10th Circuit Rules Capital Prisoners Don’t Have a Right to Have Counsel Present During their Execution. Atty Argued Counsel Could Intervene if Authorities Make Mistakes While Conducting Murder

From [HERE] On October 19th, 2022, the U.S. Court of Appeals for the Tenth Circuit ruled against Oklahoma death-row prisoners who had argued that they should be allowed to have their attorney present throughout their execution so that counsel could intervene and file for emergency relief if a problem arose during the execution. 

The prisoners presented evidence of a rash of botched executions in Oklahoma since 2014. Five of the eight executions performed in Oklahoma since April 2014 have involved significant problems, including failure to properly set an IV line and administration of incorrect drugs. Despite those failures, the Court of Appeals determined that the 28 petitioners failed to demonstrate that the pattern of malpractice is likely to continue in their individual executions. The court wrote, “Oklahoma’s earlier problems in the execution chamber are not enough to show that future similar problems are imminent, much less problems rising to an Eighth Amendment violation.” 

Oklahoma’s protocol bars a prisoner’s attorney from being present during the preparation for an execution, and gives the facility director discretion over whether the attorney may witness the entire execution. Attorneys are not given access to a phone during the execution. This means that if the execution goes wrong, the attorney might not be aware that there is a problem, or even if they are, they will not be able to contact a court for intervention, leaving their client to suffer a botched, painful execution. [MORE]