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The Truth About Physician Participation in Lethal Injection Executions*
THE TRUTH ABOUT PHYSICIAN PARTICIPATION IN LETHAL INJECTION EXECUTIONS* TY ALPER** Recent court rulings addressing the constitutionality of states' lethal injection procedures have taken as a given the faulty notion that doctors cannot and will not participate in executions. As a result, courts have dismissed the feasibility of a remedy requiring physician participation, and openly expressed suspicion of the motives of lawyers who would propose such a remedy. This Article exposes two myths that have come to dominate the capital punishment discourse: first, that requiring physician participationwould grind the administrationof the death penalty to a halt because doctors cannot participate; and second, that advocating for such a requirement is a disingenuous abolitionist strategy as opposed to a principled remedial argument. As this Article demonstrates through a review of available research and recent litigation, doctors can, are willing to, and in fact do regularly participatein executions, though often not in the manner necessary to ensure humane executions. Lawyers for death row inmates have argued that skilled anesthetic monitoring by trained medical professionals is a necessary component of a constitutional three-drug lethal injection protocol. In response, state officials have strategically emphasized the positions of national medical associations (the ethical guidelines of which are not binding on doctors) and exaggerated their inability to * © 2009 Ty Alper. ** Associate Director, Death Penalty Clinic, University of California, Berkeley, School of Law. Thanks for their criticism and advice to Ginger Anders, Eric Berger, Tess Bolder, Jeff Brand, Laura Burstein, Deborah Denno, Richard Dieter, Laurel Fletcher, Christopher Lasch, Megan McCracken, Alice Miller, Jennifer Moreno, Erin Murphy, Charlie Press, Elisabeth Semel, Steve Shatz, Giovanna Shay, Tamar Todd, Kate Weisburd, Dr. -
Grossman Executed for Killing Wildlife Officer 25 Years Ago
Grossman executed for killing wildlife officer 25 years ago Religious leaders asked for a 60-day stay of execution, but were unsuccessful. Aaron E. Daye/Staff photographer Peggy Park, left, and Betsy Park, right, the mother and sister of Margaret “Peggy” Park, speak following the execution of Martin Grossman who was put to Tuesday death for the murder of the younger Peggy 25 years ago, across from the Florida State Prison in Raiford. By Nathan Crabbe Staff writer Published: Wednesday, February 17, 2010 at 6:01 a.m. Last Modified: Tuesday, February 16, 2010 at 11:26 p.m. RAIFORD - Despite the pleas of religious leaders from Florida rabbis to the pope, Martin Grossman was executed Tuesday for murdering a wildlife officer more than 25 years ago. Grossman, 45, was executed by lethal injection at Florida State Prison near Starke. As his last words, he expressed remorse for the killing before saying a Jewish prayer. "I would like to extend my heartfelt remorse to the victim's family," he said. "I fully regret everything that occurred that night, for everything that was done, whether I remember it or not." He was sentenced to death for shooting wildlife officer Margaret "Peggy" Park, 26, in December 1985 after she found him with a stolen gun in a wooded area of Pinellas County. Park's sister Betsy, who witnessed the execution with her mother and brother, said Grossman's apology was "long overdue" and she was glad to hear it. "We came here today hoping for closure and an end to the years of reminders of how Peggy died overshadowing the memories of how she lived," she said. -
UNWILLING EXECUTIONERS? Where and Why Do Some Doctors Still Help Carry out the Death Penalty? Sophie Arie Reports
DEATH PENALTY UNWILLING EXECUTIONERS? Where and why do some doctors still help carry out the death penalty? Sophie Arie reports ethal injection is now the main method of In 2009, death penalty opponent Sister Helen nection to their local prisons. In a rare report, in execution in China and the United States, Prejean, known for her book Dead Man W alking, 2006, Dr Atul Gawande, American surgeon and the two countries that execute the highest began campaigning for medical boards to dis- writer, gathered testimonies from some partici- numbers of people. But the widespread cipline doctors who participate in executions, pating doctors. Dr Carlo Musso, an emergency use of lethal injection—seen as a medical believing this could ultimately make lethal injec- doctor, confirmed that his practice had taken up L and therefore more humane method of execution tion no longer a feasible option for states. But an $18 000 contract (£11 000, €13 000) to pro- than hanging, shooting, or electro cution—has when medical bodies have attempted to strike off vide a medical presence at executions in Georgia. meant that doctors have become more actively or discipline physicians who have participated in He provided cardiac monitoring and determina- involved in carrying out the death penalty than executions, they have been over-ruled by courts tion of death. Other colleagues helped with intra- they were in the past. in the states concerned. venous access. “As I see it this is an end of life The medicalisation of executions has put Some states, such as Georgia and North issue, just as with any other terminal disease. -
PHYSICIAN, DO YOUR DUTY: the OBLIGATIONS of PHYSICIANS in STATE EXECUTIONS by Tricia Griffin, MFA
PHYSICIAN, DO YOUR DUTY: THE OBLIGATIONS OF PHYSICIANS IN STATE EXECUTIONS by Tricia Griffin, MFA Michael Morales was sentenced to death in 1983 for the premeditated rape, torture, and murder of 17-year old Terri Winchell (People v. Morales, 1989). Twenty-five years passed before Morales was finally scheduled for Abstract execution, which would have taken place on February 21, 2006, save for a successful appeal. A week before Morales was scheduled to die, his legal The most common arguments for team convinced a judge that the State of California’s lethal injection and against physician participation protocols could subject Morales to cruel and unusual punishment (Morales v. in state executions focus on the Hickman, 2006a). duty of the physician. This article evaluates these arguments using At the time, the standard protocol for lethal injections in California was a Kant’s duty-based approach to three-tiered process that began with the anesthetic sodium thiopental to ethical decision-making. It will render the inmate unconscious, followed by pancuronium bromide to show that all of the prevailing paralyze the inmate and halt breathing, and finally a lethal dose of potassium arguments end in a philosophical chloride to induce cardiac arrest (Schwarzenegger and Tilton, 2007, p. 1)1. stalemate. I will further argue that Morales’ legal team argued that if the initial dose of anesthetic did not it is past time for physicians to turn sufficiently induce unconsciousness, Morales could be awake during the two the question around and demand a final phases of the procedure. This would mean he could experience more substantive discussion about suffocation from the paralytic agent and extreme pain from the potassium the duty-based roles of every chloride. -
The Truth About Physician Participation in Lethal Injection Executions, 88 N.C
NORTH CAROLINA LAW REVIEW Volume 88 | Number 1 Article 3 12-1-2009 The rT uth about Physician Participation in Lethal Injection Executions Ty Alper Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Ty Alper, The Truth about Physician Participation in Lethal Injection Executions, 88 N.C. L. Rev. 11 (2009). Available at: http://scholarship.law.unc.edu/nclr/vol88/iss1/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. THE TRUTH ABOUT PHYSICIAN PARTICIPATION IN LETHAL INJECTION EXECUTIONS* TY ALPER** Recent court rulings addressing the constitutionality of states' lethal injection procedures have taken as a given the faulty notion that doctors cannot and will not participate in executions. As a result, courts have dismissed the feasibility of a remedy requiring physician participation, and openly expressed suspicion of the motives of lawyers who would propose such a remedy. This Article exposes two myths that have come to dominate the capital punishment discourse: first, that requiring physician participationwould grind the administrationof the death penalty to a halt because doctors cannot participate; and second, that advocating for such a requirement is a disingenuous abolitionist strategy as opposed to a principled remedial argument. As this Article demonstrates through a review of available research and recent litigation, doctors can, are willing to, and in fact do regularly participatein executions, though often not in the manner necessary to ensure humane executions. -
Clemency and Execution
CAPITAL PUNISHMENT: RACE, POVERTY & DISADVANTAGE Yale University Professor Stephen B. Bright Class Thirteen - Part Two: Clemency and Execution CLEMENCY The power to grant pardons, commutations and reprieves is a broad, unrestricted power of the Humanity and good policy conspire to executive, normally not subject to judicial review. dictate that the benign prerogative of As stated by the Florida Supreme Court: pardoning should be as little as possible fettered or embarrassed. The criminal An executive may grant a pardon for good code of every country partakes so much reasons or bad, or for any reason at all, and of necessary severity that without an easy his act is final and irrevocable. Even for the access to exceptions in favor of grossest abuse of this discretionary power the unfortunate guilt, justice would wear a law affords no remedy; the courts have no countenance too sanguinary and cruel. concern with the reasons which actuated the executive. The constitution clothes him with - Alexander Hamilton, THE FEDERALIST NO. 74 the power to grant pardons, and this power is beyond the control, or even the legitimate I have always found that mercy bears criticism, of the judiciary.1 richer fruits than strict justice. The Court of Appeals for the Sixth Circuit - Abraham Lincoln described the power as follows: A people confident in its laws and institutions should not be ashamed of The very nature of clemency is that it is mercy. grounded solely in the will of the dispenser of clemency. He need give no reasons for - Justice Anthony Kennedy granting it, or for denying it . -
Appendix to Petition for a Writ of Certiorari
CASE NO. ___________________________________________________________________ IN THE SUPREME COURT OF THE UNITED STATES OCTOBER 2020 TERM __________________________________________________________________ ROMELL BROOM, Petitioner, vs. TIM SHOOP, Warden, Respondent. __________________________________________________________________ On Petition for a Writ of Certiorari To the United States Court of Appeals for the Sixth Circuit __________________________________________________________________ APPENDIX TO PETITION FOR A WRIT OF CERTIORARI (CAPITAL CASE: EXECUTION DATE IS SCHEDULED MARCH 16, 2022) S. Adele Shank, Esq. (OH 0022148) Counsel of Record* LAW OFFICE OF S. ADELE SHANK 3380 Tremont Road, Suite 270 Columbus, Ohio 43221-2112 (614) 326-1217 [email protected] Timothy F. Sweeney, Esq. (OH 0040027) LAW OFFICE OF TIMOTHY FARRELL SWEENEY The 820 Building, Suite 430 820 West Superior Ave. Cleveland, Ohio 44113-1800 (216) 241-5003 [email protected] Counsel for Petitioner Romell Broom INDEX TO APPENDIX Appendix A: Broom v. Shoop, 6th Cir. Opinion, June 23, 2020 .................................. APPX 0001 Appendix B: Broom v. Shoop, 6th Cir. Judgment, June 23, 2020 ................................ APPX 0020 Appendix C: Broom v. Jenkins, N.D. Ohio, Memo. of Op. & Order, March 21, 2019 ........................................................................................................ APPX 0021 Appendix D: Broom v. Jenkins, N.D. Ohio, Judgment, March 21, 2019 ..................... APPX 0092 Appendix E: State v. Broom, Ohio Supreme Ct., Opinion, March 16, 2016 ............... APPX 0093 Appendix F: Broom v. Ohio, U.S. Supreme Ct., Cert. Denied, Dec. 12, 2016 ............ APPX 0127 Appendix G: Broom v. Ohio, U.S. Supreme Ct., Rehearing Den’d, Feb. 21, 2017 ..... APPX 0128 Appendix H: 28 U.S.C. Section 2254 ........................................................................... APPX 0129 Case: 19-3356 Document: 32-2 Filed: 06/23/2020 Page: 1 (3 of 22) RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. -
ERIC SCOTT BRANCH, Petitioner, V
Filing # 68107654 E-Filed 02/16/2018 05:45:45 PM IN THE SUPREME COURT OF FLORIDA NO. SC-_________ ______________________________________________ ERIC SCOTT BRANCH, Petitioner, v. JULIE L. JONES, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS Respondent. ______________________________________________ EMERGENCY PETITION TO INVOKE THIS COURT’S ALL WRITS JURISDICTION TO DIRECT THE DEPARTMENT OF CORRECTIONS TO PROVIDE ATTORNEY ACCESS PRIOR TO AND DURING THE EXECUTION ______________________________________________ Stacy Biggart Billy H. Nolas Florida Bar No. 89388 Florida Bar No. 806821 Kathleen Pafford Chief, Capital Habeas Unit Florida Bar No. 99527 Kimberly Sharkey Assistant Capital Collateral Florida Bar No. 505978 Regional Counsel – North Attorney, Capital Habeas Unit Office of the Capital Collateral Office of the Federal Public Defender Regional Counsel – North 227 N. Bronough Street, Suite 4200 1004 DeSoto Park Drive Tallahassee, FL 32301-1300 Tallahassee, Florida 32301 (850) 942-8818 RECEIVED, 02/16/201805:48:30 PM,Clerk,Supreme Court (850) 487-0922 [email protected] [email protected] [email protected] [email protected] Counsel for Appellant PRELIMINARY STATEMENT An Appendix is attached to this Petition. The following symbol will be used to designate references to the Appendix: “A. ___”. JURISDICTION This Court has jurisdiction in this matter pursuant to the Florida Constitution Article V § 3(b)(7)-(8). Article V § 3(b)(7) gives this Court the authority to “issue writs of prohibition to courts and all writs necessary to complete the exercise of its jurisdiction.” In Williams v. State, 913 So. 2d 541 (Fla. 2005), this Court stated that the “all writs provision . operates as an aid to the Court in exercising its “ultimate jurisdiction,”’ as opposed to operating as a separate and distinct source of jurisdiction. -
The Death Lottery: How Race and Geography Determine Who Goes to Ohio’S Death Row
The Death Lottery: How Race and Geography Determine Who Goes to Ohio’s Death Row OHIOANS TO STOP EXECUTIONS 1 Introduction In 1998, the General Assembly enacted section 109.97 of the Ohio Revised Code to “require the Attorney General to annually prepare and file with specified individuals a capital case status report.”1 The Annual Capital Crimes Report is a valuable source of information. It contains vast amounts of quantitative data and pertinent sections of the Ohio Revised Code that provide the reader with information about the history, use, and legal provisions related to Ohio’s death penalty; however, the Atorrney General’s report lacks a fuller, qualitative look at the people and cases upon which the report is built. Accordingly, Ohioans to Stop Executions (OTSE) offers this report to provide context and detail to complement the numbers and statutes provided in the Annual Capital Crimes Report. Perspectives presented here are those of Ohioans to Stop Executions unless otherwise explicitly stated. All research done in this report has been performed and compiled by OTSE. This report was developed using information available from the following sources: Office of the Attorney General, the Ohio Supreme Court, the Ohio Supreme Court Joint Task Force to Review the Administration of the Death Penalty, the Ohio Department of Rehabilitation and Correction, the Office of the Ohio Public Defender, the Office of the Federal Public Defender, Southern Division, and the Office of the Federal Public Defender, Northern Division. Executive Summary The title of this new report from Ohioans to Stop Executions, “The Death Lottery: How Race and Geography Determine Who Goes to Death Row,” says it all. -
SC10-118 Merits Initial Brief
IN THE SUPREME COURT OF FLORIDA CASE NO. SC10-118 MARTIN GROSSMAN Death Warrant Signed: Execution Scheduled For February 16, 2010 6:00 pm Appellant, v. STATE OF FLORIDA Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT FOR PINELLAS COUNTY, STATE OF FLORIDA INITIAL BRIEF OF APPELLANT Richard E. Kiley Florida Bar No. 0558893 Assistant CCRC-Middle CAPITAL COLLATERAL REGIONAL COUNSEL MIDDLE REGION 3801 Corporex Park Drive Suite 210 Tampa, FL 33619 (813) 740-3544 COUNSEL FOR APPELLANT TABLE OF CONTENTS Page TABLE OF CONTENTS ......................................................................................... iii TABLE OF AUTHORITIES ....................................................................................i v STANDARD OF REVIEW ....................................................................................... 1 REQUEST FOR ORAL ARGUMENT ..................................................................... 1 PROCEDURAL HISTORY ....................................................................................... 1 THE LOWER COURT’S ORDER ............................................................................ 4 SUMMARY OF THE ARGUMENTS .................................................................... 14 ARGUMENT I THE POST-CONVICTION COURT ERRED IN DENYING MR. GROSSMAN AN EVIDENTIARY HEARING FOR HIS SUCCESSOR MOTION. AS A RESULT, MR. GROSSMAN WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS UNDER THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND THE CORRESPONDING -
Supf?E{UIE COURT Ilrohi® NO
NO. 87-1674 IN THE SUPREME COURT OF OHIO STATE OF OHIO Plaintiff-Appellee ROMELLBROOM Defendant-Appellant REQUEST TO TAKE JUDICIAL NOTICE OF UNREPORTED JUDICIAL OPINIONS WILLIAM D. MASON Cuyahoga County Prosecutor Matthew E. Meyer (#0075253) Assistant Prosecuting Attomey Counsel for Plaintiff-Appellee 1200 Ontario Street Courts Tower - Justice Center Cleveland, Ohio 44113 (216) 443-7800 (216) 443-7602 fax [email protected] email Counsel for Plaintiff-Appellee S. ADELE SHANK 3380 Tremont Rd., 2°a Floor Columbus, Ohio 43201 I TIMOTHY F. SWEENEY 820 W. Superior Ave. AIJO P '1 rl101l Cleveland, Ohio 44113 CLFRK oF COURT Counsel for Defendant-Appellant SUPf?E{UIE COURT ilrOHI® NO. 87-1674 IN THE SUPREME COURT OF OHIO STATE OF OHIO Plaintiff-Appellee ROMELL BROOM Defendant-Appellant REQUEST TO TAKE JUDICIAL NOTICE OF UNREPORTED JUDICIAL OPINIONS Now comes Cuyahoga County Prosecuting Attorney William D. Mason on behalf of the State of Ohio, by and through his undersigned assistant, and respectfully submits the State's Request to Take Judicial Notice of Unreported Judicial Opinions. The State requests that this Honorable Court take notice of these unreported opinions pursuant to State e,r rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 874 N.E.2d 516, 2007-Ohio-4798, at ¶ 10. The opinions, which are attached hereto, are: 1. Broom v. Mitchell (N.D. Ohio, August 28, 2002), Case No. 1:99 cv 0030, unreported. 2. State v. Larkins (Ohio Ct. Com. P1, Dec. 13, 2002), Cuy. Ct. Comm. P1. CR 166827, unreported. 3. Apanovitch v. Houk (N.D. Ohio, August 14, 2009), Case No. -
Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship Paul J
University of Missouri School of Law Scholarship Repository Faculty Publications Spring 2013 Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship Paul J. Litton University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Criminal Law Commons, Criminal Procedure Commons, and the Medical Jurisprudence Commons Recommended Citation Paul Litton, Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship, 41 J.L. Med. & Ethics 333 (2013). This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. Legal Studies Research Paper Series Research Paper No. 2013-13 Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship Paul Litton 41 Journal of Law, Medicine, & Ethics 333 (2013) This paper can be downloaded without charge from the Social Sciences Research Network Electronic Paper Collection at: http://ssrn.com/abstract=2286788 Citation: 41 Journal of Law, Medicine, & Ethics 333 (2013) Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship Paul Litton Over the past several years, the most widely publicized issue in capital litigation has been the constitutional status of states’ lethal injection protocols. Death row inmates have not challenged the constitutionality of lethal injection itself, but rather execution protocols and their potential for maladministration.