State watches lethal injection case
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This week the U.S. Supreme Court will hear a Kentucky case that claims the three-drug cocktail used in lethal injections subjects inmates to "cruel and unusual" punishment.
Executions around the country have been on hold since Sept. 25 while prisons await word on whether the cocktail, which has resulted in botched executions in some states, must be replaced. Inmates in Pennsylvania and numerous states with a death penalty have launched similar legal challenges on the constitutionality of lethal injection.
The petitioners in the Kentucky case are two death row inmates, Ralph Baze and Thomas C. Bowling. They say they do not object to execution per se, but are questioning the chemicals the state uses to kill prisoners, how they are administered and whether they have the potential to cause an "excruciatingly painful death" rather than a humane one.
The issue is not a new one: The case says that "at least half the death row inmates facing an imminent execution in the last two years have filed suit challenging the chemicals used in lethal injections." But the petition in Baze v. Rees -- which states that the Supreme Court hasn't examined the constitutionality of a method of execution since an 1878 case questioned whether using a firing squad was a form of torture -- is getting a full hearing.
Although prisons commonly exercise secrecy regarding the particulars, the lethal mix includes the same three drugs used since the first lethal injection in Texas in 1982.
Several states have considered a one-drug alternative, which some physicians and veterinarians familiar with drugs used to end life say would cause less pain, but no state has adopted a new method.
The Pennsylvania case involves three death row inmates at the State Correctional Institution Graterford, and raises similar questions about whether the cocktail violates the Eighth Amendment, putting inmates in danger of suffering unnecessary pain that could be avoided by using other drugs.
The suit also challenges whether the prison personnel who carry out executions are trained to handle mishaps. Physicians and emergency medical technicians typically won't participate in executions. In 2006, the American Medical Association and the National Association of Emergency Medical Technicians both issued statements saying it was a violation of the "do no harm" code of ethics for practitioners to supervise or witness the process. On a similar note, Orin F. Guidry, president of the American Society of Anesthesiologists, advised doctors in his profession to "steer clear" of executions in a statement posted on the organization's Web site.
"The way they do it in Pennsylvania and other states is outlawed for animals," said attorney David Rudovsky, who represents the Graterford plaintiffs. "It's impermissible for animals by veterinary laws. Some anesthesiologists say if you don't have enough anesthetic it's extremely painful."
Susan McNaughton, spokeswoman for the state Department of Corrections, said there were no glitches during two executions in 1995 and one in 1999 at the State Correctional Institution Rockview that have used the cocktail. "Rockview holds regular drills and trainings for those involved in the process, and our protocol includes a number of safeguards," she said.
The Pennsylvania case will likely be on hold pending a ruling by the Supreme Court in the spring or summer.
Megan McCracken, a Philadelphia lawyer, has studied the ways lethal injection is applied nationally and consults for the death penalty clinic at the University of California, Berkeley's Boalt Hall. She said, "There are ways to do lethal injection that would be in keeping with the Eighth Amendment, but the states are choosing to perform lethal injection in a way that creates a foreseeable and unnecessary risk of excruciating pain."
Most of the 36 states that use lethal injection employ a similar method.
According to Ms. McNaughton at the Department of Corrections, "medically competent team members" set an intravenous line and inject sodium thiopental, a short-acting barbituate meant to render the inmate unconscious. The next drug, pancuronium bromide, is a paralytic agent or neuromuscular blocker that stops all muscle movement. The lethal drug, potassium bromide, stops the inmate's heart.
The Pennsylvania suit and the Kentucky case say the second and third drugs can be extremely painful if the sedative wears off or doesn't kick in at all.
If the first drug isn't administered properly, the second drug, the muscle blocker, won't prevent an inmate from staying awake or feeling pain, said Dr. Joseph Meltzer, a professor of anesthesiology and critical care at Columbia University, who is familiar with the legal challenges to the cocktail. A person might feel like he is suffocating or experiencing "air hunger." The third drug, which the Kentucky case says is commonly known as the "road salt used to melt ice," can be "incredibly painful" if the inmate is conscious, Dr. Meltzer said.
He said as a physician he is not interested in perfecting the method used to kill people.
In his statement, Dr. Guidry of the American Society of Anesthesiologists cautioned doctors to beware of a Missouri court's finding that the death chamber should resemble an operating room.
"The last thing patients need is to equate the O.R. with a death chamber, to equate anesthetic drugs with death drugs, or to have in their subconscious the specter of the anesthesiologist as an executioner," the statement says.
"Lethal injection was not anesthesiology's idea. American society decided to have capital punishment as part of our legal system and to carry it out with lethal injection. The fact that problems are surfacing is not our dilemma. The legal system has painted itself into this corner and it is not our obligation to get it out."
Alternatives exist, though no states have tried them. Veterinarians sometimes use a heavy dose of the first drug, the barbituate, or something similar to put animals to sleep.
Richard Dieter, of the nonprofit Death Penalty Information Center, said even states that have appointed commissions to study other options are likely waiting for the Supreme Court to decide about the three-drug cocktail.
State Sen. Stewart J. Greenleaf, R-Montgomery, who authored Pennsylvania's lethal injection statute in 1990, said he was not opposed to re-examining the cocktail.
"I want to see what the Supreme Court says. If they said it had to be changed, obviously, we'd have to look at that," he said. "The medical view at that time was that it was the most humane method. It was more humane than electrocuting someone."
Charles Ardo, a spokesman for Gov. Ed Rendell, said the administration is also open to alternatives: "The governor certainly believes that executions should be carried out in the most humane way possible. If that means using an equally effective alternative to the three-drug cocktail currently being used, then he would have no objection to making the change."
First Published January 6, 2008 12:00 am
