Growing Discomfort with Death Penalty
(02/09/2012)

WASHINGTON — High-standing officials, including U.S. Supreme Court justices, have come forward to demand the review and reform of executions throughout the United States.

Two former Supreme Court justices in Kentucky and the president of the American Bar Association (ABA) recently called for a suspension of executions in the state of Kentucky until its death penalty system is reformed. Since the death penalty was reinstated in the state in 1976, fifty of the 78 people sentenced to death have had their sentence or conviction overturned due to misconduct or serious errors that occurred during their trial.

In a study by the ABA, former justices James Keller and Martin Johnstone, along with William Robinson, president of the ABA pointed out major flaws in the death penalty system that has led them to call for the suspension of executions until further investigation and reform.

“In Kentucky, we cannot be certain that our death penalty system is fair and accurate. Our Death Penalty Assessment Team of lawyers, judges, bar leaders and legal experts conducted an exhaustive, two-year review of the death penalty system and identified a host of problems at various stages of the capitol process, many of which increase the risk of executing the innocent. The problems affect not only those possibly facing execution, but also victims of crime,” according to the ABA authors of the study.

Kentucky is not alone in its mission to reform or eliminate the death penalty. Ohio Supreme Court Justice Paul Pfeifer recently testified before the state’s House Criminal Justice Committee to overturn the death penalty law in Ohio.

“The death penalty in Ohio has become what I call a death lottery,” said Pfeifer. “It’s very difficult to conclude that the death penalty, as it exists today, is anything but a bad gamble. That’s really not how a criminal justice system should work.”

Justice Pfeifer helped write the death penalty law 30 years ago when he served as an Ohio state senator. He is still a sitting justice and has continued to rule in death penalty cases and set execution dates.

“I have a duty under the law to follow that law. At the same time, we are admonished under the rules that apply to judges that we have a duty to step forward and advocate for changes we think would lead to an improvement in the law,” said Pfeifer.

Taking Action

The European Commission recently announced new restrictions on the export of drugs that are commonly used for executions in the United States.

“The decision contributes to the wider EU efforts to abolish the death penalty worldwide,” said European Commission Vice President Catherine Ashton.

The European Commission added pentobarbital and sodium thiopental to its list of restricted products, on the grounds that they may be used for cruel and inhumane treatment or punishment.

“We have led the way by introducing national controls on the export to the United States of certain drugs, which could be used for the purpose of lethal injection. However, we have always stated our clear preference for action at EU level and I am pleased that, following our initiative, these steps are now being taken,” said Vince Cable, the United Kingdom’s business secretary.

Companies have also supported the recent challenges against the death penalty. Lake Forest, Ill.-based Hospira Inc., the sole manufacturer of sodium thiopental, has announced it will no longer produce or distribute the drug.

Additionally, Lundbeck Inc. — a Danish manufacturer of pentobarbital — has made all efforts to block the sale of

its product to any penal institution in the United States.

Execution Methods

Two methods are currently used for lethal injections. One form of execution uses a three-drug protocol: an anesthetic followed by pancuronium bromide to paralyze the inmate and then potassium chloride to stop the inmate’s heart. The other method calls for a one-drug protocol and uses a lethal dose of an anesthetic.

There has been some debate over which method is the most efficient and humane. Marin County, Calif., Superior Court Judge Faye D’Opal recently rejected California’s new lethal injection protocols. She blames corrections officials for failing to consider a one-drug execution method that other states are now utilizing, including Washington State’s adoption of a single-drug protocol in 2010.

In 2006, U.S. District Court Judge Jeremy Fogel stopped all executions because of concerns that the executions carried out in California could result in excessive and unnecessary pain. Since then, no executions have taken place in California.

The death penalty continues to be a controversial debate and some advocate for eliminating the death penalty option in the future.

“The time has come to replace the death penalty with life in prison with no chance of parole. Any attempt to devise new lethal injection rules will take an enormous amount of public employee time and cost hundreds of millions of dollars,” said Natasha Minsker, attorney with the American Civil Liberties Union of Northern California.

According to a study published in 2011 by U.S. Court of Appeals Judge Arthur L. Alarcon and Loyola Law School Professor Paula M. Mitchell, taxpayers are estimated to have spent $4 billion to carry out California’s 13 executions since 1978 and at least $184 million a year to maintain the state’s capitol punishment system.

Executions Decline

The Death Penalty Information Center’s report “The Death Penalty in 2011: Year End Report,” states that new death sentences dropped to 78 in 2011, down from 112 in 2010. This is the first time since capitol punishment was reinstated in 1976 that the country logged fewer than 100 death sentences in a year.

Executions have also declined throughout the country. Only 43 executions were carried out in 2011 and 46 in 2010. Executions have dropped 56 percent since the 98 completed in 1999. The tough-on-crime state of Texas notes a 46 percent decline over the past two years — from 24 in 2009 to only 13 executions in 2011.

States leery about the death penalty include Illinois, which abolished the death penalty in 2011. In Oregon, the governor recently declared a halt to on all executions in the state until further notice.

National attention on the execution of Troy Davis in Georgia sparked public outcry due to the doubts about the inmate’s guilt.

Public attention and political authorities have helped spark policy change within the justice system and the latest report by the Bureau of Justice Statistics for 2010 noted 119 inmates were removed from death row and 53 had their sentences or convictions overturned.

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