Judges Set Hurdles for Lethal Injection


By ADAM LIPTAK
Published: April 12, 2006
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.

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."

Questions Over Method Lead to Delay of Execution


By JOHN M. BRODER
Published: February 22, 2006

LOS ANGELES, Feb. 21 — California officials indefinitely postponed the execution of a condemned killer because they said they were unable to comply with a federal judge's conditions for carrying out the sentence.

Judge Jeremy Fogel of the United States District Court for the Northern District of California ruled Tuesday afternoon that the state must use a single lethal dose of barbiturates — five grams of sodium thiopental — to kill the condemned man, Michael A. Morales, and that the drug must be administered by a medical technician in the death chamber.

Ordinarily, an unseen technician outside the death chamber injects a lethal three-drug potion through an intravenous line.

Earlier Tuesday, the planned execution was halted after two anesthesiologists brought in to oversee the injection refused to participate, saying it violated medical strictures against harming patients.

State officials could not find other medical professionals to administer the lethal dose Tuesday night under the conditions of the judge's new order, a lawyer for Mr. Morales said.

"After this new order came down, the state came back and said they couldn't comply," said John Grele, one of Mr. Morales's lawyers. "They couldn't find anyone to inject the chemicals to kill him."

Judge Fogel will hear testimony in early May on the science and law of the single-drug method of lethal injection. It has never been used in California.

Todd Slosek, a spokesman for the California Department of Corrections and Rehabilitation, said the state delayed the execution to give all parties time to study the judge's order and to debate the means of carrying out the death penalty.

Mr. Slosek said the state did not have time before Mr. Morales's death warrant expired at midnight Tuesday to find a technician willing to administer the lethal drugs in full view of dozens of witnesses.

"It changed the entire dynamics of the process," Mr. Slosek said.

Judge Fogel last week had ordered the presence of the doctors to ensure that the lethal combination of drugs was administered properly and that Mr. Morales did not suffer unduly.

Physicians are present at executions in most states to certify death, but they play no direct role in the killing of the prisoner. In this case, the two doctors, whose names were not released, apparently feared that they might be called on to intervene if the procedure went awry.

"While we contemplated a positive role that might enable us to verify a humane execution protocol for Mr. Morales, what is being asked of us now is ethically unacceptable," the doctors said in a statement read by a prison spokesman late Monday night. "As a result, we have withdrawn from participation in this current process."

Mr. Morales was convicted of capital murder in 1983 for the Jan. 8, 1981, killing of Terri Winchell, a 17-year-old from Lodi, Calif. The jury found that he conspired with his cousin to kill the girl because he was jealous of her involvement with the cousin's boyfriend.

Mr. Morales claimed he was drunk and high on PCP at the time of the crime and has since repeatedly expressed remorse.

Federal and state courts have turned down numerous appeals from Mr. Morales. Gov. Arnold Schwarzenegger has twice rejected clemency appeals, most recently on Monday.

After a hearing last week, Judge Fogel said the execution could proceed if California officials brought in the doctors to attend the death, or killed Mr. Morales using only sodium thiopental, a powerful painkiller that in high enough doses is fatal. Ordinarily, California and other states that use lethal injection follow the barbiturate with two other drugs, one to paralyze the muscles and respiratory system and a second to stop the heart.

Mr. Morales's defense team included Kenneth W. Starr, the former independent counsel who investigated President Bill Clinton and who is now dean of the law school at Pepperdine University. Mr. Starr wrote in a clemency petition that he was troubled by the original trial court's reliance on the testimony of a jailhouse informant who supposedly heard Mr. Morales confess to the crime.

The trial judge in the case, Charles R. McGrath of Ventura County Superior Court, told Mr. Schwarzenegger, a Republican, that he now opposed Mr. Morales's execution because he did not know at the time of the original sentencing that the informant had lied on the stand.

Carolyn Marshall contributed reporting from San Francisco and San Quentin State Prison for this article.

Lethal Injection Draws a New National Spotlight

By JOHN M. BRODER
Published: February 23, 2006

A demonstrator at San Quentin just hours before Michael A. Morales's execution there was postponed. A court ruling in the Morales case has brought renewed attention to the way lethal injections are administered.

The repercussions of Tuesday's events will most probably be felt around the country as federal courts here undertake a review of the practice of lethal injection, the preferred method of execution in 35 of the 36 states that allow capital punishment. The legal maneuvering will delay the execution of the condemned man, Michael A. Morales, 46, for months if not longer and will be closely watched particularly in those states that plan to execute prisoners this year.

Richard Dieter, executive director of the Death Penalty Information Center, based in Washington, said the Morales case, or one very much like it from another state, might well end up before the United States Supreme Court.

"Every inmate is filing a lethal-injection challenge, and there are bound to be different rulings from different state and federal courts," Mr. Dieter said. "I don't think this is going to be the end of the death penalty, but courts may find that the problems with lethal injection are so difficult to fix that it's doomed."

Death penalty opponents cheered California's decision to delay the Morales execution, a step the state took after concluding that it was unable to comply with the order of a federal district judge in San Jose that customary injection procedures be altered. Ruling earlier in the day, the judge, Jeremy Fogel, required that the state use only barbiturates, rather than the ordinary three-drug potion, to assure that the condemned man would not suffer undue pain.

To make certain, Judge Fogel also demanded that a medical professional supervise the injection of the drug dose. The typical practice in executions has been for intravenous lines to be inserted into the prisoner by a penitentiary employee trained in the practice and for the drugs to be added to the lines by a machine outside the death chamber. Doctors have been present only to confirm death. For them to take an active role in the execution itself is considered unethical by a variety of medical societies.

Although Mr. Morales's lawyers and death penalty opponents hope the case may ultimately produce a binding ruling that lethal injection is unconstitutionally cruel and unusual, the issue before Judge Fogel was narrower. He had been asked to weigh evidence from previous executions in California and elsewhere that the lethal injection method now practiced in most states is often poorly administered and leads to excruciating pain before death.

The same issue has been before a number of state and federal courts in recent years, without producing a definitive ruling that the current system is impermissibly cruel. Sixty prisoners were executed last year using the normal sequence of lethal drugs: a barbiturate sedative to put the inmate to sleep, followed by a drug that paralyzes the muscles and stops breathing (pancuronium bromide) and a chemical to still the heart (potassium chloride).

What led Judge Fogel to order a change in the procedure was evidence from witnesses and autopsies that the first drug, sodium thiopental, might not have been given properly or in a sufficient dose in some cases, leaving the inmate awake when the other drugs were administered and causing great pain.

The judge cited evidence from 6 of the 13 executions carried out in California in recent years that the inmate might have been conscious when the paralytic agent and the heart-stopping chemical were given. He has scheduled for May a hearing where the state must show that its procedures are both adequate to produce a relatively painless death and meticulously followed by prison officials.

Judge Fogel said in a ruling last week that earlier decisions he issued in the case had been misinterpreted by the news media as raising questions about the constitutionality of lethal injection or the death penalty itself. He said his concern was solely whether there was a reasonable possibility that someone about to be executed would be conscious and thus in intense pain when the second and third drugs were administered.

Legal scholars with expertise in capital punishment said the judge's rulings would lead to a fundamental review of California's death penalty practices but might not undermine the death penalty itself.

Franklin E. Zimring of Boalt Hall Law School at the University of California, Berkeley, and author of "The Contradictions of American Capital Punishment," said a new avenue of discussion had now been opened: the possible use of only barbiturates to kill a condemned inmate. The dosage called for in California's lethal injection protocol — five grams of sodium thiopental — is in itself sufficient to cause death in virtually all humans, medical experts say.

"We are all at this point operating without any effective blueprints or precedent," said Professor Zimring, who directs the law school's Criminal Justice Research Program.

Another expert, Robert Blecker of New York Law School, said that he supported the death penalty and believed lethal injection was a legally permissible way to carry it out, but that he considered it too similar to a peaceful death at home. Professor Blecker said he was not sympathetic to the argument of death penalty opponents that some condemned inmates suffer before dying.

"There are some people who deserve a quick but painful death," he said. "Not everyone who deserves to die deserves to die painfully. But if you are a sadist who rapes, consciously inflicts pain and takes pleasure in it as you torture your helpless innocent victim to death, then you deserve to die quickly but painfully."

Carolyn Marshall contributed reporting from San Francisco for this article.