Presentation for Emmanuel (Episcopal) Church MLK Weekend 2011


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This is an introduction to the basic law and social science of the death penalty in early 21st-century America, given as part of a parish's 2011 commemoration of Martin Luther King Jr's birth.

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  • Thank you, Ann Marie.It is an honor to be appearing before your forum to share some of what I’ve learned about the death penalty in studying or teaching political science since the late 1960’s and in doing capital litigation in state and federal court since 1991.
  • Dr. Martin Luther King did not live to see the Supreme Court decisions of the 1970’s limiting the death penalty that we will be discussing. Two of these decisions will be the focus of the first part of this presentation. The focus of the second part will be how they have changed the death penalty in the United States. These decisions were the product of the same movement Dr. King led in the later years of his life. Both sets of challenges to the death penalty were brought by the NAACP Legal Defense Fund.Toward the end of his life, he championed an end to the war in Vietnam. At the time he was assassinated, he was in Memphis to support the rights of sanitation workers. These causes were by no means unique to African-Americans.This weekend we need to reflect on what Dr. King would say about the death penalty.
  • From the beginning of recorded history, official punishmenthas included death.
  • “The punishment of high treason in general is very solemn and terrible.”1. That the offender be drawn to the gallows, and not be carried or walk; though usually a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged onthe ground or pavement .2. That he be hanged by the neck, and then cut down alive. [2a. That his privy parts be cut off, while he is yet alive.]3. That his entrails be taken out, and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts.6. That his head and quarters be at the king's disposal.The king may, and often doth, discharge all the punishment, except beheading, especially where any of noble blood are attainted. For, beheading being part of the judgment, that may be executed, though all the rest be omitted by the king’s command. [1 Hal. P. C. 351.] 4 W. Blackstone, Commentariesch. 6 at 92-93 (1765)[This punishment for treason Sir Edward Coke tells us, is warranted by divers examples in scripture; for Joab was drawn, Bithan was hanged, Judas was embowelled, and so of the rest. (3 Inst. 211.).]Accessed at on May 12, 2005 (emphasis supplied).Blackstone’s description is partial because the default punishment for the convicted traitor included being castrated immediately after being hanged and cut down, to show him unfit to breed. SeeC.D. Bowen, The Lion and the Throne: The Life & Times of Sir Edward Coke (1957).
  • You may remember that this was how William Wallace was executed in “Braveheart,” though Hollywood could not get away with showing the punishment in its entirety because of its obscene grotesqueness.
  • Over 200 offenses were punishable by death in England when U.S. was founded.American colonies limited the death penalty to between 10 and 18 offenses. Woodson v. North Carolina, 428 U.S. 280, 289 & n.14-15 (1976) (plurality opinion).
  • New Constitution recognized the existence of the death penalty.The First Congress, which included several of the Framers, adopted the death penalty for certain federal offenses.
  • For this reason, generations of lawyers and other citizens assumed that the Eighth Amendment’s prohibition on “cruel and unusual punishments” COULD NOT forbid the death penalty.The clause came from the English Bill of Rights (1689), which used the word “ought” rather than “shall” and was primarily or initially intended to forbid unprecedented sentences by judges rather than limiting the legislative definition of punishments. It did not by its own force end hanging, drawing, and quartering, which remained the statutory punishment for high treason until 1814, though used less in practice in the Eighteenth Century, at least after being used on at least 33 convicted after the 1745 Jacobite Rebellion. Burning at the stake continued in England until the end of the Eighteenth Century, about the time Congress drafted and the states ratified our Bill of Rights.
  • Throughout the Nineteenth Century, England and America began to use the “long drop” form of hanging, designed to break the neck and cause instantaneous death without at the same time decapitating the condemned person.
  • Throughout the Nineteenth Century, England and America began to use the “long drop” form of hanging, designed to break the neck and cause instantaneous death without at the same time decapitating the condemned person.
  • Throughout the Nineteenth Century, England and America began to use the “long drop” form of hanging, designed to break the neck and cause instantaneous death without at the same time decapitating the condemned person.
  • Garotte—strangulation. This was the method of execution in Spain and Portugal before they abolished the death penalty in 1978 and 1976, respectively.This has not been a form of execution used in the United States. Strangulation causes pain that is not necessary to bring about the death of the condemned person.
  • The earliest cases in which the Supreme Court had occasion to apply the Eighth Amendment’s ban on cruel & unusual punishments involved the introduction of the firing squad as a civilian punishment in the Utah Territory.The universal form of execution in civilian cases from the Founding until the establishment of Utah had been hanging.In Wilkerson v. Utah, the Supreme Court rejected the claim that the firing squad was per se unconstitutional as a form of execution in civilian cases. It relied on the fact that a large proportion of military executions had been conducted that way. Wilkerson is the first decision by the U.S. Supreme Court relating to the constitutionality of the death penalty, and from the first has stood for the implicit proposition that the Eighth Amendment did not “freeze” the law about execution at what it was when Congress passed and the states adopted the Bill of Rights in the eighteenth century.It held that the amendment forbade “unnecessary cruelty” in carrying out a death sentence.
  • 99 U.S. 130, 136 (1879)
  • The next method of the method-of-execution case dealt with the electric chair in the State of New York.<SEGUE TO QUOTATION FROM IN RE KEMMLER>
  • 136 U.S. 436The state court had construed the method of execution statute to require that “the application of electricity to the vital parts of the human body, under such conditions and in the manner contemplated by the statute, must result in instantaneous, and consequently in painless, death.”First citation, 136 U.S. at 443-44 (emphasis supplied).“Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution. It implies . . . something more than the mere extinguishment of life.Secondcitation, 136 U.S. at 447 (emphasis supplied).
  • Because “a principle to be vital, must be capable of wider application than the mischief which gave it birth,“ the Cruel & Unusual Punishments Clause "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” Weems v. United States, 217 U.S. 349, 373, 378 (1910) (emphasis supplied). “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion) (emphasis supplied).
  • In 1937, Missouri changed its form of execution from hanging in the county of conviction to the two-seater gas chamber at the old Missouri State Penitentiary.
  • In 1977, the State of Oklahoma introduced lethal injection as its form of execution.Texas soon followed, and the U.S. had its first lethal injection execution in 1982.Missouri adopted this form of execution in 1988.----------------------------------------------------------------------------------------------------It is beyond the core of this presentation, but I have some additional slides at the end of this datafile dealing in detail with the litigation about LI and why we have gone through it. I would be willing to go through these for anyone who would like to know why LI has become a legal issue in itself.
  • In the 1950’s and 1960’s, serious questions arose about the death penalty, especially in respect to the extent to which it was applied more frequently to blacks than to whites, and to its use in rape cases where there was no homicide.The NAACP Legal Defense Fund brought several such cases before the Supreme Court that were decided under the name “Furman v. Georgia.”There was a long, informal moratorium from the mid-1960’s until well after the Supreme Court decisions of the 1970’s. Missouri’ last execution before this moratorium was in 1965. The last execution in the country before Furman was in 1967.1972Supreme Court struck down the death penalty as it existed in the United States.Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (per curiam)
  • A majority of the Supreme court held that the death penalty as practiced at the time violated the Cruel & Unusual Punishments Clause.All nine justices wrote separate opinions.Two justices found that it was “cruel and unusual” as it existed because it did not make a rational distinction between the many persons convicted of death-eligible offenses who did not receive the death penalty and the fewwho did.
  • These were Justice Potter Stewart, appointed by President Eisenhower,andByron White, appointed by President Kennedy.
  • Justice Stewart wrote that for a relatively small proportion of defendants to be sentenced to death, when many of the rapes and murders committed in the same years were just as reprehensible as theirs, was“cruel and unusual in the same way that being struck by lightning is cruel and unusual.”
  • My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race.408 U.S. at 309-10 (Stewart, J.).
  • In Furman, all four of the Justices appointed by Richard Nixon voted to affirm the sentences.
  • Two Members, Justice Brennan appointed by President Eisenhower, and Justice Marshall appointed by President Johnson, would have held that the death penalty was per se unconstitutional, based on evolving standards of human decency that the Court has long recognized as informing its application of the Eighth Amendment.That left the Court split evenly.
  • Justice William O. Douglas voted in the majority.He specifically referred to racial discrimination in selecting which convicted persons to execute as making the death penalty as it existed unconstitutional.
  • He had been appointed by President Roosevelt.
  • Although he was generally a liberal man, he had been on FDR’s side when there were four members of the Supreme Court—ButlerMcReynoldsSutherland, and Van Devanter--who would use vague clauses of the Constitution to strike down Populist, Progressive, and New Deal legislation that they would have voted against if they had been elected to the legislative branch.This was a more complex decision for Justice Douglas than it might have been.The Constitution clearly forbids racial discrimination in the application of the law, and Justice Douglas found sufficient evidence of racial discrimination in the death penalty to go along with Justices Stewart and White in finding its application to violate the Constitution.But for racial discrimination, he could just as easily have voted with the Nixon appointees to avoid holding the death penalty unconstitutional.
  • Justice Douglas relied primarily on the disparate impact of the death penalty on black and poor defendants, but agreed that under the practices in place before Furman, there were “no standards” to guide the sentencer, leaving the decision to “whim” or worse.“We cannot say from facts disclosed in these records that these defendants were sentenced to death because they were black . . . Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.” 408 U.S. at 252-53 (concurring opinion) (emphasis supplied)“‘A penalty . . . should be considered “unusually” imposed if it is administered arbitrarily or discriminatorily.’ . . . The President's Commission on Law Enforcement and Administration of Justice recently concluded:‘there is evidence that the imposition of the death sentence and the exercise of dispensing power by the courts and the executive follow discriminatory patterns. The death sentence is disproportionately imposed and carried out on the poor, the Negro, and the members of unpopular groups.’”Eighth Amendment intended to ensure a system based on equal justice not discrimination. When Eighth Amendment written the target was not the blacks or the poor, but the dissenters.Targets in the Framers’ historical recollection were the opposition and those unpopular with the regime.“One cannot read this history without realizing that the desire for equality was reflected in the ban against ‘cruel and unusual punishments’ contained in the Eighth Amendment.” 408 U.S. at 255 (concurring opinion).Equal justice not discrimination Dissenters.Unpopular with regime“One cannot read this history without realizing that the desire for equality was reflected in the ban against ‘cruel and unusual punishments’ contained in the Eighth Amendment.”408 U.S. at 249-50 (concurring opinion) (emphasis supplied).
  • Several states adopted different means to attempt to eliminate arbitrariness which critical Justices found in FurmanMethods included
  • 1976 - Supreme Court considered cases from different states together
  • A total of five Justices rejected category bills.These five included the plurality (Stewart, Powell & Stevens) and the two who would have declared the death penalty constitutional in general (Brennan & Marshall).
  • Justice Powell Moved from relatively uncritical support for the constitutionality of the death penalty to support for a middle position.Justice Stewart’s opinion is the law from Gregg.Joined by Powell and Stevens. 428 U.S. at 158-207 (plurality opinion).
  • “death is a punishment different from all other sanctions in kind rather than degree. . . . A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.”Woodson v. North Carolina, 428 U.S. 280, 303-04 (1976) (plurality opinion).
  • Retribution quotation omits citation to Williams v. New York, 337 U.S. 241, 248 (1949).Deterrence quotation cites, immediately after the quoted text, Furman v. Georgia, supra, 408 U.S., at 403‑405, 92 S.Ct., at 2810‑2812 (Burger, C. J., dissenting). Overall citation for slide is Gregg v. Georgia, 428 U.S. 152, 182-87 (1976) (plurality opinion).
  • If legislatures adopted principled, publicly defensible, reasons for separating the few who should be executed from the many who should not be, andIf the courts enforced these limits on the death penalty, thenthe results would not be arbitrary in any way (such as racially discriminatory), but would be morally justified on the basis of retribution or deterrence or both.
  • On January 17, 1977, when Gary Gilmore died by firing squad in the State of Utah, the United States began executing people again after an informal moratorium since 1965.Three of the next four men executed were, like Gilmore, “volunteers,” who dropped their appeals in order to be executed.NAACP Legal Defense Fund, Death Row USA Summer 2005
  • We now have about 35 years of experience with how the death penalty has worked in the United States after the Supreme Court tried to reform its application.
  • In its 1976 Gregg v. Georgia decision seeking to clean up and reauthorize the death penalty, the Supreme Court identified deterrence and retribution as interests a state could rationally find to support retention of the death penalty.In the decades of experience with the post-Furman death penalty, the social-scientific evidence does not bear out the theory that having the death penalty has any greater effect on the crime rate, or the violent crime rate, or the murder rate, than sentences of life without parole or other nonlethal punishments.
  • There are some published works of economic theory which, if believed, would show that the death penalty is a more effective deterrent to crime than is imprisonment.
  • There is more scholarship--a generation of real social science--that disputes this proposition.
  • Some of the latter scholarship shows that one must net out any assumed deterrent effect against a “brutalization” effect of the state's teaching people that killing each other is the way to resolve conflicts.
  • The experience of about thirty-five years of the death penalty under Gregg bears out, as a matter of fact, what Dr. King taught as a matter of theology.
  • As long as politicians and governments teach that the way to make one’s point is to kill someone, the cycle of violence will continue.A government that apparently can’t teach math, science, English, and other languages any longer can more easily teach killing. We saw that happen two weeks ago.
  • It is too haphazard to be “narrowly tailored,” as the Court sometimes requires a state policy to be under the Due Process Clause, to serve the interest in retribution that the Supreme Court has recognized as the second legitimate basis for having the death penalty. The problem identified in Furman exists in spite of the limits Gregg imposed.
  • People are sentenced to death not because they commit the worst crimes, but because they have the worst lawyers.Rich people like BerhieMadoff do not have to worry about the death penalty. and the men charged with capital crimes are usually left to overworked, underpaid public defenders, or appointed counsel who are paid irregularly and at rates far below the fair market value of their time.But the best predictor of who will get the death penalty isn’t even their family’s poverty, but their race and the race of the person they are accused of killing.
  • It is impossible to speak frankly about the death penalty in the United States without speaking about race. Race bears on the families’ claims under the right of privacy doctrine, because the death penalty’s impingement on their family lives cannot be justified as “narrowly tailored” to the objective of retribution as long as race plays a significant role in deciding whom the state seeks the death penalty against and whom the state executes. A state policy that favors white lives over black lives is not simply arbitrary, but invidious, but is also arbitrary for purposes of applying the privacy doctrine to determine the presence or absence of narrow tailoring to a compelling state interest.The federal government, which has a separate death penalty, has repeatedly acknowledged that there is a relationship between the color of the accused, the color of the decedent, and the decision to seek the death penalty or to impose it.
  • Although the source definitely has a viewpoint, the data themselves are a matter of public record, are not seriously subject to question.What is controversial is not the numbers, but the conclusions to be drawn from them.The country’s experience with the death penalty after the Supreme Court tried to clean in up in the 1970’s is that almost 80% of the victims of crime for whose murders it is imposed were white. Although more white men have been executed than black men, the percentage of black men executed is over twice the percentage of black victims of crime for whose murders someone (usually black) has been executed.By contrast, there have been almost twice as many white people for whose death someone has been executed than there are while people who have been executed.As of the date of the Death Row U.S.A. report including these figures, there had been 1168 people executed since Furman. Only 15 out of over a 1000 were whiles executed for killing blacks.As it is practiced where it is practiced in the United States, the death penalty systematically favors white lives over black lives.
  • Both nationwide, and within the State of Missouri, the post-Furman death penalty is only a serious factor where there is a history of slavery. In this respect, it tracks the incidence of lynching of African-Americans.This map shows the relative incidence of lynchings of black people from 1882 to 1968, as reflected in a study by the UMKC School of Law.It shows the both Missouri and Kentucky had elevated rates of lynching even though they had not voted to secede.They had had slavery, and were considered Border States.[SOURCE OF MAP:StateMaster.ComThis website was created by Rapid Intelligence, an independently funded web publishing company. Some textual content created by StateMaster is published under a Creative Commons license. StateMaster's Content Manager and Chief Writer is John D Steinmetz, a native of South Dakota who formerly worked for the US Forest Service and Washington Department of Fish and Wildlife. Educated in political science, geography and history in New York, he has traveled through all the lower 48 states on a Kawasaki KLR motorcycle, and attributes his safe passage to tremendously helpful and warm individuals in such faraway places as Milford Utah, Elkhart Indiana and Brooklyn New York. We are also the makers of NationMaster, the world's largest database of statistical comparisons between countries, as well as FactBites, a unique search engine which gives you meaningful sentences instead of jumbled keywords.]
  • People are generally aware that most states have not abolished the death penalty. That is a trivial truth, because most states with the death penalty on the books do not choose to use it.As of last Sunday, September 19, 2010, over 80% of the executions after Furman & Gregg were in the former Confederacy.But one can’t stop counting there.
  • When one adds the Border States (which did not secede but had slavery) to the Confederacy per se, one gets to almost 88% of post-Furman executions.But it doesn’t stop there.
  • There were in the North widespread forces that resisted the war effort and had no trouble tolerating slavery. The general term for them was “Copperhead,” which was originally a term of derision comparing them to poisonous snakes, but which they adopted because the image of Liberty appeared on a copper coin of the day.Among their leaders were Congressman Clement Vallandigham, who was exiled and ran for Governor of Ohio from Canada, and Lambdin P. Milligan, who was condemned to death by a military commission for militarily aiding the Confederates, but eventually freed because the Supreme Court held that civilians could not be tried by military commissions when & where the regular courts were in operation, as they were in Indiana when he was convicted for what he was doing.These people were a minority in their states, or else the states would have seceded; but they were part of the history of their states, and part of the landscape against which voters, jurors, and politicians in their states make decisions today.[Wood Gray, The Hidden Civil War: The Story of the Copperheads (1942)Kenneth M. Stampp, Indiana Politics During the Civil War (Indianapolis: Indiana Historical Bureau 1949) Jennifer L. Weber, Copperheads: The Rise and Fall of Lincoln's Opponents in the North (2006)]
  • Copperhead activity was strongest just north of the Ohio River, and the states there have been among the few in the North to continue the death penalty seriously after Furman.
  • When Indiana and Ohio are added to the states that had slavery, the resulting states account for over 92% of the post-Furman state executions.There have only been three federal executions since Furman, and all three of them in cases from the South.Unless there is something in the drinking water that causes people in states with a history of support for slavery to do lynchings and post-Furman executions, there would appear to be some causal connection between having had slavery in the past and the descendants of the masters from feeling a need to terrorize the descendants of the slaves.The fact that killing some white men—at some places and some times, a majority of those executed—should come as no surprise. The Confederates suffered the cream of their manhood to be mown down by the thousands, with 1123 killed in Pickett’s Charge on the third day of the Battle of Gettysburg alone.What’s different today is that they know they could not get away with executing African-Americans exclusively or predominantly because of the political forces at work in Washington, D.C.
  • The following maps are part of a Ph.D. dissertation by a rural sociologist, Michael Lenza, that he did under the supervision of John Galliher at the University of Missouri. When Dr. Lenza divided the state into three types of counties—free, slave, and “Southern slave culture”—he found that the latter two categories had a highly disproportionate number of lynchings between the Civil War and Furman, and of death sentences after Furman.
  • Thus, the association of slavery before 1865, lynchings between 1865 and Furman, and death sentences after Furman exists both nationwide and within this state.Dr. Lenza now teaches at the University of Wisconsin, Oshkosh.
  • As everywhere else, in Missouri the most likely pairing of accused and decedent in which prosecutors seek the death penalty is black on white.This table and the next one tease out additional comparisons showing why black people are executed disproportionately even after Furman.“Prevailing Injustices in the Application of the Missouri Death Penalty 1978-1996)" 32 Social Justice: A Journal of Crime, Conflict & World Order 151 (2005)
  • This table shows how Missouri’s execution rates changed from the period between 1937 and 1965, before Furman and Gregg, to the period from 1989 to 2005 in which all but one of Missouri’s post-Gregg executions took place.It does not count the informal moratoriums while Furman was pending or the recent period of three and a half years following the stay in the Michael Anthony Taylor lethal injection case.
  • Before Furman and Gregg, Missouri had fewer executions per year, but they were about 2/3 black.Now, there are a larger proportion of whites executed, but there are so many more executions that more blacks are executed in absolute numbers than there were before Furman.
  • Although Gregg presupposed that statutory aggravating factors would channel a sentencer’s discretion, the Missouri General Assembly has made virtually every circumstance associated with homicides an aggravating factor.This brings back into the capital sentencing process the freewheeling ability to say death or life, and the opportunity to discriminate on the basis of race, that Justices Stewart, White, and Douglas found to make the death penalty unconstitutional in Furman.It defeats the purpose of having statutory aggravating factors that Justices Stewart, Powell, and Stevens relied on in Gregg.
  • In 1981, when the Missouri Supreme Court first issued a decision concerning proportionality review, it utilized both life-sentenced cases and death-sentenced cases in conducting the review. The Court in State v. Mercer, 618 S.W.2d 1, 11 (Mo. banc 1981), the first case, stated that it had considered “Those cases in which both death and life imprisonment were submitted to the jury, and which have been affirmed on appeal. . . .” (Mr. Mercer’s punishment was deemed not disproportionate and affirmed. He has since been executed.)
  • In 1981, when the Missouri Supreme Court first issued a decision concerning proportionality review, it utilized both life-sentenced cases and death-sentenced cases in conducting the review. The Court in State v. Mercer, 618 S.W.2d 1, 11 (Mo. banc 1981), the first case, stated that it had considered “Those cases in which both death and life imprisonment were submitted to the jury, and which have been affirmed on appeal. . . .” (Mr. Mercer’s punishment was deemed not disproportionate and affirmed. He has since been executed.)
  • In 1993, the Missouri Supreme Court began looking only at cases in which the jury returned a punishment verdict of death.
  • In 2010, the Missouri Supreme Court decided four cases in which it held that the statute requires it to look at both Death and Life verdicts.
  • Now, several of us who represent men whose appeals to the Missouri Supreme Court between 1993 and 2010 are arguing that they were denied a procedural protection the state had created for persons sentenced to death. Hicks.Still at issue.
  • The Supreme Court has held that the prosecution is entitled of a jury free from jurors who cannot consider the death penalty as one option if the jury finds the accused guilty of a capital crime.Prosecutors use “death qualification” to remove citizens who testify they could not consider death, which is all the law requires, but who indicate mere reluctance to impose death.Such strikes fall more heavily on African-American prospective jurors, allowing prosecutors to get around the decisions such as Batson v. Kentucky that recognize it is unconstitutional to strike potential jurors because of their color or gender.
  • n order for the role of mitigation to serve the purpose the Court set for it in Gregg, counsel must be zealous and well-funded.In subsequent decisions, the Court has endorsed the American Bar Association’s Guidelines, which provide that counsel’s preparation ““should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.”Missouri does not provide an adequate means of litigating claims that trial counsel was ineffective in the discharge of their professional duty.A full treatment of this subject is beyond the scope of this presentation, but one can find much information relevant to it in the link to my Web site on the handout.
  • Both the Supreme Court and Congress expect it to take years to subject death sentences to the review designed to assure that the requirements of Gregg are being observed.This weakens the deterrent effect of the death sentence.It also subjects the condemned person to more punishment that if he were simply sentenced and executed after a reasonable period.
  • Additional requirements at the trial stage add dozens of hours of work and thousands of dollars of expenses at the front end of capital cases.Additional levels of appeal and other review required by Gregg and its progeny consume extra judicial and legal FTE’s.Idea that executions save money isn’t realistic given the guaranties Congress hasn’t removed even after the Oklahoma City bombing and 9/11.Scarce public funds spent on finding or generating evidence that wouldn’t be used in a noncapital case is money taken away from schools and mental-health care that could prevent crimes in the first place.A generation of social-science research debunks the claim that the death penalty has any special deterrent effect, and suggests the brutalization effect.
  • By the 1980’s, most of the countries to which Americans like to have our country compared had abolished the death penalty.Under Boris Yeltsin, the Russian Federation abolished it as a condition of expanding trade with our former allies in Western Europe.The principal countries besides the U.S. which still use the death penalty:ChinaIndiaJapanIslamic countries (such as Iran & Saudi Arabia).
  • Source:
  • Last week appointed counsel with the assistance of several others among us won a commutation for Rick Clay, who had been scheduled to be executed on January 12, 2011.
  • The Missouri Supreme Court has set an execution date against Martin Link of February 9, 2011, which means at 12:01 on that date.So the last day one can do anything about this is Tuesday, February 8, 2011.
  • I do not represent Martin Link; but two of my friends do. One of them was one of the two appointed counsel for Rick Clay. On behalf of them and of all the attorneys who are fighting this bizarre, racist aberration in the United States in 2011, I would ask each of you to write the Governor’s Office or the Board of Probation & Parole in support of a commutation of Mr. Link’s sentence to life imprisonment without eligibility for parole. This is a strict, severe sentence that nonetheless does not drag us down to the level where we believe the people we want to punish are.
  • Although I have listed an e-mail address, which I got off the Internet yesterday (1/15/2011), I do NOT recommend e-mail as a medium of communication in support of clemency in a capital case. I believe that it is too easy to ignore. I advise doing something that creates some bulk, like a letter, which sent by U.S. Postal Service, a private carrier like FexEx or UPS, or by fax. I assume that any phone call would be answered by a political volunteer, unpaid intern, or minimum-wage employee, and would be ignored. Not everyone on our side agrees with the latter observation, but it is my estimate of what would happen if one just called one of these numbers, when I briefly worked for Jay Nixon after working several years for Attorney General Bill Webster. A phone number would be called for in completing a FedEx airbill, which is the only reason I list it here.
  • Thank you for your time and attention.I do have some additional material on the lethal injection issue, but would like to open the floor for questions unless the group would like to proceed directly to the LI issue.
  • In 1977, Oklahoma's state medical examiner, Jay Chapman, proposed a new, 'more humane' method of execution, known as Chapman's Protocol: "An intravenoussaline drip shall be started in the prisoner's arm, into which shall be introduced a lethal injection consisting of an ultra-short-acting barbiturate in combination with a chemical paralytic."[4] After being approved by anesthesiologist Stanley Deutsch, Reverend Bill Wiseman introduced the method[5] into the Oklahoma legislature where it passed and was quickly adopted (Title 22, Section 1014(A)). Since then, thirty-seven of the [...] states using capital punishment have introduced lethal injection statutes.[4] On 7 December1982, Texas became the first state to use lethal injection to carry out capital punishment, for the execution of Charles Brooks, Jr..[6]--WikiPedia on Lethal Injection, 5-31-2009.In 1988, the Missouri General Assembly amended our method-of-execution statute to allow the use of either lethal injection or lethal gas, in the discretion of the Director of the Department of Corrections. All of the executions here since then have been by lethal injection.Today it is virtually the only form of execution actually used in the United States, though some states have alternatives on the books, usually at the condemned person’s option, especially when the state had changed the form of execution after the offense. These include Utah, where the condemned person can elect death by firing squad.Lethal injection is potentially the most painless form of execution in human history, but the bulk of American jurisdictions that practice it (including Missouri) use a three-chemical sequence that poses a known likelihood of excruciating pain which the states and the federal government do not, or cannot, hire medical staff necessary to prevent. The legal controversy over this subject continues. Usually I do not cover it in general presentations on the death penalty, because these talks are frequently after a meal. If you were hearing the truth about lethal injection for the first time, it would turn your stomach.
  • For the latter, legitimate medical, function, sodium pentothal has been replaced by Propufol.
  • The reason real doctors used the first of these three chemicals is that it was short-acting and shallow in its effects, and would be defeated by pain and restore the patient to consciousness if there was a problem intubating them.
  • There is a known likelihood that sodium pentothal will be defeated by the pain caused by the potassium chloride or possibly by the suffocation brought about by the pancuronium bromide.
  • But the second chemical will mask any expression of pain by the condemned.
  • When the second chemical covers up failure to administer the first chemical properly or completely or as indicated by the prisoner’s venous structure or other unique aspects of his body, the staff have no incentive to do the first step right.
  • State statutes and regulations, and professional norms adopted by veterinary associations, forbid veterinarians to use these chemicals even though vets may personally participate in euthanasia and may also recruit and retain the most qualified available personnel to assist them.
  • By contrast, physicians are forbidden by the Hippocratic Oath and in some jurisdictions by positive law from participating in executions. (Exhibit 1, ¶¶ 55-58.)
  • Veterinarians would not use any of these three chemicals in euthanizing animals. The veterinary profession knows that the first is short-acting and that the second and third are cruel means of bringing about the death of a sentient being.It would be illegal to use either of the latter two chemicals in euthanizing a pet. (Exhibit 1, ¶¶ 25, 37-40 & 47-50.)
  • A veterinarian would use a lethal dose of pentobarbital, a long-acting anesthetic, to perform euthanasia consistently with professional regulations, positive law, and the values of humaneness which the latter norms reflect.
  • Switching to a single lethal dose of a strong, long-acting sedative would eliminate the main legal concern about lethal injection as a method of execution, because it would thereby remove the threat of excrutiating pain from insufficient anesthesia in the first step.That is too much for the bulk of states that still actually use the death penalty to swallow.
  • Only when the one company in the United States that still makes Thiopental ran out of its supply did American states even begin to use pentobarbital, but not as a freestanding sedative—as a substitute for Thiopental as the first of three chemicals.After the notoriety arising from allowing a British company to export thiopental to Arizona for an execution, the British Government forbad further exports for use in executions.
  • Ohio had so many botched three-chemical executions that it switched to using a single, massive injection of a strong sedative.Washington State followed.All the other death states that actually have executions use the three-chemical sequence.
  • Missouri is adhering to the three-chemical sequence.
  • August 2004: National Habeas Seminar, St. LouisGary D. Clements, a public defender from Louisiana, made a presentation on the three-chemical sequenceMichael J. Gorla, another St. Louis attorney, and I attended.This was when I first learned of the problem with the three-chemical sequence.Michael Gorla and his co-counsel Chris McGraugh filed the first challenge to Missouri’s LI practices.
  • Hit each case lightly, saying that I was not involved in the first case except as a friend and colleague of Michael Gorla.Spend the most time on the last, because it is going on now.
  • Based on the idea that a state’s execution protocol is a “rule” within the meaning of its Administrative Procedure Act, and requires a public notice and comment procedure like other state rules.This is for the most part a state-law issue, as each state’s APA is different; so we litigated it in state court.Won 4-3 in KY SCtLost 4-3 in Mo SCtLed to stay in case of my client John Middleton that held off all executions here for several months.
  • Presentation for Emmanuel (Episcopal) Church MLK Weekend 2011

    1. 1. Our New “Peculiar Institution”_______________________________________________________________________________________________________________________________________________The Basic Law andSocial Science ofthe Death Penalty in Early Twenty-First Century America<br />
    2. 2. byJohn William SimonforEmmanuel Church,Webster Groves,January 16, 2011<br />
    3. 3.
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    8. 8.
    9. 9.
    10. 10. Sentence for High Treason at Common Law:<br />That you be led to the place from whence you came, and from thence be drawn upon a hurdle to the place of execution,<br />and then you shall be hanged by the neck<br />and, being alive, shall be cut down,<br />and your privy members to be cut off,<br />and your entrails be taken out of your body<br />and, you living, the same to be burnt before your eyes,<br />and your head to be cut off,<br />your body to be divided into four quarters,<br />and head and quarters to be disposed of at the pleasure of the King's majesty.<br />
    11. 11.
    12. 12.
    13. 13.
    14. 14. VIIIExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. <br />
    15. 15.
    16. 16.
    17. 17.
    18. 18.
    19. 19.
    20. 20. Wilkerson v. Utah(1879)<br />Firing squad an established form of execution<br />Essence of what Constitution forbids is “unnecessary cruelty”<br />Firing squad not per se unnecessarily cruel<br />
    21. 21.
    22. 22. In re Kemmler(1890)<br />must result in instantaneous, and consequently in painless, death.”<br />“Punishments are cruel when they involve . . . something more than the mere extinguishment of life.” <br />
    23. 23. Subsequent Noncapital Caseson Eighth Amendment<br />1910: “not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.”<br />1953: “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."<br />
    24. 24.
    25. 25.
    26. 26.
    27. 27.
    28. 28. Furman v. Georgia(1972)<br />
    29. 29. rational distinction<br />
    30. 30.
    31. 31.
    32. 32. “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”<br />
    33. 33. Constitutional As Is<br />
    34. 34. Random & Freakish<br />Fundamentally Wrong<br />Constitutional As Is<br />
    35. 35. Furman and Race<br />
    36. 36.
    37. 37. FDR v. The Four Horsemen<br />
    38. 38. “It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”<br />408 U.S. at 202 (concurring opinion). (emphasis supplied)<br />
    39. 39. Between Furman & Gregg<br /><ul><li>Categorical capital offenses, e.g., all cop-killers
    40. 40. Aggravating and mitigating factors in individual cases</li></li></ul><li><ul><li>Gregg v. Georgia
    41. 41. Woodson v. North Carolina
    42. 42. Jurek v. Texas
    43. 43. Roberts v. Louisiana</li></li></ul><li>Change in composition of Court<br />Justice Douglas retired.<br />President Ford appointed Justice Stevens to replace him.<br />
    44. 44. Plurality:Stewart, Powell & Stevens<br />Unconstitutional<br />Per Se:Brennan & Marshall<br />
    45. 45. Justice Powell’s vote shifts.<br />
    46. 46. Nixon Appointee<br />
    47. 47. the Court has not confined the prohibition embodied in the Eighth Amendment to "barbarous" methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner.<br />
    48. 48. Gregg v. GeorgiaApproach Approved<br />Bifurcated proceeding (sentencing separate)<br />Use of statutory aggravating and mitigating factors to provide framework to avoid arbitrary and capricious application of the death penalty<br />Proportionality review<br />Automatic review by state supreme court<br />Gregg v. Georgia, 428 U.S. 153 (1976).<br />
    49. 49. Constitutional Without<br />Special Requirements<br />Plurality:Constitutional But with Special Requirements<br />
    50. 50. when a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime.<br />
    51. 51. Permissible Objectives<br />Retribution<br />“’Retribution is no longer the dominant objective of the criminal law,’ but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men.”<br />Deterrence<br /> “The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.”<br />
    52. 52. Countervailing Objectives <br />Individualized consideration <br /><ul><li>Particularized nature of the crime
    53. 53. Particularized characteristics of the individual defendant </li></ul>Predefined principles<br /><ul><li>Jury must find and identify at least one statutory aggravating factor before it may impose a penalty of death.</li></li></ul><li>Rationality & Morality<br />Principled, publicly defensible, reasons for separating the few who should be executed from the many who should not be, and<br />Courts enforced these limits on the death penalty, then<br />Nonarbitrary but a rational morally-defensible legislative choice on the basis of retribution or deterrence or both.<br />428 U.S. at 183-86 (concurring opinion).<br />
    54. 54. 1977<br />
    55. 55. Post-Furman Experience<br />
    56. 56. The death penalty has no net deterrent effect.<br />
    57. 57. <ul><li>Isaac Ehrlich, Fear of Deterrence: A Critical Evaluation of the “Report of the Panel on Research on Deterrent and Incapacitate Effects”, 6 J. Legal Stud. 293 (1977)
    58. 58. Isaac Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 Am. Econ. Rev. 397, 415-16 (1975)
    59. 59. Isaac Ehrlich & Joel C. Gibbons, On the Measurement of the Deterrent Effect of Capital Punishment and the Theory of Deterrence, 6 J. Legal Stud. 35 (1977).</li></li></ul><li><ul><li>John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791 (2005)
    60. 60. Craig Haney & Deana Dorman Logan, Broken promise: the Supreme Court's response to social science research on capital punishment, 50 J. Soc. Issues 75 (1994)
    61. 61. Scott H. Decker & Carol W. Kohfeld, The Deterrent Effect of Capital Punishment in the Five Most Active Execution States: A Time Series Analysis, 15 Crim. Justice Rev. 173 (1990)
    62. 62. James Alan Fox & Michael L. Radelet, Persistent flaws in econometric studies of the deterrent effect of the death penalty, 23 Loyola of Los Angeles L. Rev. 29 (1989)
    63. 63. David C. Baldus & James W.L. Cole, A Comparison of the Work of Thorsten Sellin and Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85 Yale L.J. 170 (1975)
    64. 64. William J. Bowers & Glenn L. Pierce, The Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment, 85 Yale L.J. 187 (1975).</li></li></ul><li>“Brutalization” effect<br /><ul><li>E. Thomson, Deterrence Versus Brutalization: The Case of Arizona, 1 Homicide Studies 110 (1997)
    65. 65. S. Stack, Execution Publicity and Homicide in Georgia, 18 Am. J. Crim. Justice 25 (1993)
    66. 66. W.C. Bailey, Disaggregation in Deterrence & Death Penalty Research—The Case of Murder in Chicago, 74 J. Crim. L. & Criminology 827 (1983)
    67. 67. William J. Bowers & Glenn L. Pierce, Deterrence or Brutalization: What Is the Effect of Executions? 26 Crime & Delinquency 453 (1980).</li></li></ul><li>
    68. 68.
    69. 69.
    70. 70. Not the worst crimes,but the worst lawyers.<br />$<br />
    71. 71. “In 82% of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks.”United States General Accounting Office, Death Penalty Sentencing, February 1990<br />
    72. 72. Post-Furman Executionsas of January 1, 2010<br />
    73. 73.<br />
    74. 74. Confederacy<br />Washington<br />Vermont<br />Minnesota<br />North Dakota<br />Maine<br />Montana<br />New York<br />Michegan<br />(upper penisula)<br />Wisconsin<br />Michegan<br />New Hampshire<br />Oregon<br />South Dakota<br />Idaho<br />Massachutes<br />Pennsylvania<br />Rhode Islad<br />Wyoming<br />Connecticut<br />Delaware<br />Iowa<br />Ohio<br />Maryland<br />Nebraska<br />New Jersey<br />Illinois<br />Nevada<br />Utah<br />West <br />Virginia<br />Colorado<br />Indiana<br />Kentucky<br />Kansas<br />North Carolina<br />Missouri<br />Virginia<br />Tennessee<br />California<br />SouthCarolina<br />Oklahoma<br />Arkansas<br />New Mexico<br />Arizona<br />Mississippi<br />Georgia<br />Alabama<br />Texas<br />Louisiana<br />Florida<br />Alaska<br />Hawaii<br />
    75. 75. Slave States<br />Washington<br />Vermont<br />Minnesota<br />North Dakota<br />Maine<br />Montana<br />New York<br />Michegan<br />(upper penisula)<br />Wisconsin<br />Michegan<br />New Hampshire<br />Oregon<br />South Dakota<br />Idaho<br />Massachutes<br />Pennsylvania<br />Rhode Islad<br />Wyoming<br />Connecticut<br />Delaware<br />Iowa<br />Ohio<br />Nebraska<br />New Jersey<br />Illinois<br />Nevada<br />Maryland<br />Utah<br />West<br />Virginia<br />Colorado<br />Indiana<br />Kentucky<br />Kansas<br />North Carolina<br />Missouri<br />Tennessee<br />California<br />Virginia<br />SouthCarolina<br />Oklahoma<br />Arkansas<br />New Mexico<br />Arizona<br />Mississippi<br />Georgia<br />Alabama<br />Texas<br />Louisiana<br />Florida<br />Alaska<br />Hawaii<br />
    76. 76. Copperheads:<br />Southern Sympathizers in the North<br />Milligan<br />(Indiana)<br />Vallandigham(Ohio)<br />
    77. 77. Slave States plus Two States with Elevated Prominence of Southern Sympathizers<br />Washington<br />Vermont<br />Minnesota<br />North Dakota<br />Maine<br />Montana<br />New York<br />Michegan<br />(upper penisula)<br />Wisconsin<br />Michegan<br />New Hampshire<br />Oregon<br />South Dakota<br />Idaho<br />Massachutes<br />Pennsylvania<br />Rhode Islad<br />Wyoming<br />Delaware<br />Connecticut<br />Maryland<br />Iowa<br />Ohio<br />Nebraska<br />New Jersey<br />Illinois<br />Nevada<br />Utah<br />West<br />Virginia<br />Colorado<br />Indiana<br />Kentucky<br />Kansas<br />North Carolina<br />Missouri<br />Tennessee<br />California<br />Virginia<br />SouthCarolina<br />Oklahoma<br />Arkansas<br />New Mexico<br />Arizona<br />Mississippi<br />Georgia<br />Alabama<br />Texas<br />Louisiana<br />Florida<br />Alaska<br />Hawaii<br />
    78. 78. The bulk of the United States has in practice rejected the death penalty;<br />the Confederacy and its fringe account for almost 93% of post-Furman executions.<br />
    79. 79. Michael Lenza<br />
    80. 80. The association between a history of slavery and the death penalty that exists nationwide also exists WITHIN Missouri.<br />Judicial Circuits with 20% & Over Death Penalty Charging Patterns<br />
    81. 81. Prosecutors 56% more likely to seek death in Black-on-White than in White-on-Black homicide<br />Decedent<br />African-American<br />White<br />White<br />Accused<br />African-American<br />Source for numbers: Lenza et al., “Prevailing Injustices in the Application of the Missouri Death Penalty 1978-1996)" 32 Social Justice: A Journal of Crime, Conflict & World Order 151 (2005)<br />
    82. 82. Prosecutors 59% less likely to seek death in Black-on-Black than in Black-on-White homicide<br />Decedent<br />African-American<br />White<br />White<br />Accused<br />African-American<br />Source for numbers: Lenza et al.<br />
    83. 83. Missouri Executions Pre- & Post-Furman1937-1965 and 1989-2005<br />
    84. 84. Pre-Furman<br />Post-Furman<br />
    85. 85. Missouri’s Statutory Aggravators<br />
    86. 86. Proportionality Review<br />1977 statute<br />
    87. 87. Proportionality Review<br />1977 statute<br />Original construction: both Death and Life Verdicts<br />
    88. 88. Proportionality Review<br />1977 statute<br />Original construction: both Death and Life Verdicts<br />1993 decision<br />
    89. 89. Proportionality Review<br />1977 statute<br />Original construction: both Death and Life Verdicts<br />1993 decision<br />2010 decisions<br />
    90. 90. Proportionality Review<br />1977 statute<br />Original construction: both Death and Life Verdicts<br />1993 decision<br />2010 decisions<br />Retrospective application of 2010 correction<br />
    91. 91. Death-Qualification<br />By the time the prosecution has death-qualified the jury, and exercised peremptory strikes based on answers to death-qualification questions, the jury is more predisposed to impose the death penalty than the citizens of the nation, state, or county in general.<br />This pattern renders the jury an inadequate check on prosecutorial decisions to seek death.<br />
    92. 92. Prosecutorial Discrimination Counts for More<br />Prosecutors’ Discretion Is Greater Than Jurors’ Role.<br />Decision whether and whom to charge<br />Decision whether to charge with first-degree murder<br />Decision whether to seek death penalty<br />Decision whether to refuse plea to LWOP<br />In Effect, Only a Binary Choice Remaining for Death-Qualified Jurors.<br />
    93. 93. Capital Jury Project<br />It’s beyond the scope of this talk, but a body of scholars have interviewed citizens who have served on juries in death penalty cases in 14 states including Missouri.<br />Their answers show that<br /><ul><li>the process of death-qualification slants the jury toward conviction and toward death
    94. 94. they make up their minds before they have heard the evidence
    95. 95. they do not understand the instructions
    96. 96. they underestimate the proportion of the sentence a defendant will have to serve if he receives a sentence other than death</li></ul>and that Gregg is not working for other reasons as well.<br />
    97. 97. Defense Counsel<br />Counsel must be zealous and well-funded for Gregg to have a chance to work.<br />American Bar Association’s Guidelines:<br />“all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.”<br />Missouri PCR inadequate.<br />Web site on the handout has details.<br />
    98. 98. Delay<br /> “You . . . need to make sure . . . that the execution takes place swiftly enough that it serves as a forceful deterrent to others. If a person thinks he will hang around on death row for ten or twenty years, the deterrent effect of the death penalty is lost.”<br />H. MorelySwingle, Scoundrels to the Hoosegow 150 (2007)<br />
    99. 99. Cost<br />Mitigation/aggravation<br />Additional levels of review<br />AEDPA & USA Patriot Act<br />Diversion of scarce public funds<br />Social science refutes deterrence<br />
    100. 100.
    101. 101. 2005:Last full year Missouri had any executions<br />
    102. 102.
    103. 103. Recent and Future Events<br />Richard D. Clay<br />Martin Link<br />
    104. 104. Martin Link<br />
    105. 105.
    106. 106. Form of Address<br />For U.S. Postal Service:<br />The Hon. Jeremiah W. Nixon<br />Governor of Missouri<br />P.O. Box 720<br />Jefferson City, Missouri 65102<br />Dear Governor Nixon:<br />For FedEx, etc.<br />The Hon. Jeremiah W. Nixon<br />Governor of Missouri<br />State Capitol, Suite 216<br />Jefferson City, Missouri 65101<br />Dear Governor Nixon:<br />
    107. 107. Governor’s Contact Information<br />P.O. Box:<br />The Hon. Jeremiah W. Nixon<br />P.O. Box 720<br />Jefferson City, Missouri 65102<br />Physical Address: <br /> The Hon. Jeremiah W. Nixon<br />State Capitol, Suite 216<br />Jefferson City, Missouri 65101<br />Fax: 573-751-1495<br />E-mail:<br />Phone: (573) 751-3222<br />
    108. 108. Board Contact Information<br /> The Hon. Ellis McSwain<br /> Chairman<br /> Board of Probation & Parole<br />3400 Knipp Drive<br /> Jefferson City, Missouri 65109<br /> Phone: (573) 751-8488<br /> Fax: (573) 751-8510 <br />
    109. 109. John William Simon<br />J.D., Ph.D.<br />Constitutional Advocacy, LLC<br />7413 Manchester Road, Suite 109<br />St. Louis, Missouri 63143-3001<br />(314) 604-6982<br /><br /><br /><br /><br /><br />
    110. 110. Coda: Lethal Injection<br />
    111. 111.
    112. 112. The Three-Chemical Sequence<br />
    113. 113. Three Chemicals<br />Sodium pentothal<br />
    114. 114. Three Chemicals<br />Sodium pentothal<br />Pancuronium bromide<br />
    115. 115. Three Chemicals<br />Sodium pentothal<br />Pancuronium bromide<br />Potassium chloride<br />
    116. 116. Sodium Pentothal<br />Also known as sodium thiopental, or just “thiopental”<br />
    117. 117. Sodium Pentothal or Thiopental<br />Also known as sodium thiopental, or just “thiopental”<br />Short-acting, shallow anesthetic<br />
    118. 118. Sodium Pentothal or Thiopental<br />Also known as sodium thiopental, or just “thiopental”<br />Short-acting, shallow anesthetic<br />Once used by real doctors to put a person out lightly during the process of setting up long-term, deep-running anesthesia<br />
    119. 119. Propufol<br />
    120. 120. Sodium pentothalis supposedto wear off if the person is subjected to a lot of pain.<br />
    121. 121. Pancuronium bromide<br />Not an anesthetic<br />
    122. 122. Pancuronium bromide<br />Not an anesthetic<br />A paralytic agent: suppresses movement of voluntary muscles<br />
    123. 123. Pancuronium bromide<br />Not an anesthetic<br />A paralytic agent: suppresses movement of voluntary muscles<br />In sufficient quantity, would eventuallycause death, by stopping the person from breathing<br />
    124. 124. Death by suffocationis one of the forms of botched hanging.<br />
    125. 125. Potassium chloride<br />Burns as it goes through the veins<br />
    126. 126. Potassium chloride<br />Burns as it goes through the veins<br />Gives the person a heart attack when it finally gets to the heart<br />
    127. 127. Potassium chloride<br />Burns as it goes through the veins<br />Gives the person a heart attack when it finally gets to the heart<br />What is supposed to kill the person in a lethal injection<br />
    128. 128. ?<br />
    129. 129. Basic problem:<br />There is a known likelihood that sodium pentothal will be defeated by the pain caused by the potassium chloride.<br />The pancuronium bromide will prevent staff, media, and other witnesses from seeing the person’s suffering.<br />
    130. 130. Basic problem:<br />There is a known likelihood that sodium pentothal will be defeated by the pain caused by the potassium chloride.<br />The pancuronium bromide will prevent staff, media, and other witnesses from seeing the person’s suffering.<br />Using the pancuronium bromide removes the staff’s incentive to do the sodium pentothal right.<br />
    131. 131. Veterinarians<br />
    132. 132. Veterinarians Don’t Use Thiopental, Pancuronium Bromide, or Potassium Chloride in Euthanasia.<br />
    133. 133. Veterinarians Don’t Use Them<br />
    134. 134. Pentobarbital<br />
    135. 135.
    136. 136. Thiopental “Shortage”<br />
    137. 137. Single Lethal Dose<br />
    138. 138.
    139. 139. Gary Clements<br />
    140. 140. Missouri Lethal Injection Casesin Federal Court<br />Timothy Johnston (August 2004)<br />Donald Jones (April 2005)<br />Vernon Brown (May 2005)<br />Michael Anthony Taylor (June 2005)<br />Reginald Clemons (April 2006)<br />Foxtrot (May 2009)<br />
    141. 141. LI APA<br />
    142. 142. John William Simon<br />J.D., Ph.D.<br />Constitutional Advocacy, LLC<br />7413 Manchester Road, Suite 109<br />St. Louis, Missouri 63143-3001<br />(314) 604-6982<br /><br /><br /><br /><br /><br />