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The Death Penalty vs. Cruel & Unusual a SCOTUS thread
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The Final Dakar
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May 27, 2015, 02:06 PM
 
Been meaning to start this thread for a while, but been too busy at work. Firstly, this isn't meant to be a moral debate. I understand that it will veer into that tangent unavoidably, but if we could keep the discussion more focused on the points i bring up in the OP, I'd appreciate it. Second, I'd like to underscore that despite my liberality, I'm not outright opposed to the death penalty. But I'll save that nuance for if it becomes important to the discussion.

So, the impetus for starting this thread is the SCOTUS recently heard another case on the death penalty. They initially refused to hear this case, brought by three prisoners on death row, but once the first execution was botched they took it on.

Here I'll quote liberally from some articles before presenting my take on the case:
Justices debate lethal injection and the death penalty: In Plain English : SCOTUSblog
In 2008, the Supreme Court rejected an argument that Kentucky’s lethal injection procedures violated the Eighth Amendment, which prohibits “cruel and unusual punishment,” because of the possibility that the inmate could suffer serious pain if the procedures were not followed properly. But that didn’t end the debate, particularly after several well-publicized botched executions.…Let’s talk about yesterday’s hearing in Glossip v. Gross in Plain English.



First, some background may be useful. Most lethal injection procedures (known as a “protocol”) use a series of three drugs. The first drug is intended to make the inmate unconscious, so that he does not feel any pain. The second drug paralyzes him, stopping his breathing; the third and final drug, potassium chloride, stops his heart. States had generally used a drug called sodium thiopental as the first step in the process, but it is no longer sold for use in executions; for the same reason, the next drug to which states turned – pentobarbital – is either unavailable or extremely difficult to find. That scarcity led Oklahoma to rely on a third drug, known as midazolam. But midazolam is a sedative used to treat anxiety, not an anesthetic, and that difference is at the heart of the current challenge before the Court: the plaintiffs in the case, a group of death row inmates awaiting execution in Oklahoma, argue that it cannot reliably make the inmate unconscious before he receives the second and third drugs.
Glossip v. Gross: Supreme Court justices argue about lethal injection, abolition, burning at the stake.
There is a bit of history here. In 2008, in Baze v. Rees, the Supreme Court upheld the use of a three-drug cocktail used by most states to administer the death penalty. The supply of sodium thiopental, the barbiturate sedative states used to use, has since dried up because of boycotts from foreign suppliers and companies opposed to capital punishment. Oklahoma changed its lethal injection protocol last year to replace sodium thiopental with midazolam. Shortly thereafter, that state badly botched the execution of Clayton Lockett with an apparently insufficient dose of midazolam. He writhed and bucked on the gurney for 43 minutes, as he suffered an apparently agonizing death.

Death row inmates Richard Glossip, Charles Warner, and other Oklahoma prisoners then filed an Eighth Amendment challenge to the use of midazolam in the protocol. They lost in the federal courts, which permitted the use of midazolam, so the prisoners sought a stay of execution at the Supreme Court, which was denied on Jan. 15. Justices Sotomayor, Breyer, Ruth Bader Ginsburg, and Elena Kagan filed a rare and angry dissent from the court’s refusal to hear the case. That same evening, Oklahoma used midazolam in the execution of Charles Warner. His last words were reportedly: “My body is on fire.” The court agreed to hear the inmates’ case a week later—minus the deceased Warner.
Now some arguments:
Then Justice Samuel Alito comes out gunning for Konrad about the tactics of death penalty opponents: “Why is Oklahoma not using sodium thiopental?” he asks. Konrad starts to respond. “You don’t know?” interrupts Alito. “Let’s be honest about what’s going on here.” Explaining that capital punishment is highly controversial, he asks, “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”

In other words, Alito wants Konrad to explain why her client isn’t somehow reasonably on the hook for the scarcity of really good execution drugs. As Justice Antonin Scalia frames it: All the really effective drugs have been rendered unavailable “by the abolitionists putting pressure on the companies that manufacture them so that the states cannot obtain those other drugs.” Justice Anthony Kennedy soon interrupts to demand an answer to this question, pointing out that Konrad has been interrupted several times and still hasn’t given an answer to the question about the “abolitionists” who are really to blame for the fact that we can’t kill people more efficiently in America. Breyer has to step in to remind Konrad, “It’s not you. You didn’t purposely hide these other kinds of drugs.”
Breyer accuses Wyrick’s expert—one of whose witness reports consists largely of printouts from the website Drugs.com—of shoddy science: “The key refutation of your expert rests on zero,” he says.
n Konrad’s rebuttal, the animosity spikes up again when she tries to address the burning-at-the-stake hypothetical. Alito interjects that this is “an irrelevant point.” Kagan retorts that “potassium chloride is burning someone alive; it’s just doing it through the use of a drug.” The two look like they could happily administer to each other a little snort of lethal injection at this point. The tension in the chamber is palpable and unpleasant. One side genuinely thinks the issue here is unscrupulous death penalty abolitionists and their bullying tactics. The other openly accuses the state of Oklahoma of lying in its pleadings.


My take:

First off, Alito's comment needs to be addressed.
And then he said, “Let’s be honest about what’s really going on here. . . . Oklahoma and other States could carry out executions painlessly.” The Supreme Court, he continued, “has held that the death penalty is constitutional.” That’s controversial, he said, and opponents of the death penalty “are free to try to persuade legislatures to abolish death penalty. . . . But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty”?
It's an interesting point, because that seems to be a good facsimile for what has happened with abortion in the past 20 years. And on the face of it he's right – if there were unscrupulous efforts to effectively disarm the ability to carry out executions without legal basis, I would be against it. But we're not seeing the actions of politicians or legislatures trying to undermine the death penalty here.

This brings me to central issue (IMO). If you believe in the free-market determination, then in the case of the death penalty, the free-market has created a situation (either through moral objections or fear of economic consequences) where an execution can not be carried out without violating the Eighth Amendment. That leaves me with two conclusions:

A. You have to accept that you are no longer able to carry out executions in a constitutional manner and either give up on them or suspend them until a viable alternative is found.
B. Judging that being able to execute criminals who will never be rehabilitated and are a danger to society, the state should step in and create a facility to manufacture the drugs necessary to carry out executions that meet the guidelines of the constitution as they stand today.


What I also find troubling is that thanks to the current climate, states are/were refusing to share information on what their death cocktails are made from and where they are getting the drugs from.
A Deadly Secret: States Refuse to Share the Source of Lethal Injection Drugs in Executions | Jessica S. Henry
So what is a state to do? One need only look to Arizona's model: Buy ingredients from a hidden source and concoct some kind of theoretically lethal chemical compound. Do not test it on anything or anyone -- make the death chamber the laboratory and the condemned the lab rat. Do not reveal the provider of the drugs or the ingredients of the injection. Litigate your right to keep that information a secret. Defend that right all the way to the United States Supreme Court.
They are shrouding their methods in secrecy (illegally, IMO) to thwart an unwanted but legal outcome possibility. Then they use untested, unproven methods. It's undemocratic and it's inhumane.




Arizona lawyers lead call for inquiry into Joseph Wood's two-hour execution | World news | The Guardian
“We asked for that information. We were stonewalled, we went to court, and a federal appeals court ordered the department of corrections to turn that information over to us [but] the US supreme court vacated that order,” Baich said.

The transcript of the application for an emergency stay of execution reveals that Wood's lawyer, a representative of the state of Arizona, and a judge discussed the situation for 30 minutes. Wood's lawyer, Robin Konrad, argued that the execution should be stopped because he was not dead more than an hour after the procedure began.

The judge, Neil Wake, said at one point that he would have been "disposed" to grant the stay in "a better circumstance" but feared it would do "more harm than good", after hearing a claim from the assistant attorney general, Jeffrey Zick, that Wood was "brain dead". Zick conceded however that the determination of Wood's brain activity was only a "visual" one. The judge was then told that Wood had died, and decided not to grant the stay of execution as it was "moot".
Does this sound just to you?
     
The Final Dakar  (op)
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May 27, 2015, 02:09 PM
 
Also, if you don't believe in upholding the 8th (i.e., don't do the crime if you don't want to die in a horribly painful manner-type opinions), please don't comment. I'm looking for reasonable discussion here.
     
subego
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May 27, 2015, 02:15 PM
 
Maybe I'm missing something, but an overdose of anesthesia painlessly kills you.

Thus, I feel the shortage of drugs in this scenario is an illusion.
     
The Final Dakar  (op)
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May 27, 2015, 02:19 PM
 
Originally Posted by subego View Post
Maybe I'm missing something, but an overdose of anesthesia painlessly kills you.
I'm not a medical expert. I wondered why you can't kill someone with a morphine overdose (I assume morphine would be painless, but I don't have a degree in pharmacology).


Originally Posted by subego View Post
Thus, I feel the shortage of drugs in this scenario is an illusion.
So you're saying the states want to inflict cruel and unusual punishment?
     
subego
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May 27, 2015, 02:31 PM
 
I can't speak to their desire, but the result is that way.

I'm assuming the barrier to using anesthetic is legislative.
     
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May 27, 2015, 02:43 PM
 
FWIU, the deal is you need to be an M.D. to legally get anesthesia, and no M.D. will participate in an execution because of the oath.
     
The Final Dakar  (op)
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May 27, 2015, 02:44 PM
 
Originally Posted by subego View Post
I can't speak to their desire, but the result is that way.
I can't say I buy that.

Originally Posted by subego View Post
I'm assuming the barrier to using anesthetic is legislative.
It seems to be clearly pointed out that is economic in the article. Where are you drawing this conclusion from?
     
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May 27, 2015, 02:46 PM
 
I'm about to make a moral statement, but I think it touches on your question.

The state has a responsibility to make executions painless because of the possibility they're killing the wrong person.
     
subego
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May 27, 2015, 02:46 PM
 
Originally Posted by The Final Dakar View Post
It seems to be clearly pointed out that is economic in the article. Where are you drawing this conclusion from?
See the post after the one you quoted.
     
subego
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May 27, 2015, 02:52 PM
 
Anesthesia is mentioned in the article?
     
The Final Dakar  (op)
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May 27, 2015, 02:52 PM
 
Originally Posted by subego View Post
See the post after the one you quoted.
I still don't follow. They were using anesthetic before, they just can't get it now. What does that have to with legislation?
     
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May 27, 2015, 02:54 PM
 
Originally Posted by subego View Post
Anesthesia is mentioned in the article?
I wasn't thinking of the difference between anesthesia and a sedative. But knowing that if they **** anesthesia, you die, that leaves me more confused as to how that isn't an option, either.
     
subego
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May 27, 2015, 03:30 PM
 
Originally Posted by The Final Dakar View Post
I wasn't thinking of the difference between anesthesia and a sedative. But knowing that if they **** anesthesia, you die, that leaves me more confused as to how that isn't an option, either.
That's my point. There's no sense to this situation.

Anesthetic works for this purpose. There's no economic issue with anesthetic. We use a ****ton of it all day every day.
     
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May 27, 2015, 03:35 PM
 
Originally Posted by subego View Post
There's no economic issue with anesthetic. We use a ****ton of it all day every day.
Will companies sell it to be used for executions? (Doubtful) If not, that's an economic issue.
     
subego
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May 27, 2015, 03:50 PM
 
Originally Posted by The Final Dakar View Post
Will companies sell it to be used for executions? (Doubtful) If not, that's an economic issue.
Sure they will. We know from the Utah thread how they operate.

I could be wrong, but I think the issue is just what I said. It's not the companies don't want to sell it, they can't sell it to unlicensed people. It's licensed because it's some lethal shit.

One of the licensing requirements is taking an oath which forces you to refuse a request to use it for an execution.
     
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May 27, 2015, 03:52 PM
 
Originally Posted by subego View Post
Sure they will. We know from the Utah thread how they operate.

I could be wrong, but I think the issue is just what I said. It's not the companies don't want to sell it, they can't sell it to unlicensed people. It's licensed because it's some lethal shit.

One of the licensing requirements is taking an oath which forces you to refuse a request to use it for an execution.
I don't understand. Why would companies sell anesthetics when they won't sell sedatives? What's your logic?
     
subego
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May 27, 2015, 05:51 PM
 
For whatever reason, the "go to" anesthetic for executions was only manufactured (worldwide) by one company.

I assume (and I could be wrong) there are anesthetics which would work just as well, and are made by tons of different companies... some of whom are in China, and couldn't give two shits about a boycott.

To put it another way, I think the method used to push the "go to" drug out of existence will only work on drugs which top-tier, first world, global pharmaceutical companies have (what appears to be) a patent lock.

You gave an excellent example. Somebody will sell the government morphine.
     
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May 28, 2015, 07:44 AM
 
What was Michael Jackson taking for his sleep issues?
     
The Final Dakar  (op)
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May 28, 2015, 09:28 AM
 
Originally Posted by subego View Post
For whatever reason, the "go to" anesthetic for executions was only manufactured (worldwide) by one company.
I believe I've heard that too. I also believe I read in one of the articles that its various European and even US based companies. I don't know.
     
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Jun 2, 2015, 10:12 AM
 
Goes to the free market argument as well as drug legalization.

There should be no legal barriers to acquiring anesthetics, or any other drugs for that matter for use in executions, or recreation, or anything else. If a corporation wishes to sell a particular drug, they should be allowed to sell to whomever they wish...or refuse. Either way.

Then, if the government cannot acquire the drugs they would like to for use in executions because drug companies and doctors refuse to provide them for that purpose...too effin bad. Figure out something else.
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subego
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Jun 2, 2015, 03:29 PM
 
Though I can't come up with a reason anyone would want to use anesthetics without a license, I can't come up with a reason to force licensing, either.
     
The Final Dakar  (op)
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Jun 5, 2015, 01:53 PM
 
Semi-related:
Pete Ricketts and the Nebraska Death Penalty - The Atlantic
On May 27, a coalition of Democrats and Republicans in the Nebraska Legislature approved LB268, which abolishes the state’s death penalty. Ricketts had vetoed the measure, but the legislature overrode his veto. Ricketts called for a voter referendum to overturn the repeal; then he said that the state would execute the ten prisoners currently under sentence of death anyway, using sodium thiopental imported from India.* Meanwhile, Senator Bill Kintner of the unicameral legislature sought to explain his support for executions by posting a photo of a beheaded woman on his Facebook page.
Ricketts says the state has ordered and paid for (but not yet received) this drug, part of the standard three-drug “cocktail” used since the 1980s for lethal injection, from a distributor named Harris Pharma, run by Chris Harris. The state bought some thiopental through Harris Pharma once before. The federal Drug Enforcement Administration seized that shipment because the company isn’t approved to sell it. (Harris had gotten it from a Swiss company by lying about what he was going to do with it.) Now the Food and Drug Administration is under a 2013 order from the D.C. Circuit to seize all sodium thiopental coming into the United States from unregistered dealers like Harris Pharma.


Ricketts says state dealing with execution challenges : Politics
While acknowledging there are legal issues to be resolved, Gov. Pete Ricketts said Wednesday he remains determined to carry out the death sentences imposed in Nebraska prior to the Legislature's repeal of the death penalty last week.

"We are proceeding because that's what we're supposed to do, not retroactively change these sentences that were handed down by a judge," the governor said during a telephone call from Washington.
Someone is coming off a little salty here.

Also, we're a little too gung-ho about killing people in this country.
     
subego
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Jun 5, 2015, 02:27 PM
 
Maybe this is a dumb question, but isn't "what you're supposed to do" in the, umm... law?

Either the law in question commutes already existing sentences, or it doesn't. There shouldn't be any argument.

Since I'm in a particularly ornery mood this morning, I'll say if the law says those are commuted, Ricketts should go up for murder. I'm not kidding.
     
The Final Dakar  (op)
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Jun 5, 2015, 02:44 PM
 
I imagine it didn't directly address those. It probably just said "Nebraska doesn't execute people anymore" ad probably not "Nebraska will no longer sentence people to death." Even assuming the latter, he lacks the god damn means.

Edit: http://www.omaha.com/news/legislatur...f08707602.html
Legal experts say the repeal erases the statutory means to carry out a death sentence in Nebraska, meaning that the 10 men on death row will serve de facto life sentences.
FWIW
     
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Jun 5, 2015, 02:48 PM
 
Firing squad.

Did I mention I was feeling ornery?
     
The Final Dakar  (op)
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Jun 5, 2015, 02:55 PM
 
I'm assuming that's been abolished. Utah had legislate to bring it back.
     
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Jun 5, 2015, 02:56 PM
 
Death finds a way.
     
The Final Dakar  (op)
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Jun 5, 2015, 02:58 PM
 
Originally Posted by subego View Post
Death finds a way.
Hate finds a way.
     
subego
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Jun 5, 2015, 03:03 PM
 
Huh?

Is being pro-DP a "hate" position?

If I was going to slam Ricketts for something, it's playing politics. I'm assuming he cares only because seeming like a hard-ass will get him reelected.
     
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Jun 5, 2015, 03:04 PM
 
I guess that's probably hate by proxy.
     
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Jun 5, 2015, 03:05 PM
 
Also... who let you in? It's the weekend, ya know.
     
The Final Dakar  (op)
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Jun 5, 2015, 03:17 PM
 
Originally Posted by subego View Post
Is being pro-DP a "hate" position?
Not necessarily, but a strong contingent find their roots in the revenge notion.
     
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Jun 5, 2015, 03:17 PM
 
Originally Posted by subego View Post
Also... who let you in? It's the weekend, ya know.
...not yet.
     
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Jun 5, 2015, 03:19 PM
 
Did I mention I'm ornery because I don't know what day it is?
     
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Jun 5, 2015, 03:24 PM
 
We're going to have to put you down. *tear*
     
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Jun 5, 2015, 03:37 PM
 
One heroin, please.
     
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Jun 6, 2015, 08:42 AM
 
I'm still pro-capital punishment, in theory, I just can't in good conscience support it when there's a substantial chance innocent people will be killed.
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Jun 6, 2015, 09:55 AM
 
I don't see why it would be unreasonable to have a different standard of evidence for the death penalty. Even if that reserves it for multiple or serial murderers. Anything to avoid executing the innocent.

Even Mega-City One reserved it for genocide. Officially.
I have plenty of more important things to do, if only I could bring myself to do them....
     
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Jun 6, 2015, 10:02 AM
 
Well, they had iso cubes, if we had those our justice system would look a lot different than it does today.
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Jun 6, 2015, 12:06 PM
 
They can always bring back the Guillotine.
     
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Jun 6, 2015, 09:32 PM
 
Originally Posted by Waragainstsleep View Post
I don't see why it would be unreasonable to have a different standard of evidence for the death penalty. Even if that reserves it for multiple or serial murderers. Anything to avoid executing the innocent.

Even Mega-City One reserved it for genocide. Officially.
I've proposed this before.

That standard of evidence needs to be: beyond a shadow of doubt. If the prosecution can swing that, then they can call for the death penalty. As an added bonus, no appeals needed.

A smaller reform is if the prosecution calls for the death penalty, then they give up their right to bar evidence from the trial.
     
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Jun 7, 2015, 03:44 AM
 
All for that, 100%.
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Jun 7, 2015, 08:20 AM
 
So a two tier system with two verdicts. Guilty beyond reasonable doubt gets you life, guilty beyond all doubt gets you death. Seems only logical to me. Why would you not do this?
I have plenty of more important things to do, if only I could bring myself to do them....
     
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Jun 8, 2015, 09:40 AM
 
Originally Posted by Cap'n Tightpants View Post
I'm still pro-capital punishment, in theory, I just can't in good conscience support it when there's a substantial chance innocent people will be killed.
Originally Posted by Waragainstsleep View Post
I don't see why it would be unreasonable to have a different standard of evidence for the death penalty. Even if that reserves it for multiple or serial murderers. Anything to avoid executing the innocent.

Even Mega-City One reserved it for genocide. Officially.
Originally Posted by subego View Post
I've proposed this before.

That standard of evidence needs to be: beyond a shadow of doubt. If the prosecution can swing that, then they can call for the death penalty. As an added bonus, no appeals needed.

A smaller reform is if the prosecution calls for the death penalty, then they give up their right to bar evidence from the trial.
Yes, this exactly what I'm talking about. For those guilty of irredeemable acts beyond a shadow of the doubt, I'm still ok with the DP.
     
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Jun 29, 2015, 12:02 PM
 
Glossip, 5-4 against the inmates. I don't understand the details yet, but I read a few times that they didn't provide an alternative which strikes me as a crazy requirement.


Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment—the chemical equivalent of being burned alive. But under the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated.
Need to read more, but that's the impression I'm getting – unless you can provide a better method to die, we get to kill you, regardless of how horrible it may be.
     
The Final Dakar  (op)
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Oct 8, 2015, 12:02 PM
 
Report: Oklahoma used wrong drug in January execution | Miami Herald
Oklahoma used the wrong drug to stop an inmate's heart during an execution in January, according to an autopsy report obtained by a newspaper.

The Oklahoman (http://bit.ly/1ZfYhW2 ) reported Thursday that corrections officials used potassium acetate — not potassium chloride, as required under the state's protocol — to execute Charles Frederick Warner.

Last week, Gov. Mary Fallin issued a last-minute stay for inmate Richard Glossip after officials discovered that potassium acetate had been delivered on the day of his scheduled execution. All executions in Oklahoma are on hold at the request of Attorney General Scott Pruitt as the state investigates the mix-up.

Potassium chloride, which stops the heart, is the final drug in the state's protocol following a sedative and paralytic.
tems used in Warner's execution were sent to the Office of the Chief Medical Examiner, which performed an autopsy. The report said the office received two syringes labeled "potassium chloride" but that the 12 vials used to fill the syringes were labeled "single dose Potassium Acetate Injection."
We can't even kill people competently.
     
Cap'n Tightpants
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Oct 8, 2015, 05:34 PM
 
Well, it obviously did work, I guess.
"I have a dream, that my four little children will one day live in a
nation where they will not be judged by the color of their skin,
but by the content of their character." - M.L.King Jr
     
The Final Dakar  (op)
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Oct 23, 2015, 11:57 AM
 
Arizona attempted to illegally obtain execution drugs which were seized at the Phoenix airport.
Federal authorities at the Phoenix International Airport seized a July shipment of an illegally obtained drug that the state of Arizona intended to use to execute prisoners, the AP reports. The substance at issue is sodium thiopental, which is used as an anesthetic in multi-drug lethal injection "cocktails," and Arizona apparently purchased $27,000 of the drug from a supplier that is not approved by the FDA. The Arizona department of corrections is "contesting FDA's legal authority to continue to withhold the state's execution chemicals," a spokesman said.

Arizona is one of a number of states that have had problems obtaining lethal injection drugs in recent years as pharmacists both in the United States and abroad have decided for ethical reasons to stop supplying them. Oklahoma recently admitted that it had actually used the wrong drug altogether to kill a prisoner in January; Louisiana may have violated laws last year by getting lethal injection drugs from a hospital without informing the hospital the drug might be used to kill someone; Nebraska is trying to buy drugs from an unauthorized supplier in India.

Executions in Arizona have been suspended since July 2014 after the killing of a prisoner named Joseph Wood took 90 minutes to carry out and required the administration of 15 doses of of a drug cocktail that was expected to kill him with one dose.
Yikes.
     
   
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