[Deathpenalty] death penalty news------USA

[Rick Halperin]

April 12



USA:

Judges Set Hurdles for Lethal Injection


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 1st 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 3rd, 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 1st
chemical is ineffective, the other 2 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
2nd 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
2nd and 3rd 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 4 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 2 chemicals.
Prosecutors said the testing might not have been conducted properly.

Judge Howard also noted that 3 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."

(source: New York Times)