PJI Amicus Brief: Brumfield v. Cain

PJI filed an amicus brief in Brumfield v. Cain, observing that Brumfield would be the only person in Louisiana who did not receive a full and fair hearing on his claim of intellectual disability on direct appeal or in state post-conviction.  When Brumfield received a hearing in federal court, the federal judge found that Mr. Brumfield was a person with intellectual disability.  The State of Louisiana successfully argued to the Fifth Circuit Court of Appeals that Mr. Brumfield should be executed anyway.  The United States Supreme Court granted certiorari in the case, which is scheduled to be argued this spring and decided this summer.

Wrongful Convictions and Non-Unanimous Juries in Louisiana

PJI counsel filed cert petitions on behalf of defendants convicted based upon non-unanimous juries. Louisiana is one of only two states to allow a jury to convict a person based upon a 10-2 vote. The practice has its origins in Louisiana's Constitutional Convention of 1898, which sought to protect white suffrage at all cost. This sordid history undermines the credibility of the justice system. PJI believes that faith in the justice system reduces crime and builds stronger communities. As Louisiana has been among the leaders in the nation in wrongful convictions, PJI believes that where citizens have reasonable doubts about a defendant's guilt or innocence, a conviction cannot stand. 

Retired Louisiana Supreme Court Chief Justice Pascal Calogero Jr. discusses wrongful convictions in this Op-Ed column, where he notes the following about public faith in the criminal justice system:

Our justice system makes two promises to its citizens: a fundamentally fair trial and an accurate result.  . . . If either of those two promises are not met, the criminal justice system itself falls into disrepute and may eventually be disregarded."

“Where corners of the Constitution are cut, the circle of trust necessary to ensure a functioning justice system is broken.”


Press Release

For Immediate Distribution

May 28, 2014

BATON ROUGE, La. Yesterday the Senate Judiciary B Committee endorsed Representative Lopinto’s Secret Execution bill and added a last minute amendment to deprive the Louisiana Board of Pharmacy of any oversight capacity over the sale and handling of lethal injection drugs.  The Bill would allow the State to send Department of Corrections staff to other states with wads of cash to purchase lethal narcotics from pharmacies not regulated in Louisiana.  If an execution is botched, the bill prohibits any public inquiry or hearing into what has gone wrong.

At the Senate Hearing on the Bill, Sidney Garmon of the Louisiana Coalition for Alternatives to the Death Penalty and Steve Beatty, Editor of The Lens testified against the Bill.  Garmon noted that the Bill prevents citizens from knowing the most significant facts -- how Government behaves when it determines who should live and who should die.  Steve Beatty from The Lens testified about the need for public review of financial transactions made by the government to secure executions: “I would like to see that when our state carries out the most severe penalty possible, that it is done with the greatest oversight and opportunity for review and accountability possible.” 

Representative Lopinto’s bill seeks to curtail growing criticism of the manner in which the death penalty is carried out by removing public access to information and depriving the Board of Pharmacy and other regulatory bodies of oversight.  Rather than ensure executions are carried out correctly, the State is increasing risks that executions will be botched, result in torture, or fail to work. It also prevents the citizens of Louisiana from making informed decisions about the most significant moral issues of the day.

 “If Government can’t perform executions in the light of day, according to the rules, we should reconsider our decision to allow Government to execute people.” Mercedes Montagnes, of the Promise of Justice Initiative.

The first recorded botched execution in modern times occurred in Louisiana, when the State’s effort to execute Willie Francis did not work.  Review of the procedures revealed that a prison guard was intoxicated when he attempted to execute Francis. Louisiana is now at risk of repeating the botched executions seen earlier this year in Ohio and Oklahoma.

If we are going to have the death penalty, then state officials cannot continue to cloak executions in secrecy, which prevents counsel for the condemned, the courts and the public from obtaining basic details about the states’ execution processes. The Promise of Justice Initiative is working to ensure that Louisiana does not carry out experimental executions behind a wall of silence.

Recent Botched Executions

A description of additional botched executions is available here.  Recent botched executions have resulted in calls from various figures, both Republican Governors and President Obama acknowledged the need for transparency and clarity with regard to the method that states use to administer capital punishment.

Executions in Oklahoma and South Dakota performed with compounded pentobarbital – the drug that Louisiana’s execution protocol calls for - appeared to have had serious problems, including the January 9th execution of Oklahoman Michael Lee Wilson, whose last words, after being injected with compounded pentobarbital, were, “I feel my whole body burning.” Oklahoma has refused to provide any information about what might have gone wrong in Mr. Wilson's execution, but expert pharmacologist Larry D. Sasich, PharmD, MPH, FASHP, signed a sworn affidavit stating, "It is my opinion that Mr. Wilson's reaction is consistent with contaminated pentobarbital sodium injection."

In October 2012, in South Dakota, Eric Robert was executed using compounded pentobarbital. Witnesses reported that he “appeared to clear his throat and gasp heavily, at which point his skin turned a blue-purplish hue. Mr. Robert opened his eyes and they remained open until his death, and his heart continued beating for 10 minutes after he ceased to breathe.”

Clayton Lockett’s botched execution last month was the result of the secrecy around lethal injection procedures that officials in Oklahoma fought tooth and nail to protect. In fact, the execution was called off as a result of the extreme torture being endured by the condemned man who later died of a massive heart attack.  In response to this botched execution, the Republican Governor called for an investigation into what went wrong.  The very type of investigation called for by the Governor would not be possible under Representative Lopinto’s Secret Execution Bill.

On January 16th, 2014 Ohio media eyewitness reports of the Dennis McGuire execution, which took more than 20 minutes, observed, “McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes, with his chest heaving and his fist clinched. Deep, rattling sounds emanated from his mouth.” McGuire was executed using a new, untested two-drug combination: midazolam, a sedative, and hydromorphone, a morphine derivative. His attorneys had argued that using an untested combination of drugs carried excess risk of extreme pain and suffering during the execution. The state disagreed.

An Ohio execution in 2009 ended with the State’s failure to execute the condemned after several hours of unsuccessful attempts.

Text of Representative Lopinto’s bill can be found here. Text of the Amendment to allow Louisiana to use drugs from other states can be found here.


Contact: Mercedes Montagnes

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(504) 529-5955