The Lethal Injection Controversy

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www.supremecourtus.gov

Lethal Injection Debate Misses Bigger Point, Abolitionists Say

by Jessica Azulay

While heated deliberations rage over an execution method considered the "most humane" practiced today, those opposed to the death penalty altogether hope their side gains traction.

Apr. 25 – Mounting evidence that America's favored method for state-sponsored execution of prisoners may cause its victims excruciating pain has infused fresh rigor into at lease one narrow aspect of the death-penalty debate.
Defense attorneys and medical ethicists are squaring off against state executioners in a fight for judicial and public opinion on whether lethal injection constitutes cruel and unusual punishment.

Meanwhile, many of the leading death-penalty abolition groups are staying above the fray, saying that rather than discussing how best to put people to death, the nation should be discussing whether to kill them at all.

On Monday, the international group Human Rights Watch (HRW), which categorically opposes the death penalty, released a report documenting instances in which the three-drug combination used to kill the majority of Death Row victims may have caused and masked horrible pain before death.

"Prison officials have been more concerned about sparing the sensitivities of executioners and witnesses than protecting the condemned prisoner from pain," Jamie Fellner, HRW's US program director and report co-author, said in a statement accompanying release of the findings. "They are more concerned with appearances than with the reality."

The HRW report comes as the constitutionality of lethal injection is under scrutiny in courtrooms across the nation and at all levels of the judicial system. The Supreme Court is set to hear arguments Wednesday on whether Death Row inmates can challenge lethal injection as a violation of civil rights.

But to David Elliot, communications director for the National Coalition to Abolish the Death Penalty (NCADP), debating the form an execution takes is to "tinker with the machinery of death" instead of discussing whether killing is sound public policy.

"We are concerned that debating the most humane way to execute a person diverts from the more fundamental question of whether we should be executing people to begin with," Elliot told The NewStandard. "The unhappy fact of the matter is that there is no kind and gentle way to kill someone."

Lethal injection was adopted by Oklahoma in 1977 as a more humane option than other methods of capital punishment, such as electrocution, chemical asphyxiation, hanging and firing squad. However, HRW found that the Oklahoma medical examiner who developed the three-drug regimen currently used by most states had no expertise in pharmacology or anesthesia.

Since then, 37 states have started using lethal injection to execute felons, and in at least 19 states the method is the only legal form of capital punishment. Lethal injection killed every death row victim in 2005.

"Drawing on its own research and that of others, Human Rights Watch has found no evidence that any state seriously investigated whether other drugs or administration methods would be 'more humane' than the protocol it adopted," wrote the report's authors.

The report details how the three drugs are supposed to work in tandem, first killing pain, next immobilizing the inmate and finally stopping the victim's heart.

But without proper administration of the initial anesthetic, the two chasers – pancuronium bromide and potassium chloride – could cause prisoners to feel suffocation and a fiery pain coursing their veins, according to the report. Critics are concerned that the anesthesia – which like the rest of the process is never performed by a licensed physician, let alone an anesthesiologist – is often mishandled.

In their study, HRW researchers found evidence in multiple states that executed people may have felt that pain.

For instance, John Daniels, who North Carolina executed on November 14, 2003, suddenly started to convulse." The account says Daniels sat upright, and "witnesses could hear him gagging through the glass that separated him from them. After laying down again for a brief time, he sat up, gagged, and choked, while his arms appeared to be struggling underneath the sheet covering him."

Challenging the three-drug protocol in court, the American Civil Liberties Union has argued that the second drug, which paralyzes voluntary muscles, may be acting as a "chemical curtain," hiding whether the inmate is suffering.

In a statement on the ACLU of Northern California's court challenge to lethal injection last year, Legal Director Alan Schlossersaid, that method "would interfere with the public's right to know and could conceal cruel or unusual punishment by the state, which is forbidden by the Constitution."

Schlosser contended that "the First Amendment precludes the state from sanitizing the execution process by administering a drug that appears to have no purpose other than to prevent the public and the press from seeing whether the use of lethal injection causes pain."

Abe Bonowitz, director of Citizens United for Alternatives to the Death Penalty (CUADP), said the evidence suggesting the pain experienced by executed prisoners calls into the question the whole justification for switching to lethal injection from other forms of execution.

"The issue for us really is not the question of how we kill our prisoners, but that we do it at all," Bonowitz told TNS.

The media frenzy over the recent cases challenging lethal injection, however, has focused mainly on possible alternatives to the three drugs currently used or on devices that could help states circumvent recent court rulings in California and North Carolina. Those rulings require licensed medical personnel administer the drugs in order to make sure the prisoner is properly anesthetized. Most medical professionals have refused to directly administer the drugs on the grounds that doing so would violate their ethical code.

Though Bonowitz said he does not think the court challenges are actually going to stop lethal injection, he thinks it is a positive step in "forcing people to actually look at the process and understand exactly what we are doing."
But neither CUADP nor NCADP are actively involved in the lethal-injection lawsuits. For Elliot, it's a matter of principle.

"If you focus on saying 'this mode [of execution] is good' or 'this mode is bad,' then you are almost conceding the point, and we're simply not going to go there," he said.

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Judges Set Hurdles for Lethal Injection

By ADAM LIPTA The New York Times

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 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.

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.

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.

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."

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."