[WCADP-list] Judges Put New Restrictions on Lethal Injection

[wcadp-list at lists.drizzle.com]

There have been some very interesting developments regarding the use of
lethal injection.  The following article appeared in the New York Times last
week and does a great job of summarizing the various rulings and their
impact:

 
<http://www.nytimes.com/2006/04/12/us/12lethal.html?hp&ex=1144900800&en=6921
109d1af546bc&ei=5094&partner=homepage> Judges Set Hurdles for Lethal
Injection 

By Adam Liptak, 12 April 2006

Judges in several states have started to put up potentially insurmountable
roadblocks to the use of lethal injections to execute condemned inmates. 

Their decisions are based on new evidence suggesting that prisoners have
endured agonizing executions. In response, judges are insisting that doctors
take an active role in supervising executions, even though the American
Medical Association's code of ethics prohibits that.

A federal judge in North Carolina, for instance, ordered state officials
there to find medical personnel by noon today to supervise an execution
scheduled for next week. Otherwise, the judge said, he will impose a stay of
execution. 

"This, of course, will make lethal injections difficult, if not impossible,
to perform," said Dr. Jonathan I. Groner, a professor of surgery at Ohio
State University who has studied lethal injections and opposes the death
penalty. 

A California judge plans to hold hearings on the issue next month, after an
execution there was called off for lack of doctors, and the
<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme
_court/index.html?inline=nyt-org> United States Supreme Court will hear
arguments this month on whether death row inmates may use a civil rights law
to challenge lethal injections as cruel and unusual punishment.

Scores of similar suits, asserting that lethal-injection procedures are
illogical and potentially torturous, are pending around the nation. But,
until recently, they had met with limited success, said Jamie Fellner, the
director of the United States programs for Human Rights Watch, which will
issue a report on lethal injections this month.

"When prisoners first started making these challenges," Ms. Fellner said,
"the courts gave them short shrift. They thought these were stalling
tactics. And there was not a lot of evidence." 

The recent decisions, by contrast, rely on accounts of witnesses,
post-mortem blood testing and execution logs that seem to show that
executions meant to be humane have, in fact, caused excruciating pain.

The three chemicals used in lethal injections in about 35 states have long
attracted attention for what critics say is their needless and dangerous
complexity. 

The first chemical in the series is sodium thiopental, a short-acting
barbiturate. Properly administered, all sides agree, it is sufficient to
render an inmate unconscious for many hours, if not to kill him. The second
chemical is pancuronium bromide, a relative of curare. If administered by
itself, it paralyzes the body but leaves the subject conscious, suffocating
but unable to cry out. The third, potassium chloride, stops the heart and
causes excruciating pain as it travels through the veins.

Problems arise, lawyers and experts for the inmates say, when poorly trained
personnel make mistakes in preparing the chemicals, inserting the catheters
and injecting the chemicals into intravenous lines. If the first chemical is
ineffective, the other two are torturous.

In veterinary euthanasia and in assisted suicides in Oregon, a single lethal
dose of a long-acting barbiturate is typically used. But corrections
officials and their medical experts say using that method in executions
would take too long and would subject witnesses to discomfort. 

The three chemicals are to be used to execute Willie Brown Jr. on April 21
in North Carolina. Mr. Brown was convicted in 1983 of murdering Vallerie Ann
Roberson Dixon, a convenience store employee, in Williamston, N.C. He had a
long criminal history and had just been released from a Virginia prison
after serving 17 years of an 80-year sentence for armed robbery and shooting
a police officer in an effort to escape.

Lawyers for Mr. Brown said in a court filing that all he was asking for was
that state officials adopt "a protocol for anesthesia that affords him the
same assurance of dying without conscious suffering of excruciating pain
that is given to household pets."

J. Donald Cowan Jr., a lawyer for Mr. Brown, said the state's reluctance to
adopt a simpler protocol was "a little puzzling." That was especially so, he
added, given that Mr. Brown's legal position amounted to saying, "State,
this is how you can execute people properly."

Doctors helped fashion and promote earlier modes of execution, including the
guillotine and the electric chair. Similarly, the original lethal-injection
protocol was developed in Oklahoma in 1977 in consultation with state's
medical examiner and an anesthesiology professor. Other states, typically
acting through their corrections departments and individual prison wardens,
apparently copied the protocol. 

Though some states give prisoners a choice between lethal injection and a
second method and Nebraska uses only electrocution, lethal injection is the
all but universal method of execution in this country. Every state that has
made its lethal-injection protocols public uses the three-chemical
combination.

Unlike the earlier methods, lethal injections appear to mimic medical
procedures and so require doctors' participation, said Kenneth Baum, a
doctor and lawyer who supports the medical oversight of executions. "If the
process is medicalized," Dr. Baum said, "you must have physicians playing a
central role in the execution chamber and in analyzing the protocols." 

But the American Medical Association's ethics code forbids doctors to
perform an array of acts at executions, including prescribing the drugs,
supervising prison personnel, selecting intravenous sites, placing
intravenous lines, administering the injections and pronouncing death. 

The code is not legally binding, and doctors in many states have
participated in executions, often anonymously. In the recent California
case, however, doctors willing to participate in the execution could not be
located in time.

Judge Malcolm J. Howard of the Federal District Court in Greenville, N.C.,
on Friday ordered state officials to make certain that Mr. Brown would be
provided with medical personnel capable of ensuring unconsciousness as the
second and third chemicals were administered and of "providing appropriate
medical care" if Mr. Brown woke up. Judge Howard did not say that the
personnel had to be doctors, but medical experts said his meaning was
unmistakable.

"He's describing a physician, specifically an anesthesiologist," said Dr.
Richard J. Pollard, the president of the North Carolina Society of
Anesthesiologists.

Noelle Talley, a spokeswoman for the North Carolina attorney general, would
not say how the state planned to respond. "We're still reviewing the judge's
order," Ms. Talley said.

Judge Howard based his order on what he said were "substantial questions"
about the possibility of agonizing death. He noted that post-mortem levels
of sodium thiopental in the bodies of four North Carolina inmates executed
in the last six months suggested that they might have been conscious as they
endured the suffocation and pain caused by the final two chemicals.
Prosecutors said the testing might not have been conducted properly.

Judge Howard also noted that three lawyers who had witnessed executions in
the state submitted sworn statements saying that some of the condemned men
were writhing and gagging during their executions.

"Instead of the quiet death I expected," one of the lawyers, Cynthia F.
Adcock, said in a sworn statement about her client Willie Fisher, who was
executed in 2001, "Willie began convulsing. The convulsing was so extreme
that Willie's cousin jumped up screaming."

Such convulsions are inconsistent with a proper dosage of sodium thiopental,
a medical expert for Mr. Brown said. 

An appeals court in New Jersey halted executions there in 2004 pending an
explanation from corrections officials of an aspect of that state's lethal
injection procedures. "Nothing in the record," the court said, "suggests
medical consultation." The corrections department has yet to issue new
regulations, and the State Legislature adopted a one-year moratorium in
January.

Lawyers for a Missouri death row inmate, Reginald Clemons, said they would
file their own challenge this month, asking that an anesthesiologist
supervise his execution. "The state has chosen to proceed with an execution
that requires the use of highly trained medical personnel," said Jill M.
O'Toole, a lawyer with Simpson Thacher & Bartlett in New York. "It's put
itself in this bind."

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