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