid struggling and apparent pain, was not the country’s first bungled execution.

A number of factors have conspired to produce painful scenes in the death chamber, experts say: an ill-conceived drug formulation clung to by many states; the lack of medical expertise among people planning and carrying out executions; and, more recently, drug shortages that have pushed prison officials to improvise lethal cocktails and buy drugs from loosely regulated compounding pharmacies.

According to prison officials in Oklahoma, an intravenous line inserted into Mr. Lockett’s groin did not work properly and interfered with the flow of drugs. But doctors say the drugs themselves, three used in a certain sequence, are a deeper part of the problem, because two of them cause suffering if they are administered improperly. And those two drugs are not necessary.

Physicians have long known that large doses of single drugs — certain sedatives or anesthetics — can take a life painlessly, and with far less distress than the three-drug cocktail causes if the injection is botched.

Since 2010, more death-penalty states — Oklahoma not among them — have moved to use single drugs for lethal injection. Even critics of the death penalty say most of those executions have gone more smoothly than ones involving multiple drugs.

Barbiturates, including sodium thiopental and pentobarbital, infused into the bloodstream can quickly make a person go deeply unconscious, stop breathing and die. Dr. Mark J. Heath, an anesthesiologist at Columbia University and an expert on lethal injection, said that high doses of pentobarbital were routinely used to euthanize animals, from pet rabbits to beached whales.

Barbiturates alone have been used in 71 executions, in Arizona, Georgia, Idaho, Missouri, Ohio, South Dakota, Texas and Washington, said Jennifer Moreno, a lawyer with the Death Penalty Clinic at Berkeley Law School.

Even though Dr. Heath opposes lethal injection, he said, “I have not seen a single complaint, not an unhappy warden or family or anybody, from the single-drug barbiturate approach.”

But he said that switching to a single drug would not fix all the problems with lethal injection because intravenous lines would still be needed. Starting them can be difficult and requires medical skill.

The three-drug combination used on Mr. Lockett was modeled on a plan first developed in Oklahoma in 1977 by Dr. Jay Chapman, then the state’s chief medical examiner. State lawmakers had asked him if there was a more humane way to execute people than methods like electrocution and the firing squad.

Dr. Chapman proposed a large dose of a barbiturate, sodium thiopental, followed by two other drugs: one to cause paralysis and halt breathing, and the other, potassium chloride, to stop the heart. His recipe was adopted by nearly every death-penalty state.

In later years, Dr. Chapman said that if he had it to do over again, he would probably recommend using just a barbiturate, and omit the paralyzing and heart-stopping drugs. But his protocol has lingered.

The potential pitfall in the original formula is this: If the barbiturate is not fully effective, perhaps because the dose is too low or the needle misplaced, the inmate may still be able to feel pain. If the paralyzing agent is then injected, the person will feel suffocated — but will be unable to move or cry out, and may even look peaceful. The potassium chloride will then cause an intense burning sensation, muscle cramping and chest pain.

“The second two drugs are completely unnecessary and only have a prospect of causing pain,” Dr. Heath said.

The odds of the drugs’ being administered incorrectly may have been higher than Dr. Chapman anticipated because many lethal injections have been performed by people with little or no medical expertise. Though some doctors participate, many have distanced themselves, seeing execution as a betrayal of their oath to do no harm. The American Medical Association and other professional groups say doctors should not take part in executions, except to certify death after someone else has pronounced it.

Arthur L. Caplan, director of medical ethics at the N.Y.U. Langone Medical Center, said medicine had been “pulling away” from capital punishment as it had become a “medical pariah issue.” What is left, he said, is a hodgepodge of prison execution workers whose “medical knowledge is iffy, and when you take away their traditional supply of drugs, they are out at sea in a tiny rowboat, not sure what to do.”

Ms. Moreno said it was far from clear that medical professionals were present at all in the planning leading up to executions. She said that a handful of states — including California, Kentucky and Nebraska — had to determine the rules for execution procedures, including drug cocktails, in public, but the vast majority of states did not, often leaving decisions about which drugs to use up to prison wardens who have no medical training.

In recent years, supplies of sodium thiopental and pentobarbital have dried up because their European makers refuse to sell them for lethal injections. Prison systems have responded by concocting new formulas, sometimes, as in Oklahoma, sticking to three-drug combinations.

Deborah W. Denno, a death penalty expert and law professor at Fordham, said states were trying desperately to stick to their execution schedules, making “unfettered substitutions” of drugs, becoming more secretive about their protocols and running greater risks that their executions would violate the Eighth Amendment prohibition against cruel and unusual punishment.

More than a dozen of the most recent executions using just one barbiturate, pentobarbital, had the drug made by compounding pharmacies, Ms. Moreno said. Prisons generally keep the identity of the pharmacies a secret, and it is not clear where the compounders get their raw materials.

Two of those executions had problems, Ms. Moreno said: In one, the prisoner complained of a burning sensation, and in the other, the prisoner gasped heavily.

Because compounding pharmacies have had severe problems with contaminated drugs in recent years, death penalty opponents and defense lawyers have begun to protest their use.

Sabrina Tavernise contributed reporting.

A version of this article appears in print on May 2, 2014,

on page A16 of the New York edition with the headline:

Three-Drug Protocol Persists for Lethal Injections.

    Three-Drug Protocol Persists for Lethal Injections,
    Despite Ease of Using One, NYT, 1.5.2014,
    http://www.nytimes.com/2014/05/02/science/
    three-drug-protocol-persists-for-lethal-injections-despite-ease-of-using-one.html

Timeline Describes Frantic Scene

at Oklahoma Execution

 

MAY 1, 2014
The New York Times
By ERIK ECKHOLM
and JOHN SCHWARTZ

McALESTER, Okla. — Early on the morning of Clayton D. Lockett’s scheduled execution, he defied prison officers seeking to shackle him for the required walk to get X-rays. So they shocked him with a Taser, Oklahoma’s chief of corrections stated in an account released Thursday of Mr. Lockett’s final day, before his execution went awry.

Once Mr. Lockett was in an examining room, the staff discovered that he had slashed his own arm; a physician assistant determined that sutures would not be needed.

Hours later on that Tuesday, as his 6 p.m. time for lethal injection approached, Mr. Lockett lay strapped on a gurney in the execution chamber.

Finding a suitable vein and placing an IV line took 51 minutes. A medical technician searched both of his arms, both of his legs and both of his feet for a vein into which to insert the needle, but “no viable point of entry was located,” reported the corrections chief, Robert Patton, in a letter to Gov. Mary Fallin that her office released. A doctor, the letter said, “went to the groin area.”

A catheter was inserted into Mr. Lockett’s groin, and officials placed a sheet over him for privacy. The account did not make clear who inserted the catheter.

The Department of Corrections provided the newly detailed account as it reels from questions about its execution procedures and training of personnel as well as its secret sources of lethal drugs.

The detailed timeline raised further questions about Mr. Lockett’s treatment before and during the bungled execution and subsequent death. Mr. Patton recommended indefinitely suspending further executions, an independent review of what took place, and that he be given power over execution protocol and decision making, rather than the state penitentiary warden.

“I believe the report will be perceived as more credible if conducted by an external entity,” Mr. Patton said. The governor had previously called for a review by state officials.

The account gave greater detail about Mr. Lockett’s final minutes and the frantic scene that unfolded after the blinds were drawn on witnesses. With something clearly going terribly wrong, the doctor “checked the IV and reported that the blood vein had collapsed, and the drugs had either absorbed into the tissue, leaked out or both,” Mr. Patton wrote.

The warden called Mr. Patton, who asked, “Have enough drugs been administered to cause death?” The doctor answered no.

“Is another vein available, and if so, are there enough drugs remaining?” The doctor responded no again. Mr. Patton then asked about Mr. Lockett’s condition; the warden said that the doctor “found a faint heartbeat” and that Mr. Lockett was unconscious.

At 6:56, Mr. Patton called off the execution. Ten minutes later, at 7:06, “Doctor pronounced Offender Lockett dead,” the letter states.

Legal experts on the death penalty said they were surprised, and even shocked, by several things revealed in the new letter. “I’ve never heard of a case of an inmate being Tasered before being executed,” said Deborah Denno, an expert on execution at Fordham Law School and a death penalty opponent.

David Dow, a death penalty appellate lawyer in Texas, said that prisoners sometimes resist leaving their cells, but that “it’s not something that happens regularly.” He expressed surprise that the medical staff administering the drugs did not have a second vein ready in case of problems with the first. “For a state that executes people,” he said, “they are awfully bad at it.”

“Oklahoma is revealing information about this excruciatingly inhumane execution in a chaotic manner, with the threat of execution looming over Charles Warner,” she said, referring to the second prisoner. “This most recent information about the tortuous death of Mr. Lockett, and the state’s efforts to whitewash the situation, only intensifies the need for transparency.”

Mr. Lockett was condemned for the murder of a 19-year-old woman whom he shot and buried alive. Mr. Warner was convicted of raping and killing an 11-month-old girl.

The disorderly execution, Mr. Lockett’s apparent suffering and the legal battles within Oklahoma that preceded it over the state’s refusal to disclose where it obtained execution drugs have drawn international attention to problems with lethal injections. Accidents have become more common, experts say, as states, facing shortages in critical drugs, are trying new drugs and combinations from secret sources.

But Oklahoma officials said that problems with the IV delivery, not the drugs themselves, accounted for Tuesday night’s problems.

Anesthesiologists said that while they sometimes use a femoral vein accessible from the groin when those in the arms and legs are not accessible, the procedure is more complicated and potentially painful.

Putting a line in the groin “is a highly invasive and complex procedure which requires extensive experience, training and credentialing,” said Dr. Mark Heath, an anesthesiologist at Columbia University. Oklahoma does not reveal the personnel involved in executions.

“There are a number of ways of checking whether a central line is properly placed in a vein, and had those been done they ought to have known ahead of time that the catheter was improperly positioned,” Dr. Heath said.

Dr. Joel Zivot, an anesthesiologist at the Emory University School of Medicine, said that the prison’s initial account that the vein had collapsed or blown was almost certainly incorrect.

“The femoral vein is a big vessel,” Dr. Zivot said. Finding the vein, however, can be tricky. The vein is not visible from the surface, and is near a major artery and nerves. “You can’t feel it, you can’t see it,” he said.

Without special expertise, Dr. Zivot said, the failure was not surprising.

Alex Weintz, a spokesman for the governor, said that Ms. Fallin could grant a stay only of up to 60 days, and that a request for an indefinite stay would have to be made by the attorney general to the state’s Court of Criminal Appeals.

“If he chooses to make that request, Governor Fallin would support him,” Mr. Weintz said. “Ultimately, Governor Fallin’s goal, as well as Director Patton’s, is to review the procedures at the Department of Corrections, ensure they work and then proceed with lawful executions in Oklahoma.”

Erik Eckholm reported from McAlester,

and John Schwartz from New York.

A version of this article appears in print on May 2, 2014,

on page A1 of the New York edition with the headline:

Timeline Describes Frantic Scene at Execution.

    Timeline Describes Frantic Scene at Oklahoma Execution,
    NYT, 1.5.2014,
    http://www.nytimes.com/2014/05/02/us/
    oklahoma-official-calls-for-outside-review-of-botched-execution.html

State-Sponsored Horror in Oklahoma

APRIL 30, 2014
The New York Times
The Opinion Pages | Editorial
By THE EDITORIAL BOARD

At 6:36 p.m. on Tuesday in McAlester, Okla., Clayton Lockett started kicking his leg, then twitching, then writhing and moaning in agony, and everyone watching knew something had gone terribly wrong. Mr. Lockett, a convicted murderer, was strapped to a gurney in the death chamber of the Oklahoma State Penitentiary, about to be executed by lethal injection, but the untested combination of a sedative and a paralyzing agent had failed.

According to an eyewitness account by a reporter for The Tulsa World, Mr. Lockett tried to raise himself up, mumbled the word “man,” and was in obvious pain. Officials hastily closed the blinds on the chamber and told reporters that the execution had been stopped because of a “vein failure.” But at 7:06, the inmate was pronounced dead of a heart attack.

This horrific scene — the very definition of cruel and unusual punishment — should never have happened. The Oklahoma Supreme Court tried to stop it last week, concerned that the state refused to reveal the origin of the deadly cocktail. But several lawmakers threatened to impeach the justices, and Gov. Mary Fallin blindly ignored the warning signs and ordered the execution to proceed. (She said it was outside the jurisdiction of the Supreme Court, which normally deals with civil matters.)

On Wednesday afternoon, a few hours after her employees tortured a man to death, Ms. Fallin suddenly showed an interest in execution procedures. She ordered an independent review of the injection protocol, halting further state killings until the investigation is complete.

She should have gone much further and followed other governors and legislatures in banning executions, recognizing that the American administration of death does not function. Mr. Lockett’s ordeal, along with the botched deaths of other inmates around the country, showed there is no reliable and humane method of execution. As Gov. John Kitzhaber of Oregon said in 2011: “I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am governor.”

Seven states have put the death penalty on hold over the last five years because of issues of fairness or methods; another 11 states are debating the issue. Even in states where the death penalty is applied, the number of executions has fallen sharply since 2009. Republicans in Oklahoma seemed so eager to buck this tide that they ignored what happened during a January execution, when an inmate named Michael Lee Wilson said “I feel my whole body burning” just before the drugs killed him.

Many drug companies, fearful of political attack, have stopped supplying the means of execution, and states determined to inflict the maximum punishment have turned to questionable sources like compounding pharmacies for lethal chemicals. Oklahoma, among other states, won’t say where it is getting the drugs, leading one state judge to say “I do not think this is even a close call” that the execution procedures are unconstitutional.

The medieval mechanics of death, though, are hardly the only reason that states are abandoning the practice. There is growing evidence that capital sentences are handed out in an arbitrary and racially biased way, often to innocent victims. A new study published by the National Academy of Sciences estimated that more than 4 percent of all death-row defendants are innocent.

The authors reached that figure by extrapolating from the growing number of exonerations of death-row inmates. They accused Justice Antonin Scalia of the Supreme Court of miscalculating when he wrote in 2007 that convictions in American courts have only a 0.027 percent error rate. “That would be comforting, if true,” the study says. “In fact, the claim is silly.” Even more disturbing, the report says, is the stark reality for innocent people sentenced to death: most will never be exonerated.

Jurists and lawmakers are increasingly aware that an immediate moratorium on death is the only civilized response to this arbitrary cruelty. As Wallace Carson Jr., the former chief justice of the Oregon Supreme Court, put it recently, “the exceptional cost of death penalty cases and the seemingly haphazard selection of which cases deserve the death penalty outweigh any perceived public benefit of this sanction.”

The “exceptional cost” refers not just to dollars and cents. It refers to the moral diminishment of the United States when a man dies by the hasty hand of government, writhing in pain.

A version of this editorial appears in print on May 1, 2014,

on page A24 of the New York edition with the headline:

State-Sponsored Horror in Oklahoma.

    State-Sponsored Horror in Oklahoma, NYT, 30.4.2014,
    http://www.nytimes.com/2014/05/01/opinion/
    state-sponsored-horror-in-oklahoma.html

Oklahoma Postpones Execution

After First Is Botched

APRIL 29, 2014
The New York Times
By ERIK ECKHOLM

McALESTER, Okla. — What was supposed to be the first of two executions here on Tuesday night was halted when the prisoner, Clayton D. Lockett, began to writhe and gasp after he had already been declared unconscious and called out “oh, man,” according to witnesses.

The administering doctor intervened and discovered that “the line had blown,” said the director of corrections, Robert Patton, meaning that drugs were no longer flowing into Mr. Lockett’s vein.

At 7:06 p.m., Mr. Patton said, Mr. Lockett died in the execution chamber, of a heart attack.

Mr. Patton said the governor had agreed to his request for a stay of 14 days in the second execution scheduled for Tuesday night, that of Charles F. Warner.

It was a chaotic and disastrous step in Oklahoma’s long effort to execute the two men, overcoming their objections that the state would not disclose the source of the drugs being used in a newly tried combination.

According to Mr. Patton, it was the method of administration, not the drugs themselves, that failed, but it resulted in what witnesses called an agonizing scene.

“This was botched, and it was difficult to watch,” said David Autry, one of Mr. Lockett’s lawyers.

Dean Sanderford, another lawyer for Mr. Lockett, said, “It looked like torture.”

A doctor started to administer the first drug, a sedative intended to knock the man out and forestall pain, at 6:23 p.m. Ten minutes later, the doctor announced that Mr. Lockett was unconscious, and he started to administer the next two drugs, a paralytic and one intended to make the heart stop.

At that point, witnesses said, things began to go awry. Mr. Lockett’s body twitched, his foot shook and he mumbled, witnesses said.

At 6:37 p.m., he tried to rise and exhaled loudly. At that point, prison officials pulled a curtain in front of the witnesses and the doctor discovered a “vein failure,” Mr. Patton said.

Without effective sedation, the second two drugs are known to cause agonizing suffocation and pain.

Mr. Lockett’s apparent revival and writhing raised questions about the doctor’s initial declaration that he was unconscious and are sure to cast doubt on the effectiveness of the sedative used.

Gov. Mary Fallin said late Tuesday, “I have asked the Department of Corrections to conduct a full review of Oklahoma’s execution procedures to determine what happened and why during this evening’s execution of Clayton Derrell Lockett.”

Madeline Cohen, a federal public defender and lawyer for Mr. Warner, said that while prison officials asserted that the problem was only with the intravenous line, “unless we have a full and independent investigation, we’ll never know.”

“No execution should take place in Oklahoma until there has been a full investigation into Clayton Lockett’s death, including an independent autopsy and full transparency surrounding the drugs and the process of administering them,” she said.

The appeals for disclosure about the drug sources, supported by a state court in March, threw Oklahoma’s highest courts and elected officials into weeks of conflict and disarray, with courts arguing over which should consider the request for a politically unpopular stay of execution, the governor defying the State Supreme Court’s ruling for a delay, and a legislator seeking impeachment of the justices.

The planned executions of Mr. Lockett, 38, and Mr. Warner, 46, dramatized the growing tension nationally over secrecy in lethal injections as drug companies, saying they are fearful of political and even physical attack, refuse to supply drugs, and many states scramble to find new sources and try untested combinations. Several states have imposed secrecy on the suppliers of lethal injection drugs, leading to court battles over due process and the ban on cruel and unusual punishment.

Lawyers for the two convicts said the lack of supplier information made it impossible to know if the drugs were safe and effective, or might possibly violate the ban on cruel and unusual punishment.

Officials swore that the drugs had been obtained legally from licensed pharmacies and had not expired. Ms. Fallin, expressing the view of many here, said earlier Tuesday, “Two men that do not contest their guilt in heinous murders will now face justice.”

But that sentiment was overshadowed by Tuesday night’s bungled execution, which is certain to generate more challenges to lethal injection, long considered the most humane of execution methods.

Mr. Lockett was convicted of shooting a 19-year-old woman in 1999 and burying her alive. Mr. Warner, condemned for the rape and murder of an 11-month-old girl in 1997, was to be executed two hours later.

The two men spent Tuesday in adjacent cells, visited by their lawyers and, in Mr. Warner’s case, family members. The hulking white penitentiary in this small town in southeast Oklahoma, amid prairies now green from soaking spring rains, is the prison from which Tom Joad is paroled in the opening pages of John Steinbeck’s “The Grapes of Wrath.”

In keeping with the untried drug protocol announced by the Corrections Department this month, Mr. Lockett was first injected with midazolam, a benzodiazepine intended to render the prisoner unconscious. This was to be followed by injections of vecuronium bromide, a paralyzing agent that stops breathing, and then potassium chloride, which stops the heart.

This combination has been used in Florida, but with a much higher dose of midazolam than Oklahoma used.

Faced with shortages, Oklahoma and other states have turned to compounding pharmacies — lightly regulated laboratories that mix up drugs to order. Opponents have raised questions about quality control, especially after the widely reported dying gasps of a convict in Ohio for more than 10 minutes, and an Oklahoma inmate’s utterance, “I feel my whole body burning,” after being injected with compounded drugs.

Oklahoma later said it had found a federally approved manufacturer to provide the drugs for Tuesday’s executions, but refused to identify it.

Oklahoma’s attorney general, Scott Pruitt, derided the lawsuits over drug secrecy, calling them delaying tactics. Many legal experts, especially death penalty opponents, say otherwise.

“Information on the drug that is intended to act as the anesthetic is crucial to ensure that the execution will be humane,” said Jennifer Moreno, a lawyer with the Berkeley Law School’s Death Penalty Clinic.

Elsewhere, Texas has refused to reveal where it obtained a new batch of compounded drugs; a challenge is before the State Supreme Court. Georgia passed a law last year making information about lethal drug suppliers a “confidential state secret”; a challenge is also pending in that state’s top court.

This month, the United States Supreme Court declined to hear suits attacking drug secrecy in Missouri and Louisiana.

But three of the justices expressed interest, and the issue seems likely to be considered by the Supreme Court at some point, said Eric M. Freedman, a professor of constitutional law at Hofstra University.

In March, it appeared that Mr. Lockett and Mr. Warner had won the right to know more about the drugs when an Oklahoma judge ruled that the secrecy law was unconstitutional. But the judge said she did not have the authority to grant the men stays of execution, sending the inmates into a Kafkaesque legal maze.

The state’s Court of Criminal Appeals repeatedly turned back the Supreme Court’s order to rule on a stay, while the attorney general insisted that the executions would go ahead.

On April 21, the Supreme Court said that to avoid a miscarriage of justice, it would delay the executions until it had time to resolve the secrecy matter.

The next day, Ms. Fallin, a Republican, said the Supreme Court had overstepped its powers, and she directed officials to carry out both executions on April 29. An outraged legislator, Representative Mike Christian, said he would seek to impeach the justices, who were already under fire from conservative legislators for striking down laws the court deemed unconstitutional.

A constitutional crisis appeared to be brewing. But last Wednesday, the Supreme Court announced a decision on the secrecy issue — overturning the lower court and declaring that the executions could proceed.

Correction: April 29, 2014

Because of inaccurate information provided by a witness,

an earlier version of this article misidentified the person

who said, “Something’s wrong” during the execution

of Clayton D. Lockett. It was a prison official, not Mr. Lockett.

Emma G. Fitzsimmons contributed from New York.

A version of this article appears in print on April 30, 2014,

on page A1 of the New York edition with the headline:

One Execution Botched, State Delays the Next.

    Oklahoma Postpones Execution After First Is Botched, NYT, 29.4.2014,
    http://www.nytimes.com/2014/04/30/us/oklahoma-executions.html

Secrecy Behind Executions

JAN. 29, 2014
The New York Times
By THE EDITORIAL BOARD

It is bad enough that the death penalty is barbaric, racist and arbitrary in its application, but it is also becoming less transparent as the dwindling number of death-penalty states work to hide the means by which they kill people.

The increased secrecy around lethal-injection drug protocols is only the latest tactic of pro-death-penalty legislators and corrections officials around the country. In Missouri, this secrecy was upheld last week by a federal appeals court, which denied a condemned inmate’s constitutional claim that he is entitled to basic information about the drugs that would be used to put him to death.

Herbert Smulls was executed late Wednesday for the 1991 murder of a jewelry-store owner. Missouri refused to name the pharmacy or pharmacies involved in producing the execution drugs.

Missouri’s secrecy, along with new legislation in states such as Georgia and Tennessee, is a response to a mounting “crisis” in death-penalty states: Because many drug manufacturers now refuse to supply drugs for use in executions, states are scrambling to replenish their stocks. This often means turning to compounding pharmacies, which exist in a largely unregulated world.

In 2011, the Drug Enforcement Administration seized Georgia’s supply of one lethal-injection drug after concerns that it had been illegally imported from Britain. And last fall, Louisiana officials sought to buy drugs from an Oklahoma pharmacy, the Apothecary Shoppe, which was not licensed to provide drugs in Louisiana.

There have been multiple reports of previously untested drug combinations leading to botched executions, which is a polite way of saying the condemned person suffered greatly while being put to death. (On Jan. 16, an Ohio man, Dennis McGuire, appeared to gasp and choke after being administered a new combination of lethal-injection drugs.) States should simply admit that they don’t really know how these drug protocols will work, but instead they have tried to hide almost all information about the drugs and who makes them — increasingly through legislation.

Some courts have had little patience for this behavior. In July, a Georgia judge issued a last-minute stay of execution to one inmate, reasoning that the state’s secrecy law “makes it impossible” to show that the drug protocol violates the Eighth Amendment.

But, on Friday, the United States Court of Appeals for the Eighth Circuit ruled that Mr. Smulls had no constitutional claim against Missouri’s practice because he had not demonstrated that the “risk of severe pain” from the state’s intended drug protocol would be substantially greater than a readily available alternative. As the dissent argued, this “places an absurd burden on death row inmates,” who must identify “a readily available alternative method for their own executions,” even though the state won’t let them see the method it plans to use.

Meanwhile, Missouri and other states race to execute inmates using new and untested drug protocols developed on the fly and under a cowardly shroud of secrecy. Mr. Smulls was the third inmate executed in Missouri since November. In some states, lawmakers have even proposed reintroducing older execution methods, such as the firing squad and electrocution, so as to avoid the escalating legal battles over lethal injection.

In the end, the argument over what is the most “humane” way to kill someone only obscures the larger point, which is that, in the 21st century, the United States has no business putting people to death by any means. Public support for capital punishment has reached a 40-year low, and virtually all other Western societies have rejected it. It will end here, too, but not until this despicable practice is dragged out into the open for all to see.


A version of this editorial appears in print on January 30, 2014,

on page A26 of the New York edition with the headline:

Secrecy Behind Executions.

    Secrecy Behind Executions, NYT, 29.1.2014,
    http://www.nytimes.com/2014/01/30/opinion/secrecy-behind-executions.html

Texas Executes Mexican Man for Murder

JAN. 22, 2014
The New York Times
By MANNY FERNANDEZ

AUSTIN, Tex. — Despite opposition from the State Department, Mexican officials and Latino advocates, Texas executed Edgar Arias Tamayo on Wednesday night, putting to death a Mexican citizen whose case raised questions about the state’s duty to abide by international law.

Mr. Tamayo, 46, was strapped to a T-shaped gurney in the state’s death chamber at a prison in Huntsville, injected with a lethal dose of the sedative known as pentobarbital and pronounced dead at 9:32 p.m. Mr. Tamayo was the 509th inmate executed by Texas in the past three decades and had been one of 21 foreign citizens on its death row.
Related Coverage

Tamayo, who killed a police officer, was not told of his right to call his consulate after his arrest.

The case became an international issue that Mexican officials and Secretary of State John Kerry said threatened to strain relations between the two countries. Mr. Tamayo’s arrest in Houston in 1994 on charges of murdering a police officer violated the international treaty known as the Vienna Convention on Consular Relations. The authorities neglected to tell him of his right under the Vienna Convention to notify Mexican diplomats.

In executing Mr. Tamayo, Texas officials disregarded an international court’s order that his case be reviewed to determine what impact the violation of his consular rights had on his conviction. That decision, made in 2004 by the World Court, the top judicial body of the United Nations, was binding on the United States under international law, Mr. Kerry had told Texas officials. No United States court had given Mr. Tamayo such a review.

Gov. Rick Perry and the Texas attorney general, Greg Abbott, had argued that the state was not directly bound by the World Court’s decision, a position backed up by rulings by the United States Supreme Court and the Texas Court of Criminal Appeals. Mr. Tamayo was the third Mexican citizen that Texas had executed whose case was part of the World Court’s order.

“The international outcry about this, Texas’ third illegal execution of a Mexican national and the first without any review whatsoever of the consular assistance claim, is unprecedented,” Mr. Tamayo’s lawyers, Sandra L. Babcock and Maurie Levin, said in a statement.

Hours before the execution, Mr. Tamayo and his lawyers were awaiting rulings on two appeals before the Supreme Court. One claimed Mr. Tamayo was mentally disabled and ineligible for the death penalty. The other argued that the impact of the denial of Mr. Tamayo’s consular rights needed to be assessed by a court. The Supreme Court refused to stay the execution, but it was delayed a few hours while the justices considered his appeals.

Mr. Tamayo had seemed resigned to his fate. In a holding cell, he told a spokesman for the state’s prison agency earlier in the day that he was “ready to go,” adding, “Twenty years is too long.”

A human rights commission that is an arm of the Organization of American States urged the United States last week to halt the execution and grant Mr. Tamayo’s case the review the World Court had ordered. Meanwhile, Mr. Kerry and State Department officials expressed concerns to Texas officials that executing Mr. Tamayo would complicate the United States’ ability to help Americans overseas. The Vienna Convention helps ensure that United States citizens who are detained in other countries have access to food, medical care and legal representation.

“If we ourselves don’t uphold those obligations, it will make it much harder for us to ask other countries to do so,” a State Department spokeswoman, Marie Harf, said Tuesday.

Mr. Tamayo was convicted of killing Guy P. Gaddis, the Houston police officer who apprehended him and another man in January 1994 after a robbery. Mr. Tamayo, who was in the United States illegally, pulled out a pistol in the back of the patrol car and shot him three times. Officer Gaddis was 24, and four days before his death, he had learned that he was going to be a father.

Members of the officer’s family watched Mr. Tamayo’s execution. “Three times shot in the back of the head for simply doing his job as a police officer,” said Ray Hunt, president of the Houston Police Officers’ Union. “That’s how his life ends. It’s time for that sentence to be carried out.”

A version of this article appears in print on January 23, 2014,

on page A17 of the New York edition with the headline:

Texas Executes Mexican Man for Murder.

    Texas Executes Mexican Man for Murder, NYT, 22.1.2014,
    http://www.nytimes.com/2014/01/23/us/texas-executes-mexican-for-murder.html

After a Prolonged Execution in Ohio,

Questions Over ‘Cruel and Unusual’

JAN. 17, 2014
The New York Times
By ERICA GOODE

As the lethal drugs flowed into his veins in the Ohio death chamber, Dennis B. McGuire at first “went unconscious” and his body was still, his daughter, Amber McGuire, said Friday.

But a few minutes later, she said, she was horrified to see her father struggling, his stomach heaving, a fist clenching.

“He started making all these horrible, horrible noises, and at that point, that’s when I covered my eyes and my ears,” said Ms. McGuire, who watched the execution on Thursday at the Southern Ohio Correctional Facility, near Lucasville. “He was suffering.”

Mr. McGuire’s execution, conducted with a new and untested combination of drugs, took about 25 minutes from the time the drugs were started to the time death was declared. The process, several witnesses said, was accompanied by movement and gasping, snorting and choking sounds.

Ms. McGuire and her brother, also named Dennis McGuire, said Friday that they plan to file a federal lawsuit next week alleging that the execution violated the Eighth Amendment’s prohibition on cruel and unusual punishment.

“We’re mainly just hoping that no other family has to go through what we went through yesterday,” Ms. McGuire said.

Allen Bohnert, the lawyer who represented Mr. McGuire, called the execution “a failed, agonizing experiment by the State of Ohio.”

But the family of Joy Stewart, the woman Mr. McGuire raped and murdered in 1989, said in a statement that whatever Mr. McGuire’s suffering, it paled in comparison with what Ms. Stewart went through at the hands of her killer. “He is being treated far more humanely than he treated her,” the statement said.

Three decades ago, lethal injection was pioneered as a more humane method of execution than electrocution or gas. But in recent years, European manufacturers of previously used drugs like pentobarbital and sodium thiopental, in response to pressure from groups opposed to the death penalty, have blocked their sale for use in executions.

Ohio, which had run out of its supply of pentobarbital, used a combination of midazolam, an anti-anxiety drug in the same family as Valium, and hydromorphone, a powerful narcotic derived from morphine. A court gave its approval to the combination, overruling lawyers for Mr. McGuire who had argued that the drugs could cause “air hunger,” a struggle for breath that, the lawyers said, could result in “agony and terror.”

But in persuading the court to allow the use of the drugs, Thomas Madden, an Ohio assistant attorney general, argued that although there are constitutional protections, “you’re not entitled to a pain-free execution.”

Death penalty opponents said that the shortage of drugs has led to a chaotic national picture, with individual states trying out different drug formulas, sometimes with disturbing results. Mr. McGuire’s execution was not the first in Ohio to inspire controversy: In 2009, the execution of Romell Broom was halted after executioners struggled for two hours to get an intravenous line to deliver the drugs. His lawyers argued that a second execution attempt would constitute cruel and unusual punishment. Mr. Broom is still on death row.

Deborah Denno, a law professor at Fordham University and an expert on lethal injections, said that a Supreme Court ruling that upheld Kentucky’s use of a three-drug cocktail for lethal injections in 2008 was based in part on the uniformity of drug combinations across the states.

In Wyoming, the shortage of lethal injection drugs has led State Senator Bruce Burns, Republican of Sheridan County, to propose offering a firing squad as an alternative method of execution. Currently, the gas chamber is the only alternative available in Wyoming, but the state does not have one. Mr. Burns said that given the infrequency of executions, a gas chamber is too costly to maintain. In Missouri, State Representative Rick Brattin introduced a bill on Thursday to add firing squads as an option. Utah is phasing out its firing squad option.

Debates about the relative humaneness of different execution methods have persisted as long as arguments about the death penalty itself. In 1890, electrocution was substituted for hanging in the belief that it was less painful, but George Westinghouse and Thomas Edison both fought to keep their electrical currents out of the death chamber (Mr. Westinghouse lost). Lawyers for William Kemmler, the first person to die in the electric chair, argued that the method constituted cruel and unusual punishment.

Jon Paul Rion, a lawyer representing Ms. McGuire and her brother in the lawsuit, said that the children were following their father’s wishes in bringing suit.

“Before Dennis was executed he knew that this could be an issue given what the defense experts had articulated to the court, that exactly what happened in this case could happen,” Mr. Rion said. “Dennis made his son promise that if in fact the execution was as painful and disturbing as the experts predicted, he would make sure” that others would not have to face a similar ordeal.

Douglas A. Berman, a law professor at Ohio State University, said that if the McGuires did file suit, they would have to prove “by a preponderance of the evidence that he suffered unnecessary pain.”

That might be difficult, he said, because Mr. McGuire is in no position to testify and the definition of “unnecessary” is uncertain, “given that state officials were trying their darnedest to avoid having him suffer unnecessary pain.”

“By my lights, this is a very hard lawsuit to prevail,” he added. “But who knows?”

A version of this article appears in print on January 18, 2014,

on page A12 of the New York edition with the headline:

After a Prolonged Execution,

Questions Over ‘Cruel and Unusual’.

    After a Prolonged Execution in Ohio, Questions Over ‘Cruel and Unusual’,
    NYT, 17.1.2014,
    http://www.nytimes.com/2014/01/18/us/
    prolonged-execution-prompts-debate-over-death-penalty-methods.html