Thursday, September 17, 2015

The Death Penalty & Medical Ethics Revisited

The Death Penalty & Medical Ethics Revisited
Dudley Sharp, 8/2015

Some have undertaken a misbegotten effort to show that medical ethics require medical professionals to shun the death penalty and that some countries and pharmaceutical companies are so concerned about their moral duty that no medical products should be used in executions.

I propose to show that such is false.

Anti-Death Penalty Activism

From the Glossip v Gross case, recently (2015) decided by the US Supreme Court:

"[I]s it appropriate," Justice Alito asked, "for the judiciary to countenance what amounts to a guerrilla  war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?"

"States are resorting to the less effective midazolam, Justice Scalia added, "Because the abolitionists have rendered it impossible to get the 100 percent-sure drugs."

Who are these anti death penalty, guerrilla warfare folks?


Reprieve, an anti-death penalty group, based in England, began a public campaign against these pharmaceutical companies in Sept/Oct 2009 (1), as well as lobbying efforts with European governments (1&2); at such time those companies and countries started a movement to prevent the drugs from getting to the US.

Reprieve's less public efforts may have begun earlier.

The source of the lethal injection drugs had gone, virtually, unmentioned, in this context, from 1977, when the lethal injection protocols were adopted by Oklahoma, and from 1982, when they were first used for executions, in Texas, until 2009 - 32 years and 27 years later, respectively.

Why did the moral outrage take 27/32 years to surface?

The anti-death penalty folks kept quiet about this issue until 2009 and the drug companies and countries were unconcerned until it became . . .  well, publicly, uncomfortable . . . in the fall of 2009.


"Reprieve . . . has led the campaign to stop European companies from selling lethal injection drugs to the United States." (2)

"Reprieve filed a lawsuit to ban the exportation of thiopental for use in executions. The British government responded that the death penalty states would simply buy it elsewhere. But shortly after, the government effectively prohibited the export as Reprieve had requested." (2)


"The state of Texas' (lethal injection) drug cache is already dangerously low . . . largely because the compounding pharmacies that make lethal injection drugs fear threats of violence if they are identified." "Many of these vendors who supply these doses to the state have refused to do it any further. It's just not worth the risk of violence." (3)

All death penalty states have either passed laws or are looking at passing laws that allow them to keep their lethal injection suppliers confidential, in order to avoid threats and the risk of violence (4).

Reprieve, as others, are the abolitionists mentioned by the Justices.

Do No Harm?

After pharmaceutical company, Hospira, announced its decision, ending thiopental production, the American Society of Anesthesiologists stated that they were "extremely troubled" by Hospira's decision and criticized the anti-death-penalty movement for "using" thiopental supplies to make a point (5).

The doctors noted the "unfortunate irony that many more lives will be lost or put in jeopardy as a result of not having the drug available for its legitimate medical use." (5), in direct violation of the Hippocratic Oath and the "do no harm" directive.

" . . . European restrictions on thiopental might be justifiable if they save a lot of lives on Death Row. They probably won't." ". . . substitutes for thiopental as an execution drug are readily available." (5)

Hardly justifiable from a moral standpoint. No murderers lives will be spared in exchange for greater risk to innocent patients - a violation of the Hippocratic Oath and the "do no harm" directive.

Because of these restrictions, the state of Missouri had planned to use propofol for executions, which no one doubted would result in a quick, painless death.

The European manufacturer stated that they would withhold that drug from the US if propofol were used in executions, thus denying its use, estimated at 50 million uses per year in the US (6).

Missouri Governor Nixon was much more concerned about those innocent patients and how their lives and suffering would be additionally threatened and increased, respectively, by the withholding of that drug. Therefore, he ordered the drug not be used, because he was certain that the drug manufacturer would increase the harm and suffering to all those patients, by withholding that drug (6).

Drug manufacturers in Europe are so against uncomfortable publicity that they would, knowingly, put more innocent patients at risk, by withholding their drugs from the US, while US Governors would reject putting those innocent patients more at risk.

Pretty obvious who is more concerned with the Hippocratic Oath and the "do no harm" directive.

As Charles Lane of the Washington Post observed: "What we have here is not a serious, effective protest, but an exercise in feel-good politics that puts innocent people at risk." (5).

Currently, the best lethal injection protocol appears to be using one drug, Pentobarbital, with some 11 US states having that protocol or announcing an effort to adopt it and it is also in use for legally assisted suicides in Oregon and Washington.

Will death penalty jurisdictions abandon lethal injection? They might.

The constant badgering, by anti-death penalty activists, against chemical suppliers and/or compounding pharmacists might simply wear folks down. No one likes constant harassment.

 . . . or a reliable pharmacy, unaffected by threats of violence, may turn up.

It is a mystery, why state corrections pharmacies don't compound the drugs, themselves.

An Alternative

Well known by the euthanasia community, nitrogen gas is a pain free, inexhaustible source for those wishing to take their own lives. Oklahoma has already adopted it as an alternate method of execution and I suspect more jurisdictions will.

It has many advantages over lethal injection.

That will go well, until anti-death penalty activists start harassing nature for her production of nitrogen and some in the medical community will, again, voice their opposition to participation in executions, while we have the approved ethics of assisted suicides for children, of any age, from the EU progressively enlightened Belgium Parliament (7).


There has been a lot of ink used to review the long standing medical professions ethical prohibitions against the death penalty.

There is no such prohibition.

Some in the medical community have attempted to fabricate an ethical prohibition against medical professionals' involvement in state executions by invoking the famous "do no harm" credo and the Hippocratic Oath.

It is a dishonest effort.

Some have proclaimed that "First do no harm" is a centuries old foundation of medical ethics, weighing against death penalty participation.


It is an anti-death penalty fraud that "do no harm" is in the context of the state execution of murderers (8). Neither the Hippocratic Oath nor "do no harm" have anything to do with executions (8). They are, solely, concerned with the medical profession and patients.

" 'do no harm' (a phrase translated into Latin as "Primum nonnocere") is often mistakenly ascribed to the (Hippocratic) oath, although it appears nowhere in that venerable pledge.(8)"

"Hippocrates came closest to issuing this directive in his treatise Epidemics, in an axiom that reads, 'As to disease, make a habit of two things - to help, or at least, to do no harm.'  (8)"

"As to disease" Nothing else. There is no relevance outside medicine and, most certainly, no prohibition against medical professionals participation in the state execution of murderers.

" . . . in 1995, a report in JAMA said that, "Over a million patients are injured in U.S. hospitals each year, and approximately 280,000 die annually as a result of these injuries."  (9).  Innocents are more at risk when we fail to use the death penalty (10). "Do no harm"?.

The effort to ban medical professionals' participation in executions is an unethical effort to fabricate professional ethical standards, based upon personal anti-death penalty activism, from those whose professions are medically related.

From a knowledgeable expert:

Dr. Robert Truog, MD, Professor of Medical Ethics, Harvard Medical School:

"If I think of the kind of a hypothetical where you have an inmate who is about to be executed and knows that this execution may involve excruciating suffering, that inmate requests the involvement of a physician, because he knows that the physician can prevent that suffering from occurring, and if there is a physician who is willing to do that, and we know from surveys that many are, I honestly can't think of any principle of medical ethics that would say that that is an unethical thing for the physician to do." (11)

The classic Hippocratic Oath:

"I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art." (8)

This is a prohibition against euthanasia and abortion (8) and has nothing to do with the fabricated medical prohibition of participation in state sanctioned executions.

Do those alleged anti-death penalty drug companies and countries fight against any drugs being exported to those countries, wherein the drugs are used in abortions and/or euthanasia?

Do those anti-death penalty physicians and medical associations promise license revocation if any of their members participate in euthanasia or abortion?

Of course not.  In fact, we have Belgium approving the assisted suicides of children, of any age, with participation by physicians (7).

Many of those countries, pharmaceutical companies and medical professionals fully accept and participate in both abortion and euthanasia. Those could care less about the true moral prohibitions that exist in a medical historical context. Instead, they just invent a new one, against the death penalty, while avoiding the true prohibitions, ushering in the newly renamed and truthful - Hypocrisy Oath.

Is there anyone unaware that the lethal injection executions of murderers are a criminal justice sanction and that it is not a medical procedure with patients?

Not unless they have a well-developed sense of dishonest imagination.

The few legal reviews of this topic have found as reason and fact require:

"Other courts have addressed (physicians participating in executions) and found that it does not violate the physician's code of ethics to participate in an execution . . ." "The Court... does not find that Missouri physicians who are involved in administering the lethal injections are violating their ethical obligations . .  ." (Taylor v. Crawford, Jan. 31, 2006, Court Order issued by the US Western District Court of Missouri)

Let's look at some additional sensible reviews:

The editors of The Public Library of Science (PLoS) Medicine write:

"Execution by lethal injection, even if it uses tools of intensive care such as intravenous tubing and beeping heart monitors, has the same relationship to medicine that an executioner's axe has to surgery." ("Lethal Injection Is Not Humane", PLoS, 4/24/07).

So to, The American Society of Anesthesiologists:

"Although lethal injection mimics certain technical aspects of the practice of anesthesia, capital punishment in any form is not the practice of medicine. ("Statement on Physician Nonparticipation in Legally Authorized Executions," 10/18/06).

Both confirm that which is already known: The state execution of murderers has no connection, moral or otherwise, to the medical treatment of patients.

Rationally, there is no ethical or moral connection, Some folks just want to fabricate a false narrative. So that's what they do - just another anti-death penalty fraud.


1) The earliest public involvement of Reprieve into stopping executions drugs into the US appears to be in Sept/Oct 2009 and, likely, sooner, privately.

2) "Drug Company in Cross Hairs of Death Penalty Opponents", New York Times, MARCH 30, 2011

3) "Lawmaker Says Death Penalty in Jeopardy", by Terri Langford, The Texas Tribune, April 15, 2015

4) Lots of articles, do a search "death penalty" "secrecy laws"

5) "Europe's dangerous death penalty gesture", By Charles Lane, Washington Post, 02/ 1/2011

6) "Missouri governor postpones execution over questions about lethal injection drug", By Jeremy Kohler, St. Louis Today, October 12, 2013.

7)  "What Belgium's child euthanasia law means for America and the Constitution", Eugene Kontorovich, Washington Post, February 13, 2014

8) Physicians & The State Execution of Murderers: No Medical Ethics Dilemma

9) I used 1995, as it was about halfway between 1976, when new death penalty statutes gained US Supreme Court approval, within Gregg v Georgia, and 2015.
Bates DW, Cullen DJ, Laird N, Petersen LA, Small SD, Servi D, Laffel G, Sweitzer BJ, Shea BF, Hallisey R, et al. Incidence of adverse drug events and potential adverse drug events. Implications for prevention. ADE Prevention Study Group. JAMA. 1995 Jul 5;274(1):29-34.
taken from  DEATH BY MEDICINE, Section THE FIRST IATROGENIC STUDY, By Gary Null PhD, Carolyn Dean MD ND, Martin Feldman MD, Debora Rasio MD, Dorothy Smith PhD, 2003,

10)  The Death Penalty: Do Innocents Matter? A Review of All Innocence Issues

11) New England Journal of Medicine interview titled "Perspective Roundtable: Physicians and Execution", Jan. 18, 2008

Wednesday, September 16, 2015

Courts, states put death penalty on life support

Last edited 9/24/2015

USA Today: Another Major Media Anti Death Penalty Manifesto

To: Editorial Board, Editors, Columnists, crime reporters
       USA Today and many others

RE: How bad is  "Courts, states put death penalty on life support", Richard Wolf and Kevin Johnson, USA TODAY, 9/14/2015

From: Dudley Sharp

CC: Ethics Committee & Board of Directors
       Society of Professional Journalists
       All Professors, Walter Cronkite School of Journalism and Mass 

and many others

If you like one sided news pieces, no thinking outside the anti death penalty box and rare fact checking, you have your perfect storm.

Anti death penalty folks couldn't have bought this kind of support.

1)  USA Today: "Of all the arguments against capital punishment, none is as powerful as the risk of executing the innocent. Yet research shows about 4% of prisoners sentenced to death are just that."

REBUTTAL: Complete utter nonsense.

The 4% innocent is based upon a well known, erroneous database, created by  an anti death penalty group, which, depending upon various reviews,  is 70-83% in error with their  "innocence" claims, which are based upon redefining both "innocent" and "exonerated", as if they had redefined lie as truth and, then,  stuffed a bunch of cases into those fraudulent definitions (1a).

There is no poof of an innocent executed in the US, at least since the 1930s. Since 1973, 14,000 innocents have been murdered by those known murderers that we have allowed to murder, again - recidivist murderers (2).

Where are the innocents most at risk? Yep, USAT missed it.

Innocents are better protected, in three ways, by the death penalty than by Life Without Parole (LWOP) (2).

USAT needs some sense of reality, proportion and balance. Fact checking would help, as well. Journalism 101?

2) USA Today: "Prosecutors, judges and juries also are being influenced by capital punishment's myriad afflictions: racial and ethnic discrimination, geographic disparities -- "with half of (death sentences) coming in just 2% of the nation's counties." --  (and) decades spent on death row and glaring mistakes that have exonerated 155 prisoners in the last 42 years."


Did USAT consider that half the capital murders might occur in only 2% of the nations death penalty counties (3)?

Probably not.

The majority of death sentences come from where the capital murders are committed, as one would expect (3) and, secondarily, seeking death is based upon prosecutorial discretion, as with all cases.


The "exoneration" claims have been a well known fraud, for at least 15 years, as anyone who fact checks is aware  (see review in P1).  Depending upon review, from 25-46 death row inmates may have had solid evidence of actual innocence --  0.4% of those so sentenced -- and were, then, released from death row, since 1976 (1b). A remarkable record of accuracy.


"White murderers are twice as likely to be executed as are black murderers (4)." "There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death given a penalty hearing (4)."


The "afflictions" are little fact checking and a one sided presentations by the media.

3) USA Today: "The emotional and financial toll of prosecuting a single capital case to its conclusion, along with the increased availability of life without parole and continuing court challenges to execution methods, have made the ultimate punishment more elusive than at any time since its reinstatement in 1976" " . . . death sentences dropped from a high of 315 in 1996 to 73 last year."

"The number of executions peaked at 98 in 1999 and has dropped since then, hitting a low of 35 last year. In the first eight months of this year, 20 prisoners have been killed — 16 of them in Texas and Missouri."

REBUTTAL: More elusive? True, but not for the reasons given by USAT.

Obvious facts eluded USAT.


Any additional "elusiveness" of the death penalty is based upon the reductions in murders and, even more so, on a even greater reduction in capital murders, the obvious first option to check and something USAT never even considered --  the most obvious was the most elusive, for USAT- fewer capital murders equals fewer death sentences.

The US has had double digit executions, annually, from 1984 - 2014 (5) . Murders are, now, at a 46 year low (6). Murder rates are, now, at a 57 year low (6). It's not surprising that death sentences are at a 41 year low (5) -  "more elusive", of course.

In the US, from 1991-2013, there was 43% drop in murders  (a 54% drop in murder rates), a 25% drop in rapes  (a 40% drop in rate) and a 50% drop in  robberies  (a 60% drop in rate) (6). As rape/murders, robbery/murders are the most common death penalty eligible crimes, those, likely, dropped from 60-80%, nationally, accounting for the vast majority of the drop in death sentences.

Based upon new case law and state death penalty repeals, such would, likely, account for about a 12% reduction in death sentences, bringing the 315 down to 277 (8).

So what is the explanation for the 74% drop to 73 from 277?

With about a 50%  drop in capital murders (murders/rapes/robberies 1994-2013) (6)  plus a 24% drop for other reasons,  such as LWOP, up front costs, as others, all contributing to prosecutorial frustration/discretion, as a rule all caused or affected by  . . . .


Judges are the case managers, at pre trial, trial and on appeals - they are in control of both time and costs, some with responsibility others with complete abandon.

Because of judicial roadblocks and delays -  judges decide on timing and costs - prosecutors may just get fed up, choosing to avoid the death penalty, seek a LWOP trial instead, or, better, a plea to LWOP, avoiding the huge costs and countless delays imposed by many judges in death penalty cases, at pretrial, in trial and within appeals.

USAT missed that such was Josh Marquis' point.

In states like California, Kansas and Pennsylvania, judges are, very openly, killing the death penalty, as in New Jersey and Connecticut.

For example, in the modern era, post Gregg v Georgia (1976):

Virginia executed her first 108 murderers within 7.1 years, on average (9), has executed 72% of those sent to death row and has an 11% overturning rate in appeals (7).

Pennsylvania has executed only 3 of the 417 sentenced to death, or 0.7%, and has a 45% overturning rate in appeals (7), likely to become 90%, if the judges will allow appeals to end. Why?

Pa judges will only allow executions when the murderer "volunteers" and waives appeals, whereas Virginia judges are responsible and respect the law.

Pa judges are, quite obviously, obstructionists to the law, a common and obvious problem in many jurisdictions.

". . .  in California, appeals attorneys are not appointed (by judges) for three to five years. (Those attorneys, allowed by judges) take four years to learn the case and file their appeal. Attorneys for habeas appeal (through the federal courts) are not appointed (by the judges), on average, until eight to 10 years after the death sentence." Three Major Steps to Reduce Death Penalty Delay in California, Crime and Consequences blog, Bill Otis, August 8, 2015,

Judges have destroyed the California system.

For many, the judicial problems are just too much.

USAT, completely, missed the judicial component, which is huge.


Fewer death sentences will equal fewer execution and . . .

Since 2006, executions have been affected by litigation related to the lethal injection method, as well as drug shortages, within that method,  resulting in a  "slowdown" of executions averaging 43 per year (2007-2013) (5).

It is very rare to have executions over 60 per year, which has only occurred 7 times (1997-2003),  or 18% of execution years (5).

Excluding those exceptions, the average is 27 executions per year (1977-1996, 2004-2013) and, if starting with double digit executions in 1984, the average is 36 executions per year (5).

The "slowdown" period has averaged 43 executions/year and could get down to a 27-36 average, within the next 5 years, if the actual execution problems are not corrected.


Executions are, undoubtedly, fewer than they would otherwise be, because the time between sentencing and executions has risen by 128%,  from 6.6 years, the average time from 1984-1988, when double digit executions began, to 15 years, the average time from 2009-2013 (11).

This is the fault of the judges, again, and is an intended killer of the death penalty, as virtually every hearing on the death penalty attests and might be the greatest reducer of executions, but was, completely, missed by USAT.

In 1996, the US Congress passed the Anti terrorism and Effective Death Penalty Act (AEDPA), part of which was supposed to quicken death penalty appeals.

Every year since then, the average time of appeals, until execution, has been  greater than in 1996 (10.4 years), with the longest being 16.5 years, (2011) (11).

Apparently, judges didn't like the AEDPA . The judicial move against the death penalty became even more obvious.

USAT missed it.


Until jurisdictions change the method of execution, they will continue to have problems, brought on by anti death groups (17) pressuring those manufacturers to deny the best drugs for pain free executions to the US (17), thereby applying more risk to the inmates and delaying, but not stopping, any executions (17).

As Charles Lane of the Washington Post observed: "What we have here is not a serious, effective protest, but an exercise in feel-good politics that puts innocent people at risk." (18).


It appears the best replacement is nitrogen gas - it cannot be withheld, is easily accessible, peaceful and euphoric, very easy to administer - just an oxygen mask and a tank of gas, just turn the knob (17).

4) USA Today: "Supreme Court Justice Stephen Breyer said "From a defendant's perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning." "The imposition and implementation of the death penalty seems capricious, random, indeed arbitrary,'' "The Eighth Amendment forbids punishments that are cruel and unusual" "In the last two decades, the imposition and implementation of the death penalty have increasingly become unusual."

"Just last month, Connecticut's Supreme Court struck down the death penalty for prisoners already convicted of their crimes, going beyond the legislature's prospective repeal."

Rebuttal to Breyer:

Here is his "equivalent":

The chances of being struck by lightning in the US, within 11 years, is 1 in 63,636. The chances of being executed in the US, within 11 years of a death sentence, is 1 in 6.

When is a 10,000 times difference "Equivalent"?

Least arbitrary and capricious

Of all criminal cases, the death penalty has 1) the greatest restrictions on its application; 2) the greatest due process protections in pre trial, at trial, in appeals and 3) the greatest consideration in executive clemency and commutations, meaning, of course, that the death penalty must be . . .  the least arbitrary and capricious of all criminal sanction.

Pretty obvious.

The unusual nature of the death penalty is based within it's extremely small application, the difficulties, costs and delays, many, intentionally, caused by judges, to undermine the death penalty and a huge reduction in capital murders over the last two decades, none of which Breyer discussed as the cause for the "unusual".

REBUTTAL to Ct Supreme Court:

Chief Justice Chase T. Rogers, one of three dissenters wrote that "every step" of the majority's opinion was "fundamentally flawed." "The majority's determination that the death penalty is unconstitutional under our state's constitution is based on a house of cards, falling under the slightest breath of scrutiny."

As it was.

All reflecting how poor the reasoning is with many of the anti death penalty justices.

USAT never even considered those points, as  USAT only pushes the anti death penalty message.

5) USA TODAY: "In Colorado last month, jurors couldn't agree on the death penalty for James Holmes, who (murdered) 12 . . . :" "Their indecision resulted in an automatic sentence of life without parole."

Rebuttal:  Indecision? Hardly. It was very decisive, by any measure.

11 jurors (92%) voted for death and only 1 (8%) voted for life (12)  -  a very decisive vote and also, by far, the most anti democratic result within the US, with the vast minority ruling over the vast majority.

Possibly, in respecting democratic principles, a majority vote should rule the sentence.

6) USA Today: "A California study in 2008 found the state spent $137 million annually to support the death penalty but would spend only $11.5 million if it was repealed."

Rebuttal. Impossible and complete utter nonsense.

Does USAT fact check?

The $11.5 million means that California would only be spending $15,000/yr/inmate.


The average cost per inmate per year, in Ca, for 2007-2008, was $49,000/yr. (9).

With confirmed California Corrections cost increases, that will, likely, be over $65,000/inmate/yr, on average, today - not $15,000 (9).

This $49,000/inmate/yr is the average for all inmates, not the level IV security of death row inmate like criminals that will cost more, if not much more.

For higher security inmates, which, likely, would include those transferred from death row,  the costs range from $71,000 - $172,000/inmate/yr. (9), not $15,000.

USAT, fact checking?

7)  USA Today: "A Colorado study in 2013 found that death penalty cases took more than five years on average to complete, compared to 1 1/2 years for cases involving life without parole."

Rebuttal: USAT didn't even consider how completely irresponsible Colorado judges are. Let's look.

John Allen Muhammad , the DC sniper, was arrested on October 24, 2002, his Virginia trial began on October 14, 2003, he was sentenced to death on November 24, 2003 and was executed in Virginia on November 10, 2009.

From arrest to sentence was, exactly, 12 months. The prosecution called more than 130 witnesses and introduced more than 400 pieces of evidence. It was 6 years from sentencing to execution.

That's how incredibly wasteful Colorado and many other state judges are.

Why didn't USAT use Virginia or Texas  as examples, instead of Colorado? Guess.

USAT wouldn't want to show that better management meant a better death penalty.

Therefore, just show the worst.

Would it be appropriate, when reviewing USA Today's journalistic record, to only look at her disasters and, completely, avoid any successes?

8) USA Today: "The cross-country battle over lethal injection methods has taken on added importance since last year, when inmates in Ohio, Oklahoma and Arizona gasped, moaned or writhed in pain during the administration of a three-drug cocktail including the sedative midazolam. But other protocols have come under attack as well."

Rebuttal:  How misleading.

There is, certainly, no evidence that the death row inmates suffered any pain in the Arizona (13) or Ohio (14) executions.  The problem in Oklahoma was poor procedure, not the drug (15).


"No one who witnessed the execution has said Wood ever woke up. It simply took a long time for him to die." (13)

"(Arizona Department of Corrections Director Charles Ryan) said IV lines in the inmate’s arms were “perfectly placed” and insisted that Wood felt no pain. " (13)

He is correct , there could have been no pain, only sedation, sleep, coma and death (with apnea, shortness of breath, wheezing, other noises, etc. common.

“This doesn't actually sound like a botched execution. This actually sounds like a typical scenario if you used that drug combination,” said Karen Sibert, an anesthesiologist and associate professor at Cedars-Sinai Medical Center. Sibert was speaking on behalf of the California Society of Anesthesiologists." (13)


"State prison records released Monday say McGuire told guards that (McGuire's counsel, Robert) Lowe counseled him to make a show of his death that would, perhaps, lead to abolition of the death penalty. But three accounts from prison officials indicate McGuire refused to put on a display." (14)

"Amy Borror, a spokeswoman for the public defender's office, said all accounts from execution eyewitnesses - which did not include Lowe - indicate McGuire was unconscious at the time he struggled to breathe." (14)

"Medical experts would not comment on Mr. McGuire’s execution or speculate about what he experienced. They agreed that used for surgery, the two drugs would not cause pain. (14).

“By virtue of what they do, they cause unconsciousness, and they inhibit pain,” said Dr. Howard Nearman, professor of anesthesiology at Case Western Reserve University (14).

As there was no surgery, both drugs were given at overdose levels and both drugs would enhance the effects of the other, of course there was no pain.

Do folks wheeze, snore, move or cough etc. while sleeping? Do those with opiate overdoses wheeze, snore, move, cough, have spasms, etc.? Of course, which is all that happened with McGuire, as some predicted.

The Associate Press witness:

"McGuire was still for almost five minutes, then emitted a loud snort, as if snoring, and continued to make that sound over the next several minutes. He also soundlessly opened and shut his mouth several times as his stomach rose and fell." "A coughing sound was Dennis McGuire’s last apparent movement, at 10:43 a.m. He was pronounced dead 10 minutes later." (14)

How did USAT leave all that out?

Either they don't fact check and/or they only want you to see one side of the story, even if it is false or misleading.

9) USA Today: "Today, there is a similar consensus (against the death penalty) : Two-thirds of the states have held no executions since 2010. And the percentage of Americans who favor capital punishment is down from 78% two decades ago to 56% today, according to the Pew Research Center."

Rebuttal:  USAT has zero factual basis for finding a consensus against the death penalty, when they quote 56% (or 86%) death penalty support and because some judges, some governors, some attorney generals  and/or some legislators are blocking executions and/or are, otherwise, prolonging appeals.

Polling: Pew shows 56% support, a majority. But, let's not have our pro death penalty consensus  be based upon only those polls which the media wishes us to see.

For example, a 2013 poll by Angus-Reid (AR) found 86% death penalty support, nationally (16). All media outlets decided not to carry that poll, even though AR has an excellent polling record, inclusive of being the most accurate in the 2008 presidential election (16).

AR got the message and stopped doing their annual death penalty poll.

Why was the support so high? Because AR has a "sometimes" support the death penalty answer, exactly the fashion in which we apply the death penalty, rarely and sometimes, making it the most accurate  barometer of death penalty support. The other two choices are "always" and "never", making "sometimes" the perfect response, reflecting the US death penalty system.

"similar consensus" - really USAT?

10) USA Today:  "Rep. Renny Cushing is an unlikely proponent of abolition. His father and brother-in-law were murdered in separate incidents, 23 years and a thousand miles apart. Still, he says death sentences just divert attention from where it's most needed." "It makes rock stars out of killers. It allows us in many ways to ignore or not tend to the needs of individual victims' survivors."

REBUTTAL: USAT is, completely, clueless to Cushing's hypocrisy  . . . or they avoided it.

Neither of the Cushing family murderers were death penalty eligible. His father's murder resulted in the maximum sentence, yet Cushing works against all other victim survivors who want the maximum sentence, the death penalty, in their, actual, death penalty cases.

Cushing is a leader in turning victim against victim and working against the desires of other victim survivors, if they find justice is best served by a death sentence (19).

Why can't Cushing and others, simply, leave the death penalty alone, tell other victim survivors they respect their right to seek the death penalty in their case? Because they value making sure that all murderers live, above the wishes of other murder victim survivors (19).

Wanting all murderers to live, no matter the cost, is a defining anti death penalty characteristic (2).

11)  USA TODAY: "A new study by the anti-death penalty group Reprieve Australia showed that prosecutors in Caddo Parish, Louisiana, struck would-be black jurors 46% of the time, compared to 15% for others."

REBUTTAL: As Reprieve is an anti death penalty group, USAT blindly accepted the results, as standard. If blacks in Caddo Parish opposed the death penalty at a rate three times that of other groups, the would-be black juror striking rate would be expected, as in North Carolina, for example (20).

But we don't know, because that wouldn't matter, as USAT's concern was furthering the anti death penalty message. Done.

12)  USA Today:  "Glossip's (innocence) contention has won support from the likes of British business executive Richard Branson, actress Susan Sarandon and TV's "Dr. Phil" McGraw. More than 250,000 online petitions seeking a 60-day reprieve were delivered to Gov. Mary Fallin this month. On Friday, former U.S. senator Tom Coburn and former University of Oklahoma head football coach Barry Switzer added their names."

REBUTTAL:  Some media just become like melted butter before celebrities. Just so much oohs and ahhs.

The Glossip case sure is looking a lot like the Troy Davis fiasco (20):

"The Troy Davis campaign, like many before it, is a simple, blatant fraud, easily uncovered by the most basic of fact checking." "The case for Davis' guilt is overwhelming, just as were his due process protections, which may have surpassed that of all but a few death row inmates." (21)

As USAT,  some media cannot be distinguished from anti death penalty activists and the glam of quoting celebrities replaced reviewing the appellate record and the judicial decisions, just as USAT did here.

Is Glossip innocent or guilty? USAT doesn't help, much, only giving us celebrities.

“This (Glossip PR) is a bull**** public relations campaign,” District Attorney David Prater told reporters, "that’s all it is, to abolish the death penalty in this state and throughout the country. Otherwise, they'd be acting like lawyers and be filing paperwork and taking paperwork and evidence to the prosecutor and the governor’s office.”

"Our position has always been that they need to take any evidence to a court,” said Alex Weintz, spokesman for Fallin. “It is not about petition drives and celebrity endorsements.”

Heck if its not, ask USAT.

13) USA Today: Murdered Sheriff Sgt. Michael Naylor's  widow, Denise Davis didn't wish to go through either death penalty trial or appeals for her husband's murderer.

USAT missed the pro death penalty point, of course.

Only because of the death penalty was a plea, to a sentence of life without parole (LWOP),  possible.

Without the death penalty, only a plea to life with parole would have been possible, a plea that would not have been accepted, requiring a LWOP trial, with appeals, if found guilty.

The death penalty, sparing a little anguish and a lot of time and money, by allowing for LWOP pleas - a different perspective than USAT.

14) USA Today: "Seven states have repealed the death penalty since 2007. Among the 31 that retain it, governors have imposed a moratorium in four, and most others haven't executed anyone in years. Only seven states carried out executions in the past two years."

REBUTTAL - Important facts: Since 2007, 12 states have ended executions and/or the death penalty.

5 have repealed the death penalty, by law, by a majority Democratic legislature, with a Democratic Governor, signing the repeal. 2 of those 5 (NJ and IL) did so in a lame duck session.

5 states have stopped executions, all by Democratic Governor fiat, inclusive of California, whose governor, attorney general and corrections dept. did nothing  for 7 years,  about a federal and, later, state court ruling against their lethal injection protocol, when numerous states had solid protocols, approved by federal courts, which Ca could have presented to the federal judge, within hours of the rulings, 7-9 years, ago.

One "conservative" (22) legislature Nebraska, repealed the death penalty, overcoming the Republican governor's veto. A long time Democratic, anti death penalty activist, Sen. Ernie Chambers, who compares US police to ISIS, was the, undisputed, leader on the anti death penalty side, as he has been for decades.

The Nebraska repeal has been stopped by a conservative led pro death penalty referendum campaign and will not be entered into law. A vote is required on the issue in 2016.

Anti death penalty forces did all they could to stop citizens from voting on the issue.

I am unaware of any US popular vote against the death penalty.

A New York state appellate court found their statute to be unconstitutional.

Looks like the Democratic Party is driving this bus - USAT missed it. Or . . .

In all 12 instances, the majority in those states, supported/support the death penalty. Even, the majority populations in Western Europe supported the execution of Saddam Hussein, a "sometimes" example in polling (16).

Sometimes the voice of the people matters, Sometimes not.

15)  USA TODAY: "Even in Texas  . . . the death penalty is on the ropes. The state sentenced 48 people to death as recently as 1999. So far this year? Not a single one."

REBUTTAL - More detail: Keep in mind that capital murders may have dropped by 80% in Texas from 1991 - 2013, Murders have dropped 57%, rapes 19% and robberies 36% (6), A much lower occurrence of  rape/murders and robbery/murders, the dominant death penalty eligible murders, equals a much lower number of death sentences. Murders "rates" have dropped 71%, rapes 47% and robberies 58% (6).

I agree, zero death sentences, so far, in 2015, is remarkable.

Hope capital murders, as all violent crimes, keep dropping.


1)  a)  The 4.1% "Innocent" on Death Row: More Nonsense
     b)  Start with sections 3 & 4

The Innocent Frauds: Standard Anti Death Penalty Strategy

2) The Death Penalty: Do Innocents Matter? A Review of All Innocence Issues

3) Judges Responsible For Grossly Uneven Executions 


5) Capital Punishment, 2013 – Statistical Tables, Bureau of Justice Statistics, Table 11, Number of inmates executed, by race and Hispanic origin,  1977–2013,

6) United States Crime Data, from FBI UCR

The Disaster Center is a convenient and reliable source for crime data

1957 murder rate of  4.0 from

 Capital Punishment, 2013 – Statistical Tables, Bureau of Justice Statistics, TABLE 16  Prisoners sentenced to death and the outcome of the sentence, by year of sentencing, 1973–2013

8)  Total cases affected 746, so far : state law or court ruling, after 1973, CT, IL, MD, MA, NJ, NM, NY; cases stopping specific case death penalty application, Atkins v Virginia, Roper  vs Simmons, Ring vs Arizona and others.

I haven't gotten new case law numbers on Ring, Penry and others, yet.

My informed estimate is that we are looking at a total of a 12% drop in death sentences, based upon new case law reductions and death penalty repeal, alone.

Gregg v Georgia (1976) accounted for about 500 - 600 death penalty reversals (9), from 1973-1978, which are modern era death sentences. I didn't count those.

9) See Virginia and California
Saving Costs with The Death Penalty

10)  Capital Punishment, 2013 – Statistical Tables, Bureau of Justice Statistics, Table 11, Number of inmates executed, by race and Hispanic origin, 1977–2013,

11) Capital Punishment, 2013 – Statistical Tables, Bureau of Justice Statistics, Table 10. Average time between sentencing and execution, 1977–2013, 12/2014, 

12) "James Holmes prosecutor talks about the one holdout juror who spared the killer's life", Maria L. LaGanga, Los Angeles Times, 8/24/2015

13)  No "Botched" Execution - Arizona (or Ohio)

14)  The (Imagined) Horror of Dennis McGuire's Execution

15) Clayton Lockett: The Case for Execution (Oklahoma)

16)  86% Death Penalty Support: Highest Ever - April 2013 World Support Remains High
95% of Murder Victim's Family Members Support Death Penalty

18) Nitrogen Gas; Flawless, peaceful, unrestricted method of execution

19) Murder Victims' Families Against The Death Penalty: More Hurt For Victims Families

20) For Example: One would expect that blacks would be 3 times as likely to be excused from jury service in North Carolina death penalty cases, as are whites, based solely on the fact that 35% of blacks strongly oppose the death penalty, whites only 11%.

21) "Troy Davis & The Innocent Frauds of the anti death penalty lobby",

22)  On classic liberal lines, many alleged conservatives voted for and voted to override conservative Governors's veto so that Nebraska would increase the gas tax, repeal the death penalty and give driver’s licenses to children of illegal immigrants.

Tuesday, September 08, 2015

"Innocents" & Texas' Death Row

"Innocents" & Texas' Death Row: The "Exoneration" Frauds Continue
Dudley Sharp 

The Death Penalty Information Center (DPIC) claims 12 death row "exonerations" in Texas (1). 

By Texas law (2), Texas has only identified one former death row inmate , Anthony Graves, as actually innocent  . . . 

well, actually, no  . . .

"Actual innocence" in the Graves case was decided by a "belief" standard, not an evidence standard (2), with this exception "no credible evidence exists that inculpates the defendant" (2), crossing the well known evidence line:

"Absence of evidence is not evidence of absence." 

By this amendment, any guilty murderer with "absence of evidence" - POOF  -  becomes "actually innocent", an assertion which cannot be made, factually. 

The belief  "standard" had to be amended into the law, because there was no evidence to establish Grave's innocence, as the law, previously, required such evidence to prove innocence, thereby requiring the judge to find  that the Graves case did not qualify for that finding, which was the case. 

How better to declare Anthony Graves "actually innocent" than to avoid a standard of evidence establishing innocence and replace it with "belief".


Since 1973, that is 1 out of Texas' 1100 death sentences, or 0.09% and . . . .  Graves was released and compensated. 

Not 100%, but a very high accuracy rate - I believe. 

That 83% Texas error rate by DPIC matches DPIC's error rate in Florida, which had a government agency review all 23/24 DPIC claimed "innocent" and "exoneration" in Florida, finding that 4 MIGHT be confirmed as actually innocent, the same 83% error rate in"exoneration" claims as Texas and as reviewed within Section 4 of INNOCENT FRAUDS (3). 

1)  Exonerations By State, Death Penalty Information Center,  viewed May 19, 2015, 


Paragraph (2) (C) (ii) the district court's dismissal order is based on a motion to dismiss in which the state's attorney states that no credible evidence exists that inculpates the defendant and, either in the motion or in an affidavit, the state's attorney states that the state's attorney BELIEVES that the defendant is actually innocent of the crime for which the person was arrested. 

Full statute: 


(a) A person is entitled to compensation if: (1) the person has served in whole or in part a sentence in prison under the laws of this state; and 
(2) the person:    
(A) has received a full pardon on the basis of innocence for the crime for which the person was sentenced;   
(B) has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent of the crime for which the person was sentenced; or    
(C) has been granted relief in accordance with a writ of habeas corpus and: (i) the state district court in which the charge against the person was pending has entered an order dismissing the charge; and (ii) the district court's dismissal order is based on a motion to dismiss in which the state's attorney states that no credible evidence exists that inculpates the defendant and, either in the motion or in an affidavit, the state's attorney states that the state's attorney believes that the defendant is actually innocent of the crime for which the person was arrested.

3)  The Innocent Frauds: Standard Anti Death Penalty Strategy and

Monday, May 18, 2015

Death Penalty Cost Study Protocol

Death Penalty Costs vs Life Without Parole Costs: Study Protocol
Dudley Sharp

No state has ever done an apples to apples cost review of the death penalty vs life without parole (LWOP).

This is a template for such a cost study.


Previous death penalty cost studies have been incomplete, absurd, deceptive and/or outright fraudulent and everything in between (1).

As a general rule, the prior studies were undertaken as a precursor to asking for death penalty repeal and many have chosen obvious protocols to increase the cost of the death penalty and/or to decrease the cost of LWOP (1), as the current one, underway, in Louisiana.



a) The costs of a maximum death penalty sentence trial, resulting in a death penalty sentence, with pre trial, trial, appellate and incarceration costs, until execution or other death; and

b) Plea Bargains:  Only a death penalty option can result in a LWOP plea bargain. Therefore, any LWOP plea bargain costs savings from pre trial, trial and/or appeals accrue as a cost credit on the death penalty side of the ledger;



a) Death penalty eligible crimes, with a maximum LWOP sentence trial, resulting in a LWOP sentence, with pre trial, trial, appellate and incarceration costs, until death.

The reason you use death penalty eligible crimes as the standard, is because you are looking at equivalent cases, with two different sentencing protocols. In addition, with death penalty repeal, all previous death penalty cases will be LWOP cases.

Of course, this will include geriatric care, which is considered to begin at ages 50-55, within the prison population. 

b) Plea Bargains: Without the death penalty option, it will require more LWOP trials, because

1) Obviously, there will be no more pleas to LWOP and
2) For many of these cases, many more LWOP trials will result, because it will be unacceptable to plea to life WITH parole, as the cases are just too terrible to consider parole.

This must be added, as an additional cost, to the LWOP side of the ledger, if one is considering ending the death penalty, as these additional costs will accrue, as a direct result of ending the death penalty.

You can get a reasonable estimate of those costs by counting;

1) all previous death penalty trials, resulting in either death or life;
2) all previous plea bargains to LWOP; and 
3) all previous cases taken to a LWOP maximum trial.

All three of those categories of cases, by their prior handling, indicate that life WITH parole is not acceptable and, therefore, they MAY all require LWOP trials, if the death penalty were repealed.

NOTE: The cost benefit of the plea bargain, always goes to the greater sanction, as reviewed, just as it would if comparing costs of life without parole, the greater,  to life with parole, the lesser.

3) Policy issues:  Death Penalty -  Saving Costs

a) Time for appeals:

In the modern death penalty era: 

Nevada's first 11 executions occurred after about 4.5 years of appeals, on average.  All those cases were, intentionally, left out of Nevada's deceptive death penalty cost review.

Virginia's first 108 executions occurred after 7.1 years of appeals, on average. 

Nationally, the first 60 executions occurred after about 5 years, on average.

From 1984-1988, nationally, the first 5 years of double digit executions, the average time of appeals, prior to execution was 6.6 years (2).

6.6  years.

In 1996, the US Congress passed the Antiterrorism and Effective Death Penalty Act, part of which was to speed up death penalty appeals.

In 1996, the average time on death row, prior to execution, was 10 years.

From 2009-2013, nationally, the 5 year average time of appeals, prior to execution, was 15 years (2),

15 years.


State and federal legislatures, attorney generals, district attorneys, defense counsel and state and federal judges need to have open meetings to discuss why judges have allowed 1) appeals to take over 16 years, on average, in some years, prior to execution, with 2) a great many cases taking 20, 30 years, and longer, prior to executions, 3) with many death row inmates, still, languishing on death row, for over 12, 20, 30 years, and more.

The judges are the case managers and set the schedules, on a case by case basis, at trial and on appeal.

There is no legal or rational reason that appeals, prior to execution, should take longer than 9-10 years, on average: 3 years at the state supreme court level, 3 years at the federal district court level and 3 years at the federal circuit court level. 

Cases accepted at the US Supreme Court level are, relatively, rare. However, there are issues, which can effect all death penalty cases.

Judges are responsible for grossly uneven executions, demonstrating dictatorial like contempt for the law in those states where it is impossible, or nearly so, to execute confirmed murderers (3).

b) Execution method:

Put corrections in charge of all execution methods, as corrections are, currently, in charge of implementing all other sanctions.

This will avoid time and money loss with changing the law through the legislature. It becomes a matter of procedural policy, not change in the law, just as most other procedural changes, within corrections. Give broad powers, such as "Any execution methods found constitutional or any other method of execution, that is, reasonably, considered to be constitutional."

Nitrogen Gas, for example.

c)  Death Row:

 A death row is not required. Neither Kansas nor Missouri have one.


1)  Saving Costs with The Death Penalty

2)  Capital Punishment 2012, Bureau of Justice Statistics, NCJ 245789, last revised 11/3/14,, accessed 6/10/15

3) Judges Responsibly for Grossly Uneven Executions