Lack of Drugs Delay SC’s First Execution in Six Years

Prison officials will not be able to carry out South Carolina’s first execution since 2011 because they lack the drugs used to make the lethal injection cocktail. Bobby Wayne Stone was scheduled to die on December 1 for killing a police officer in 1997.

South Carolina will not have the drugs necessary to carry out its first execution in six years of a man convicted of murdering a police officer, reports The State. Bobby Wayne Stone, 52, is scheduled to be executed by lethal injection on December 1 for killing Sumter County Sheriff’s Sgt. Charlie Kubala in 1997. Prison officials will not be able to carry out South Carolina’s first execution since 2011 because they lack the drugs used to make the lethal injection cocktail.

Inmates on death row can choose electrocution but seldom do. The state has 39 inmates on death row. The deadly mix requires three drugs — pentobarbital, pancuronium bromide and potassium chloride, all of which the state does not have, said Corrections Director Bryan Stirling. The state’s supply of pentobarbital expired in 2013, and the remaining drugs are hard to come by because drug companies do not want to be named publicly for providing drugs for executions, fearing backlash. In exchange for providing those drugs, companies want anonymity. In a recent, high-profile murder case, the prosecutor cited the state’s lack of execution drugs in accepting life sentences for a defendant. Barry Barnette, the prosecutor in serial killer Todd Kohlhepp’s case, said he could not guarantee Kohlhepp would be executed if sentenced to the death penalty because the state “doesn’t have a functioning death penalty.”


Kasich: No Changes in Ohio Lethal Injection Protocols

An execution was called off in the state on Wednesday when medical personnel were unable to find suitable veins on the 69-year-old condemned man. A spokesman for the governor said the failed execution does not indicate a need for new protocols.

A day after another failed execution in Ohio, Gov. John Kasich said the state’s capital-punishment protocol doesn’t need to change, reports the Columbus Dispatch. Meanwhile, civil-rights advocates say the latest failure could be used as evidence in future challenges to the constitutionality of Ohio’s death-penalty law. Kasich was forced to grant a reprieve for Alva Campbell on Wednesday when a medical team in the prison death chamber Lucasville determined that it couldn’t find two suitable veins in his arms or legs to carry out his lethal injection. Campbell, 69, had been strapped to a gurney and poked and prodded for about 30 minutes when the team made the determination.

The failure of the execution appears to be just the third in modern U.S. history — and the second to occur in Ohio during the past decade. Campbell’s ill health presaged a difficult execution. But in 2009, the state also was forced to halt the execution of a younger, healthier man, Romell Broom, 53, after two hours of trying to find suitable veins. And in 2014, another problem execution took place, when Dennis McGuire choked and struggled for about 10 minutes before dying. The state stopped executions until earlier this year, when it successfully executed Ronald Phillips in July. It also successfully executed Gary Otte in September. Ohio Attorney General Mike DeWine said he would want to see a full report on what went wrong Wednesday before deciding whether the state’s protocol needs to be changed. But when asked whether Campbell’s failed execution shows the need for change, Kasich spokesman John Keeling simply said no.


OH Inmate Avoids Execution When Medics Can’t Find Vein

Prison officials called off the lethal-injection execution of Alva Campbell Jr., 69, after medical personnel spent 25 minutes trying to find a suitable vein in Campbell’s arms and right leg. The convicted killer’s execution was rescheduled for June 2019.

Convicted killer Alva Campbell Jr. received a rare reprieve from his scheduled execution in Ohio Wednesday when medical personnel were unable to locate a vein to absorb the three-drug cocktail used as part of the lethal injection process, says the Dayton Daily News. His execution was rescheduled for June 15, 2019. Ohio Gov. John Kasich issued the reprieve after the execution was halted by Ohio prisons director Gary Mohr, acting on the recommendation of his medical staff. The staff spent at least 25 minutes in an unsuccessful effort to find a suitable vein in Campbell’s arms and right leg. While this was happening, Campbell, 69, lay in a partially seated position on a gurney in the prison execution chamber in Lucasville.

Campbell shed tears and shook hands with two of the medical staffers attending to him after they were unable to proceed with the execution process. “He’s pretty happy,” David Stebbins, Campbell’s federal public defender, said of his client after the execution was stopped. “He said, ‘This is a day I will never forget.’” Campbell was sentenced to death for fatally shooting Charles Dials, 18, in 1997 after stealing his truck during an escape from custody. Dials’ kin were witnesses in the execution facility. Mohr spoke to them afterward. “I told them that we did our best to comply with the law, to comply with the death warrant, but the methodology that we have to use is lethal injection, and our staff, as good as they are, and as experienced as they are could not get the drugs into the veins,” Mohr said. “I can’t imagine what it’s like for them. I cannot imagine traveling to Lucasville and not having result. I can’t imagine.”


The Skewed Politics of the Death Penalty

A Texas man condemned to death for a crime he didn’t commit was freed only after his attorney discovered a concealed phone record that proved his innocence. The attorney, Brian Stolarz, who wrote a book about the case, tells TCR that it’s an example of how capital punishment in the U.S. is hostage to a system that depends on whether you have enough money to pay for good legal help.

Alfred Dewayne Brown was condemned to death in 2005 after his conviction for killing a Houston police officer and a store clerk in a botched robbery in Texas. He spent a decade trying to prove his innocence, but it was only when an attorney named Brian Stolarz took his case and helped uncover the records of a phone call that proved he wasn’t anywhere near the scene of the crime—records that had been concealed from the grand jury—that Brown was finally exonerated and released in 2015.

Stolarz’ book about the case, Grace and Justice on Death Row (Skyhorse Publishing), arrives at a time when the movement for abolishing the death penalty continues to be stymied at the federal level—even as it has won more support in the states.

In a conversation with TCR’s Julia Pagnamenta, Stolarz discusses the outlook for the abolition of capital punishment in the U.S., how the politics of electing judges makes death sentences more likely, and how his Catholic faith influenced his own approach to the issue.

The Crime Report: Why write this book now?

Brian Stolarz: The death penalty debate in this country is trending towards abolition. In a new Gallup poll, approval is the lowest it’s been since the 70’s. A Pew research poll had [the approval rate] below 50 percent. It is my belief that it will be abolished one day. And I hope that cases like Dewayne’s shine a light on why.

TCR: And yet in the current political climate, it doesn’t seem like the death penalty will be abolished on the federal level. 

Brian Stolarz: I think the best way to attack the death penalty right now is through the states. Nebraska was a good example of a traditionally red state having that important debate. I think the federal death penalty will stay in large part because of the make-up of the Supreme Court. Now, with [Neil] Gorsuch taking Justice Antonin Scalia’s seat, I think it will be a number of years, if not decades, before the court shifts to a 5-4 for unconstitutionality of the death penalty.

So the way to attack that is on the state level and to identify what is called the “outlier counties.” There are only certain counties in this country that use it, and if there’s pressure even in those states to narrow it, and get rid of it, then maybe we can chip away at this brick by brick. If Nebraska is doing it, then other states can too, and if we get it so that it’s done only in a couple of states, then it becomes even more unconstitutional, and you may even have a federal challenge to it.

TCR: Let’s talk a little about Dewayne’s case: the prosecutor coerced Dewayne’s girlfriend, Ericka Dockery, into giving false testimony, and then hid the phone record that would have exonerated him. How did this happen?

Brian Stolarz: This case was in our view a rush to judgment. You have a high- profile case in which a black defendant is being charged in the murder of a white police officer, and there is a sense that they want to get quick justice. And so because there was never any science that connected Dewayne to the case, (and) never will be, this case was based largely on the testimony of his girlfriend Ericka Dockery.

Dewayne’s alibi was incredibly straightforward: He was at Ericka’s apartment at the time of the murders, and made a phone call to where she worked. Ericka testified that way in the grand jury.

The DA, and the grand jurors in particular, were badgering her, and in our view threatening her, and they kept pressing on her. I’ve never seen anything like the transcript in this case. But she held firm to Dewayne’s alibi. And the DA—and this is the moment where the case changed—decided that on his own, he would charge her with perjury, and ask for a very high bail, and then she sat in jail for four months. Her life fell apart. She lost her job, her kids…and so she said “fine, I’ll say whatever you want.”

Alfred Dewayne Brown

Alfred Dewayne Brown is released from prison after his exoneration. Photo courtesy Death Penalty Information Center.

But then we uncovered through our investigation that she testified about the phone call occurring on the caller ID box. The DA, Dan Rizzo, subpoenaed the phone company the day after she testified in the grand jury. The documents were sent by the phone company to the police, and it showed that Dewayne paid (for) that phone call, but they never turned the record over.

And that is still astonishing to me. The reason we got it was because the DA who was in charge of the writ of appeal emailed us in May of 2013, and said that the cop in charge of the investigation had recently spring-cleaned his garage, and found a box of documents. He sent it to us, and in the middle of the box was the phone record we had been looking for (over) eight long years.

TCR: You write about the lack of money and resources for public defenders, especially compared to the funding and political backing prosecutors receive. Please explain.

Brian Stolarz: Sadly, it’s easier to be rich and guilty than poor and innocent in this country, and it’s always more popular to pay the prosecutor than to pay a public defender. I hope that is going to change, because the Constitution is only upheld and preserved and maintained if the process is fair for everybody. In this case, Dewayne had a court-appointed lawyer, and the DA had all the resources to investigate. I see that in cases I work on all the time, and it’s bothersome to me because if Dewayne had the law firm I worked at, K & L Gates, that could have thrown a lot of resources at it, it might have been a different result for him, and he might not have spent 12 years and 62 days in jail for something he didn’t do.

Further Reading: “Legal Aid for Capital Punishment Cases Depends on Where you Live” (TCR Nov 7, 2017)

TCR: You worked pro bono nature on Dewayne’s case. Is this a common practice for private law firms?

Brian Stolarz: A strong public defender is always the first line of defense and that should be where our resources go. You can’t depend on large law firms to pick up the slack on everything because there are only a few law firms that will put the kind of resources that our firm put towards it.

TCR: How important to the capital punishment issue is the fact that judges administering these cases are elected?

Brian Stolarz: There’s a part in the book where I write that the Alabama judicial system had a jury override function, that the jury could recommend life, but then the judge could override that and give death. Well, in election years, the judges would override the jury verdicts more. It’s transparent to me to why they did that: to get elected. To me, that’s not justice, that’s political gain; I think all judges across the country should be appointed by their respective governors, or whatever bodies can do it. I think that when you politicize law, you are making it such that certain things are valued over other things, whether it’s these tough-on-crime sentences, or whether it’s a judicial override, so that a person can say at a rally, I put ten people to death. Well that’s not what I want my judge to be up there saying.

TCR: Your Catholic faith guided you through Dewayne’s case, and informs your opposition to the death penalty. And yet, in the book you recall how a religious group outside of Dewayne’s prison refused to serve you any food after you told them you were defending a person on death row. How did that affect you?

There is a certain level of hypocrisy that I see when I speak in churches. When I talked to this group, where they were all too happy to give a fish platter to the guard but they wouldn’t give one to me because I was defending someone in there. They were all happy to advocate for this man’s death. It just didn’t seem like the Christian way. Growing up Catholic, I was told that life was life, beginning and end, no matter what you’ve done, and it’s not the state’s role to kill anybody. Pope Francis has put a finer point on that now, and I hope that that combined with the advocacy work of Sister Helen, we can finally show that the Christian stance is that the death penalty should not happen.

TCR: Justice Scalia, also a practicing Catholic, supported the death penalty.

Brian Stolarz: Justice Scalia and I differed on our application of it even if we both had a strong Catholic faith.

TCR: Well, maybe in his case it wasn’t a Catholic interpretation, but a Constitutional reading of the death penalty?

brian stolarz

Brian Stolarz

Brian Stolarz: Yeah, it had to be. That’s what I read into it, but my faith has told me it’s not the right thing to do. If I were a judge I guess I would have to think about it differently, but from where I sit right now, it’s not the right thing to do. The state shouldn’t do this, and I hope Pope Francis’s message carries some weight.

TCR: There is currently an art exhibit, “Windows on Death Row” at Columbia Law School. People on death row made the art, and Columbia hosted several events this fall around the topic. At the first event, a Swiss representative who introduced the discussion said a central tenet of Switzerland’s foreign policy was a universal abolition of the death penalty. It’s also a European Union foreign policy objective. Why is it that the United States is one of the only countries in the Western world that still uses the death penalty?

Brian Stolarz: I spend a lot of time talking to folks in the European Union (EU). I’ve been to a few conferences and people are still shocked that we have it. We’re on a list with countries like Iraq and Iran and China, countries we don’t normally want to be on a list with as far as human rights. You can’t be a member of the EU if you have the death penalty. EU companies are not allowing drugs to be shipped here for this reason. Their advocacy is really important, and I think with more pressure like that, it may begin to change how we all think.

The American frontier spirit, and the Old Testament “eye-for-an-eye” approach has carried the narrative for us up to now. But I think that’s changing given the recent public opinion polls.

Julia Pagnamenta is a news intern for The Crime Report. She welcomes comments from readers.


Executions in FL, TX Mark Capital Punishment Revival

After a lull in executions, it seems that the nation could return to 50 executions annually, with 2,800 on death row and the prospect of California’s re-starting executions.

Florida and Texas both executed murderers on the same night this week. Ohio State University law Prof. Douglas Berman says on his Sentencing Law and Policy blog that it was apparently the first time since January 2015 in which two different states carried out executions on the same day. (Arkansas  in April carried out two executions in one state in one day.) Berman believes the development is more evidence that the results of the 2016 election cycle — especially the vote in support of improving the operation of the death penalty in California and the election of Donald Trump — may have significantly turned around the declining fortunes of the death penalty in the U.S.

Berman doubts that the nation will return to the 1990s levels of death sentences and executions absent a huge spike in homicides. He notes that there remain more than  2,800 condemned persons on death rows, “and it seems quite possible we could before long start seeing 50 or more executions per year again (which was, roughly speaking, the average during the administrations of Bill Clinton and George W. Bush).”


Last Phila. Death Penalty Case Ends With Life Term

On Tuesday, Philadelphia elected a district attorney who pledged to take the death penalty off the table. Two days later, prosecutors asked a jury to impose it one last time. A deadlocked jury meant a life prison term for Robert Lark, 63.

On Tuesday, Philadelphia elected a district attorney who pledged to take the death penalty off the table. Two days later, prosecutors asked a jury to impose it one last time, on Robert Lark, 63, who has already spent more than three decades on death row for a 1979 murder of a restaurant owner. The jurors, who found Lark guilty of murder, sent a note to Judge Steven Geroff after an hour of deliberations: “We are at a deadlock. Nobody is budging, and there won’t be a unanimous decision.” That meant Geroff would have to sentence Lark to life in prison with no possibility of parole, reports

Lark was first convicted in 1985. That verdict was overturned based on Lark’s claim that the prosecutor used race-based practices in jury selection.  A majority of Pennsylvanians no longer support capital punishment, according to a 2015 York College of Pennsylvania poll. One complaint is that so-called death-qualified juries are inherently biased, and studies have shown such juries inherently are more likely to convict. No one has been executed in Pennsylvania since 1999. Since 2015, Gov. Tom Wolf has maintained a moratorium on executions.The jury’s decision means Lark will move from death row — where for 32 years he has been kept in his cell for 23 hours a day, into the general prison population.


Texas Executes Killer Despite Mexico’s Protests

Ruben Cardenas Ramirez, 47, was put to death for raping and murdering his cousin, 16, two decades ago. Ramirez’ native Mexico said Texas officials had violated his rights.

Amid international outcry and claims of global treaty violations, Texas executed a Mexican national who claimed innocence in the rape and murder of his 16-year-old cousin 20 years ago, the Houston Chronicle reports. Ruben Cardenas Ramirez was pronounced dead at 10:26 p.m. Wednesday after telling his family in a written statement, “I will not and cannot apologize for someone else’s crime, but, I will be back for justice! You can count on that.” In the days before the 47-year-old’s death, Mexican officials decried an execution they said followed from flagrant disregard for international law. Amnesty International, the Inter-American Commission on Human Rights and the United Nations all condemned the state’s use of its harshest punishment.

“I am extraordinarily disappointed with this outcome and at the same time overcome with pride at the efforts made by his lawyer, Maurie Levin, and her team of lawyers,” said Gregory Kuykendall, an Arizona attorney authorized to speak on behalf of Mexico. “And I’m equally proud of the Mexican government for so diligently pursuing every avenue of defense conceivable.” For the victim’s family, the outcome was a final relief. The slain teen’s sister – who witnessed her abduction 20 years earlier – declared “justice was finally served,” and reminisced over the murdered girl’s smile and loving nature. “This guy is guilty as sin,” said Hidalgo County prosecutor Ted Hake.


Mexico, U.N. Officials Ask TX To Halt Execution

Critics say Mexican Ruben Cárdenas should not be executed Wednesday evening because Texas didn’t comply with international human rights standards. After interrogation, Cárdenas confessed that he killed a cousin in 1997.

Mexican officials and United Nations human rights experts have called for a stop to a Texas execution scheduled for Wednesday evening, the Texas Tribune reports. The man sentenced to die, Mexican national Ruben Cárdenas, was never given a chance to speak to his country’s consulate after his arrest more than 20 years ago, a violation of an international treaty. He was not provided a lawyer until 11 days after his arrest, and his representatives claim evidence against him is faulty and his confession was coerced. “If the scheduled execution of Mr. Cárdenas goes ahead, the U.S. Government will have implemented a death penalty without complying with international human rights standards,” said Agnes Callamard and Elina Steinerte, independent experts with the U.N.’s Human Rights system.

Cárdenas was convicted and sentenced to death in the 1997 murder of his 16-year-old cousin. After hours of interrogation, Cárdenas confessed that he snuck into his cousin’s room through an open window and kidnapped, raped and killed her before leaving her body near a canal. Under the 1963 Vienna Convention on Consular Relations, arrestees from a foreign country must be told they can notify their consulate and consult with them during their detention. In 2004, the U.N.’s International Court of Justice found that the U.S. violated this treaty with more than 50 Mexican nationals on death row, including Cárdenas. A ruling ordered that all the cases should be reconsidered before execution. The U.S. Supreme Court ruled in 2008 that even though the treaty created obligations for the federal government, it didn’t force anything on states.  The Mexican government still says the violation is “illegal.” The country’s deputy foreign minister for North America, Carlos Sada, said Texas prosecutors didn’t follow due process and that Mexico, which does not have the death penalty, is seeking to stay the execution.


Arkansas Supreme Court Delays Execution

Court votes 5-2 to delay execution of Jack Greene, who challenged a state law that gives the state’s top prison official the authority to determine if he is mentally competent.

The Arkansas Supreme Court halted the planned execution of an inmate whose lawyers claim is severely mentally ill, while a state judge ordered officials to release more information about one of the lethal injection drugs they had planned to use, The Guardian reports. Jack Greene was scheduled to die on Thursday night for the 1991 killing of Sidney Burnett, who was beaten with a can of hominy, stabbed and shot. In a 5-2 ruling, the court granted an emergency stay requested by Greene’s attorneys but did not state a reason for doiing so.

Arkansas has not executed anyone since it put to death four inmates over an eight-day period in April. Greene’s attorneys asked for the stay so justices could review a lower court’s decision to dismiss his challenge of a state law that gives Arkansas’s top prison official the authority to determine whether he is competent. Greene’s attorneys say he believes the attorneys and prison officials have conspired to torture him. Greene has said his lawyers are lying and that he does not suffer from a mental impairment. Arkansas had planned to put eight inmates to death over an 11-day period in April, scheduling the executions before its supply of a lethal injection drug expired. Four of the executions were blocked by courts. Greene’s execution was scheduled after the state obtained a new supply of the drug, midazolam.


Legal Aid for Capital Punishment Cases Depends on Where You Live: Study

A pro-death penalty “punitive culture” in some federal jurisdictions ensures that poor defendants in capital punishment cases never get the quality of public defense they are entitled to, argues a study published in the Journal of Criminal Law and Criminology. The authors say their findings help explain the stark racial disparities in the application of death sentences across the U.S.

A pro-death penalty “punitive culture” in some federal jurisdictions ensures that poor defendants in capital punishment cases never get the quality of public defense they are entitled to, argues a study published in the Journal of Criminal Law and Criminology.

The study, which examined why defendants in some federal death penalty cases failed to receive the full range of public defense services, found that a “social and political climate” favoring capital punishment was among the “extralegal” factors that influenced some local court administrations to allocate fewer federal funds for those services.

The lack of sufficient resources meant that defendants in those jurisdictions were forced to rely on lawyers who lacked experience in capital cases, or on attorneys whose appointment was not recommended by either the local federal public defender or the Office of Defender Services.

Extralegal factors that have nothing to do with the legal merits of a case not only shortchange the ability of indigent defendants to present mitigating circumstances that can help them avoid a death sentence—but make a death sentence more likely, the study said.

“Our findings strongly connect extralegal factors to the lowest levels of defense resources, which in turn correlate with a higher risk of a death sentence,” wrote study authors Jon B. Gould, professor of Public Affairs and Law at American University; and Kenneth Leon, a visiting assistant professor at George Washington University.

“Far from being idiosyncratic discrepancies, these are systemic and systematic extralegal factors that stand between a defendant and his opportunity to defend against a death sentence.”

The study looked at data in the 14 federal jurisdictions that have received the bulk of capital authorizations in U.S. death penalty cases between 1998 and 2004, and examined the outcomes of 62 cases where defendants faced the real prospect of a death sentence. Just four of those jurisdictions—Louisiana-Eastern (New Orleans), Missouri-Western (Kansas City),Texas-Eastern (Tyler and Texarkana), and Virginia-Eastern (Richmond and Northern Virginia)—showed both a high concentration of allocated funds and death sentences.

Within these 62 cases, the median level of allocated defense funds was about $465,602, with the lowest number being about $67,366 and the highest number being about $1,788,246.

The authors cited a study commissioned by the Committee on Defender Services of the Judicial Conference of the United States showing that 44 percent of defendants whose approved funds fell below the 30th percentile of support – about $320,000 – were sentenced to death, versus 19 percent in all other cases.

Their findings indicated “a system of federal capital litigation that limits the resources that certain suspects receive for their defense based simply on where the case is brought,” the authors said.

The survey found that extralegal factors were more likely to determine the level of resources allocated by local jurisdictions to public defenders’ offices in capital cases than more “legally relevant” factors, such as the number of defendants, offenses, or victims.

A key extralegal factor was what they described as a “punitive culture” in states—particularly in the South—where there was strong support for the death penalty.

The authors said that the link between extralegal factors such as “the local punitive culture, the background of the presiding judge,the caseload and speed of the court’s docket, and the race of the defendant” and decisions on appointments of lawyers and the level of resources available for defense had “real and quite troubling” consequences.

In contrast, the study found that judges who attended a nationally recognized law school, as well as those who have past experience as a federal prosecutor, were much less likely to be involved in lower-cost cases.

The authors also drew a link between research that shows poor African-American capital defendants are more likely to receive the death penalty if the victim is white and their findings that blacks were almost 1.7 times more likely than other defendants to receive a lower-cost defense.

The authors said their research reinforced an earlier study by G. Ben Cohen and Robert J. Smith, which declared the “geography of the federal death penalty is anything but uniform, “

They argued their findings cast additional doubt on the presumed uniformity of legal procedures in the nation’s federal court system.

“The notion that defense resources would turn on extralegal or cultural factors is antithetical to […] legal norms and the legitimacy of the federal criminal justice system itself, especially because the federal courts are considered a unitary legal system in which the prevailing law, processes, and standards are presumed to be common,” the study said.

The authors added: “When those resource-related disparities, in turn, are strongly correlated with the likelihood of a death sentence at trial, the integrity of the federal death penalty is subject to increased doubt.”

The study, entitled, “A Culture that is Hard to Defend: Extralegal Factors in Federal Death Penalty Cases” appeared in the Fall 2017 edition of the Journal of Criminal Law and Criminology, published by the Northwestern University School of Law. It can be downloaded here.

This summary was prepared by TCR news intern Brian Edsall. Readers’ comments are welcome.