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Lethal Injection to Get Supreme Test
Doubts of Humaneness Bring Case to High Court

By Darryl Fears
Washington Post Staff Writer
Friday, November 23, 2007

On the cold prison gurney, Joseph Clark's eyes fluttered as he woke up from what was supposed to be his death.

"It don't work," Clark muttered to Ohio corrections officials who were preparing him for a lethal injection. They had punctured his arms 19 times in a fumbling attempt to find a vein, according to court records and news reports. The anesthesia Clark was given to ward off pain from the lethal dose of chemicals had worn off.

"Can you just give me something by mouth to end this?" Clark asked. He writhed and moaned as pancuronium bromide paralyzed him and potassium chloride stopped his heart, witnesses said.

When death penalty opponents bring arguments before the Supreme Court challenging Kentucky's method of lethal injection, they will argue that executions such as Clark's are proof that techniques used to put down the condemned are not as painless and humane as state corrections officials say. Death penalty opponents will argue that using a procedure that creates "a known risk of pain and suffering," when other alternatives are available, violates the Eighth Amendment's cruel and unusual punishment clause.

Since the high court decided to hear the case, a de facto moratorium on executions has occurred. On Nov. 15, the justices stayed the execution of Mark Dean Schwab, who was scheduled to be executed in Florida for the kidnapping, rape and murder of an 11-year-old boy.

Schawb's execution would have been the first in Florida since the state revised its lethal injection procedures after a botched execution last December. The change in procedures, which state officials say was made to lessen the chance of pain, had led state courts to allow the Schwab execution to move forward. In making their case against lethal injection, death penalty opponents may cite what they describe as botched executions, such as Clark's, which they say are often carried out by personnel who are poorly trained, even on basics such as how to find a vein, or how to insert a needle or a catheter.

Some states have allowed executioners, some with little medical training, to surgically open the arm of a prisoner when they cannot find a vein, fish out an exposed vein with string and insert a needle.

Lisa McCalmont, a consultant to the Death Penalty Clinic at the University of California at Berkeley law school who recently committed suicide, said the idea that an inmate gently dies during a lethal injection procedure may be a false one. She added, "I don't think everybody knows that two of the drugs are capable of causing excruciating pain."

State officials defend their methods of lethal injection, asserting that when carried out properly, including proper anesthesia, no pain results. Mark Dershwitz, a doctor and anesthesiology professor at the University of Massachusetts who has reviewed protocols and testified on behalf of states, said that even he has trouble inserting needles in some patients.

He added that the procedure of surgically opening a patient to find a vein is an old protocol that, as far as he knows, is no longer used in the more than three dozen states that carry out lethal injections.

"In a nutshell . . . if the protocol is implemented as written, there is only the minutest chance that an inmate could be conscious during the administration of the muscle relaxant and the potassium chloride," Dershwitz said.

Still, opponents say, lethal injections are more likely to go wrong in inexperienced hands. Lawsuits and news accounts have revealed instances of poorly screened hires and badly trained personnel.

In Missouri, Alan Doerhoff, a doctor who administered the state's lethal injections for more than a decade, admitted on the witness stand to being dyslexic and prone to mistakes.

During testimony, Doerhoff said that executions were attended by people with no medical background and that execution day was the first time that many of them had picked up a needle. He also said that the execution chamber was kept so dark to obscure witness views that executioners used flashlights to find their way around.

Missouri stuck by Doerhoff until a report by the St. Louis Post-Dispatch revealed that he was the target of nearly two dozen medical malpractice suits. He was relieved of his post in April, said Brian Hauswirth, a spokesman for the Missouri Department of Corrections.

"We still feel that [Doerhoff] did a professional job with the Department of Corrections," Hauswirth said. He said the department's director had no knowledge of Doerhoff's dyslexia until it was revealed in court. "The director decided we would not be using him for future executions."

Florida was the scene of what death penalty opponents call a terrible lethal injection in December. The execution of convicted killer Angel Diaz took twice the normal time, according to court documents citing the accounts of prison officials and witnesses.

The executioner noted in prison records that pushing the syringes that contained the anesthetic was "more difficult." The executioner used a backup line to deliver the painful pancuronium bromide without doing the same with the anesthetic.

Witnesses to the execution said Diaz showed facial movements that he should not have had if he were properly anesthetized. Minutes later, witnesses said, "he was gasping." Twenty minutes into the process, a witness said, "His mouth was wide open, his head was back . . . he almost appeared to be a fish out of water."

An autopsy of Diaz noted scorchlike marks that ran nearly the length of his left arm where the potassium chloride was delivered. Lawyers called them an indication of an agonizing death. Florida has not carried out any executions since Diaz's.

Witnesses to executions in Virginia, Arkansas, Oklahoma and Ohio have reported seeing similar grimacing and squirming by condemned men who were supposed to be out cold. Witnesses said they heard moans and watched as the prisoners' bodies seized, arched upward and convulsed before coming to rest.

Dershwitz said the witnesses were not seeing pain but rather an involuntary contraction caused by the potassium chloride, which stimulates muscle tissue as it cuts off the body's electrical impulses that generate the heartbeat. "That is a predicted effect of potassium chloride," he said.

As he watched Clark's execution in Ohio last year, Michael Manning became upset.

Manning is the brother of David Manning, whom Clark shot to death during a 1984 robbery in Toledo. He later joined Clark's relatives in denouncing how the state carried out the execution, saying, "Nobody should have to die a horrible death."

In the execution room, Clark's vein collapsed, as often happens with former drug addicts. As prison officials poked and fished for a vein, an execution that should have taken no more than 12 minutes lasted more than an hour.

After Clark's death, Ohio refined its lethal injection process, following a trend in other states where protocols were legally challenged after problem executions. Executioners in Ohio now check for a good vein as soon as a prisoner enters the death house in Lucasville, said Andrea Carson, a spokeswoman for the state Department of Rehabilitation and Correction.

Officials were also directed to not speed up executions to finish the process quickly for family members and others who watch condemned men die.

In spite of the changes, Carson said, "We maintain that our process worked the way it was supposed to."

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