This urgent action is for Ledell Lee who is one of a number facing imminent execution in Arkansas. There is a spate of these planned executions in that state due to the imminent expiry of the chemicals used for the execution. It gives a new meaning to ‘sell by date’. If you want to read the gruesome details of execution by lethal injection, read an extract from the details sent to us by the state of California.
This case – concerning Ledell Lee – is worth reading even if you do not have the time to write which we hope you will. It gives a bizarre insight into the legal process and the low standard of defence someone can expect in some states of the Union. It is just another example described by Clive Stafford Smith in his book on the subject.
The USA is the only state in the Americas which still has the death penalty.
China executes more of its citizens than any other country but the statistics are a state secret.
Think of California and we call to mind Hollywood and the film industry, Silicon Valley and major companies such as Microsoft and Google, cities such as San Francisco and Los Angeles, important universities such as Caltech, the home of surfing, and altogether a state which is a pace setter in the world and one which is much admired. There have recently been some TV adverts in the UK promoting the state as an exciting place to visit.
But there is a dark side which is that the state is keen on the death penalty. USA is the only country in the Americas to retain this penalty and California is one of the states which retains it in the Union. The web site Death Penalty Information Center gives the statistics for those executed and on death row and explains that the county of Los Angeles has more prisoners on death row than any other county in the USA. California has 741 inmates on death row (2015).
Last year there was an attempt to end it with something called Proposition 62 which failed. Proposition 66 to retain it was successful. So the state will continue to execute.
Amnesty is opposed to the death penalty in all circumstances. It is ineffective as a deterrent, mistakes – and there are many – cannot be undone and it is a barbaric and uncivilised practice. Juries are less and less willing to convict if they know the defendant may be executed. During the course of the debate about the propositions Amnesty members wrote in favour of 62 as part of the consultation process. Anyone who has doubts about its use as a penalty should read Clive Stafford Smith’s book on the subject reviewed here. Chapter after chapter reveals the unfair processes which lead to someone ending up on death row. Poor defendants cannot afford proper counsel and failures in the trial can mean avenues of defence are ‘procedurally barred’ at an appeal.
Response
We have just received a reply from the Department of Corrections and Rehabilitation (Motto: A Safer California through Correctional Excellence) in the state capital Sacramento with over 30 pages of material. Essentially it contains detailed information of a bureaucratic nature concerning how the death penalty is to be administered. There is something ghoulish about such a document and reading the fine grain of how someone is to be put to death. There are pages and pages of details and we can only provide a short extract here. Hannah Arendt’s phrase ‘the banality of evil’ springs to mind. Here are some extracts:
inmates sentenced to death shall have the opportunity to elect to have the punishment imposed by lethal gas or lethal injection. Upon being served with the warrant of execution, the inmate shall be served with CDCR Form 1801 – B (Rev 10/15), Service of Execution Warrant […] subsection 3349
the inmate shall be notified of the opportunity to elect lethal gas or lethal injection and that, if the inmate does not choose either lethal gas or lethal injection within ten calendar days after being served with the execution warrant, the penalty of death shall be imposed by lethal injection. […]
Infusion Control Room means the space allocated for the Lethal Injection Chemical preparation area and is the room designed to accommodated the Infusion Sub-Team designated members of the Intravenous Sub-Team, the Team Administrator Team Supervisor, designated members of the Record Keeping Sub-Team, San Quintin Litigation Coordinator and one representative each from the Governor’s Office, the Inspector General Office and the Attorney Generals Office. Subsection 3349
The Team Administrator shall ensure training on the lethal injection process is provided to each Lethal Injection Team member.
Ensure the inmate has a copy of the current California Code of Corrections, Title 15, Division 3, for review of general rules and procedures that shall be utilized during the days leading up to the date of execution.
The Lethal Injection Chemical selection shall be done on a case-by-case basis, taking into account changing factors such as the availability of a supply of chemical. The San Quintin Warden shall make the selection in consultation with medical personnel and notify the CDCR Secretary of the selection.
Inform the inmate that he/she shall be executed by lethal injection, the Lethal Injection Chemical and amount to be used, and document this information on CDCR Form 1801-A (Rev. 10/15), Choice of Execution Method.
Refer the inmate to the Intravenous Sub-Team for a vein assessment to determine the size, location, and resilience of the veins. The vein assessment shall identify the primary, backup, and alternate backup locations. […]
[information] shall be used to determine if there is good reason to believe the inmate has become insane, pursuant to Penal Code Section 3701. […]
Accommodations for the last meal shall be reasonable and not exceed a fifty dollar $50 limit.
Thus far, it has been 20 pages of material concerning the events leading up to the execution. The document begins to become more gruesome when it starts to describe the actual execution process itself:
After the inmate is secured in the Lethal Injection Room, the Intravenous Sub-Team members shall […] inspect the restraints to ensure they do not restrict the inmate’s circulation or interfere with the insertion of the catheters. p22
#1 -60cc syringe containing the specified amount of the designated Lethal Injection Chemical shall be administered, followed by a consciousness assessment of the inmate; the Intravenous Sub-Team Member shall brush the back of his/her hand over the inmate’s eyelashes, and speak to and gently shake the inmate. Observations shall be documented. If the inmate is unresponsive, it will demonstrate that inmate is unconscious. The process shall continue as follows:
#2 -60cc syringe containing the specified amount of the designated Lethal Injection Chemical shall be administered
[then syringe #3; #4; #5 then a saline flush] p23
If, following the administration of syringe #1 the assessment indicates the inmate is not unconscious, the Intravenous Sub-Team member shall check the catheter for patency. After checking for patency, syringe #2 shall be administered followed by a second consciousness assessment of the inmate in the same manner [as described earlier] […]
Picture: Boston Magazine
In the event all six syringes from Tray A have been administered, the ten minutes countdown has elapsed and death has not been declared, the Record Keeping Sub-Team member shall advise the Team Supervisor, who will then advise the Team Administrator and the San Quentin Warden. The San Quentin Warden shall direct the Lethal Injection Chemical administration process set forth in subsections (43) – (8) be repeated, but using the backup intravenous catheter and the six syringes from Tray B. p24
This paragraph is then repeated and ends with the use of Tray C. It then goes on:
In the event of all six syringes from Tray C have been administered, the ten minutes countdown has elapsed and death has not been declared, the San Quentin Warden shall direct the Infusion Sub-Team to prepare a set of five addition syringes of Lethal Injection Chemical, each containing 1.5 grams of Lethal Injection Chemical. The Lethal Injection Chemical shall be mixed according to the manufacture’s instructions. A medically trained Infusion Sub-Team shall prepare the syringes. A separate medically trained Infusion Sub-Team member or Intravenous Sub-Team member shall verify proper preparation of each syringe. The Warden shall direct the Record keeping Sub-team member to initiate the ten minute countdown and the Infusion Sub-Team to administer a syringe containing 1.5 grams of the Lethal Injection Chemical in the alternate backup intravenous line, and wait for ten minutes. If the inmate’s death has not been declared by the end of that ten-minute period, the San Quentin Warden shall direct the same process be followed until five syringes have been administered. If at any time during this process the inmate is declared dead, the administration of Lethal Injection Chemical shall stop.
This paragraph is then repeated to say that if the inmate is still not dead after another ten minutes then the process is repeated.
In the event that all ten syringes of Lethal Injection Chemical referred to [in the document] have been administered, ten minutes have elapsed, and death has not been declared, the San Quentin Warden shall stop the execution and summon medical assistance for the inmate as set forth in subsection (d) p25
The meticulous detail and the amount of injections which might be necessary and the successive periods of waiting to see if he or she has died – to see it all methodically described and set out in laborious detail is decidedly chilling.
Read our latest death penalty report. Follow us on Twitter and Facebook – salisburyai
Attached is the death penalty report for mid February to mid March compiled by group member Lesley. A lot happening around the world and some worrying increases in execution activity. Note the report does not cover China – the world leader in executing its citizens but keeps the numbers a state secret.
The latest death penalty report covering the period 13 January to 9 February is attached and thanks to group member Lesley for compiling it. The report notes that many of the countries which feature in the report have close links with the UK as we have described in previous posts.
Donald Trump’s favourable comments on the use of torture have put this topic back on the agenda
As early as the third century A.D, the great Roman Jurist Ulpian noted that information obtained through torture was not to be trusted because some people are “so susceptible to pain that they will tell any lie rather than suffer it”.
President Trump said last week that ‘torture absolutely works’ and threatened its use at Guantanamo. I want to do everything within the bounds of what you’re allowed to do legally but do I feel it works? Absolutely I feel it works.” It now seems he is resiling from this after an outcry.
Amnesty disagrees that torture works. And here’s five reasons why…
1: Torture is illegal under international law. It reflects the widespread belief that torture is cruel, inhumane and morally wrong. The physical and psychological damage it causes is often permanent. Even if it was effective, it would still be wrong.
2: No ends justify torture as a means. You might be able get useful information out of torture in the short term, but in the long term it’s counter-productive. It does more damage to the reputation of the country that commits torture than any criminal or terrorist. Statistics prove that American use of torture is Al Qaeda’s number one recruiting tool.
3: Torture produces false intelligence. Some victims will say anything to make the torture stop. At best this wastes only time and resources. At worst people may be implicated and even convicted for crimes they did not commit, on the basis of false evidence.
4: While it remains illegal, information extracted through torture cannot be used as evidence in court of law. It actually makes it harder to bring people to justice for any crime they have committed.
5: You can’t condone torture even in ‘special cases’, otherwise it becomes normalised and a “torture culture” emerges across the chain of command. In the USA the CIA used waterboarding on Khalid Sheikh Mohammed 183 times, and low-ranking soldiers tortured for sport in grotesque ways in Abu Ghraib prison, in Iraq.
Of the more than 700 men held at Guantanamo Bay since 2002, many are now acknowledged as ‘merely guilty of being in the wrong place at the wrong time.’ Originally described as “the worst of the worst,” by Vice President Cheney, many were subjected to torture particularly waterboarding. More than 400 of these men have now been released or cleared for release (Center for Constitutional Rights, 2009).
A common justification for the use of torture is the implausible ticking-time-bomb scenario. This is beloved by Hollywood and was the opening scene in the TV series 24 staring Kiefer Sutherland. It rests on several questionable assumptions: that a specific piece of “actionable” information could be used to avert the disaster; that somehow interrogators know for certain that the suspect possesses specific information about the location of the bomb; that the threat is imminent; that only torture would lead to disclosure of the information; and that torture is the fastest means of extracting this valid, actionable information.
Of course, part of the appeal of this scenario is that it also portrays the torturer as a principled, heroic figure who reluctantly uses torture to save innocent lives. This carefully rigged, forced-choice scenario pits the temporary pain of one evil person against the deaths of thousands (or even millions) of innocent people. And, once we have acknowledged that there might possibly be a situation where torture could yield precious, life-saving information, it is then a small step to conclude that we are sometimes morally obliged to use torture. While this scenario might provide a useful stimulus for discussion in college ethics courses, or an interesting plot device for a television drama, there seems no evidence that it has ever occurred. As one scholar put it, “Even though torture is not, on balance, effective or rational, it persists through its deep psychological appeal, to the powerful and the powerless alike, in times of crisis. The reality of torture is unpleasant as one FBI agent put it:
On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves, and had been left there for 18 to 24 hours or more. FBI agent on visiting Guantanamo
CIA report
Picture: Washington Post
The Inspector General of the CIA conducted a review in 2004 and although great chunks of the report were redacted, they found that interrogators assumed detainees were withholding valuable information but this was not always supported by objective evaluation of available information. Guilt was assumed despite the dubious nature of their capture. Very little actionable information was obtained and there was little evidence to show that it could not have been got by ordinary means.
Morality
Setting aside its effectiveness – or rather lack of it – the main objection is morality. Around the world governments and the various agencies working for them, use torture sometimes routinely to brutalise, suborn, humiliate and coerce their citizens. Amnesty has credible evidence that it is used by 141 countries. As the leader of the free world, America should be setting an example not joining with the sordid list of countries still carrying out this barbaric practice.
We hope President Trump’s change of mind is permanent.
Sources: Amnesty International; CIA, Inspector General Report, 2004; New York Times
The Effects and Effectiveness of Using Torture and an Interrogation Device: Using Research to Inform the Policy Debate Costanzo, Mark, Gerrity Ellen, in Social Issues and Policy Review, Vol 3, No: 9 2009
The latest death penalty report is now available thanks to group member Lesley for compiling it. Generally gloomy with several countries around the world reverting – or threatening to revert to – the penalty.
How about this death row prisoner’s definition of Capital Punishment?
Them without the capital get the punishment.
Dan Dolan. Picture: Reprieve
This was how Dan Dolan launched his talk on the work of Reprieve, which started by taking on the defence of British nationals on the USA’s death row and, 30 years later takes on any nationality. They expose the torture and unjust sentencing of Guantanamo inmates but their chief mission is to end the Death Penalty – on the grounds that it is not a deterrent, but an expensive public policy disaster. They work mostly as ‘lawyers in courts’ but also know how to influence ‘the court of public opinion’.
Their focus is twofold: first, a campaign to end the use of lethal injection in the USA and second, to fight the use of the death penalty for drug-related crime in Iran, Pakistan and elsewhere. Dan explained that in the context of the gas chamber, hanging, and firing squad, the use of lethal injection gave a veneer of respectability to the death penalty. But ‘humane execution’ is a myth – the drugs are not designed by clinicians, and are administered by untrained prison staff.
Their investigations amazingly found that ‘Dream Pharmer’, the main supplier of death row drugs to the USA, was actually one man operating from behind a London driving school with a cupboard-full of imported drugs from the EU! After initially losing their case against the UK government, Reprieve, following judicial review, achieved a ban on specific lethal drug exports. This UK ban then became an EU one.
Next, the Danish pharmaceutical firm Lundbeck was persuaded to apply distribution controls to prevent the inadvertent supplying of companies feeding death row executions. 30 businesses followed in 6 years and with that supply failure came a pause in executions. And with that pause came reflection. Utah, Kansas and New Hampshire are looking at a moratorium. Those that are looking elsewhere for suppliers (Texas, Georgia, and Mississippi) are more exposed to ‘the court of public opinion’ – a public gaze directed at botched executions.
Reprieve’s methods are pragmatic – focusing not on moral arguments but on tracing sources and support structures: ‘throwing sand in the wheels of the machinery of death’.
The second focus of Reprieve’s current work is withdrawing EU aid to drug-related executions, chiefly in Iran and Pakistan which account hugely for the global total. (Iran hanged 600 last year, Pakistan has 112 on death row.) Here the ‘chain of complicity’ is being investigated. The officials who arrested and prosecuted Arshad Ahmed were trained by UK staff, used scanners provided by UK aid and received UK legal assistance in the making of their laws. The innocent ‘mule’ was the only prosecution among 25 arrests – and he awaits the death sentence.
So the policy is both unjust and counter-productive – with an increase in drugs trafficking and a heroin confiscation of only 2 – 4 %. Reprieve persuaded the UK to make ‘Raid Aid’ conditional on Pakistan renouncing the death penalty. Now 6 EU countries have withdrawn ‘Raid Aid’ to focus on rehabilitation and give law-enforcement support only when not death-penalty related.
The analysis of agency – the use of leverage and the building of ‘coalitions of interest’ – are the methods that Reprieve (with only 30 staff) has employed so effectively. However Dan wryly admitted that the possibility of ending the Death Penalty in our lifetime has perhaps receded significantly given this week’s US election result.
Our thanks to Dan Dolan and to New Forest Amnesty for hosting this lively and informative talk.
Hosted by New Forest Amnesty in The Lymington Centre on 12 November 2016.
The latest edition of the death penalty report is now available thanks to group member Lesley for compiling it. China leads the world in the number of its citizens it executes.
It sometimes comes as a shock to people that the only country in the Americas which still has the death penalty is the USA. It is especially favoured by the southern states such as Louisiana, Texas and Florida and we have on many occasions on this blog mentioned particular cases where the wrong man is convicted of a crime or where the evidence is at best doubtful.
Our view here in the UK of the justice system in America is heavily conditioned by Hollywood films, on screen or on TV, which give a highly biased view of the real life situation. In these depictions, an innocent man or woman has been wrongfully arrested. Clean cut lawyers appear for the defendant and there is a tense meeting in the DA’s office. At some point, the defence (or defense if you’re reading this in the USA) lawyer says ‘we’re outa here’ and they all sweep out. Hearings, such as a Grand Jury happen as if by magic and subsequent court appearances take place soon after. Few episodes can go by without a lawyer saying someone’s ‘Miranda rights have been infringed’ and more people sweep out. Everyone is dedicated to securing justice with the exception of one individual (a witness, police officer or someone needed for the plot) who is found out at the end. More clean cut young people find a tiny and crucial piece of evidence and this is sufficient to set a defendant free, often in the last minute or so of the trial. The overall impression is of a system that works – albeit uncertainly at times – with the good guy getting off at the end.
If you read Clive Stafford Smith’s book Injustice * you will find that these Hollywood stories are for many in the States, fiction. Clive has spent many years in the USA helping people on death row, the majority of whom should not be there. The book is about one individual, Krishna Maharaj (pictured), who was on death row in Florida for 28 years before being released. It is a truly astonishing book with 110 pages of detailed notes and describes the dysfunctional legal system in states such a Florida.
The problem – bizarrely – is that an innocent man or woman is often more at risk that someone who is guilty. Innocent people believe, often wrongly to their cost, that they don’t have to prove anything because they are innocent. There cannot be any evidence to prove they did it because they didn’t. They also think that the justice system is unbiased and the truth will out eventually, a ‘touching faith’ as Clive describes it.
The book explores these issues in great detail. America elects its law officers and so there is great pressure to convict to prove to the electorate that you are ‘tough on crime’. Sentencing people to death is a great way to prove this. Unlike recent changes to the justice system in the UK, the defence has no right of disclosure. So the police need only present evidence allegedly proving guilt, and not reveal evidence that proves the defendant innocent. This practice was also commonplace in the UK before new rules were introduced following some high profile injustices were discovered. In Florida, because of the enormous amount of money flooding in to the state from the drug barons, corruption is rife throughout the justice system. Amazingly, the judge himself in Krishna’s trial was arrested for bribery and corruption after three days of hearings. The police are often themselves involved in the drugs trade.
So if the judge was arrested, then surely the trial should start afresh? No, because defence lawyers are paid so little and on a block fee basis, to start again is something they cannot afford, so they just ploughed on with a new judge. The quality of defence lawyers is frequently poor and they fail to cross-examine properly, call relevant witnesses or even to meet the defendant that often. The problem here is that if through incompetence or otherwise the defence lawyer does not raise the issues at trial, then appeal courts will rule matters to be ‘procedurally barred’ subsequently.
So alibis are not called, forensic evidence not challenged, police witnesses’ changes in evidence not challenged and so on and so on. The result was an innocent man narrowly escaping death row for a crime he did not commit and which was committed it was eventually discovered, by someone acting for a drug cartel. The man murdered was ‘skimming’ drug profits. Errors are so great and so frequent that justice would better be served if it was done on the basis of a coin toss. Fewer would be executed on this basis.
Clive Stafford Smith is an extraordinary lawyer but he is also a great story teller and this account of Kris Maharaj death row case is a powerful thriller beautifully told. Helena Kennedy QC [senior lawyer in the UK]
Passionate and Humane Mail on Sunday
This is a highly recommended book for anyone interested in the justice system. If you have written letters to governors and others in the States it will explain a lot. Clive Stafford Smith was the founder of Reprieve.
Amnesty in Salisbury & South Wiltshire 