04ndeath

A Painful Way to Die?

Once Called Humane, Lethal Injection Is Now Claimed To Be Cruel and Unusual

Posted Apr 22, 2006 4:19 AM CDT
By John Gibeaut

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In Tennessee, a veterinarian couldn’t legally put down a dog with the same chemicals the state wants to pump into Abu-Ali Abdur’Rahman when it executes him for a 1986 home-invasion murder.

That’s why he says the U.S. Supreme Court should hear his case against lethal injection as a cruel and unusual punishment forbidden by the Eighth Amendment.

Abdur’Rahman is not alone, as a string of challenges to the way states administer lethal injections begins streaming into the courts. Once billed as a humane alternative to the electric chair, the gas chamber and the gallows, lethal injection can cause excruciating pain, condemned prisoners say today.

But circumstances limit many claims, including a separate case the Supreme Court will hear this spring. Many are the products of 11th-hour races against the executioner, meaning they have little or no chance to develop a factual background for support. Moreover, procedural issues often stand between the inmate and a resolution on the merits, meaning few courts have the opportunity to directly confront lethal injection.

First Full Hearing

Abdur'Rahman’s lawyers say his case stands apart from the rest because he was able to take advantage of stays of execution on other issues to litigate fully and cleanly his Eighth Amendment claim in Tennessee courts. Thus the Supreme Court can go straight to the heart of Abdur’Rahman’s claim without stopping at any of the procedural way stations that could sidetrack other cases. Abdur’Rahman also has no scheduled execution date, relieving the time pressures that cast a strong presumption against last-minute claims.

“We were able to litigate this lethal injection case in a normal matter,” says defense attorney Bradley A. MacLean of Nashville. “I’m not aware of any other case that’s had a full evidentiary hearing.”

Meanwhile, other courts are starting to listen. One judge, however, suggested the challenges represent little more than attempts to postpone the inevitable because inmates are attacking states’ procedures for carrying out executions, not lethal injection or capital punishment themselves. U.S. District Judge Jeremy Fogel of San Jose, Calif., noted that convicted murderer-rapist Michael Angelo Morales still would face a death sentence even if he prevailed on his lethal injection claim.

“At best, plaintiff would be entitled to injunctive relief requiring the state to modify its lethal injection protocol to correct the flaws plaintiff has alleged,” Fogel wrote in a Valentine’s Day order conditionally allowing the state to execute Morales. “Presumably, at some point, plaintiff would be executed.”

Nevertheless, Fogel gave California a choice of posting two anesthesiologists in the execution chamber to monitor Morales or of having some other licensed medical provider administer the deadly dose, a duty normally handled by prison officials.

The anesthesiologists walked out just before the scheduled Feb. 21 execution, citing ethical concerns against harming patients should they be asked to intervene in the procedure. The state also failed to find a licensed provider to do the job and had to postpone the execution until Fogel conducts a full hearing in May.

In Florida, convicted cop killer Clarence Edward Hill was strapped to a gurney and awaiting lethal injection when the Supreme Court intervened Jan. 25 and agreed to determine whether he can use a section 1983 civil rights complaint for his challenge. Though it has since allowed some executions to proceed, the court also quickly stayed two others--one in Florida, the other in Missouri--while it considers Hill’s case. Hill v. Crosby, No. 05-8794. Arguments are scheduled for April 26.

Still, the most the justices can do is resolve a circuit split over whether Hill’s civil rights claim is an appropriate vehicle or whether it should be dismissed as a second successive habeas corpus petition barred by the Antiterrorism and Effective Death Penalty Act. “It’s the issue du jour,” says Carolyn M. Snurkowski, the Florida assistant attorney general in charge of death penalty appeals. She dismisses Hill’s claim as defense bar boilerplate that already had made the rounds in other states before it caught the Supreme Court’s attention.

Hill and other defendants draw inspiration from an April 2005 article in the British medical journal The Lancet that suggests significant numbers of executed convicts experience pain.

Though he acknowledges that Hill’s case would become moot if Florida changed either its procedure or its method of execution, defense lawyer D. Todd Doss of Lake City says his first concern is getting a foot inside the courthouse.

“We don’t know what’s going to happen unless we get a full-blown trial on it,” Doss says. “We just want to be heard.”

The justices, however, rejected a later request by Hill to add a direct attack against lethal injection to his case. But Abdur’Rahman says his situation is different. He doesn’t need to bother with questions of procedure or jurisdiction because his civil challenge already had gone to trial and through two levels of state appeals before he asked the Supreme Court to accept it Feb. 15.

Abdur’Rahman also brings to the Supreme Court a voluminous factual record accumulated over three years of state court litigation.

Thus, his lawyers argue, Abdur’Rahman’s case presents an ideal vehicle for high court consideration unclouded by side issues. Though he lost in state court, the record in Abdur’Rahman’s case produced significant arguments that are starting to crop up in other lethal injection claims.

One of the most potentially powerful issues arose when defense lawyer MacLean asked his wife, Cynthia, to research Tennessee’s execution protocol and the combination of chemicals it uses to put murderers to death. A hospital ethicist, Cynthia MacLean also holds degrees in law and nursing.

She focused her attention on the drugs: The inmate first receives a dose of Pentothal, a mild anesthetic used to induce unconsciousness. Next comes pancuronium bromide, a neuromuscular blocking agent that paralyzes the inmate. The last shot contains potassium chloride, which is supposed to stop the inmate’s heart.

MacLean’s eyebrow arched as soon as she opened the state’s execution manual, which corrections officials wrote on their own with neither legislative guidance nor medical advice. “They didn’t even have the dosage listed,” she recalls. “It was highly suspicious.” Because Pentothal is a notoriously unstable compound, it’s difficult for untrained prison officials who carry out executions to determine accurately how much it will take to knock an inmate out. Should the inmate remain awake, trial testimony showed, he or she would experience the intense pain of asphyxiation from the pancuronium bromide but would be unable to express any suffering because of frozen muscles.

Inadequately anesthetized hospital patients who awaken during surgery report similar experiences. Cardiac arrest brought on by the potassium chloride also may produce tremendous pain if given to a conscious inmate.

That was known before Abdur’Rahman challenged Tennessee’s protocol in 2002--three years before the Lancet piece that provoked the more recent wave of appeals from Florida and elsewhere. But then Cynthia MacLean came across a statute called the Tennessee Nonlivestock Animal Humane Death Act. Though she initially wondered about its applicability to Abdur’Rahman, she didn’t have to read far.

The Vet Connection

While Tennessee legislators trusted prison officials to figure out for themselves how to run an execution by lethal injection, they didn’t take any chances on veterinarians. In laying out the details for disposing of unwanted pets, legislators banned blocking agents like pancuronium bromide. The American Veterinary Medical Association also has “absolutely condemned” blocking agents, as well as potassium chloride.

The legislators and the vets had given Abdur’Rahman his main argument.

“That began to get people’s attention,” says Bradley MacLean. “If that’s the minimum standard for the treatment of animals, then surely it can’t be the standard for humans.” The argument should carry beyond Tennessee, MacLean says, because the procedures for lethal injection and the drugs used vary only slightly among jurisdictions. Of the 38 states with the death penalty, 37, plus the federal government and the military, use lethal injection. More than 30 death penalty states have outlawed pancuronium bromide for animals.

Though Abdur’Rahman’s request for Supreme Court consideration faces long odds with little prospect for meaningful relief, MacLean says the issue extends beyond his client. “I think it raises a deeper question about what the state is doing in death penalty cases,” he says. “If they can’t even get the execution right, what does that say about the rest of the system?”

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