5 Key Inconsistencies in What Happened During the Michael Brown Shooting
Since the St. Louis County prosecutor's office released a trove of documents and evidence reviewed by the grand jury that decided to not indict Ferguson police officer Darren Wilson, there have been numerous reports pointing out the discrepancies between Wilson's and various witness accounts of what happened on the day that Wilson shot and killed 18-year-old Michael Brown. While the grand jury has put an end to the state's case against Wilson, questions about witness accounts could still sway the outcome of the Justice Department's ongoing investigation. The Washington Post, Vox, St. Louis Post-Dispatch, PBS, and the Wall Street Journal have reported on these different accounts in further detail, especially the differences between the testimonies of Wilson and Dorian Johnson, a friend who was with Brown when Wilson approached them. We matched those accounts up with McCulloch's statement during his announcement of the grand jury decision. Here are five key discrepancies:
1. What happened during Wilson's initial encounter with Brown and Dorian Johnson?
Prosecutor Robert McCulloch: Wilson saw Brown and Johnson in the street, slowed down and told them to get on the sidewalk, and words were exchanged.
Darren Wilson: Wilson saw Brown and Dorian Johnson walking in the middle of the road. He told Johnson and Brown to get on the sidewalk. He noticed Brown was holding Cigarillos and remembered the report about the theft.
Dorian Johnson: Brown stole the Cigarillos from the Ferguson Market and then the two of them were walking toward their apartments as Wilson passed. Wilson told them to "Get the fuck on the sidewalk."
2. How did the situation escalate?
McCulloch: Wilson reverses his car at an angle, blocking traffic and Brown and Johnson's path. Wilson and Brown get into an altercation, with Wilson still in the car and Brown standing at the driver's window.
Wilson: After Wilson told Brown and Johnson to get on the sidewalk, he says he heard Brown respond "fuck what you have to say." He backed the car up to contain them, and asks Brown to come over to the car. He starts to get out of the car and Brown slams the door shut and says "what the fuck are you going to do about it."
Johnson: Johnson says neither he nor Brown said a word and Wilson reversed his car unexpectedly, then opened his door and hit both him and Brown, and the door bounced back closed. Wilson then grabbed Brown by the shirt around his neck.
3. What exactly happened during Wilson and Brown's "tussle"?
McCulloch: McCulloch says witness statements were inconsistent, with some saying Brown was never in the car at all, and others saying Brown was punching Wilson, some saying they were wrestling, and another saying that it was a tug-of-war. Two shots are fired during the altercation.
Wilson: After getting the door slammed on him, Wilson told Brown to "get the fuck back," and tried to use the door to push him. Brown shut it again, and Brown then came "in my vehicle." Brown punched Wilson. Wilson had one hand on his gun and tried to fire twice. Brown reached for Wilson's gun. The gun goes off twice, and one bullet hits the door.
Johnson: Johnson says that Wilson reached his hand out of his car window and grabbed Brown's shirt by his neck. A "tug of war" ensued with Brown trying to escape Wilson's grip, but Brown's hands never entered the car. After hearing the first gun shot, Johnson noticed blood on Brown, then turned and ran away. Brown followed behind him.
4. Did Wilson shoot at Brown and Johnson as they ran away?
McCulloch: McCulloch again says witness statements were inconsistent, with claims ranging from Wilson firing from the car, firing at Brown's back as he was running, and others saying Wilson didn't fire until Brown turned around and came back toward Wilson.
Wilson: Brown begins to run from Wilson after two shots were fired from the car. Brown runs but then turns around, and won't comply with demands to get on the ground. Wilson says he didn't open fire while Brown and Johnson ran away.
Johnson: Johnson hid behind a car, and watched as Brown ran past him and Wilson followed. Wilson opens fire while Brown is still running, at which point Brown stops and turns around. (Witness Piaget Crenshaw has told CNN Wilson shot as Brown ran away, adding that one bullet struck the building she was standing in. Another witness told investigators Wilson shot at Brown as he ran away.)
5. What was Brown doing when Wilson shot him?
McCulloch: McCulloch says witness accounts differ on whether Brown's hands were up when he was facing Brown after turning around. Some say Brown didn't move at all before Wilson shot him, others say he was in "full charge." McCulloch stressed that several witnesses' stories changed over the course of multiple interviews with authorities.
Wilson: Brown initially runs away but then turns around, and won't comply with Wilson's demands to get on the ground. Brown appears to charge toward Wilson. Brown put his hand at his waistband. Wilson opens fire.
Johnson: When Brown turned around to face Wilson, Brown's hands were up, one higher than the other. His hands were nowhere near his waist. Brown appeared to try and tell Wilson that he didn't have a gun, starting to take a step forward. Before Brown could complete his sentence, Wilson shot him several more times. (Crenshaw told CNN that after Brown turned around, he barely moved toward Wilson and that his hands were up. "They were just slowly going up, it probably didn't even have a chance to get all the way up there before he was struck.")
PBS Newshour analyzed more than 500 pages of witness testimony and compared them to Wilson's statements. Their graphic shows 16 witnesses testified that Brown put his hands up when fired upon:
This Article Has Been Retracted
This story included erroneous information. Waterford, NY, fire chief Donald Baldwin was not the commenter in question. We regret the error and are investigating.
Will Obama Pull the Plug on Wind Energy?
Yesterday President Obama threatened to veto a $440 billion package of tax breaks negotiated by a bipartisan group of legislators led by Senate Majority Leader Harry Reid (D-Nev.). The bill, a White House spokesperson said, disproportionately benefits businesses over families. The bill excludes a child tax credit for the working poor that had been a top goal for Obama, but makes permanent a group of tax incentives for big businesses that had been provisional.
But if Obama does kill the deal, he'll also create a casualty that seems odd for a president who in recent weeks has made climate change a central issue: The tax credit for wind energy, which Reid's bill would resuscitate for a few years before phasing out in 2017.
The Production Tax Credit (PTC) provides wind energy developers a tax break of 2.3 cents per kilowatt hour of energy their turbines produce for the first ten years of operation, which industry supporters say is a important lifeline to help wind compete against heavily-subsidized fossil fuel power sources. For over a decade, wind power has been locked in a boom-and-bust cycle as the PTC expires and then is re-upped by Congress: Every time the credit stalls or looks like it might disappear, contracts dry up, manufacturers shut down production, and jobs get cut. The same could happen again soon: The PTC expired again last year, and so the fate of Reid's tax bill will be the fate of a cornerstone of America's clean energy economy.
Any project that broke ground before the PTC expiration last year still got to keep the credit, so the wind industry is still on an up cycle. So far this year, wind accounts for 22 percent of new energy capacity, second only to natural gas, according to federal data. And with or without subsidies, wind is now one of the cheapest electricity sources out there. Those are critical pieces of the puzzle if the US is to meet President Obama's new goal to reduce the nation's carbon footprint 26-28 percent by 2025.
But wind's halcyon days won't last unless the PTC is extended soon, said Daniel Shury, a market analyst with Bloomberg New Energy Finance.
"The momentum will peak next year, and then we'll start to feel the effects," Shury said. "Without the PTC extension, the main US manufacturers are going to start running out of orders by 2016."
The Reid bill throws a bone to conservative lawmakers and advocacy groups who have called the PTC a handout for an industry that should be able to support itself by now: gradually phasing out the credit by 2017. The American Wind Energy Association, a trade group, has supported such a plan, saying it would give manufacturers, developers, and other wind investors a degree of certainty about future market conditions that they don't currently have. Shurey agrees: The actual amount of the credit is far less important, he said, than a clear, consistent signal to frame contracts and investments around.
Whatever tax deal Congress ultimately passes will probably include the PTC, says Jim Marston, vice president of US energy policy at the Environmental Defense Fund. Some of the credit's biggest proponents are powerful Republicans from windy states, such as Senator Chuck Grassley of Iowa, who said on the Senate floor last week that gutting the PTC "would cost jobs, harm our economy, the environment and our national security." But a veto could mean a long delay—and more of the uncertainty that the wind industry fears.
What If Your Boss Suddenly Told You to Come to Work on Thanksgiving?
Michelle Flores thought she had everything worked out for Thanksgiving. The 20-year-old San Francisco State junior was planning to join friends this Thursday to make pineapple-crusted ham, a family favorite. But last Friday, the Safeway where Flores works as a part-time cashier informed her that she'd be expected to work during on the holiday. She reluctantly called her friends to cancel their Thanksgiving plans.
Flores is well acquainted with the stressful unpredictability of part-time work. Last semester, she found out just three days before her midterm exams that the supermarket expected her to work 30 hours that week, 25 percent more than what she typically put in. One night, she got off work at 9, made it home by 10, and had to study all night for a 9 a.m. exam. "I definitely would have done better if I'd had more sleep," she says. "Had I been notified sooner I could have studied more beforehand."
For millions of retail workers, similar disappointments are all too common. According to a recent study by Susan Lambert, a professor at the University of Chicago School of Social Service Administration, nearly half of young part-time retail employees receive their work schedules less than a week in advance. This is partly a symptom of retailers' increasing reliance on computerized "on call" scheduling systems that track weather predictions and real-time sales data to schedule work shifts—maximizing efficiency but wreaking havoc on workers' ability to manage their personal schedules.
But for Flores and 40,000 other retail workers in San Francisco, that's about to change. Yesterday, San Francisco's Board of Supervisors passed two laws that will sharply curtail "on call" scheduling at the city's major chain stores.
"We see this as one exciting way to address the inequality gap and pull low-wage workers out of poverty," says Gordon Mar, the executive director of Jobs With Justice San Francisco, a coalition of community and labor groups that has lobbied for the measures for more than a year. He sees them as important complements to San Francisco's new $15 minimum wage. While the wage is highest in the country, it still "isn't enough on its own to really create security for low-wage workers that are struggling to survive," says Mar.
The bills, known as the Retail Workers Bill of Rights, will make sweeping changes to how large service-industry employers hire, schedule, and retain their workforce. The new rules require employers to post worker schedules at least two weeks in advance. They discourage arbitrary or inconvenient "on call" shifts by requiring employers to pay workers when the shifts are canceled at the last minute, which can happen when real-time sales slow down. Employers are essentially banned from relying entirely on part-time workers, a common strategy to avoid paying benefits; they must now offer available shifts to existing employees before hiring new ones. And they must offer part-time workers the same opportunities for promotions, raises, and time off as full-time employees.
"It's really exciting to see San Francisco break ground on solutions for low-wage workers," says Carrie Gleason, the director of the Center for Popular Democracy's Fair Workweek Initiative. "The workweek has changed a lot in recent years, but the last time we legislated workplace standards on these issues was 75 years ago. It's long overdue that we set new standards."
More than five years into the recovery, the economy has added middle-class jobs much more slowly than part-time service positions such as cashiers and fast-food clerks. Consequently, since 2007, the number of part-time workers who'd like to work full-time positions has doubled. As Jodi Kantor reported in a gripping New York Times profile of a Starbucks barista, the shift towards part-time work and "on call" scheduling has had the effect of "injecting turbulence into parents' routines and personal relationships, undermining efforts to expand preschool access, driving some mothers out of the work force and redistributing some of the uncertainty of doing business from corporations to families."
Several states, including California and New York, already have "reporting pay" laws that require employers to pay workers extra if they send them home early from a shift. Last year, SeaTac, an airport town between Seattle and Tacoma in Washington, became the first in the country to require employers to offer additional hours to part-time workers before hiring new employees. But San Francisco's Worker Bill of Rights goes much further than these efforts, and labor organizers expect it to help catalyze similar worker rights laws elsewhere.
Jobs for Justice, the group that lobbied for the San Francisco bills, is pushing similar measures in the Washington, DC, and Boston. Minnesota and New York are considering tighter regulations of "on call" shifts. Those two states and Michigan may also adopt laws that would bar employers from discriminating against part-time workers who request more stable schedules. The Service Employees International Union is pushing for a mandatory 30-hour workweek for security and janitorial workers in multiple states.
The Schedules That Work Act, introduced in this July in Congress by Reps. George Miller (D-Calif.) and Rosa DeLauro (D-Conn.), mirrors many of the provisions of the Retail Workers Bill of Rights, including advance notice for shifts and pay for workers sent home early. Labor groups don't expect the bill or a companion measure in the Senate to pass, but see them as rallying points for other state and local legislation.
The new San Francisco laws go into effect seven months after the mayor signs them and apply to chain stores with more than 20 employees and 20 global locations. For Flores, the changes come as a relief, albeit not soon enough to salvage her Turkey Day. The current system "does deteriorate your quality of life," she says. "It's more convenient for them, without considering what is a better option for you."
Can Ron Paul and Conservative Evangelicals Save a Texas Death-Row Inmate?
When Scott Panetti represented himself in a Texas capital murder case in 1995, wearing a purple cowboy suit and calling himself "Sarge," he called as a witness a veterinarian who once lived across the street from him. Panetti questioned the vet about the time he euthanized Little Blue, Panetti's old dog. The episode had nothing to do with the case. Other witnesses Panetti tried to call to the stand: John F. Kennedy and Jesus.
Trial transcripts, medical records, and expert witness testimony have documented that Panetti suffers from severe schizophrenia. He believes Texas is going to execute him to stop him from preaching the gospel—not because he shaved his head, donned camo fatigues, and shot and killed his in-laws in 1992. The Supreme Court has declared that executing the mentally ill violates the Eighth Amendment's prohibition on cruel and unusual punishment, but several Texas and federal courts—including the US Supreme Court—have reviewed Panetti's case, and each one has ruled that the state can proceed with his lethal injection. Now, with Panetti’s execution scheduled for December 3, the only thing that might save him is a national campaign being mounted by conservatives, including former Texas Republican congressman and libertarian icon Ron Paul.
Panetti's lawyers have filed a clemency petition with the Texas Board of Pardons and Parole, which can recommend that Gov. Rick Perry, a Republican, commute Panetti's sentence to life in prison without parole. That petition has received an outpouring of support from conservatives and evangelicals. In addition to Paul, this group includes Jay Sekulow, an evangelical lawyer famous for pressing religious liberties cases on behalf of social conservatives.
Paul's involvement in the case is unusual. Last year, he publicly endorsed a new advocacy group, Conservatives Concerned About the Death Penalty, saying, "I believe that support for the death penalty is inconsistent with libertarianism and traditional conservatism." This was the result of a years-long evolution. In 2007, Paul noted, "There was a time I simply stated that I supported the death penalty. Now my views are not so clearly defined...After years spent in Washington, I have become more aware than ever of the government’s ineptness and the likelihood of its making mistakes. I no longer trust the U.S. government to invoke and carry out a death sentence under any conditions." But Paul at that time didn’t believe that the federal government should interfere with state executions.
Now that he's out of office, Paul’s gone further, and he has come out firmly against Panetti's execution. Heather Beaudoin, the coordinator for Conservatives Concerned About the Death Penalty, says that this is the first time she's aware of that Paul has weighed in publicly against an execution.
It’s also unusual for conservative Christians to support a clemency petition like Panetti's. The last time evangelicals really rallied en masse to prevent a pending execution was in 1998, in the case of Karla Faye Tucker, who converted to Christianity in prison and became a conservative cause celebre. Despite the pleadings of evangelicals such as Pat Robertson, the Texas governor at the time, George W. Bush, went ahead with the execution, and Tucker became the first woman executed in the state since 1863.
The Panetti case is different. His religious fervor is the product of a brain disorder, and the evangelicals' opposition to his execution is not related to his religious proclamations. It is more of a reflection of the shift in public attitudes regarding capital punishment that has been driven by the growing number of exonerations of death-row inmates, the high number of mentally ill and disabled people sentenced to die, and the inefficient and expensive administration of capital punishment. "A lot of conservatives are late to realize that the whole criminal justice system is part of the government," says Richard Viguerie, a prominent conservative leader and an ardent opponent of the death penalty.
Religious conservatives are increasingly joining those who would like to see the end of the death penalty, citing their movement’s commitment to a "culture of life," which has traditionally focused primarily on restricting abortion. Conservative evangelicals, says Beaudoin, have been animated by the Panetti case over the past few weeks. Her outfit has opposed other executions, but, she says, the Panetti case has hit a nerve. She has been surprised by the number of influential Christians who have signed on to the clemency petition, especially Samuel Rodriguez, the president of the National Hispanic Christian Leadership Coalition, who's on Time magazine's 2013 list of the 100 most influential people in the world. Abby Johnson, a former Planned Parenthood clinic director who now runs a pro-life ministry for former abortion clinic employees, wrote an editorial in the Dallas News calling on Texas to spare Panetti.
"This is the largest outpouring of support on a death penalty case we've seen from evangelicals, and you can see why, given the ridiculous nature of this case," Beaudoin says. "A lot of folks who signed this [clemency] letter might have given pause about signing on to a letter opposing the death penalty generally, but they think we have no business executing Scott Panetti." She adds, "As Christians, we're called protect the most vulnerable. And there's just no question that Scott Panetti is in that number as someone who's suffered from severe mental illness. We all want to keep society safe, but I'm thankful there are other ways to do that than executing people."
Almost 20 years after representing himself at trial in a purple Tom Mix getup, Panetti still signs documents with cowboy references.
But can conservatives and evangelicals persuade Perry? The Texas governor is deeply tied to the religious right, which enthusiastically backed his gaffe-heavy run for the White House in 2012. So he might want to be sympathetic to their crusade. And as a lame-duck governor, Perry doesn't have to worry about his re-election prospects in the state that leads the nation in executions. Moreover, Perry has joined with other conservatives in pushing to reform the criminal justice system, particularly regarding harsh mandatory minimum drug sentencing.
Yet Perry has overseen more executions than any American governor in recent history—10 this year—and he has never shown any qualms about executing the mentally ill before. The most notable instance of this was the case of Kelsey Patterson, a man suffering from paranoid schizophrenia.
In 1992, a few days after his brother tried to have him committed to a mental hospital, Patterson shot and killed two people. After the shooting, Patterson stripped down to his socks and paced the street naked and shouting until he was arrested. During his trial, Patterson insisted that the military had implanted a device in his ear and was controlling him. The Texas pardons board recommended Perry spare Patterson's life, but Perry ignored the board and went forward with Patterson's execution anyway.
Perry is now pondering joining his party’s 2016 presidential fray, and there’s no telling if a grant of clemency for Panetti could provide political fodder in what is expected to be a crowded field of candidates. But the Panetti case could give Perry the opportunity to show a more compassionate side of himself to an American electorate in which support for the death penalty is at an all-time low.
Young people, and young evangelical Christians in particular, are moving away from supporting capital punishment in large numbers. A poll conducted last summer by the Barna Group, a Christian public opinion research firm, found that about half of practicing Christian baby boomers support the death penalty, but only 23 percent of Christian millennials felt that way. (Barna also asked the survey-takers, "What would Jesus do?" and found that only 5 percent of Americans—and 10 percent of practicing Christians—thought Jesus would support the death penalty.)
"The younger generation is finding that it doesn't make a lot of sense to say we're pro-life and then be out front promoting executions," says Beaudoin, who at 30, is one of those pro-life/anti-death penalty millennials.
Perry's options in Panetti's case are limited, as a pro-death penalty bias is baked into Texas law. Unlike many other states, Perry doesn't have the power to single-handedly commute Panetti's sentence to life in prison without parole. He can only do so if the pardons board recommends clemency, which the board has only done only four times since 1982 regarding an imminent execution. He can ignore a recommendation for clemency and move forward with an execution, but he can't ignore a denial of a clemency petition and on his own spare a life. But Perry appointed all the sitting board members. It seems likely that if he urged them to advise clemency for Panetti, they would take him seriously.
Perry can unilaterally grant Panetti a one-time 30-day stay of execution, which Panetti's lawyers have requested so that he can have a new mental competency evaluation. Panetti hasn't been evaluated by mental health professionals in seven years, and his lawyers argue that new documents disclosed by the Texas Department of Criminal Justice indicate that his mental health has deteriorated significantly since then. (He now believes a listening device has been implanted in his tooth and that "Satanic graffiti" has been appearing on the walls of his cell.)
If such an evaluation finds Panetti doesn't have a rational understanding of his impending execution, Panetti can ask the court to stay his execution and hold a hearing to evaluate whether he's sane enough to be executed. So far, all of the Texas state courts have denied the request for a new competency evaluation, including the Texas Court of Criminal Appeals, which rejected Panetti's appeal Tuesday in a 5-4 vote. But the dissent in that decision suggests that Panetti's case is prompting serious debate, even among Texas's conservative judges. In her dissent, Perry appointee and Republican judge Elsa Alcala said the decision, at worst, "will result in the irreversible and constitutionally impermissible execution of a mentally incompetent person."
Gabriel Salguero, the president of the National Latino Evangelical Coalition and one of 50 evangelical leaders who signed a letter asking Perry and the board of pardons to spare Panetti, says that Perry is well aware that evangelicals—and Latino evangelicals in particular—are a fast-growing demographic nationwide. But, he adds, this decision is "not about politics. It's about morality and what kind of country we want to be." He believes saving Panetti is "an easy lift…We don't execute people with mental illness, just as we don't execute minors." And he hopes Perry will come around: "We will be entering the Advent season, the high holy days. It seems to me the right message is to talk about saving lives. Maybe we'll get an Advent miracle in Texas."
16 Revealing Photos From the Ferguson Grand Jury Files
After St. Louis County Prosecutor Bob McCulloch announced Monday that Ferguson police officer Darren Wilson would not be indicted for killing Michael Brown, the county released a collection of documents from the grand jury proceedings. Among them were hundreds of photos from the investigation, depicting everything from the crime scene to Wilson at the hospital after the shooting. Here are just a few (all photos provided by the St. Louis County Prosecutor's Office):
Wilson's police SUV after the shooting. Brown's hat lies next to it.
The inside of the police SUV where the initial encounter between Wilson and Brown took place.
Shots were fired inside the car, and at least one went through the door.
The driver's side door handle with what appears to be blood on it.
A closer look shows what appears to be blood on the gun.
Blood on the street (presumably Brown's)
Wilson, according witnesses and his own testimony, missed several times as he fired at Brown. Some of those bullets struck nearby buildings.
Where one of Wilson's shots entered the wall of a nearby apartment building.
This shot narrowly missed a window.
There has been contention about the distance between Wilson's car and Brown's body. This shot shows Brown's body behind a screen with Wilson's SUV off further down the street.
The left side of Wilson's face.
A shot of Wilson taken Aug. 21 (according to the photo's metadata), less than two weeks after the shooting.
6 Basic Assumptions About the Middle East That the Washington Consensus Gets Dead Wrong
This story first appeared on the TomDispatch website.
"Iraq no longer exists." My young friend M, sipping a cappuccino, is deadly serious. We are sitting in a scruffy restaurant across the street from the Cathedral of St. John the Divine on Manhattan's Upper West Side. It's been years since we've last seen each another. It may be years before our paths cross again. As if to drive his point home, M repeats himself: "Iraq just doesn't exist."
His is an opinion grounded in experience. As an enlisted soldier, he completed two Iraq tours, serving as a member of a rifle company, before and during the famous Petraeus "surge." After separating from the Army, he went on to graduate school where he is now writing a dissertation on insurgencies. Choosing the American war in Iraq as one of his cases, M has returned there to continue his research. Indeed, he was heading back again that very evening. As a researcher, his perch provides him with an excellent vantage point for taking stock of the ongoing crisis, now that the Islamic State, or IS, has made it impossible for Americans to sustain the pretense that the Iraq War ever ended.
Few in Washington would endorse M's assertion, of course. Inside the Beltway, policymakers, politicians, and pundits take Iraq's existence for granted. Many can even locate it on a map. They also take for granted the proposition that it is incumbent upon the United States to preserve that existence. To paraphrase Chris Hedges, for a certain group of Americans, Iraq is the cause that gives life meaning. For the military-industrial complex, it's the gift that keeps on giving.
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6 Revelations from the Michael Brown Grand Jury Documents
After Monday's announcement that a grand jury would not indict Officer Darren Wilson in the killing of Michael Brown, St. Louis County prosecutor Robert McCulloch released the hundreds of pages of evidence that the grand jury considered. Following are six excerpts from the documents:
When grabbing Brown, Wilson says he felt like a 5-year-old holding onto Hulk Hogan:
Wilson says Brown charged at him with the look of a demon:
Wilson's emergency room medical report showed no sign of distress:
Though much has been made of Brown's size, Wilson was not much smaller:
A witness' journal entry recorded racist sentiment:
The St. Louis County medical examiner didn't take photos of the scene because his camera batteries died:
Chart: How Black Friday Invaded Thanksgiving
Remember the holiday formerly known as Thanksgiving? It had a pretty good run for about 390 years—until around 2011, when it began to be replaced with a shopping extravaganza. In the past few years, the traditional dividing line between Thanksgiving and Black Friday, the official start of the holiday retail season, has blurred. At many major retail stores, this Thursday won't be a day of turkey and family time but a mad rush for XBoxes and iPhones. Here's how Black Friday's Thanksgiving creep became a full-blown takeover:
Ohio Could Pass the Country's Most Extreme "Secret Executions" Bill
The execution of Dennis McGuire on January 16 of this year did not go as planned. Injected with an untested cocktail of drugs, the Ohio death row inmate gasped, choked, and writhed in his restraints. McGuire was declared dead after 26 minutes, having endured the longest execution in the state's history.
"To a degree of medical certainty, this was not a humane execution," an anesthesiologist testified in a subsequent federal lawsuit against the state's execution team. The lawsuit, filed by McGuire's children, declares the execution method used on McGuire cruel and unusual and seeks to block its further use in Ohio.
Yet state lawmakers are now rushing to pass a "secret executions" bill that would make it harder to know what really happens in the death chamber. If passed, HB663 will drop a veil of secrecy over the death penalty by exempting anyone participating in a lethal injection from public records requests that might reveal their identities or duties. It would apply to medical and nonmedical staff, companies transporting or preparing supplies or equipment used in executions, and the providers of the drugs used in the lethal injection.
Introduced just two weeks ago in a lame-duck session, the bill sailed through committee and was passed by the state House last Thursday, 62 to 27. The bill now moves to the Senate, which could vote on it as early as the first week of December. Most of the measure's support comes from Republicans, who control both chambers of the legislature. It is not clear whether Gov. John Kasich, a Republican who supports the death penalty but has been generous in granting clemency, will sign the bill if it comes to him. The Ohio chapter of the American Civil Liberties Union (ACLU) reports that the bill's sponsors have claimed that they have Kasich's support.
After McGuire's botched execution, a federal judge issued a moratorium on capital punishment in Ohio until January 2015. The state's next execution is scheduled for February. This imminent deadline is part of what's driving the legislature's urgency to pass the execution secrecy bill. The European suppliers of the state's preferred execution drug, pentobarbital, now refuse to sell it for use in executions. Lawmakers hope that the promise of anonymity will goad local compounding pharmacies into providing the drug.
If it goes into law, the bill would make it exceedingly difficult for the public or the press to investigate executions. Under the law, participants in executions may be sued if they reveal any confidential information or identities. The law also would undermine prisoners' due process rights, according to the ACLU: By exempting the participants in lethal injections from subpoenas and discovery proceedings, the law would make it virtually impossible for inmates' lawyers or courts to depose or question anyone with knowledge of a particular execution or death-penalty protocol. A late amendment to the bill does make limited room for disclosure through private judicial hearings.
Thirteen other states have passed or tried to pass these sorts of gag rules. The bills are also growing more broad. "The trend we see in the more recent confidentiality statutes is an enhancement of both the breadth and depth of secrecy surrounding execution procedures," notes Megan McCracken, an attorney at the death penalty clinic at the University of California-Berkeley law school.
But Ohio's bill goes even further. First, it would void any contract, domestic or international, that would hinder the state's ability to obtain execution drugs. It also extends professional immunity for participants in executions, stating that licensing organizations can not "take any disciplinary action against" physicians, pharmacists, or other staff. Many professional associations' codes of conduct prohibit participation in capital punishment, and the Ohio State Medical Association has expressed concerns about the bill's "intent to statutorily void" parts of the medical ethics code. "I think this is the most extreme lethal injection secrecy bill that we've seen nationwide," says Brickner.
The original version of the bill, sponsored by state Rep. Jim Buchy (R-Greenville), sought to ensure permanent blanket secrecy. An amended version requires individuals and companies involved in executions to opt-in for anonymity, and would make their identities public 20 years after they finish their business with the state. "20 years later is a rather pointless exercise," says Mike Brickner, senior policy director at the ACLU of Ohio. "If the company has a 10-year contract, you wouldn't see that information in your lifetime."
With four botched executions in the last eight years, Ohio's use of the death penalty has come under increasing scrutiny. Beyond practical considerations regarding lethal injection, the legislature's rush may also be an attempt to quiet the debate on capital punishment, notes Brickner. Yet it may have the opposite effect. "This bill is fundamentally broken," says Brickner. "There will be no shortage of lawsuits challenging it."