Bipartisan Death Penalty Report Calls For End To Death Penalty ‘Cocktail’

Cathy Reisenwitz Editor-in-Chief, Sex and the State
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A bipartisan panel of criminal justice system experts has released a comprehensive review of the administration of the death penalty in the United States. The report offers 39 recommendations to courts and policymakers from a committee of death penalty supporters and opponents.

Among them are suggestions that states should stop using cocktails of untested, easily miscalculated drugs and instead use a deadly dose of a single anesthetic or barbiturate approved by the Food and Drug Administration.

This recommendation comes on the heels of a horribly botched lethal injection in Oklahoma. Sources say an injection of an untested three-drug cocktail obtained from undisclosed sources burst Clayton Lockett’s vein, and left him conscious and writhing in pain for more than 30 minutes before state officials called off the execution. Then, ten minutes later Lockett died of an apparent heart attack.

In addition, President Obama recently described the application of the death penalty in the U.S. as having “significant problems” and has requested a special report from Attorney General Eric Holder.

Among the other death penalty issues examined in “Irreversible Error: Recommended Reforms for Preventing and Correcting Errors in the Administration of Capital Punishment” are how states define “mental retardation,” misuse of forensic science by states, an unfair and opaque clemency system, and how to make reviews available to all death row inmates.

The U.S. Supreme Court declared executing a person with “mental retardation,” unconstitutional in 2002. However, many states define intellectual disability in a way that is fundamentally at odds with clinical consensus, leading to the deaths of inmates who fit the clinical description. For example, Georgia requires that prisoners prove they are intellectually disabled “beyond a reasonable doubt,” and last year executed a man with an IQ of 70 who experts said was intellectually disabled. In 2012, Texas executed Marvin Wilson, a 54-year-old man with an IQ of 61, had required special education classes, failed 7th grade and had trouble tying his shoelaces. Irreversible Error suggests procedures and standards of proof for states that are in line with standard thinking on intellectual disability.

Former Texas Governor Mark White is a co-chair of the committee and a death penalty supporter. “From the moment of arrest to the moment of death, the criminal justice system faces vexing challenges in carrying out the ultimate punishment,” White said. White oversaw 19 executions during his term as governor.

States executing prisoners convicted using invalid or improper forensic evidence is another problem the report addresses. Of the first 225 wrongful convictions overturned by DNA testing, more than half  involved “junk science.” In the case of Cameron Todd Willingham, who was executed in 2004 for setting the fire that killed his three daughters, some experts have said that the scientific evidence of arson offered against Willingham was bogus. In 2009, the National Academy of Sciences said the criminal justice system “has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country.”

Congress should develop federal standards for accreditation of forensic labs, according to “Irreversible Error,” and only forensic examiners from labs that meet the accreditation standard should testify in capital cases. Additionally, forensic labs should operate independently of law enforcement to avoid bias in evidence processing.

Other recommendations include ensuring all prisoners have access to a fair, transparent, and predictable clemency process and a review of their conviction and death sentence in federal court.

The Constitution Project’s Death Penalty Committee includes criminal justice and other experts with experience as judges, prosecutors, defenders, law enforcement officers, policymakers, victim advocates and scholars.

“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 served as a Republican Attorney General of Virginia, and whose tenure oversaw 36 executions.

“We hope these recommendations will be embraced by officials from both parties in Washington and around the country,” Earley said. “There’s nothing conservative about executing an innocent person, and leaders who support the death penalty bear the greatest responsibility in ensuring it is administered more fairly.”

Cathy Reisenwitz is an Editor at Young Voices and a D.C.-based writer and political commentator. She is Editor-in-Chief of Sex and the State and a blogger for the Huffington Post and writer for Bitcoin Magazine. Her writing has appeared in Forbes, the Chicago Tribune, VICE Motherboard, Reason magazine, Talking Points Memo and other publications. She has appeared on Fox News and Al Jazeera America.