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Capital Punishment
May 15, 2019

In an opinion earlier this month, the Justice Department's Office of Legal Counsel decided that the Food and Drug Administration "lacks jurisdiction" over drugs used to kill inmates through lethal injection, The Washington Post reports. The Justice Department is siding with Texas, which sued the FDA in early 2017 over the agency's 2015 seizure of 1,000 vials of the anesthetic sodium thiopental — once commonly used in lethal-injection cocktails — from an unregistered overseas distributor.

The issue has caused tension in the Trump administration. More than a year ago, the Post reports, Attorney General Jeff Sessions and FDA Commissioner Scott Gottlieb — both of whom left the administration last year — had a heated argument in the White House Situation Room, with Sessions demanding that Gottlieb allow execution drugs into the U.S. without any scrutiny and Gottlieb refusing.

The Justice Department's new opinion is pretty sweeping, arguing that "articles intended for use in capital punishment by a state or the federal government cannot be regulated as 'drugs' or 'devices'" by the FDA. But the opinion applies only to the death penalty, the OLC added, not whether the FDA "has jurisdiction over drugs intended for use in physician-assisted suicide."

It isn't clear what affect the OLC decision will have. Imports of sodium thiopental have been blocked under a federal injunction since 2012. Hospira, the sole U.S. maker of sodium thiopental, stopped producing it in 2011, citing its use in capital punishment. The OLC opinion seems aimed at "giving a green light" to states to import execution drugs from China, India, and other countries that don't object to their use in executions, Deborah Denno, a law professor at Fordham University, tells the Post. "It has the potential to open the floodgates."

But the 2012 injunction is still in effect for now, the Post notes, and "it is not clear whether the Justice Department will seek to have that injunction lifted, a move that could spark a long legal tussle." Peter Weber

February 8, 2019

Late Thursday, Alabama put to death a Muslim inmate who lost his legal challenge to have an imam in the chamber with him during his execution.

Domineque Ray, 42, was convicted in 1999 of the rape and murder of 15-year-old Tiffany Harville in Selma, Alabama. His lawyers filed a lawsuit last week arguing that Ray's rights were being violated because the prison would not let his imam go into the execution chamber with him. In Alabama, a Christian chaplain, employed by the prison, is typically in the chamber during executions. Attorneys for the state argued that for security reasons, prison employees are the only ones allowed to be in the chamber; ultimately, the state agreed to keep the chaplain out during Ray's execution.

On Wednesday, an appeals court stayed the execution, but the Supreme Court voted 5-4 on Thursday evening to let the execution proceed, saying it was because Ray did not bring up his religious argument until Jan. 28, The Associated Press reports. In a dissent, Justice Elena Kagan said she found it "profoundly wrong" that the execution was going forward under such circumstances. Ray's imam was in the witness room next to the chamber during the execution.

Alabama Corrections Commissioner Jeff Dunn said the state has never encountered an inmate who had a problem with the chaplain being in the execution chamber, AP reports, and they will examine the procedures to see if anything should be changed. Catherine Garcia

October 11, 2018

The Washington state Supreme Court ruled on Thursday that the death penalty violates the state constitution, The Seattle Times reports.

Prisoners on death row have had their sentences converted to lifetime imprisonment. The justices said that they ruled the death penalty unlawful because "it is imposed in an arbitrary and racially biased manner."

The ruling was sparked by Allen Eugene Gregory, whose lawyers argued that the death penalty is not applied fairly. Justices agreed, noting that "this particular case provides an opportunity to specifically address racial disproportionality," but in general, its application is also affected by "where the crime took place, or the county of residence, or the available budgetary resources at any given point in time."

Washington Governor Jay Inslee (D), who previously pledged that no executions would take place during his time in office, celebrated the ruling, calling it a "hugely important moment in our pursuit for equal and fair application of justice." Summer Meza

August 14, 2018

Officials in Nebraska used fentanyl to execute a felon Tuesday, the first time the drug was ever used in an execution in the U.S., reports The New York Times.

Carey Dean Moore, 60, was convicted of killing two taxi drivers in 1979, and the state went forward with the controversial decision to execute him by lethal injection at the Nebraska State Penitentiary. The Times reports that officials used a mixture of four different drugs, which had never before been tested. The mixture included a tranquilizer, a muscle relaxant, potassium chloride to stop the heart, and fentanyl, a synthetic opioid that has garnered attention in the nation's rising opioid epidemic.

On Monday, a federal appeals court rejected an attempt by the German pharmaceutical company Fresenius Kabi to stop the execution; Fresenius Kabi said two of its drugs, the muscle relaxant and potassium chloride, would be used in the lethal cocktail, but claimed Nebraska obtained the drugs illegally, The Guardian reports. The drug company argued that the drugs had been improperly stored, which could lead to a painful execution.

Reporters who were in the room said the execution didn't appear to have any complications, with Moore mouthing "I love you" to his chosen witnesses, then breathing heavily and coughing before his death. It was the first execution in Nebraska since 1997, when state officials used an electric chair to carry out the death penalty. Read more at The New York Times. Summer Meza

August 13, 2018

Nebraska is expected to execute its first death row inmate in 21 years on Tuesday, using fentanyl.

This would be the first time a state has ever used the powerful opioid in an execution. Nebraska wants to use fentanyl along with Valium and other drugs to put to death Carey Dean Moore, who was sentenced to death for the 1979 murders of two cab drivers in Omaha. On Monday, a federal appeals court rejected an attempt by the German pharmaceutical company Fresenius Kabi to stop the execution; Fresenius Kabi said two of its drugs, a muscle relaxant and potassium chloride, would be used in the lethal cocktail, but claimed Nebraska obtained the drugs illegally, The Guardian reports.

Fresenius Kabi argued the state did not store the drugs properly, which could lead to a painful execution and damage to the company's reputation. The court disagreed and said the execution must go on because it's "the will of the people." Nebraska's director of prisons would not reveal how the state was able to buy the drugs, but said the Fresenius Kabi drugs are set to expire and must be used soon. Nebraska has been having a hard time getting the drugs it needs for capital punishment, due to manufacturers and distributors not wanting to be part of the execution business. When taken in high doses, and especially in combination with other substances, fentanyl can cause respiratory distress and death. Catherine Garcia

August 2, 2018

On Thursday, the Vatican published an updated Catholic policy on the death penalty, ruling it "inadmissible" in all cases. Previously, the Catechism of the Catholic Church — the compilation of official Catholic teachings — allowed capital punishment only "if this is the only possible way of effectively defending human lives against the unjust aggressor." Under the new policy, approved by Pope Francis in the spring, the Catholic Church says there's now "an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes," and thanks to new understandings of "penal sanctions" and "more effective systems of detention," there's no longer an excuse for capital punishment.

"Consequently, the church teaches, in the light of the Gospel, that 'the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person,' and she works with determination for its abolition worldwide," Catechism No. 2267 now reads. In an accompanying letter from the head of the Vatican Congregation for the Doctrine of the Faith, Cardinal Luis Ladaria calls the new policy an evolution of Catholic teaching, not a break with the past. He cites statements from Pope John Paul II and Pope Benedict XVI.

Still, "the new provision is expected to run into stiff opposition from Catholics in countries such as the United States, where many Catholics support the death penalty," Reuters notes. Francis, a staunch opponent of the death penalty and avid practitioner of prison ministry, signaled his intention to shift church doctrine last October. Peter Weber

March 14, 2018

Oklahoma is set to become the first state in the country to use nitrogen gas to carry out the death penalty, The Oklahoman reports. Executions in the state have been on hold since 2015 due to a series of problems with lethal injection drugs, including a particularly disturbing 2014 case in which an inmate "began to twitch and gasp" after the drug was administered, ultimately dying from a heart attack.

In 2015, Oklahoma passed a law allowing nitrogen to be used in executions if the lethal injection was ever ruled unconstitutional, or if the drugs became unavailable. In 2016, the state's grand jury recommended such a step be taken, as Oklahoma has had difficulty obtaining lethal injection drugs. "I was calling all around the world, to the back streets of the Indian sub-continent," Oklahoma Corrections Department Director Joe Allbaugh claimed to The Associated Press.

Prior to the 2015 decision, the electric chair and firing squad would have been the backup options to the lethal injection in Oklahoma, The Washington Post reports. Allbaugh told reporters that "I'm not worried about anything" when asked about being the first state in the nation to use nitrogen for executions, BuzzFeed News reports. The state's attorney general, Mike Hunter, cited the use of nitrogen in assisted suicides as proof that it is humane.

Robert Dunham, the executive director of the Death Penalty Information Center, expressed doubts about the method in 2015, when the law was being changed to allow for nitrogen executions. "I think that Oklahoma has acted first and thought second in the manner it's gone about conducting executions," he told the Post at the time. "And the hasty manner in which this bill sped into law reflects the same lack of care with which Oklahoma has managed its execution process historically."

The Oklahoman writes that "executions could resume no earlier than the end of the year." Jeva Lange

January 9, 2018

On Monday, Attorney General Jeff Sessions indicated that the Justice Department would be more aggressive in pursuing the death penalty under President Trump than under former President Barack Obama by authorizing federal prosecutors to seek capital punishment against Billy Arnold, who is accused of killing two rival gang members in Detroit, The Wall Street Journal reports. Michigan banned the death penalty at a state level in 1847, although it can still be sought at a federal level, the Detroit Free Press writes. Former Justice Department officials said the gang-on-gang violence case likely wouldn't have been authorized for capital punishment under Obama, who oversaw just two death-penalty gang cases while in office.

The decision regarding Arnold, who has pleaded not guilty, follows Sessions' first death-penalty authorization in December, in a case involving a Tennessee man who abducted and murdered his wife. The Justice Department is poised to potentially make three more authorizations soon, against the man accused of killing eight people in Manhattan by driving a truck into a bike lane and against two members of the MS-13 gang accused of killing two teenage girls on Long Island.

Just 2 percent of death-penalty cases end up being sentenced in federal court, The Wall Street Journal notes. The Obama administration ultimately sought the death penalty in an estimated four dozen cases, with former Attorney General Eric Holder personally opposing capital punishment and his successor, Loretta Lynch, deeming it an "effective penalty."

A recent federal review of execution drugs also slowed down the use of the death penalty. Since 1963, just three federal defendants have been executed. Across the country, support for capital punishment has fallen to a 45-year low of just 55 percent of Americans considering it a favored punishment for convicted murderers.

Read more about how the Trump administration is pursuing the death penalty at The Wall Street Journal. Jeva Lange

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