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| Courts give new scrutiny to lethal injection |
| By The Baltimore Sun |
| Published: 07/10/2006 |
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As an Oklahoma legislator in the 1970s, Bill Wiseman followed the will of his district and voted to restore the state's death penalty. But with deep personal reservations about capital punishment, he also sought out a more humane alternative to electrocution and became the unwitting architect of the lethal injection protocol now used in nearly every U.S. execution. Now, as then, Wiseman's concerns about the process run deep. He never anticipated that lethal injection executions could be botched by problems of inadequate sedation or the use of a chemical to paralyze an inmate's muscles, as a widely publicized medical study reported last year. And he never anticipated that state after state would adopt the same method and use it for more than two decades without re-examination and without exacting guidelines. "What you are talking about here is a competency issue," said Wiseman, now a university administrator and Episcopal priest who says that state officials should intervene again to set right a system that across the country has become a jumble of prisoner appeals and makeshift moratoriums. "Whatever you feel about capital punishment, properly done, this is a painless thing. It's just a question of competency." The push to modernize lethal injection protocols has long been advocated by anti-death penalty advocates. It also has gained support from capital punishment supporters, who see it as a practical way to avoid delays in carrying out death sentences. But few states have implemented changes, even under growing pressure from the nation's courts. The U.S. Supreme Court last month opened the door for death row inmates to bring new challenges to the way states use lethal injection. The court did not rule on the merits of the procedure, but it pointedly noted that a Florida inmate's challenge still "appears to leave the state free to use an alternative lethal injection procedure." In lower courts across the country, other judges have issued the same instruction more bluntly. A federal judge in Missouri earlier this month put executions on hold until the state revises its lethal injection protocols, including the involvement of an anesthesiologist. That ruling came after a surgeon who assists in Missouri's execution procedures testified that he had used only half the usual dose of anesthesia in recent executions and acknowledged that because he is dyslexic, he sometimes transposes numbers. Federal judges in California and Arkansas have scheduled evidence hearings to weigh the claims of death-row inmates that lethal injection procedures are cruel and unusual. And some states are acting on their own accord. In Ohio, corrections officials said they would modify protocols to avoid the kind of problem that occurred during a May execution when, after a prolonged effort to inject the deadly chemicals, inmate Joseph Lewis Clark pushed himself up on the gurney and said: "It don't work." But most states have resisted making changes to the three-chemical cocktail that has become the standard for U.S. executions. In Maryland, a judge last month agreed with part of the procedural challenge brought by death row inmate Vernon Lee Evans Jr. - ruling that the protocols were "legally ineffective" because they were not created with public input - but that finding was rejected by Public Safety Secretary Mary Ann Saar. Oklahoma's highest appeals court found the state's lethal injection procedure constitutional in a ruling last month, with one judge finding that an inmate's request "to be spared the imposition of his legally imposed punishment because it might cause him to suffer or experience pain unpersuasive (and rather ironic) as his murderous acts have been the cause of the ultimate pain and suffering for the victim and her family." After Oklahoma became the first state in the country to adopt lethal injection in 1977, other states followed suit. The federal government and 37 of the 38 states that allow capital punishment now use lethal injection. (Nebraska still uses the electric chair.) Since the U.S. Supreme Court reinstated the death penalty in 1976, states had conducted 1,029 executions at the end of last month - 861 of those by lethal injection, according to the Washington, D.C.-based Death Penalty Information Center. Douglas Berman, an Ohio State University law professor, said there has been little incentive for states to overhaul lethal injection. "Nobody involved with the process truly has a direct interest in making it better," Berman said. The defendants themselves typically have a greater stake in blocking execution altogether, he noted, while state officials fear they will face new challenges if they adopt a new method of execution. "They've been doing executions like this for a long time," Berman said. "There's emerging evidence of reasons to be concerned, but we don't have enough examples like we had with the electric chair of people catching on fire or screaming out in excruciating pain." In each state that allows the death penalty, the chemical mix used at executions is generally the same. Condemned prisoners first are injected with a sedative that is expected to make them unconscious for the rest of the proceeding. They then receive injections of pancuronium bromide to paralyze the muscles and potassium chloride to stop the heart. But there is no uniform protocol regarding who administers the drugs, how much of each chemical should be administered or how prison officials should proceed if an inmate's veins are too compromised to receive intravenous injections - a problem for inmates with a history of illicit injected drug use, such as heroin addiction. Fueling challenges to lethal injection, the British medical journal The Lancet published a study last year that concluded some executed men might have suffered intense, burning pain as they died. The study said that could have happened if the inmates were not given enough anesthesia and it noted that because potassium chloride causes intense pain, veterinarians have been cautioned about its use in ending the lives of dogs and cats. A 2002 survey of death penalty protocols by a Fordham University law professor found that just nine states published detailed information about the type and amount of chemicals used. Even among those that made the information available, there was a broad range in the amount of chemicals used and how they were administered. In Oklahoma, Bill Wiseman said he never intended the second chemical, used to paralyze the muscles, to be part of the protocol. He said he anticipated a two-step process, where an inmate was heavily sedated and then given an injection to stop the heart. Now, Wiseman said, it would be possible for states to adopt a single-step procedure, allowing inmates to be killed by a large overdose of barbiturates. "It's not that hard to err on the side of giving them plenty of barbiturate. So what if you kill them? That's why we came to the dance,"Wiseman said. He opposes capital punishment broadly, but he says that whatever changes are adopted, "this is probably a subject where there's no point in having 37 different good solutions. It probably ought to be one." A turning point could come in California, where Judge Jeremy Fogel has scheduled a hearing to review that state's lethal injection procedures. Earlier this year, Fogel raised questions about the state's execution protocol, prompting the state to call off the execution of Michael Angelo Morales. |
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