April 20
TEXAS:
The Feds Won't Let Texas Import More Death Drugs
Last week, the federal Food and Drug Administration tentatively banned Texas
prison officials from importing a particular type of drug used to execute death
row convicts. The April 15 letter, first reported by the Austin
American-Statesman, comes after the feds blocked Texas from illegally importing
shipments of the drug sodium thiopental from India last year.
The move raises the question not only of how Texas will continue to execute the
condemned once its current supply of death drugs runs out, but what protocol
prison officials will use in the future as it becomes harder and harder for
death penalty states to get their hands on execution drugs.
In many ways, the drugs used to carry out lethal injections are now at the
heart of the debate surrounding capital punishment in the United States. Texas,
like many other states, for a long time used a standard 3-drug cocktail to
execute prisoners. But that was until manufacturers of the critical component,
the sedative sodium thiopental, stopped selling the drugs to states that would
use them in executions - largely due to pressure from anti-death penalty
advocates. In 2011, the Texas Department of Criminal Justice switched to its
current drug of choice, pentobarbital, but pretty soon even that was hard to
get.
Texas eventually turned to compounding pharmacies, which aren't regulated by
the FDA, as a supplier. But it soon became clear that those pharmacies would
only sell to the state in secret. When the Associated Press outed the Woodlands
Compounding Pharmacy as the state's supplier of execution drugs in 2013, the
pharmacy quickly backed out of the deal, demanding the state return the vials
of pentobarbital. After the dust-up, then-Attorney General Greg Abbott did a
complete about-face on the issue, ruling that pharmacies that sell the state
drugs for lethal injections could do so in secret (last session, the Texas
Legislature made such secrecy the law).
The drug crunch and the shift by Texas and other states toward secret suppliers
have raised a host issues now playing out in courts across the country.
Pentobarbital apparently isn't always that easy for Texas officials to acquire.
While TDCJ spokesman Jason Clark told us the state has enough of the stuff for
the eight remaining executions scheduled for this year, last year it almost ran
out before another secret supplier swooped in. Clearly, the state's current
source is shaky enough for prison officials to look elsewhere for a Plan B.
Last year, as Buzzfeed News first reported, they even tried to import drugs
from India. Attorneys say there's sign Texas may have even tried to manufacture
the drugs on its own and ship them to other death penalty states (which prison
officials here deny).
Maurie Levin, a well-known death penalty attorney in Texas who has challenged
the state secrecy surrounding the execution drugs, says prison officials could
just shift to another, more controversial drug: Midazolam, the drug Oklahoma
officials used in the botched 2014 execution of convicted murderer Clayton
Lockett, a drug that some experts claim cannot produce the deep, coma-like
state needed to ensure executions don't violate the Constitution's Eighth
Amendment ban on cruel and unusual punishment. Texas reportedly has a stockpile
of the stuff on hand in case its other options fall through.
While appellate attorneys have argued that death row inmates have become the
criminal justice system's guinea pigs, last year the U.S. Supreme Court ruled
5-4 in upholding midazolam as an approved execution drug. Still, in his
dissent, Justice Stephen Bryer used the case as a vehicle to question the death
penalty itself, urging his fellow justices to "reopen the question" of whether
capital punishment is, in practice, constitutional.
Meanwhile, Clark at TDCJ says there are "no immediate plans" to use anything
but pentobarbital to execute inmates in Texas for the foreseeable future.
However, given the current state of capital punishment in the United States,
that could very well change once prison officials run through their current
batch of the drug. In a statement, Clark said, "TDCJ cannot speculate on the
future availability of drugs, so we continue to explore all options including
the continued use of pentobarbital or alternate drugs to use in the lethal
injection process."
(source: Houston Press)
*******************
FDA Blocks Texas Import of Execution Drug
The U.S. Food and Drug Administration has told the Texas Department of Criminal
Justice it is tentatively barred from importing a drug used in executions,
according to department spokesman Jason Clark.
Clark said the FDA sent a letter to the department on April 15 informing it of
the tentative ban on importing sodium thiopental.
The department is reviewing the decision and, "exploring its options moving
forward regarding the lawful importation of drugs used in the lethal injection
process," Clark said.
Texas has been struggling to obtain the drug used in the execution of death row
inmates. Last year, Buzzfeed reported that Texas and Arizona were attempting to
import the drug from India, although the FDA stopped the shipments.
The Statesman first reported the ban on Tuesday and said it came after Texas
appealed the FDA seizure last summer. Clark declined to comment on specifics of
the FDA's letter.
Texas has relied on various drug combinations to create the lethal concoction
used for executions after the European Union issued various restrictions on the
export of drugs used in execution and U.S. manufacturers began cutting off
suppliers.
In an effort to prevent harassment and threats aimed at domestic manufacturers
of the drug, the Texas Legislature approved a measure that would keep the names
of execution drug providers from the public.
"Discussion in the public area has led to a chilling effect for companies who
want to supply this compound to the state of Texas," said state Sen. Joan
Huffman, the bill's author, in May. "There are very few doses left of the drug
that's currently being administered."
(soruce: Texas Tribune)
***********
American justice on trial in inmate's pursuit of new sentence----Duane Buck is
on Texas' death row because he is black. If that's not reason enough to lighten
the sentence, we're all in trouble.
Friday is a day of reckoning for Duane Buck.
That's the day the Supreme Court will determine whether to hear his appeal for
a new sentencing hearing. Buck is on death row in Texas.
It is important to emphasize that he is not seeking a new trial. There's no
question of Buck's guilt in the 1995 shooting deaths of his ex-girlfriend,
Debra Gardner, her friend, Kenneth Butler, and Buck's stepsister, Phyllis
Taylor. No, all he's asking is to be re-sentenced for the crime.
There is, you see, a law in Texas that says you can't be sentenced to death
unless a jury finds that you represent a future danger, i.e., that you are
likely to hurt someone else if left alive. In Buck's case, psychologist Walter
Quijano, a supposed expert testifying for the defense, no less, told jurors
Buck represented just such a danger.
Because he is black.
If any of this rings a bell, it's because I wrote about the case three years
ago. If you read that column, you may recall that one of the researchers on
whose writings Quijano based his testimony says his work supports no such
conclusion. Indeed, Quijano's claim was so outrageous that even Buck's
surviving victim and one of his prosecutors think he should get a new hearing.
In 2000, Sen. John Cornyn, who was then Texas' attorney general, conceded the
state was wrong in allowing race to be used as a factor in sentencing.
Quijano had given similar testimony in 6 cases. The other 5 defendants, all
black or Hispanic, got new hearings. Buck was denied, based on a flimsy
legalism, namely that the offending testimony came not on "cross," but on
direct examination. In other words, it was first elicited by the defense.
People keep telling me I'm wrong to believe the justice system is riddled with
racial bias. They tell me the system has nothing against people of color, and
that it is only evidence of their own native criminality that such people are
stopped, frisked, arrested, tried and incarcerated in wildly disproportionate
numbers. People keep promising me the system is just.
And I keep being sickened by stories like this. I keep finding studies like the
2012 report by University of Maryland criminology professor Raymond
Paternoster, which said that at the time of Buck's sentencing, the local DA was
3 times more likely to seek death for a black defendant than for a white one.
It's worth noting, by the way, that these predictions of future dangerousness
are not exactly unerring. Texas Defender Services, a nonprofit law firm
specializing in capital cases, studied the records of 155 death row inmates and
found that only 5 % went on to commit assaults serious enough to warrant more
than a Band-Aid. In a place where you can get written up for saving a seat in
the cafeteria or having too many postage stamps, Buck has a clean disciplinary
record dating back to 1998.
So Quijano's testimony was not only racist, but also - pardon the redundancy -
wrong.
Look, I don't like the death penalty. If you know me, you already know that.
But even if I did, I would want to be sure this severest of sanctions was
imposed fairly. Plainly, it is not.
And the fact that it is not cannot help but undermine the credibility of the
entire system. If we countenance bias at this extremity, what confidence can
anyone have in the system's fairness at any level, down to and including
parking tickets?
The racism here is not subtle. To the contrary, it is neon. To deny Buck a new
sentencing hearing untainted by bizarre suppositions about the future danger he
poses because of his skin color would shred even the pretense of equality
before the law. So let us hope the court does what it should.
Because, yes, Friday is a day of reckoning for Duane Buck. But it's a day of
reckoning for justice, too.
(source: Leonard Pitts is a columnist for The Miami Herald----Press Herald)
****************
Former Texas Governor: Racism Has Infected Our Justice System----Bias too often
plays an unfair role in our criminal justice system
No prosecutor, defense attorney, or judge should inject - or allow for the
injection of - racial fears and stereotypes about the dangerousness of black
men into a jury determination about whether a specific black man should live or
die. And no court should uphold a death sentence where the jury was invited to
sentence a man to death because of his race.
But that's precisely what happened in the case of Duane Buck.
When Buck was on trial for the murders of 2 people in Harris County, Texas, in
1997, his own trial attorneys presented an "expert" witness who testified that
Buck was more likely to be dangerous in the future because he is black. The
prosecutor urged the jury to rely on this racially charged testimony to find
that Buck deserved a death sentence, and the trial judge allowed the
presentation of this evidence and argument without comment. Buck was sentenced
to die. The Supreme Court stayed his execution in 2011 but denied his appeal
for a re-trial. At the time, U.S. Supreme Court Justice Samuel Alito
characterized this race-based testimony as "bizarre and objectionable" but said
it should not be re-tried since the witness was elicited by the defense
lawyers. Writing the dissent, U.S. Supreme Court Justice Sonia Sotomayor
declared that Buck's death sentence was "marred by racial overtones" that "our
criminal justice system should not tolerate."
Nothing has been done to right this wrong. That can change if Texas or the U.S.
Supreme Court agrees that the extraordinary unfairness in this case must be
addressed. Buck's petition is expected to be conferenced by the U.S. Supreme
Court on April 22.
No constitutional principle is more fundamental than the imperative that racial
discrimination play no role in a criminal trial. This is especially true where,
as here, the death penalty is at issue.
When the U.S. Supreme Court looks closely at Buck's case, it will see what
former Texas Attorney General (and current U.S. Senator) John Cornyn, saw in
2000, when he conceded that a jury's consideration of expert testimony linking
race to dangerousness violates the constitution.
Cornyn scoured Texas's death row, identified the 6 cases - including Buck's -
where such testimony was presented, and promised that in each of those cases,
Texas would set aside its objections and admit that the death sentences were
unconstitutional. Texas kept its promise and all the identified defendants -
except Buck - have received new, color-blind sentencing hearings.
Texas has never explained its failure to keep its promise in Buck"s case. The
argument that Buck's case is different because his own attorneys introduced the
false and racially biased testimony is dishonest. The same "expert" was also a
defense witness in 2 of the other cases in which Texas conceded constitutional
error and allowed a new sentencing hearing.
I know something about the death penalty. As Governor of Texas, I oversaw 19
executions. It is clear to me that the right thing to do in this case is ensure
that Buck receives a new, fair sentencing hearing.
But don't just take my word for it. Ask former Harris County Assistant District
Attorney, Linda Geffin, one of Buck's trial prosecutors. She has called for a
new sentencing, stating: "No individual should be executed without being
afforded a fair trial, untainted by considerations of race."
Or ask the surviving victim of the crime, Phyllis Taylor, who has said he has
forgiven Buck and does not want him to be executed.
Or ask Cornyn, who promised that the death sentenced prisoners subject to this
"expert's" testimony would receive a new, fair sentencing hearing where race is
not a factor.
Or ask the more than 100 civil rights leaders, elected officials, clergy,
former prosecutors and judges, and past presidents of the American Bar
Association who agree that Buck must be treated like the other defendants who
were granted new sentencing hearings.
Our country is currently grappling with the unfair role that racial bias too
often plays in our criminal justice system. Growing numbers of people are
recognizing that racial discrimination seriously undermines public confidence
in our system's fairness and accuracy.
While Buck's case is an unusually egregious example, it offers the opportunity
to show that the people of the State of Texas do not tolerate unfairness and
injustice. Texans are strong, and there are few actions more powerful than
admitting a mistake and fixing it.
Now, more than ever, Buck must be given a new, fair sentencing hearing that is
free from the toxic effects of discrimination. It's time for this mistake to be
fixed.
(source: Mark White served as the 43rd Governor of Texas from 1983 to
1987----TIME Magazine)
*********
A clear trend: The end of the death penalty in Texas is long past due
Amnesty International last week issued its annual report on the use of capital
punishment, reporting that worldwide executions spiked by 54 %, while the
number of executions carried out in the United States continued to decline in
2015.
A total of 28 people were put to death in 6 states, the lowest number of
executions recorded in the U.S. since 1991. Only three states - Texas, Missouri
and Georgia - were responsible for 85 p%. The busiest executioner in 2015 was
in Texas, where 13 men were put to death by lethal injection.
Nationally, these numbers are headed in the right direction, but Texas has been
stubbornly resistant even as one example after another of botched justice has
come to light.
The most recent high-profile example of our error-prone death penalty is the
case of former death row inmate Alfred Dwayne Brown, who continues to battle
the state of Texas for fair treatment after he was wrongfully convicted in the
2003 shooting death of Houston Police Officer Charles Clark. Brown, now 34,
spent a decade of his incarceration on death row, but his conviction was
overturned by an appeals court. The Harris County District Attorney's Office
decided there was not enough credible evidence to try the case again, and the
charges were dismissed. However, the state is refusing to award him just
compensation for his ordeal.
Brown's case is not unique and sounds tragically familiar. A litany of Texas
cases over the years has raised serious questions about whether defendants
received justice in a Texas courtroom.
Well-known Texas exoneree Anthony Graves was released from prison in 2010 after
18 years, 16 of them on death row, in the 1992 deaths of six people in
Sommerville. His case was riddled with false or misleading forensic evidence,
perjury or false accusation and official misconduct. Twice the former Burleson
County resident was given an execution date.
According to the National Registry of Exonerations, a joint project of the
University of Michigan Law School and the Center on Wrongful Convictions at
Northwestern University School of Law, Texas has had 241 exonerations between
January 1989 and February. There are other cases where defendants may have been
executed on the basis of questionable or false evidence.
State Reps. Harold Dutton and Jessica Farrar, both D-Houston, and state Sen.
Eddie Lucio Jr., D-Brownsville, last year filed separate bills to abolish the
death penalty. Their goal may seem quixotic to some, given Texas lawmakers'
dedication to the ultimate penalty, but we urge them to try again when the
Legislature assembles for the next session in 2017.
Some things take time to change. For the end of the death penalty in Texas,
that time is past due.
(source: Editorial, Houston Chronicle)
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