By Charles Lane
Washington Post Staff Writer
Wednesday, April 26, 2006
Invented almost three decades ago as a humane alternative to other methods of execution, lethal injection is now on the defensive, facing a surprisingly effective attack in the courts from those who argue that it actually can cause intense but undetectable physical pain.
The court challenges have at least temporarily slowed the pace of capital punishment as it was otherwise declining because of falling murder rates and public concern over the system's fairness and accuracy.
Although there is no prospect that the courts will abolish lethal injection, the Supreme Court could make it easier for convicted murderers to press such claims -- further delaying their executions -- if it rules in favor of a Florida death row inmate, Clarence E. Hill, whose case is scheduled for oral arguments today.
"The point of this is not to prevent the death penalty," said Paul Enzinna, a lawyer who represents James Roane, one of three federal prisoners who were to be executed in May until Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia granted them stays of execution March 2. "I have a client who is going to be put to death and the federal government owes him, under the Constitution, an execution without pain."
But law enforcement officials say that the lawsuits' real objective is a de facto ban on the death penalty and that the courts must prevent that.
"Those who are bringing these cases are philosophically opposed to the death penalty and they are looking for every way they can find to stop executions," said Bill Lockyer, California's attorney general.
In addition to the three federal prisoners, six of the 17 state death row inmates scheduled to die between Jan. 1 and April 21 received at least temporary stays of execution based on lethal injection-related claims.
Meanwhile, the lawsuits have pried loose new information about the secret procedures used in death chambers across the country, forcing courts, state officials and doctors into a detailed, and at times uncomfortable, examination of capital punishment's grim mechanics.
First adopted by Oklahoma in 1977, lethal injection was quickly embraced by other states and has been used in 850 of the 1,018 executions since the reinstatement of capital punishment three decades ago.
The federal government and 37 states (Nebraska uses electrocution) use basically the same "cocktail" of drugs: a massive dose of the barbiturate sodium pentothal to render the prisoner unconscious, followed by pancuronium bromide to stop respiration, and then potassium chloride to stop the heart.
The death penalty jurisdictions saw this cocktail as a relatively peaceful and painless alternative to the electric chair, which had set some inmates on fire. Most inmates given a choice between lethal injection and other methods have selected the needle.
Until recently, few questioned the method. Constitutional challenges to lethal injection were considered the legal equivalent of football's "Hail Mary" pass -- a far-fetched claim that courts routinely brushed aside.
But two developments changed that. The first was a 2004 Supreme Court opinion that permitted one Alabama prisoner, who had exhausted all other appeals, to file a civil rights lawsuit against the state's plan to cut into his arm to reach a vein for lethal injection.
The second was a study, published by the British medical journal the Lancet in April 2005, which argued that, because of mistakes by poorly trained personnel, many U.S. prisoners put to death by lethal injection might have been able to feel pain when lethal drugs began to flow.
Reviewing 49 inmates' autopsies, the study's authors found that 21 had concentrations of sodium pentothal in their systems low enough to be "consistent with awareness."
That means they could have felt intense burning as the potassium chloride passed through their veins -- but could make no outward sign of suffering because they were paralyzed by pancuronium bromide.
Because the American Medical Association bars physician participation in executions, states rely on paramedics or other personnel who may not know how to tell if an anesthetic is working properly, the study noted.
Another point highlighted by the litigation is that the three-drug protocol was developed almost serendipitously, initially at the suggestion of an Oklahoma state medical examiner who had little experience in anesthesiology. Other states followed without much question.
"They never consulted with any experts," said Jamie Fellner, U.S. program director for Human Rights Watch, a New York-based organization that opposes the death penalty.
State officials say that objections to lethal injection protocols are based on remote possibilities, and that their execution teams, though necessarily anonymous, are well trained.
Even death-penalty opponents concede that, when it is properly administered, the usual dose of sodium pentothal alone is sufficient to bring on not only unconsciousness but death.
Opponents say that the purpose of pancuronium bromide is "cosmetic" -- to preserve the appearance of a peaceful death. They note that it has been banned in many states for euthanasia of animals.
But without the drug, "it would take longer to die," says Joshua K. Marquis, district attorney of Clatsop County, Ore., and vice president of the National District Attorneys Association.
Lawyers began pressing a variety of lethal injection-related claims. But most inmates who had exhausted all their other appeals and were facing imminent execution were not given stays of execution by the Supreme Court.
The court has said that the "unnecessary and wanton infliction of pain" on prisoners is unconstitutional, but it has never banned any particular method of execution as "cruel and unusual punishment." And legal analysts do not expect it to ban lethal injection, which would be tantamount to banning the death penalty. It rejected appeals this year that asked it do so.
The court also has never decided whether challenges to methods of execution should be treated as petitions for habeas corpus, which are subject to strict limits, or as civil rights lawsuits, which may be filed more easily. The court declined to rule on that technical but crucial matter when it decided the 2004 case of the Alabama prisoner.
But on Jan. 25, it accepted Hill's request to rule on the issue, granting him a stay of execution as he lay strapped to a gurney with an intravenous line in his arm. If Hill wins, states could face a wave of new death-row litigation.
Pending the result in Hill, the Supreme Court granted stays to another Florida inmate and one in Missouri. In Maryland, Vernon L. Evans Jr. received a stay of execution from the state's high court so that it could decide several claims related to alleged racial discrimination and the state's lethal-injection protocol. But his lawsuit is based on state, rather than federal, law.
In North Carolina, Willie Brown Jr. won a stay April 7, but a federal judge later let his execution proceed after the state agreed to use a brain-wave monitoring machine, with a doctor present, to check Brown's awareness level. Brown was put to death Friday.
The Brown execution showed that states may be able to find some physicians willing to aid executions, at least indirectly.
In California, however, the execution of Michael A. Morales, set for Feb. 21, was delayed because the state could not meet a federal judge's requirements for doctor participation.
Attorneys for Morales had unearthed evidence, including six California execution logs, which suggested prisoners might have been conscious when potassium chloride was injected into their veins.
U.S. District Judge Jeremy Fogel in San Jose ordered the state either to replace its three-drug protocol with a single lethal dose of barbiturates or to use the protocol with a "qualified person" present to ensure that the anesthesia works.
The state had lined up two anesthesiologists to assist, but they withdrew after a federal appeals court based in San Francisco added the requirement that the doctors intervene to add medication if Morales appears to be waking up.
Morales's execution for the kidnapping and murder of Terri Winchell, 17, in 1981 remains on hold; more hearings are set for May 2 and 3. Meanwhile, the state has said it will change the dosage of the three drugs and inject sodium pentothal in a continuous drip rather than a single initial dose.