death penalty news September 16, 2004
KENTUCKY: On Death Row, a Battle Over the Fatal Cocktail Edward L. Harper, the last man to be executed in this state, took 12 minutes to die. Observers on that spring evening in 1999 said he looked tranquil as an executioner pumped a series of three chemicals into him - a barbiturate to make him unconscious, then a paralyzing agent, and then a chemical used in road salt, to stop his heart. The next morning, a state medical examiner performed an autopsy. She noted, among many other things, that Mr. Harper's heart weighed 420 grams and that he was wearing a cloth scapular when he died. It said, "Whosoever has this shall not suffer eternal fire." The examiner's report also determined the levels of the lethal-injection chemicals in Mr. Harper's blood, drawn from three places in his corpse. Now, as two other Kentucky inmates face execution, their lawyers say those numbers prove that Mr. Harper was tortured to death. They say that the drug meant to make him unconscious did not work, meaning the other two drugs subjected him to suffocation and searing pain while he was wide awake but unable to move or speak. In a suit filed in Circuit Court here in August, they have asked a judge to halt their clients' executions as cruel and unusual punishment. Opponents of the death penalty have filed challenges to the three-chemical combination used in Kentucky and about 30 other states in recent years. But those cases were based on speculation about the drugs' effects, and judges have dismissed many of them on procedural grounds or because medical experts assured them that the first drug was certain to produce unconsciousness and perhaps be lethal itself. The information in the Harper autopsy and in similar data from two other states radically changes the debate over the humanity of the standard lethal injection chemicals, lawyers for the inmates here say. What had before been only a theoretical concern, they contend, turns out to be provable fact. David Smith, an assistant attorney general, declined to comment on the suit. The state has not yet filed a response in court. There is no serious dispute that the first drug, if administered properly, should be adequate to render inmates unconscious for hours. "If we have a working I.V. and the right drugs are given in the right order, I can absolutely guarantee that there is no suffering," said Dr. Mark Dershwitz, a professor of anesthesiology at the University of Massachusetts and an expert in the effects of drugs. "The recipe itself is medically absolutely sound." But doctors are forbidden to participate in executions in Kentucky and many other states, and prison personnel are generally untrained in preparing and injecting drugs. In an affidavit supporting the Kentucky inmates, Dr. Mark J. S. Heath, an anesthesiologist who teaches at Columbia University, wrote that there were countless ways for prison personnel to fail to deliver the first drug properly. Among them, Dr. Heath wrote, are mistakes in mixing the drug, which is stored as a powder; problems with intravenous tubes; and the possibility that "the drug may be diluted or diverted by personnel intending to use it for purposes of substance abuse." Earlier challenges have focused on the second drug in the typical sequence, pancuronium bromide. It paralyzes the skeletal muscles but does not affect the brain or nerves. A person injected only with it remains conscious but cannot move or speak as he suffocates. Nineteen states prohibit the chemical in the euthanasia of animals. "They couldn't kill my dog Hunter this way in Kentucky," said Ted Shouse, a lawyer for the two inmates, Ralph Baze and Thomas C. Bowling. Mr. Baze killed a sheriff and a deputy in 1992. Mr. Bowling killed a couple and hurt their infant son in 1990. Some judges have said they are troubled by the use of pancuronium bromide, which makes the inmate appear serene but could in theory mask intense pain. Last year, a Tennessee judge wrote that the chemical "serves no legitimate purpose" in executions and is used only to make them "more palatable and acceptable to society" by masking the sounds and seizures that often accompany even painless death. But the judge, Ellen Hobbs Lyle of Chancery Court in Nashville, said objections to the chemical were "hypothetical and metaphysical," because the first drug, a short-acting barbiturate called sodium thiopental, makes inmates unconscious while the paralyzing agent does its work. An autopsy conducted on Robert G. Coe, executed in Tennessee in 2000, the judge wrote, proved that the five grams of sodium thiopental he received first had rendered him unconscious and probably killed him before the other chemicals did their work. But the level of sodium thiopental found in Mr. Harper's body tells a different story, lawyers for the Kentucky inmates say. Using standards submitted by a prosecution expert in other cases, lawyers for the death row inmates here say there is a 67 percent to 100 percent chance that Mr. Harper was conscious while he suffocated and felt the pain caused by the third drug, potassium chloride, which stopped his heart. The varying numbers are based on the three different blood samples. Dr. Dershwitz, the prosecution expert who developed the standards that the Kentucky inmates now rely on, said the levels of barbiturate found in Mr. Harper's body, which varied from 3 to 6.5 milligrams per liter, were potentially troubling. "The blood level should be a lot higher than seven," Dr. Dershwitz said. That is the level, he said, at which about 50 percent of people are conscious and 50 percent are unconscious. He said he needed more information about how the autopsies were conducted. "The level of 6.5 for heart blood may or may not have been obtained and processed in a state-of-the-art way," he said. "Until we know, that number is just uninterpretable." Executions in two other states have also raised concerns. Autopsies were conducted by state medical examiners after 23 executions in South Carolina and 11 in North Carolina. Under Dr. Dershwitz's standards, the Kentucky inmates' lawyers say, there was a 50 percent or greater chance that eight of the condemned men were conscious throughout their executions. In one of those cases, the likelihood was 90 percent. In four, it was 100 percent. Dr. Dershwitz noted that the drug is typically put into 500 milligram syringes, with four needed for the required two grams. "One of the possibilities is that instead of injecting four of these syringes they injected one," he said. Some legal experts say the debate over lethal injections misses a crucial point - that some punishment is meant to be painful. "Is there something short of torture - a painful death - that can be acceptable morally and constitutional?" asked Robert Blecker, a professor at New York Law School. "My answer is yes. Where the condemned has intentionally inflicted pain, the condemned deserves a quick but painful death." Whatever the reason for the low barbiturate levels in Mr. Harper's blood, opponents of the death penalty say the three-chemical combination is needlessly complicated and risky. Veterinarians, by contrast, typically euthanize animals with a single large dose of a longer-acting barbiturate called sodium pentobarbital. Susan Balliet, who also represents Mr. Baze and Mr. Bowling, along with a third lawyer, David M. Barron, refused to say whether the veterinary method was more humane. "It's not our job to try to figure out how to kill our clients," Ms. Balliet said. "If they come up with something that is not cruel and unusual punishment under the Eighth Amendment, we will settle this lawsuit." (source: New York Times)
