[Deathpenalty] death penalty news----WIS., USA, VA., CALIF.

[Rick Halperin]

Sept. 25


WISCONSIN:

Lakeshore update: Dems host death penalty speaker


The Manitowoc County Democratic Party is scheduled to host a speaker from
No Death Penalty Wisconsin at 7 p.m. Tuesday, Sept. 26 at 1020 S. 10th
Street, Manitowoc. The public is invited to attend.

No Death Penalty Wisconsin consists of representatives from organizations
as diverse as the Wisconsin Coalition Against the Death Penalty, American
Civil Liberties Union of Wisconsin, the National Association for the
Advancement of Colored People, Wisconsin Council of Churches, Amnesty
International, Peace Action of Wisconsin, and the AFLCIO.

Its purpose is to educate Wisconsin citizens about the death penalty
referendum, which is scheduled for the general election ballot.

(source: The Herald Times)






USA:

CURRENT CHALLENGES


Since the beginning of the year, challenges to lethal injection have
caused what one federal appeals court dubbed a "dysfunctional patchwork''
of results across the country. Here is a snapshot of what has been
happening in other states:

Missouri: A federal judge this month gave the state until late October to
revise its lethal injection procedures.

Tennessee: A federal appeals court this month stayed the execution of an
inmate who had chosen the electric chair over lethal injection.

South Dakota: The governor this summer put a halt to executions until the
state can revise its lethal injection procedures.

Arkansas: A federal judge has put executions on hold to consider a
challenge to lethal injection.

North Carolina: A federal judge allowed an execution to go forward only
after the state opted to use a new device that can monitor an inmate's
consciousness during an execution.

Florida: State last week executed Clarence Hill, whose challenge to lethal
injection led to new guidance this spring from the U.S. Supreme Court on
how such cases can proceed.

[Source: Death Penalty Information Center and Mercury News research]

(source: Mercury News)






VIRGINIA:

Swift and painless or cruel and unusual?


Minutes into the May execution of Joseph Lewis Clark in Ohio, in which a
potent drug was supposed to knock him out before a lethal chemical could
kill him, the condemned man raised his head and said, "It's not working."

Nearly 90 minutes later, after executioners struggled to insert a needle
into Clark's vein, he was finally pronounced dead.

In Virginia 2 years ago, the executioners of James Edward Reid spent 12
minutes trying to insert a needle into his groin after determining that
the veins in his arms were shot from years of alcohol abuse.

Lethal injection, once thought to be an alternative to the gruesome
methods of execution such as hanging and electrocution, is now
increasingly under attack in court cases in Virginia and across the
country.

At least 7 states, including the federal government, have halted
executions for 12 prisoners who have had their cases delayed because of
challenges to the lethal injection process.

North Carolina, California and Florida have proceeded with executions this
year after judges upheld the use of lethal injection.

Virginia is scheduled to execute John Yancey Schmitt on Nov. 9, but his
attorneys are challenging the lethal injection process and hope to
postpone the date as they argue the case in federal court. On Friday,
Schmitts attorneys lost a round in Richmonds U.S. District Court but more
appeals are planned.

Several other Virginia death penalty cases are working their way through
the court system as well.

"They're essentially raising the same issue, that the lethal injection
process is unnecessarily painful and risky and that's an Eighth Amendment
violation against cruel and unusual punishment," said Richard Dieter,
executive director of the Death Penalty Information Center in Washington,
a nonprofit research group opposed to capital punishment.

The center cites 25 cases since lethal injection was first used in the
mid-1980s in which there were problems, including prisoners showing signs
of pain.

The center cites one Virginia case  the 1996 execution of Richard Townes
Jr. Technicians took 22 minutes to find a vein and finally inserted the
needle into Townes' right foot.

Virginia and 36 other states use lethal injection. Those that have faced
challenges to its use have vigorously defended it.

"Lethal injection in Virginia has never been found to be
unconstitutional," said J. Tucker Martin, a spokesman for Attorney General
Bob McDonnell. "This office will continue to adamantly defend Virginias
lethal injection statute."

The lethal injection process involves the use of 3 different drugs. The
1st drug, an anesthetic, is designed to cause unconsciousness. The 2nd
drug causes complete paralysis, and the third kills by stopping the heart.

Medical evidence shows that the inmate actually may feel more pain than is
recognized because the paralysis masks any outward signs of discomfort,
according to testimony in a number of capital cases.

David Bruck, law professor at Washington and Lee University School of Law,
said the lethal injection process faced little scrutiny in the courts
until the past few years.

"There was this whole panel of horrendous effects  hacking at peoples
bodies, needles jumping out, squirting chemicals. There were people
turning blue," said Bruck, director of the Virginia Capital Case
Clearinghouse, which helps defend death penalty cases.

He is among the legal and medical experts who say that inmates can feel
suffocation and an intense burning.

"The most chilling thing about this three-drug combination is that you
wouldn't know," Bruck said. "The person is immobilized. He can't even
blink. He suffocates while he feels like he's burning alive at the same
time. Meanwhile, people are looking at him like he's peaceful."

Medical experts have testified that in 43 of 49 executed inmates, blood
concentrations of the anesthetic were lower than what's required for
surgery. Of those, 43 % had concentrations consistent with awareness.

Judges in Virginia so far have rejected arguments that the process is
cruel and unusual. 7 death row inmates in the past 2 years have raised the
issue, according to the Attorney General's Office. Four of those seven
lost those arguments and were executed.

Last week, a federal judge in Alexandria dismissed an appeal filed by
Norfolk native Darick Walker, condemned to death for slayings in Henrico
County.

Judges in other states have ruled in favor of those arguments, and some
legal experts see the issue headed to the U.S. Supreme Court.

"Courts have repeatedly found that this method of capital punishment is
constitutional and rejected all claims to the contrary," said Martin, the
spokesman for Virginias attorney general.

"What should not be lost in this conversation is the fact that we are
discussing the punishment of convicted murderers," he said. "These are
individuals who have taken innocent lives and shattered families forever.
Victims must not be forgotten as we discuss this issue.

[NOTE: Included as an addendum to the piece written by reporter Tim
McGlone an online poll has been posted on the question: Is the lethal
injection process cruel and unusual? to vote, go to:
http://home.hamptonroads.com/stories/story.cfm?story=111579&ran=102435&tref=de]

(source: The Virginian-Pilot)






CALIFORNIA:

Death penalty goes on trial----CALIFORNIA JUDGE TO REVIEW LEGALITY OF
LETHAL INJECTION

When "Freeway Killer'' William Bonin was executed by lethal injection 10
years ago, it seemed that arguments about what is a humane way to put
inmates to death in California were finally over.

That assumption was wrong.

>From California to Maryland, lawyers for death row inmates have mounted
challenges to the use of lethal injection in virtually every state with
capital punishment. And this week, California takes center stage in a
widening legal battle over lethal injection that may be destined for the
U.S. Supreme Court.

Starting Tuesday, U.S. District Judge Jeremy Fogel will hold an
unprecedented 4-day hearing in San Jose to explore whether the method the
state uses to execute inmates violates the constitutional ban on cruel and
unusual punishment. Fogel has effectively put a temporary halt to
executions in California as he considers the legal challenge from death
row inmate Michael Morales, who in February was hours from receiving a
fatal dose of drugs when he was given a reprieve.

Other states have held hearings to examine lethal injection issues, but
the California case is expected to be the most thorough inquiry to ever
unfold in a courtroom. Fogel already broke new ground this spring when he
toured San Quentin's death chamber to get a first-hand look at the
mechanics of an execution.

"I think the Morales case and these hearings will be the most critical
events of all the events that have happened in this area over the past
year,'' said Deborah Denno, a Fordham University professor and leading
expert on lethal injection.

Historic turn

In addition, the hearings, which will range from nitty-gritty testimony
from medical experts to accounts from prison execution team members, mark
a historic turn in California's effort to find an acceptable way to carry
out death sentences in a state that now has 658 death row inmates, more
than any other state.

Bonin was executed by lethal injection soon after California prison
officials emerged from a costly and losing legal battle over San Quentin's
gas chamber, which a federal appeals court had declared cruel and unusual
punishment. To counteract the legal problems, California followed the lead
of other states, such as Oklahoma and Texas, and enacted legislation that
made lethal injection the preferred way of executing a condemned killer.
Bonin was the 1st inmate in California to be executed that way.

"It made a whole lot of sense to me,'' said former San Quentin warden
Daniel Vasquez, who led the effort to switch to lethal injection.
"Execution of a human being is not an easy thing to do, period. But in
terms of viewing an execution by lethal gas and lethal injection, there is
no question lethal injection is a lot more humane method.''

Today, 37 of the 38 states with the death penalty use lethal injection.
The result has been a series of legal challenges that rely on the same
central argument: that the combination of 3 drugs used to kill an inmate
could mask a searingly painful death, creating a risk of cruel and unusual
punishment.

In some states, judges have put executions on hold in response to such
lawsuits. Earlier this month, a federal judge in Missouri halted
executions until that state revises its method. South Dakota has halted
executions until state officials change the lethal injection practices. In
other states, executions have gone forward, including one last week in
Florida.

Appeals certain

Whatever Fogel decides, he is unlikely to have the last word in the case
because his ruling is expected to be appealed to the 9th U.S. Circuit
Court of Appeals. Legal experts say the U.S. Supreme Court, which has
never outlawed a method of execution, will eventually have to weigh in.
But Fogel's review will offer those courts an unprecedented glimpse into
the medical and legal questions surrounding lethal injection.

Fogel has not indicated how he may rule, but said recently in court he had
no "desire to micromanage'' the state's executions when he decides the
outcome.

Under California's "Protocol 770,'' the state's lethal injection
procedure, prison officials administer 3 drugs to an inmate. The 1st,
sodium thiopental, is the sedative that renders an inmate unconscious; the
2nd, pancurium bromide, paralyzes the muscles in breathing; and the 3rd,
potassium chloride, stops the heart.

The crux of Morales' legal challenge is that the prisoner may remain
semiconscious after the 1st drug is administered and the 2nd paralytic
drug then conceals an inmate's suffering when the 3rd -- and, some argue,
painful -- dose is administered.

The argument galls death penalty supporters and victims' family members.
The family of Terri Winchell, a 17-year-old Lodi girl raped and murdered
by Morales in 1981, has expressed outrage that he managed to avoid
execution by challenging lethal injection.

In an e-mail, Barbara Christian, the girl's mother, said the case "is just
a ploy to stall execution.'' Winchell's brother also is angry.

"He should feel some pain,'' said David Winchell, who was at San Quentin
in February when Fogel postponed the execution. "Look at the pain he
inflicted on my sister. The law is the law, and justice is justice, and
justice is not being served.''

State prison officials have tinkered with the execution procedure in
recent months. Among other things, the state would now administer a
continuous dose of the sedative to ensure the inmate remains unconscious
throughout the execution.

No quick fix

But Morales' lawyers, relying in part on newly revealed evidence of
problems in past executions, say California does not have the safeguards
to minimize the risk of a foul-up in an execution. And they say the state
is violating the law by enacting execution procedures without public
input.

"There are no quick fixes to this problem,'' said John Grele, one of
Morales' lawyers.

In court papers, Morales' lawyers cite evidence that San Quentin fails to
properly train execution team members, and pointed to major problems in
the execution last year of former Crips co-founder Stanley "Tookie''
Williams. A nurse was unable to set one of the catheters in Williams and
``blew a vein'' twice, according to court documents.

"The nurse was frustrated and upset,'' the documents stated, adding that
she then left the chamber.

Senior Assistant Attorney General Dane Gillette acknowledged problems with
the Williams execution, but insisted it was an isolated event that would
not be repeated. Gillette argues that Morales has presented no evidence
that there are systemic problems with lethal injection procedures, or that
the drug doses cause an inmate to suffer.

"We're comfortable that the procedures California has are constitutionally
sufficient,'' Gillette said. "I see this case as a way to put this issue
to rest once and for all in California. That's our objective.''

(source: San Jose Mercury News)

*********************

State's execution method on trial ---- Judge to decide if injection is
constitutional -- may order changes in procedure, training


California's method of executing prisoners by lethal injection will come
under scrutiny this week, point by technical point -- how the executioners
are trained, how the toxic chemicals are mixed, even how much light there
is in the mixing room.

The stakes, though, are anything but technical: the immediate future of
executions in California, and perhaps in the nation.

Starting Tuesday, U.S. District Judge Jeremy Fogel in San Jose will hear
arguments by lawyers both for the state and for a condemned murderer from
Stockton about California's execution method. Witnesses -- guards, former
wardens, execution observers and medical experts -- will discuss how
prisoners have been put to death by injection at San Quentin State Prison
since 1996, how the state is proposing to change its procedures, and
whether the changes will minimize the risk of a prisoner dying in agony.

Courts in other states have heard challenges to lethal injection, the sole
or preferred method of execution in 37 of the 38 death-penalty states.
Judges have halted executions in Missouri, New Jersey and Delaware until
questions about those states' procedures are resolved. Moratoriums are
also in place, for varying reasons, in Illinois, South Dakota and New
York.

But this week's hearing, scheduled to last four days, may be the first in
which disputes over the technology and application of lethal injection are
fully aired, without the time pressure of an impending execution. Fogel
has effectively stayed all lethal injections in California while he
considers the case of Michael Morales, who won a last-minute reprieve Feb.
21, when the state could not find doctors to take part in his execution.

Morales, now 46, was convicted of raping and beating to death 17-year-old
Terri Winchell of Lodi in 1981. The courts have upheld his convictions and
death sentence, and the only remaining questions in his case are how, and
when, he will be executed.

"This is the hearing that people are watching,'' said Richard Dieter,
executive director of the Death Penalty Information Center in Washington,
D.C., and an opponent of capital punishment. "Both sides are preparing
their best experts.''

The case, he said, is "on the cutting edge of an issue that almost every
state is facing, and the federal government as well.''

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation
in Sacramento and a supporter of the death penalty, agreed that the
federal court hearing is "probably the most thorough examination we've had
of lethal injection so far.''

In legal terms, the issue is whether lethal injection, as administered in
California, violates the constitutional ban on cruel and unusual
punishment by posing a significant risk of unnecessary and severe pain for
the condemned inmate.

>From a broader perspective, the issue is how far society is prepared -- or
constitutionally required -- to go in minimizing the pain of people who
generally showed no such concern for their victims.

"We should not torture people,'' Scheidegger said. "But it is punishment,
and the notion that it should be painless is one that I do not agree
with.''

Lance Lindsey, executive director of the anti-capital punishment group
Death Penalty Focus in San Francisco, framed the question differently:
"whether we are going to lower ourselves to the level of the very thing we
abhor.''

There is no humane way to kill a person, he said, but executions should at
least be governed by "evolving standards of decency,'' in the words of the
Supreme Court.

Lethal injection, first used in Texas in 1982, was adopted by California
after a federal judge ruled in 1994 that prisoners were apparently being
tortured during executions in the state's gas chamber.

Opponents say they can recite examples of botched lethal injections from
around the nation -- prison staff struggling for 45 to 50 minutes to find
a usable vein in a drug-scarred inmate, prisoners gasping that the drugs
weren't working -- but the chief question before Fogel is whether a
typical execution in California carries an unacceptable risk of pain.

That depends on whether the prisoner is rendered unconscious by the
anesthetic drug sodium pentothal before being injected with two
potentially painful chemicals: pancuronium bromide, which paralyzes the
muscles, and potassium chloride, which stops the heart. The same three
drugs are used in other states as well.

In previous rulings in the case, Fogel has said records suggest that the
anesthetic may not have been working properly in as many as 6 of the 11
lethal injections in California since 1996.

Much of the testimony this week will focus on how San Quentin personnel
mix and inject sodium pentothal and monitor its effects, and how it would
be administered in procedures that the state revised in March in response
to Fogel's rulings.

The most important change would be to supply the anesthetic in a
continuous flow into one of the inmate's arms -- rather than a large
initial dose -- while the other two lethal chemicals are injected in
sequence into the other arm. In theory, that would guarantee the dying
inmate would be unconsciousness throughout the execution. But the
procedure has never been used, and it raises a question that is central to
the judge's inquiry: How much medical supervision should be required at a
lethal injection?

The state tried to enlist anesthesiologists to monitor Morales' execution
in February, as Fogel required, but 2 doctors backed out after belatedly
learning they might have to oversee the anesthesia and order increased
doses.

With medical associations opposing participation by physicians in
executions, the state is not calling for any role for doctors in the new
procedures. Instead, it says, the execution team will consist of as many
as 14 trained prison employees, including at least one nurse.

Morales' lawyers argue that no one involved in an execution will know
whether the procedures are working unless a doctor or anesthesiologist is
on hand.

Evidence gathered in recent months, the lawyers say, shows that lethal
injections in San Quentin are prepared in a dimly lit room, are poorly
monitored and supervised, and are performed by "prison personnel with
criminal records of misconduct, and who lack skill, competence (and)
professionalism.''

Documents filed in the case show, for example, that one execution team
leader was fired as a guard for bringing illegal drugs into San Quentin,
but was later reinstated, and that the guard who was assigned to lead the
team for Morales' scheduled execution in February was on antidepressant
medication.

Defense lawyers also contend the execution team is inadequately trained.
State lawyers counter that the team is trained extensively -- including
eight hours a day in the week before an execution -- and that there is no
reason to believe any prisoner has remained conscious during a lethal
injection in California.

Fogel has a range of options, including finding the state's procedures to
be unconstitutional, approving the state's procedures, or ordering
specific changes to the procedures and training.

In the end, said Dieter of the Death Penalty Information Center, some
version of lethal injection is likely to be approved.

"I think the courts are going to be willing to accept something short of
the ideal. They're not going to require operating-room perfection,'' he
said. "It's lethal injection, with changes, or no death penalty at all.
And I don't think that's in the cards.''

(source: San Francisco Chronicle)