Winnipeg Free Press

Winnipeg Free Press (Newspaper) - January 25, 2015, Winnipeg, Manitoba C M Y K PAGE A6 A 6 WINNIPEG FREE PRESS, SUNDAY, JANUARY 25, 2015 WORLD winnipegfreepress. com W ASHINGTON - The U. S. Supreme Court announced Friday it will review the drug protocol increasingly used in executions across the country to determine whether the procedure violates the constitutional ban on cruel and unusual punishment. It is the court's first examination of lethal injection since 2008 and follows a decision last week by a majority of the court - over the objection of its four liberal members - to allow the execution of Charles Frederick Warner in Oklahoma. But it takes only four of the court's nine members to accept a case, and that is apparently what happened during the justices' private conference Friday. They will now consider a petition from three other inmates on Oklahoma's death row this spring and render a decision in June. One of the inmates is scheduled to be executed next week, and attorneys said they soon will file stay requests for all three. Even as the number of executions across the country lags, the death penalty takes up an outsize portion of the Supreme Court's time. Capital punishment raises complicated and highly divisive questions about how to humanely execute the perpetrators of some of the country's most gruesome crimes. If the challengers prevail in the latest case, states that want to use lethal injection would have to find a different protocol. The court last rejected a challenge to lethal injections in 2008. " Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ' objectively intolerable risk of harm' that qualifies as cruel and unusual," wrote Chief Justice John Roberts. But the three- drug protocol used in the Kentucky case the court examined seven years ago - and employed in most of the executions at that time - is no longer available. The use of this protocol raised objections from officials in Europe, where the majority of the drugs were manufactured, and from the companies producing them, leading to a shortage. States across the country have turned to new, largely untested combinations to execute inmates. They have resulted in several grisly moments that have brought new attention to the process. Most noteworthy was the April 2014 execution of Clayton Lockett, a convicted murderer who ultimately died 43 minutes after the procedure began. As accounts of his writhing and grimacing spread, disapproval poured in from death- penalty opponents as well as U. S. President Barack Obama and the United Nations. Oklahoma Gov. Mary Fallin, a Republican, ordered a review, and Robert Patton, head of the state's Department of Corrections, asked that executions be postponed until the state could revise its execution protocol. The new procedure, which went into effect in September, maintains the previous approach for lethal injection: a sedative to render the inmate unconscious; a second drug to paralyze him; and a third to stop his heart. But the protocol includes a much higher dose of the sedative midazolam. When Lockett was executed, 100 milligrams of the sedative were supposed to be injected; the state now says it will use 500 mg of midazolam. In her dissent last week in Warner's case, Justice Sonia Sotomayor said she was concerned about Oklahoma's use of midazolam as the first drug in the process. Although lower courts found the drug would work as intended, she said that was " difficult to accept given recent experience." Sotomayor noted testimony that indicated the application of the paralytic drug might render midazolam ineffective, but that it would be impossible to know whether the inmate was conscious. Joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, Sotomayor added: " Petitioners have committed horrific crimes, and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death." Dale Baich, one of the attorneys representing the Oklahoma death- row prisoners, said the " lethal- injection landscape" has changed significantly since the court's 2008 Baze v. Rees decision. " The drug protocol used in Oklahoma is not capable of producing a humane execution, even if it is administered properly," he said. A district court and panel of the U. S. Court of Appeals for the 10th Circuit found otherwise. Last week's execution of Warner, who was put to death for raping and killing an 11- month- old girl, was carried out without much incident, witnesses said, although as the process began, Warner said, " My body is on fire." Before his execution, Warner was one of the parties petitioning the court to review lethal injection. Also last week, Florida, which has used midazolam in executions since 2013, executed Johnny Kormondy, who was convicted of killing a banker and raping his wife in 1993. Midazolam was involved in three problematic executions last year, raising concerns among civil liberties groups and attorneys for death- row inmates. In Ohio, where witnesses said the inmate choked and gasped, officials announced this month they would no longer use a combination of the drugs midazolam and hydromorphone. The state also said it would have to delay an execution scheduled for next month, and possibly others, while it tries to obtain the drugs it hopes to use in the future. Deborah Denno, a Fordham University professor who studies the death penalty and has been critical of lethal injection, said in a telephone interview the court's intervention was wise, since there are so many forms of the technique being used. " Even though they're all lethal injections, they're all different kinds of executions," Denno said. " We've never had anything like this in the history of this country, in the history of the death penalty." The problems facing places with lethal injection have occurred as the death penalty has become less often used. Last year, 35 inmates were executed in the United States, the smallest number in two decades. The new case, Glossip v. Gross, will likely be heard in April. - Washington Post Lethal injection's legality weighed Top U. S. court eyes constitutionality By Robert Barnes and Mark Berman SUE OGROCKI / THE ASSOCIATED PRESS FILES An Oklahoma execution chamber. The botched execution of Clayton Lockett ( below) in that state sparked objections. THE ASSOCIATED PRESS FILES U. S. President Barack Obama has recharged his campaign for closing the Guantanamo Bay prison with a strategy legal experts say holds out new hope of achieving that objective of his presidency. After years of being thwarted by Congress from transferring detainees cleared of terrorism suspicions from the remote prison at the U. S. naval base in southern Cuba, the administration has in less than three months resettled 27 of the long- held foreign men in such countries as Estonia, Oman and Uruguay. Dozens more are ready to be moved out as soon as other countries agree to take them, a diplomatic task that received an unexpected boost last month with an appeal by Pope Francis for predominantly Catholic nations to help empty the prison. Obama has also spotlighted the costs of maintaining the offshore detention operation - more than $ 3 million a year per detainee, by the Pentagon's calculation - in his effort to counter Republican opposition to closing Guantanamo. And he has pointed out the failure of the U. S. military tribunal there to bring any of its most notorious terrorism suspects to justice. Reducing Guantanamo's population from its current 122 - fewer than half the 245 detainees Obama inherited from the Bush administration - is a key element of the president's new push to deliver on the promise he made as a candidate to close Guantanamo within a year of taking office, lawyers and human rights advocates say. A second crucial step needed to close the prison, they say, is moving the seven " high- value detainees" charged in major terrorism cases out of the dysfunctional military commissions and into U. S. courts. Khalid Shaikh Mohammed, the confessed Sept. 11 mastermind, has been in U. S. custody for 12 years and at Guantanamo since 2006. " It's shocking that there is not more public pressure to try these people," said Shayana Kadidal, senior managing attorney on the Guantanamo project at the Center for Constitutional Rights, a New York- based public interest law firm. He was referring to the five men whose prosecution has been mired in pretrial challenges to the war court that rights advocates see as an end run around U. S. law. " If they had been brought to United States in 2009, those trials would be long over," he said. Obama has for years opposed indefinite detention at Guantanamo for the moral stain it has left on America's reputation, but the money issue may offer better prospects for wearing down those opposed to closing the prison. " It makes no sense to spend $ 3 million per prisoner to keep open a prison that the world condemns and terrorists use to recruit," the president said in his state of the union address Tuesday night. " It is not who we are. It is time to close Gitmo." In the 13 years since then- president George W. Bush created the prison and military tribunal, only eight militant foot soldiers from among the 780 men taken to Guantanamo have been tried and convicted, and only three of those remain at the prison to serve their terms. Hundreds swept up in Afghanistan and Pakistan in the early days after the Sept. 11, 2001 attacks were years later deemed by military authorities to pose no threat to U. S. or allied security. But the releases slowed after reports emerged of some freed detainees joining al- Qaida and other extremist groups. The recidivism rate remains a topic of heated disagreement, with Republican lawmakers contending 20 per cent of former captives are believed to have taken up with militant groups, and the administration saying the percentage is half that at most. Obama's first executive order after inauguration in January 2009 called for a six- agency task- force review of all detainees and for decisions on whether they were to be prosecuted, deemed eligible for transfer or release, or categorized as " indefinite detainees" because of lingering suspicion but too little evidence to prove criminal acts. Fifty- four prisoners still at Guantanamo were cleared for release by the task force in January 2010. Congress, in the meantime, had imposed a ban on detainee movements or relocation of terrorist trials to U. S. soil. A slight easing of those restrictions took effect in late 2013, and State Department diplomats are negotiating repatriation or resettlement, lawyers for some of the captives said. But finding countries that will take in the detainees is a struggle, legal analysts say, pointing to the Bush- era condemnation of the prison's residents as " the worst of the worst" militants on the planet. An additional 35 prisoners remain at Guantanamo after being designated for indefinite detention, to be reconsidered annually by a multiagency Periodic Review Board. That figure is down by at least two now after a Saudi and a Kuwaiti were lifted from the " forever prisoners" list and repatriated in November. That contingent is the most problematic for Obama, as both Congress and rights groups that support closing Guantanamo object to administration proposals to bring them to some underused U. S. prison. The groups criticize the idea as simply transferring an illegal detention practice from Guantanamo to another venue. Rights advocates, detainees' lawyers and other critics of Obama's failure to close Guantanamo have accused him of sacrificing that cause for other priorities, namely health- care reform and economic- crisis intervention during the first years of his administration. But even five years after the missed closure deadline, those critics say they are encouraged by the president's resumed focus on ridding the nation - and his legacy - of the prison and war crimes tribunal. " Privately, the level of commitment has been even more intense, as he is telling other officials that this is his top goal now and raising it with foreign leaders," said Chris Anders, senior legislative counsel at the American Civil Liberties Union, who has monitored the legal battle over Guantanamo for a decade. Closing Guantanamo will require Obama to spend political capital on the issue during his last two years in office, Anders said. - Los Angeles Times By Carol J. Williams New bid to shut Guantanamo Plan may succeed before Obama exits office BRENNAN LINSLEY / THE ASSOCIATED PRESS FILES The economic argument may end up winning over those who oppose closing Guantanamo Bay. A_ 06_ Jan- 25- 15_ FP_ 01. indd A6 1/ 24/ 15 11: 45: 15 PM ;