Judges Set Hurdles for Lethal Injection
By ADAM LIPTAK
The New York Times
April 12, 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
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."