Category Archives: Death Penalty

…47 persons have been put to death in Florida under an unconstitutional process

gitmo

 

HHarry Lee Anstead, My View 2:46 p.m. EST November 22, 2016

In January 2016, in a case called Hurst v. Florida, the United States Supreme Court held that Florida’s death penalty scheme was unconstitutional and violated the Sixth Amendment, pursuant to its decision in Ring v. Arizona.

The Court held that Florida’s statutory scheme was flawed because it failed to require the jury, rather than the sentencing judge, to make findings of aggravating circumstances relied upon by the state to justify imposition of the death penalty. Ring first established that principle in 2002.

On remand in Hurst, the Florida Supreme Court followed the Supreme Court’s mandate and further held that to be constitutional under both the federal and state constitutions, the death penalty statutory scheme must require unanimous findings by a jury on aggravators, as well as to a recommendation of death. Because the Florida high court relied upon the Florida Constitution, its decision on unanimity is not reviewable by the U.S. Supreme Court. State high courts have the final say on state constitutions.

What may be overlooked in the aftermath of these decisions is the shocking fact that after the decision in Ring v. Arizona in 2002, some 47 persons have been put to death in Florida under an unconstitutional process. And while many may assess the blame as falling on Florida’s three branches of government for not acting after Ring to correct Florida’s statute, it is apparent that a large share of the blame rests with the discretionary review procedures of the U.S. Supreme Court.

 

Let me explain. Following the decision in Ring, many Florida death row inmates petitioned the Florida courts, including the Florida Supreme Court, to apply Ring and invalidate Florida’s death penalty scheme. However, relying on prior U.S. Supreme Court decisions generally upholding Florida’s scheme, Florida’s high court denied relief.

But many of these disappointed death row inmates sought further relief in the U.S. Supreme Court. Surprisingly, despite the clear holding in Ring, the Court inexplicably rejected these appeals, until finally, the Court accepted review in Hurst and specifically held Florida’s scheme unconstitutional under Ring. These many unexplained denials also sent a false signal that despite Ring, Florida’s scheme might be valid.

Tragically, in the 13 years since Ring, some 47 persons have been executed in Florida under an unconstitutional statute. Had the U.S. Supreme Court accepted review of a Florida case soon after Ring, those executions may arguably not have occurred – at least not until further review for harmless error, waiver or some other possible argument by the state was first evaluated. But none of that took place.

Of course, the U.S. Supreme Court has absolute discretion in deciding what cases to review. And ordinarily those decisions cannot be challenged. But, surely the exercise of this discretionary review authority should take into account the fact that lives hang in the balance.

As the high court itself has observed, “death is different.” Or is it?

Harry Lee Antstead is a retired justice and Chief Justice of the Florida Supreme Court.

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Mauritanian appeals court upholds death sentence for blogger

Karim Wade est victime

 

New York, April 21, 2016– An appeals court in Nouadhibou today upheld the death sentence for Mauritanian blogger and freelance journalist Mohamed Cheikh Ould Mohamed, who was convicted of apostasy in 2014 for an article he wrote, according to news reports.

The appeals court referred the case to Mauritania’s Supreme Court, which has the power to repeal the sentence, reports said. Under article 306 in the Mauritanian penal code, if the Supreme Court rules that a defendant is repentant, it can reduce the sentence to up to two years in jail and up to 60,000 Mauritanian ouguiya (US$172.93.)

“We strongly condemn today’s verdict against Mohamed Cheikh Ould Mohamed, and call on Mauritania’s Supreme Court to repeal the sentence,” said Sherif Mansour, CPJ’s Middle East and North Africa program coordinator. “This mockery of a judicial process, which could end someone’s life for writing an article, should be consigned to the history books.”

The appeal hearing today was held under tight security after the article Mohamed wrote led in January 2014 to nationwide demonstrations, in which protesters called for President Mohamed Ould Abdelaziz to punish Mohamed for what they saw as blasphemy, according to reports. The president told reporters in April 2014 that he did not believe Mohamed was aware of the seriousness of what he had written.

Mohamed’s article–published on December 31, 2013, on the news website Aqlame–criticized Mauritania’s caste system and said that followers of Islam interpreted the religion according to circumstance, Reuters reported. The editor of Aqlame, Riad Ould Ahmed, took down the article from the website and issued a statement on January 4, 2014, saying it had been posted accidentally.

During today’s court session, Mohamed admitted he had made a mistake and asked for forgiveness, according to news reports. On January 11, 2014, Mohamed issued a statement from prison denying that he intended to insult the Prophet Muhammad.

During the appeal hearing, the prosecution called for death by firing squad, according to reports. The defense demanded that the appeals court withdraw the blogger’s 2014 death sentence because it was based on his social class, and asked the court to take into consideration his repentance, according to news reports.

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RELATED:

Mauritania must quash the death sentence against blogger

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Why Are So Many Veterans on Death Row?

By Jeffrey Toobin

A new study shows that at least ten per cent of death-row inmates are military veterans.

The death penalty has always provided a window into the darkest corners of American life. Every pathology that infects the nation as a whole—racism, most notably—also affects our decisions about whom to execute. A new report from the Death Penalty Information Center adds a new twist to this venerable pattern.

The subject of the report, just in time for Veterans Day, is the impact of the death penalty on veterans. The author, Richard C. Dieter, the longtime executive director of the invaluable D.P.I.C., estimates that “at least 10% of the current death row—that is, over 300 inmates—are military veterans. Many others have already been executed.” In a nation where roughly seven per cent of the population have served in the military, this number alone indicates disproportionate representation. But in a nation where military service has traditionally been seen as a route into the middle class—and where being a vet has been seen as more of a benefit than a burden—the military numbers are especially disturbing.

Why are so many veterans on death row? Dieter asserts that many veterans “have experienced trauma that few others in society have ever encountered—trauma that may have played a role in their committing serious crimes.” Although this is hardly the case with every veteran, or even the overwhelming majority of them, Dieter goes on to relate several harrowing stories that follow this model. Because of such traumas, many veterans suffer from post-traumatic stress disorder, for which they have too often received poor treatment, or none at all.

Veterans who kill are not, by and large, hit men or members of organized crime or gangs. They very often lash out at those around them. Dieter notes that a third of the homicide victims killed by veterans returning from Iraq and Afghanistan were family members or girlfriends. Another quarter were fellow service members. This record suggests that, if these veterans had received adequate mental-health care, at least some of them and their victims might have had a different fate.

But it’s possible to see, in the D.P.I.C. study, an echo of another recent high-profile study. Anne Case and Angus Deaton, of Princeton, found that the death rates for middle-aged white men have increased significantly in the past decade or so. This was largely due, according to the authors, to “increasing death rates from drug and alcohol poisonings, suicide, and chronic liver diseases and cirrhosis.” The Princeton study fits into a larger pattern in American life, which is the declining health and fortunes of poorly educated American whites.

That cohort has gravitated to military service for generations. And while, again, most veterans never commit any crime, much less crimes that carry the death penalty, the sour legacies of our most recent wars certainly play into the despair of many veterans. Earlier generations of veterans came home from war to ticker-tape parades, a generous G.I. Bill, and a growing economy that offered them a chance at upward mobility. Younger veterans returned to P.T.S.D., a relatively stagnant economy, especially in rural and semi-rural areas, and an epidemic of drug abuse. And they came home to a society where widening income inequality suggested the futility of their engagement with the contemporary world.

In an interview with Vox, Deaton said that the death rate for members of this cohort had increased, in part, because they had “lost the narrative of their lives.” This elegant, almost poetic phrase can be read to include the lost promise of military service—the vanished understanding that veterans earned more than a paycheck, that they also gained a step up in status, both economic and social. The reality has been that many veterans returned to lives that were materially and spiritually worse than the ones they left, and far worse than the ones they expected.

According to the Princeton study, a shocking number of poorly educated whites turned their rage inward, in the form of drug abuse and suicide. But a small handful inflicted their rage on others, and an even smaller number wound up on death row. They are different groups of people, and their individual stories are even more variegated, but it’s possible to see across them the symptoms of a broader anguish.

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This Is The Man In India Who Is Selling States Illegally Imported Execution Drugs

When states ran out of execution drugs, they started paying tens of thousands of dollars to Chris Harris, a salesman in India with no pharmaceutical background.

Eight thousand miles from the execution chamber at the Nebraska State Penitentiary is Salt Lake City — a planned satellite town in Kolkata, the capital city of India’s West Bengal state. It’s a modern mecca of swanky office complexes, colleges, shopping malls, and restaurants. Here, on the eighth floor of a plush glass building overlooking a lake, is an office where Nebraska’s lethal injection drug supplier says he makes his drugs.

A laminated paper sign stuck on the door of room 818 reads “Harris Pharma – manufacturer and distribution.” The office, with powder-blue walls and a frosted glass facade, is one of 61 spaces on the floor rented out to various companies.

This is the facility in India where a man named Chris Harris, a salesman without a pharmaceutical background, claims his manufacturing and distribution business is based. He has sold thousands of vials of execution drugs for corrections officials in the U.S. who are desperate to find drugs to carry out the death penalty.

An employee who works at the facility, however, said the office is not being used to make drugs.

Saurav Bose, a customer relations officer at the office rental company who has met Harris twice since he started working here a few months ago, said Harris did not manufacture drugs in this rented office.

Left: The building in Salt Lake City in India. Right: The office Harris rents. Tasneem Nashrulla

Harris’s office, which was shut on a Tuesday morning when a reporter from BuzzFeed News visited, is much like the other ready-to-use, standardized workspaces available to rent by Regus — an international firm operating in 900 cities across the world, including the more well-known Salt Lake City in Utah. It appeared highly unlikely that the rented office would accommodate laboratory equipment required to manufacture pharmaceutical drugs.

“He comes only two to three times in a month,” Bose said, adding that most of his communication with Harris was limited to email. Bose, who described Harris as being “fickle” with his visits to the office, said he rarely had any clients or other people in the office.

BuzzFeed News identified several such inconsistencies after reviewing thousands of pages of court records, emails, and invoices; interviewing his past business partners; and visiting the locations in India from which Harris claims to run his business.

Chris Harris Facebook

BuzzFeed News spent more than four months trying to talk to Harris over emails, via phone calls and during a visit to his office in India. Each time, Harris refused to talk.

“Quote me on this. I don’t speak to reporters as they always say what is not true,” Harris told BuzzFeed News when first contacted for comment in June.

After months of reporting on his sale to Nebraska, Harris again declined to talk with BuzzFeed News in September, writing, “Do and say what you want. But I will never give a reporter 2 min of my time. As all print what they want. Not the true story. They need a scandal to get sales and keep they jobs.”

BuzzFeed News has been able to confirm four times that Harris sold execution drugs illegally to four death penalty states, and documents indicate there is likely a fifth. His sales follow a typical script: The legal issues are fixed this time, don’t worry about it. Other states are buying it, too. You aren’t the only one. You just need to make it a “minimum order” to make it worth the while. Payment in advance.

The documents show little effort by states to investigate Harris’s qualifications or the legalities of importing drugs.

Harris has gotten states to pay tens of thousands of dollars for his drugs, but each time, after concerns were raised over the legality of the purchase, the drugs have gone unused.

Somehow, states are still falling for it.

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Nebraska Bought 300 Executions’ Worth Of Illegal Execution Drugs From A Foreign Supplier

The FDA says it will seize Nebraska’s drugs when they arrive from India. But the seller says he’s sold to “a few” other states as well.

The seller behind Nebraska’s illegal execution drug shipment says Nebraska isn’t the only state to have bought drugs from him.

Nebraska announced in May that it had purchased drugs from HarrisPharma, a small distributor in India run by a man named Chris Harris, although Nebraska admitted that the drugs are not approved by the Food and Drug Administration (FDA).

Harris has sold execution drugs in the past, but each time the drugs have gone unused after questions were raised over the legality of the drug deal.

This time, an FDA spokesperson indicated in a statement to BuzzFeed News that the agency will seize Nebraska’s shipment.

But as part of his sales pitch to Nebraska, Harris tells employees several times that other states are also buying from him, according to 140 pages of emails and invoices obtained by BuzzFeed News.

Nebraska Department of Correctional Services

A day later, Harris approached another Corrections employee.

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UN Funds Iran’s Record Breaking Execution Spree

 

Prayer-Image

 

A note by the Author:

Today marks the World Day against Death Penalty and provides the international community a chance to reflect on the effectiveness and morality of capital punishment. Of particular concern is Iran, which not only leads the world in per capita executions, but receives substantial funding from the United Nations and the West in support of a drug program that executes hundreds with little to no due process. Ironically the UN Secretary General put out a call today to end the use of executions in cases involving drug crimes, yet UNODC continues to support and fund Iranian authorities as they undertake a record pace of executions.

By Hamid Yazdan Panah

“The death penalty has no place in the 21st century.” These words were spoken last year by the UN Secretary General Ban Ki-moon. Many would agree. In fact, more than 140 countries worldwide have abolished capital punishment, including every country in the European Union. Yet the United Nations Office on Drugs and Crime (UNODC) and EU member states havefinanced Iran’s drug war, a program that has allowed Iran to be a global leader in per capita executions.

The regime in Iran is one of the most repressive governments in the world. In 2015, Iran received close to the lowest possible rating for political rights and civil liberties in a Freedom House report, and was ranked 173 out of 180 countries in the World Press Freedom Index. Dissidents are routinely arrested and tortured; freedom of speech is limited; and the judiciary provides little if any due process to prisoners. Yet the UNODC has given Iran more than US$15 million since 1998 to support operations by the country’s Anti-Narcotics Police. This is despite significant evidence that Iran’s governmental drug policies violate international law, and fall short of UNODC’s own standards.

A 2014 report by Ahmad Shaheed, the UN Special Rapporteur on Human Rights in Iran, quoted an experienced Iranian lawyer who said that drug trials “never last more than a few minutes.” Prisoners are often denied accessed to counsel, and claim that confessions are forced under torture. By Iran’s own admission 93 per cent of the 852 reported executions between July 2013 and June 2014 were drug related. Iran has already executed more than 750 individuals this year, and is on pace to reach 1,000 executions by the end of the year.

Human Rights Watch has accused Iran of using drug charges against political prisoners and dissidents, raising further concerns about the implications of the UNODC’s support for the country’s anti-drugs program. In 2011, Zahra Bahrami, a citizen of both the EU and Iran was arrested and accused of drug trafficking – a charge she denied. She claimed her confession was extracted under duress, and activists contend that her arrest was based on her political views.

Despite the limited scope of the UNODC, Iran’s policy of executions is about more than combating drug problems. Instead of focusing primarily on endemic problems such as poverty and a lack of opportunities for youth that foster drug abuse, Iran continues to enact draconian punishments on individuals, including publicly executing them. It appears these ritualistic killings are a strategy by the regime to maintain political authority through intimidation. These killings are part of Iran’s policy of death, which seeks to terrorise and subdue a population, the majority of which is under the age of 30.

Violations of International Human Rights Law

From a legal perspective there is ample evidence that Iran’s executions are a violation of international human rights law, as enshrined in the International Covenant on Civil and Political Rights (ICCPR). The ICCPR, to which Iran and every EU member state is a party, explicitly reserves capital punishment for only “the most serious crimes.” Article 6 of the ICCPR explicitly states that the death penalty cannot be imposed if a fair trial has not been granted. This statute has strong resonance given the lack of due process in Iran.

The UNODC has also released a position paper that appears to critique its own involvement in Iran. The paper notes that cooperation with countries which use capital punishment “can be perceived as legitimising government actions.” It concludes that in such circumstances the organisation, “may have no choice but to employ a temporary freeze or withdrawal of support.” Yet the UNODC has never publicly expressed a desire to withdraw support from its Iran program.

Political Hypocrisy and Human Rights

The hypocrisy aiding Iran is not lost on all EU member states. The UK, Denmark and Ireland have withdrawn funding for UNODC’s Iran program, citing human rights concerns. However other countries including Norway and France continue to provide funding. Earlier this year, the UNODC was rumoured to be finalising a five year deal with Iran, however no official announcement about the deal has been made.

Unfortunately, these policies appear to be part of a larger failure by many Western countries to consider human rights as one of their negotiating points with Iran. It appears that they are willing to champion human rights as a reason for intervening in certain states, while relegating it to a footnote when it may negatively impact foreign policy interests. The attitude suggests that the executions of thousands of Iranians is part of the necessary collateral damage to keep the EU free of increased drug trafficking. This stance not only estranges those who reside outside of Europe’s borders, as if their human rights are beyond the interests of international organisations, but it places Western states at the height of hypocrisy.

One need look no further than the current discourse surrounding the nuclear deal with Iran to see a clear example of this. Recently, the EU’s foreign policy chief Federica Mogherini visited Iran to endorsed the agreement and did not express concerns over Iran’s human rights record. This meeting took place while the regime made preparations to execute Salar Shadizadi for crimes he committed when he was 15 years old.

If international standards and human rights are to have universal application, the UNODC should suspend support for Iran’s drug program and demand judicial reform and a moratorium on executions. EU member states should demand accountability in how their contributions are spent. Lastly, any nuclear deal should have also included recognition of the legitimate demands of Iranian society for civil and political rights, and underscored the egregious human rights conditions in Iran.

This is not about interfering with the domestic affairs of a sovereign state, but holding true to the human rights values upon which the UN was founded. It is also about giving real force to international human rights law, which in this case should carry more weight. The death penalty can come to an end, but only if we have the political will to practice the ideals we have long preached.

Hamid Yazdan Panah is an attorney, writer and human rights activist from the San Francisco Bay Area.

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Bali nine men brace for execution on Tuesday

April 26, 2015 – 11:27PM

 

Jewel Topsfield

Jewel Topsfield
Indonesia correspondent for Fairfax

Myuran Sukumaran has painted what could be his last self-portrait: a torso with a palm-sized black hole over the heart dripping with blood.

The eerie painting, brought back from Nusakambangan by their lawyer Julian McMahon, is a portent of Bali nine pair’s  ghastly fate –  death by firing squad.

Michael Chan and Chinthu Sukumaran, brothers of the two Australians facing execution, give a press conference at Wijaya Pura, Cilacap.

Michael Chan and Chinthu Sukumaran, brothers of the two Australians facing execution, give a press conference at Wijaya Pura, Cilacap. Photo: James Brickwood

Sukumaran and Andrew Chan were officially given 72 hours warning of their executions on Saturday.

 

Chinthu Sukumaran said his brother’s last wish was to paint for as long as possible. Chan’s was to go to church with his family in his final days.

The Indonesian government has not officially announced the execution date but the men are bracing for Tuesday night  – the earliest it could be held.

 

The government had previously said it was waiting on the outcome of Indonesian marijuana trafficker Zainal Abidin’s court case before setting a date.

However on Sunday Attorney General spokesman Tony Spontana told Fairfax Media the Supreme Court had rejected Abidin’s request for a judicial review late on Friday.

The Chan and Sukumaran families were once again forced to make the grim ferry trip to Nusakambangan to visit their loved ones..

Lawyer Julian McMahon carries a self-portrait painted by Australian death row prisoner Myuran Sukumaran.

Lawyer Julian McMahon carries a self-portrait painted by Australian death row prisoner Myuran Sukumaran. Photo: Reuters

Chan’s fiancée, Feby Herewila, brother Michael, mother Helen and long-term friend and supporter Senior Pastor Christie Buckingham all boarded the ferry.

Michael Chan said the two Australians  are still holding up “pretty well considering they feel that it is unjust given what has has happened over the last 10 years with their case”.

Michael Chan and Myruran Sukumaran’s brother, Chinthu, pleaded with Indonesian President Joko Widodo to intervene and spare their brothers’ lives. 
“it still doesn’t have to be this way,” a tearful Chinthu Sukumaran said.

“I would ask the president to please, please show mercy. There are nine people with families who love them – mothers, fathers, sons, daughters, brothers and sisters. We ask the president to please intervene and save their lives.”

Somewhere in the legal system in Indonesia, Michael Chan said, there has got to be mercy. “The president needs to show that now. He’s the only one that can stop it and it’s not too late to do so. so I ask the president please show mercy.”

Sukumaran’s mother Raji, brother Chinthu and sister Brintha also visited Besi prison.

They will be allowed to visit every day until the final hours when only a spiritual counsellor of their choice can be present.

The lawyer of another condemned man, Martin Anderson, described scenes of desolation and crying as the nine prisoners on death row began to say their goodbyes.

Anderson, Filipina maid Mary Jane Fiesta Veloso, and Brazilian Rodrigo Gularte all refused to sign their notification of exemptions, although this will have no effect on the execution.

Anderson’s lawyer, Casmanto Sudra, said his client kept repeating in disbelief: “Fifty grams. Death”.

He was convicted of possessing just 50 grams of heroin in Jakarta in November 2003.

Prime Minister Tony Abbott has made a last-ditch bid for mercy for the Bali nine pair.

Mr Abbott made the appeal to the Indonesian president while in Turkey on Saturday to commemorate the 100th anniversary of the Gallipoli campaign.

He asked the president to extend clemency to Chan and Sukumaran, describing them as reformed individuals and asking for them to not be executed.

Mr Abbott said the government had been making representations “at every possible level to the Indonesian government for many months now”.

“We abhor the death penalty, we oppose it at home we oppose it abroad and I want to reassure Australians that even at this late hour we are continuing to make the strongest possible representations to the Indonesian government that this is not in the best interests of Indonesia let alone in the best interests of the young Australians concerned,” he said.

“I know that this is obviously a late hour and so far our representations haven’t been crowned with success – so again I simply make the point that it is not in the best interests of Indonesia, it is not in accordance with the best values of Indonesia.

“This doesn’t accord with the Indonesia that I know well and respect very greatly to go ahead with something like this.”

He said the topic was likely to come up in discussions on Monday with the French government, and he expected all like-minded countries would stand together in wanting to uphold “the best values of civilisation”, which did not accord with the death penalty.

The Prime Minister has had limited success in his attempts to speak to Mr Widodo about the pair; after an initial phone call, Mr Widodo said he was too busy to take the second and third calls.

Opposition Leader Bill Shorten, who is also in Turkey, said the news that Chan and Sukumaran could be executed as soon as Tuesday was a “deeply worrying development”.

“No one thinks they deserve to escape punishment, but they don’t deserve this,” he said.

“Labor opposes the death penalty in every circumstance, in every country. I believe it demeans us all.”

Earlier on Sunday, Foreign Minister Julie Bishop spoke to Indonesian Foreign Minister Retno Marsudi about the pair during a brief stop in the Middle East while flying back to Australia.

Ms Bishop stressed the need for all legal processes to be determined before any action is taken.

Evangelist preacher Matius Arif Mirdjaja, a former drug addict and prisoner in Bali’s Kerobokan jail who was baptised by Chan, said Indonesia would be remembered as a nation that killed a pastor and an artist, not drug kingpins.

“History will write that we are a nation that killed all the repented, a nation that loses empathy and compassion for people who have transformed their lives and helped others,” he said.

On Monday Amnesty International will spell out the words #KeepHopeAlive with thousands of flowers at Blues Point Reserve, overlooking Sydney Harbour.

A public protest will be held outside the Indonesian Consulate General in Sydney at 4pm on Monday.

Indonesia Institute president Ross Taylor said retribution in the wake of the Bali nine executions would not be in the best interests of Australia or the region.

“With (the Australians’) deaths will come calls for retribution, including withdrawal of aid funding, trade and tourist sanctions and perhaps even the withdrawal of Australia’s new ambassador to Indonesia, Paul Grigson,” Mr Taylor said.

“To impose retribution of this kind would be counter-productive to Australia’s interests in the region, and such action will invite an increase in the already high level of nationalistic sentiment, and a ‘tit-for-tat’ response from the new Joko ‘Jokowi’ Widodo government.”

Meanwhile, lawyers for Gularte, who has been diagnosed with schizophrenia, will lodge a request for a judicial review into his case on Monday.

They say Gularte was mentally ill when he tried to smuggle six kilograms of cocaine into Indonesia hidden inside surfboards and should be hospitalised not executed.

Gularte’s lawyer, Christina Widiantarti, said he became angry and upset when he was notified of his execution on Saturday.

“He said, I’ve been here for seven years, I did one mistake, everybody uses illegal narcotic, why do I have to be executed?” Ms Widiantarti said. “Everybody there knows Rodrigo is mentally ill. He refused to sign the notification of his death. “Because he was angry, he didn’t say what his last request was, he didn’t say what to do after the execution.”

On Friday lawyers for Veloso lodged a request for a second judicial review on the grounds she was “primarily a human trafficking victim in the first place, and therefore, must be protected”.

However Foreign Ministry spokesman Arrmanatha Nasir told Fairfax Media that under Indonesian law only one judicial review was allowed.

Veloso maintains she was tricked by her godsister into carrying a suitcase lined with heroin into Yogyakarta, where she was seeking employment as a domestic helper.

Veloso’s plight has captured the sympathy of Indonesians still reeling from the beheadings of two Indonesian domestic workers in Saudi Arabia earlier this month.

The hashtag #SaveMaryJane has been trending on Twitter with several local celebrities supporting her case for mercy.

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The U.S. Supreme Court is about to re-evaluate how some states carry out lethal injections.

Next month, the Supreme Court will hear oral arguments in a case which challenges Oklahoma’s use of “liquid fire” in executions. The drug – potassium chloride – is one of a cocktail of drugs currently used in some states to carry out death sentences, a cocktail that has led to botched executions. Nancy E. Millar comments on the upcoming case, which challenges the drug’s use under the Eighth Amendment’s prohibition of cruel and unusual punishment. She writes that while it is impossible to predict what the Court will decide, its previous decisions and statements might provide some indication of how the justices are leaning.

In January, the U.S. Supreme Court granted certiorari (review) on an important case that will force it to re-examine, and perhaps reconfigure, the troubled lethal injection landscape. The case, Glossip v. Gross, challenges Oklahoma’s use of a three-drug protocol to carry out its executions and follows a recent spate of botched executions.

In April last year Oklahoma used midazolam as the first drug in its three-drug sequence for the first time. That execution, of Clayton Lockett, has been called a “bloody mess” and widely condemned as one of a series of badly botched executions to be carried out in several states over the past year. In the words of Justice Sonia Sotomayor, during the Lockett execution, he “awoke and writhed on the execution table for some time after the drugs had been injected and officials confirmed him to be unconscious. He was overheard to say, “‘Something is wrong,’” and, “‘The drugs aren’t working.’” . . . Eventually, some 40 minutes after the lethal injection drugs were administered, Lockett died.”

Oklahoma planned to execute Charles F. Warner via the same three-drug method shortly after executing Lockett, but postponed the Warner execution in light of the problems. This gave the lawyers for Mr. Warner and three other prisoners time to ask the Court to stay their scheduled executions—but the Court declined to do so. Consequently, in January, Oklahoma executed Mr. Warner using the same three-drug protocol that had caused an uproar in Lockett’s death. Less than two weeks later, the Court granted certiorari in Glossip in order to review the constitutionality of that protocol. The Court subsequently stayed the three other prisoners’ scheduled executions.

The petitioners in Glossip—death-sentenced prisoners awaiting execution in Oklahoma—argue to the Court in their brief, filed on March 9, that the use of the three-drug protocol violates the Eighth Amendment’s prohibition of cruel and unusual punishment. Because midazolam does not produce a “deep, comalike unconsciousness,” they argue, it leaves prisoners vulnerable to experiencing “constitutionally intolerable” pain and suffering. Potassium chloride, the third drug in the protocol, feels like “liquid fire” when injected into a person who has not been already rendered deeply unconscious, the petitioners claim, and “injecting a prisoner with liquid fire is just as unconstitutional as lighting him afire.”

The Supreme Court has not addressed the constitutionality of a lethal injection protocol since Baze v. Rees in 2008. In Baze, the Court ruled that the three-drug cocktail at issue in that case—the sedative sodium thiopental, the paralytic pancuronium bromide, and heart-stopping potassium chloride—did not violate the Eighth Amendment. However, the Court found it uncontested that, “failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride.”

Seven years later, in Glossip, the Court faces just such a scenario: Because midazolam now has failed to render at least two prisoners unconscious, in the Wood and Lockett executions, the Court must squarely confront the situation it deemed “constitutionally unacceptable” in Baze.

Credit: Partha S. Sahana (Flickr, CC-BY-2.0)

Credit: Partha S. Sahana (Flickr, CC-BY-2.0)

While it is impossible to predict precisely what the Court will decide, it is instructive to look to previous decisions and other indications of the justices’ leanings to date.

Baze was a split decision with only three justices signing on to the majority’s reasoning, but seven total justices agreeing with the judgment. Chief Justice John G. Roberts Jr. wrote the majority opinion in Baze, joined by Justices Anthony M. Kennedy and Samuel Anthony Alito Jr. Baze established that, to prevail on an Eighth Amendment claim, a prisoner must demonstrate a “‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’” Ruling on the narrow issues presented in Baze, the majority held that the petitioners did not show that the risk of an inadequate dose of the first drug in Kentucky’s three-drug cocktail was substantial and rejected the argument that the Eighth Amendment required Kentucky to adopt alternative procedures identified by petitioners.

Justice John Paul Stevens concurred in the judgment, but warned that the majority opinion would “generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.” He noted that pancuronium bromide was so widely recognized as causing extreme pain in a conscious patient that several states had enacted legislation prohibiting its use in animal euthanasia.

Justice Clarence Thomas wrote his own concurring opinion, joined by Justice Antonin Scalia, disagreeing with the majority’s statement of the governing Eighth Amendment standard but agreeing with the judgment. Under Justice Thomas’s interpretation of the Constitution, “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain.”

Justice Breyer also concurred, agreeing with the judgment only and approving of the standard suggested by Justice Ruth Bader Ginsburg in her dissent: To determine the constitutionality of an execution procedure, a court should examine “whether the method creates an untoward, readily avoidable risk of inflicting severe and unnecessary suffering.” Under this proposed test, the Court would examine three factors: the “degree of risk,” the “magnitude of pain,” and the “availability of alternatives.” Justice David H. Souter joined Justice Ginsburg’s dissent.

Justices Stevens and Souter are no longer on the Court, replaced by Justices Sotomayor and Kagan. Both new justices, along with Justices Ginsburg and Breyer, would have stayed the executions of Warner and the others when they filed their application in mid-January. (Notably, five votes are required to stay an execution, while four votes are sufficient to grant certiorari; thus, Oklahoma executed Warner even though the Court decided to review the state’s protocol.)

It is clear that Justices Sotomayor, Kagan, and Ginsburg will side with the petitioners in Glossip, while Justices Thomas and Scalia will not. Given Justice Breyer’s agreement with delaying the Warner and Gross’s executions, and his approval of the standard announced by Justice Ginsburg in Baze, he is expected to agree with the petitioners’ arguments against the constitutionality of Oklahoma’s protocol. Justices Roberts, Kennedy, and Alito—the only three Justices who supported Baze’s judgment and reasoning—stand somewhere in the middle.

Last year, in Wood v. Ryan, a First Amendment challenge to Arizona’s secrecy about the drugs that were to be used in Mr. Wood’s then-scheduled execution, Ninth Circuit Judge Alex Kozinski dissented from that Court’s denial of rehearing en banc, noting that:

Whatever happens to Wood, the attacks [on lethal injection] will not stop and for a simple reason: The enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

Next month, the Supreme Court will squarely confront yet another attack on the U.S. lethal injection landscape, following a series of executions where the brutality and savagery of the method were on full display.

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Note:  This article gives the views of the author, and not the position of USApp– American Politics and Policy, nor of the London School of Economics.

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