The death penalty should be overhauled “from the moment of arrest to the moment of death,” and the lethal drug cocktail used in Oklahoma’s botched execution last week should be abolished in favor of a single drug, according to a bipartisan panel of criminal justice experts.
The committee, which included death penalty supporters who have been responsible for carrying it out, recommended using a single anesthetic or barbiturate approved by the Food and Drug Administration to bring on death, as well as 38 other changes.
“Without substantial revisions — not only to lethal injection, but across the board — the administration of capital punishment in America is unjust, disproportionate and very likely unconstitutional,” said committee member Mark Earley, who was a Republican attorney general of Virginia when the state carried out 36 executions.
The study by the panel at the Constitution Project, a Washington legal research group, is billed as one of the most comprehensive reviews of the ultimate punishment ever undertaken in the U.S.
Thirty-two states have the death penalty on the books, but its use has declined rapidly. Five states have abolished it in the last seven years. A ballot referendum to do away with it in California failed in 2012, however.
Particularly timely is the report’s recommendation that the most commonly used drug protocol for lethal injections — a barbiturate for anesthesia, followed by a muscle relaxant to stop breathing and an electrolyte to stop the heart — be replaced by large doses of a single anesthetic or barbiturate. The report said that difficulties in obtaining the proper drugs, complicated procedures for mixing them and the lack of trained medical staff willing to administer them have led to unnecessary suffering on the part of the condemned.
In Oklahoma last week, Clayton Lockett writhed, gasped and grimaced for more than 30 minutes before his execution was called off, only to die of what appeared to be a heart attack about 10 minutes later. The Constitution Project said the state used an untested three-drug cocktail obtained from undisclosed sources.
According to the group, eight states have used the single-drug method. That includes Texas, which performs the most executions of any state. Six others, including California, have announced plans to use a single drug. In California, however, capital punishment has been blocked by the courts since 2006.
The committee that undertook the two-year study was led by Mark White, former governor of Texas; Gerald Kogan, former chief justice of the Florida Supreme Court; and attorney Beth Wilkinson, who helped prosecute the Oklahoma City bombing case. The panel included former FBI Director William S. Sessions and several prosecutors and judges, as well as death penalty opponents.
“We need to make sure if we’re going to have a death penalty that it’s carried out properly and that due process is not short-circuited in the name of expediency,” Earley said in an interview.
White said the report should be useful to Atty. Gen. Eric H. Holder Jr., whom President Obama asked to examine how the death penalty is carried out in light of what happened in Oklahoma.
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a pro-death-penalty group in Sacramento, disputed the Constitution Project’s claim that its report was bipartisan.
“The Constitution Project always takes the side of the defendants,” Scheidegger said. “Their claim to be neutral is dishonest.”
But he said he agreed with the one-drug approach to capital punishment.
The report says state and federal courts too often refuse to hear claims of new evidence presented by prisoners on death row and use other procedural means to deny prisoners their rights.
It calls on states to adopt new procedures to evaluate whether a defendant is intellectually disabled. It urges new federal standards for forensic labs and examiners, and says they should operate independently from law enforcement, which would be a major change.
The report also says states should no longer execute people for “felony murder,” in which someone who participates in a crime resulting in death can be convicted of murder even if he or she did not do the killing.
White said he supported the death penalty, but worried that it could be applied incorrectly.
“It’s gotten to the point where we don’t have proper procedures to make sure we’re not executing innocent people,” said White, a Democrat who oversaw 19 executions as governor from 1983 to 1987.