IN THE CIRCUIT COURT OF THE
SEVENTH JUDICIAL CIRCUIT, IN AND
FOR ST. JOHNS COUNTY,
FLORIDA
CASE NO. CF-851299___________
Johnny Robinson
Petitioner,
vs.
State of Florida
Respondent.
MOTION FOR A STAY OF EXECUTION AND ORAL ARGUMENT
CAPITAL CASE: EXECUTION SCHEDULED FOR
February 4, 2004, At 6:00 P.M.
Francis A. Boyle, Professor of International Law
Law Building, 504 East Pennsylvania Avenue
Champaign, Illinois 61820
United States of America
Telephone: 217-333-7954
Fax: 1-217-244-1478
Lethal Injection Constitutes Cruel, Inhuman, or Degrading Treatment Which is Prohibited by International Law
JURISDICTION
A writ of habeas corpus is an original proceeding in this Court governed by Fla. R. App. P. 9.100. This Court has original jurisdiction under Fla. R. App. P. 9.030(a)(3) and Article V, § 3(b)(9), Fla. Const. The Constitution of the State of Florida guarantees that "[t]he writ of habeas corpus shall be grantable of right, freely and without cost." Art. I, § 13, Fla. Const. Alternatively, Article V, Section 3(b)(1) and (7) of the Florida Constitution gives this Court exclusive appellate jurisdiction over all capital cases and the ability to issue "all writs necessary to the complete exercise of its jurisdiction." This Court’s "all writs" jurisdiction may be invoked in capital cases when warranted by circumstances. Jones v. Buttwerworth, 691 So.2d 481 (Fla. 1997); Johnston v. Singletary, 640 So. 2d 1102 (Fla. 1994); Bedford v. State, 633 So.2d 13 (Fla. 1994). The circumstances presented herein warrant invocation of the "all writs" jurisdiction.
REQUEST FOR A STAY OF EXECUTION AND ORAL ARGUMENT
The resolution of the issues involved in this action will determine whether Mr. Robinson lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issues through oral argument is appropriate in this case, given the seriousness of the claims involved and the stakes at issue, and Mr. Robinson, through Francis Boyle, Esq. respectfully requests that the Court order a stay of execution and permit oral argument
Table of Authorities............. iv
Questions Presented................... 1
C. International Treaties forbid torture or cruel, inhuman or degrading treatment or punishment. 8
Conclusion................. 27
Table of Authorities
Cases
Beazley v. Johnson, 242 F.3d 248, 264..... 6
Chaney v. Heckler, 718 F.2d 1174, 1191, 1983. 24
Domingues v. Nevada, 961 P.2d 1279, 786 (1998). 5
Ex parte Roy Burgess, Jr. 2000 Ala. LEXIS 317.. 8
Filartiga v. Pena-Irala, 577 F. Supp. 860, 861.. 8
Gregg v. Georgia, 428 U.S. 153 (1976)..... 17
Maria v. McElroy, 68 F. Supp. 2d 206.. 6
U.N. GAOR, Hum. Rts. Comm., 53d Sess., 1413th mtg., U.N. Doc. CCPR/C/79/Add.50 (1995), 6
United States v. Decker, 600 F.2d 733, 737 (1979). 4
Treaties
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc A/39/51 (1985), 23 ILM 1027 (1994), (adopted by United States November 20, 1994) 2, 9, 10, 24
International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 6 ILM 360 (1967), (adopted by United States June 8, 1992) 2, 4, 9, 15
Universal Declaration of Human Rights, art. 16(3), G.A. Res. 217A (III), U.N. GAOR, 3d. Sess., Supp. No. 71, U.N. Doc. A/810 (adopted Dec. 10, 1948). 3
Legislative History
136 Cong Rec S 17486 (1990)..... 10
138 Cong Rec S 4781, 4783 (1992). 4
Burns Ind. Code Ann. § 35-38-6-1... 11
Constitutional Provisions
U.S. Const. amend. VIII. 9
U.S. Const. art. VI, § 2, cl 2.... 7
US Const. art. VI, § 2, cl 2.... 3
Other United Nations Documents
(http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General+comment+20.En?OpenDocument).. 16
Concluding Observations of the Human Rights Committee: United States of America, U.N. GAOR Hum. Rts. Comm., 53d Sess., 1413th mtg. at para. 276, U.N. Doc. CCPR/C/79/Add.50 (1995). 7
Miscellaneous Authority
(http://crystal.biol.csufresno.edu:8080/projects98/605.html). 13
(http://www.amnesty-usa.org/abolish/cruelanddegrading.html)..... 16
(http://www.amnesty-usa.org/abolish/methus.html). 11
(http://www.cidnet.demon.co.uk/lethalin.htm). 13, 14
(http://www.clarkprosecutor.org/html/death/methods.htm). passim
(http://www.howstuffworks.com/lethal-injection.htm?printable=1).. 13
(http://www2.amnesty.se/amnesty.nsf/3and4)... 16
(www.amnesty-usa.org/abolish/execsince76.html)... 18
ACLU, The Death Penalty Briefing Paper (2000)..... 27
Another U.S. Execution Amid Criticsim Abroad, New York Times, April 24, 1992. 17
Brief Of The American Society Of Law And Medicine, The American Society Of Allied Health Professions, Dr. David J. Rothman and Dr. Edmund D. Pellegrino As Amici Curiae Supporting Respondents, Heckler v. Cheney, 724 F.2d 1030 (D.C. Circuit, 1984) (No. 83-1878). 12
Carol Benfell, Fatal Errors; Santa Rosa Hospitals Learn Lessons the Hard Way as Potassium Chloride Kills Two Patients, Santa Rosa Press Democrat, March 23, 1997. 14
Carol Benfell, Potassium Cholride: Routine, But Deadly, Santa Rosa Press Democrat, March 23, 1997. 13
David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties 24 Yale J. Int'l L. 129, 219.. 7
Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. 319 (1997). 11, 26
Gacy Execution Blamed on Clogged IV Tube, Chicago Tribune, May 11, 1994. 23
Gacy Lawyers Blast Method: Lethal Injections Under Fire After Equipment Malfunction, Chicago Sun-Times, May 11, 1994. 22
Kathy Sawyer, Protracted Execution In Texas Draws Criticism; Lethal Injection Delayed by Search or Vein, Washington Post, March 14, 1985. 20
Killer Lends a Hand to Find Vein for Execution, LA Times, August 20, 1986. 20
Killer’s Drug Abuse Complicates Execution, Chicago Tribune, April 24, 1992. 20
Lou Ortiz and Scott Fornek, Witnesses Describe Killer’s ‘Macabre’ Final Few Moments, Chicago Sun-Times, May 11, 1994. 22
Marian J. Borg and Michael Radelet, Botched Lethal Injections, 53 Capital Report, March/April 1998. passim
Merriam Webster’s New Collegiate Dictionary (2000)..... 25
Moans Pierced Silence During Wait, Arkansas Democrat Gazette, January 26, 1992. 21
Murderer Executed After a Leaky Lethal Injection, New York Times, December 14, 1988. 21
Murderer of Three Women is Executed in Texas, NY Times, March 14, 1985. 19
Rector, 40, Executed for Officer’s Slaying, Arkansas Democrat Gazette, January 25, 1992. 21
Rector’s Time Came, Painfully Late, Arkansas Democrat Gazette, January 26, 1992. 21
Royal Commission on Capital Punishment Report 1949-1953 (1953), J.A. at 37-40. 19
Too-Tight Strap Hampered Execution, Tim O’Neill, St. Louis Post Dispatch, May 5, 1995. 23
Questions Presented
1. Whether the United States is bound by law to forsake the use of cruel, inhuman or degrading treatment or punishment by itself and the several states by virtue of its role in the community of nations as evidenced by its status as a signatory of the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.
2. If so, whether the lethal injection method of execution constitutes cruel, inhuman or degrading treatment or punishment as defined by law because of the substantial probability of causing extreme pain for the prisoner being executed.
3. Alternatively, whether the great chance of a lethal injection procedure being botched, and therefore constituting torture, should preclude the use of lethal injection as a legal method of execution.
Summary of the Argument
Cruel, inhuman or degrading treatment or punishment is prohibited by the International Covenant on Civil and Political Rights (ICCPR). International Covenant on Civil and Political Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 6 ILM 360 (1967), (adopted by United States June 8, 1992) [hereinafter Rights Covenant]. Torture is prohibited by the Convention Against Torture (CAT). Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc A/39/51 (1985), 23 ILM 1027 (1994), (adopted by United States November 20, 1994) [hereinafter Torture Convention]. The United States is a party to both of these agreements, despite its reservations that they are not self-executing. This court is bound to abide by the restrictions made in these conventions, despite the Senate’s illegal reservations.
Lethal injection is a cruel, inhuman or degrading punishment and is therefore prohibited by the Covenant on Civil and Political Rights. If this finding is made, the court is therefore obligated to prevent lethal injections from taking place.
Even if lethal injection is not found to violate the Covenant on Civil and Political Rights, a botched procedure can amount to torture in violation of the Covenant Against Torture. This court is therefore asked to prevent lethal injections from taking place in order to eliminate this form of state-sponsored torture.
Argument
I. The Federal Government of the United States and the governments of the several states are prohibited from using torture or subjecting persons to cruel, inhuman or degrading treatment or punishment.
A. The United States Federal Government is bound by the terms of the International Covenant on Civil and Political Rights.
According to Article VI, Section 2, Clause 2 of the United States Constitution, "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." US Const. art. VI, § 2, cl 2.
The government of the United States signed the International Covenant on Civil and Political Rights (ICCPR), an international treaty aimed at fulfilling the commitment of the Universal Declaration of Human Rights, signed by the United States in 1948. Universal Declaration of Human Rights, art. 16(3), G.A. Res. 217A (III), U.N. GAOR, 3d. Sess., Supp. No. 71, U.N. Doc. A/810 (adopted Dec. 10, 1948). This treaty, signed by the President and entered into force of law with the advice and consent of the Senate, is therefore part of the Supreme Law of the Land, and is consequently binding upon all levels of government.
It has been accepted by the Ninth Circuit that it is the role of the judiciary "to interpret international treaties and to enforce domestic rights arising from them." United States v. Decker, 600 F.2d 733, 737 (1979).
This treaty was approved by the Senate subject to certain Reservations, Understandings, and Declarations. Among these was the statement, "That the United States declares that the provisions of articles 1 through 27 of the Covenant are not self-executing." 138 Cong Rec S 4781, 4783 (1992).
A treaty must be self-executing in order for a private person to have a cause of action under that treaty, and the Senate’s reservation would seem to remove such a cause of action if it were presumed that the declaration is valid as it was written.
"No derogation from article … 7 … may be made," the treaty states in Article 4(2). Covenant, art 4(2). Therefore the Senate’s declaration that removes the self-executing nature of the treaty is in violation of the treaty text itself.
When the Supreme Court of Nevada decided, in violation of the ICCPR, that a state rule allowing the execution of minors could stand, it was over the dissent of Justice Rose. Quoting William A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party?, 21 Brook. J. Int'l. L. 277, 318-19 (1995), he wrote, "if the United States has shown an intent to accept the treaty as a whole, the result could be that the United States is bound by all of the provisions of the treaty, notwithstanding the reservation." Domingues v. Nevada, 961 P.2d 1279, 786 (1998).
That an illegal reservation to a treaty would not void the treaty is a concept advanced by the United Nations Human Rights Committee. This organization, created by this treaty, had the United States as a seated member at the time it issued the following General Comment criticizing the United States’ reservations to the treaty. In the General Comment of April, 1994, the Committee declared that, "a State may make a reservation provided it is not incompatible with the object and purpose of the treaty… Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant… The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation." General Comment on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations Under Article 41 of the Covenant, U.N. GAOR, Hum. Rts. Comm., 53d Sess., 1413th mtg., U.N. Doc. CCPR/C/79/Add.50 (1995), in Beazley v. Johnson, 242 F.3d 248, 264. Although lacking the force of law, this comment indicates a preference for continued operation of a treaty in spite of illegal Reservations, Understandings, or Declarations.
In a case where the court found that a Federal Statute was in violation of the ICCPR, Senior District Judge Weinstein of the Federal District Court for the Eastern District of New York wrote, "although the ICCPR is not self-executing, see 138 Cong. Rec. S 4784 (daily ed. Apr. 2, 1992), it is an international obligation of the United States and constitutes a law of the land. See generally, Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and its Progeny, 100 Harv. L. Rev. 853, 867 n.65 (1987)." Maria v. McElroy, 68 F. Supp. 2d 206.
In his article in the Yale Law Review, David Sloss wrote that, "certain discrepancies remain [between domestic law and the texts of treaties], and that the NSE [(non-self-executing)] declarations are inconsistent with U.S. treaty obligations, insofar as those declarations preclude judges from reaching the merits of non-frivolous, nonredundant, treaty-based human rights claims." David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties 24 Yale J. Int'l L. 129, 219.
If a private cause exists, then it must be able to be pursued by someone whose rights have been or are about to be violated by the United States Government or the government of one of the states.
In fact, the United States’ own report to the Human Rights Commission after the covenant was approved states that, "American courts are not prevented from seeking guidance from the Covenant in interpreting American law." Concluding Observations of the Human Rights Committee: United States of America, U.N. GAOR Hum. Rts. Comm., 53d Sess., 1413th mtg. at para. 276, U.N. Doc. CCPR/C/79/Add.50 (1995).
B. The Governments of the Several States are also bound by the terms of the International Covenant on Civil and Political Rights.
As the "supreme law of the land," a treaty would apply equally to state as well as federal governments. U.S. Const. art. VI, § 2, cl 2.
"Federalism is alive and well," wrote Justice Houston of the Supreme Court of Alabama in his dissent to the case Ex parte Roy Burgess, Jr. "The United States Constitution binds me as a Supreme Court Justice of the State of Alabama to abide by the ICCPR, Article 6(5), and not to impose the sentence of death on Burgess for the crimes committed when he was 16 years of age. I am not persuaded that the Senate's reservation, if not invalid for other reasons, frees me as a state justice, as opposed to a federal justice or judge, from the treaty's restriction against the imposition of a sentence of death for a crime committed by a person below the age of 18 years." Ex parte Roy Burgess, Jr. 2000 Ala. LEXIS 317.
C. International Treaties forbid torture or cruel, inhuman or degrading treatment or punishment.
The United States District Court for the Eastern District of New York upheld the Court of Appeals’ ruling that "deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights" in the landmark human rights case of Filartiga v. Pena-Irala, 577 F. Supp. 860, 861.
In addition to customary internal law, the United States is a signatory of several major human rights treaties that explicitly speak to the issues of torture and cruel, inhuman or degrading treatment or punishment.
1) The International Convention on Civil and Political Rights prohibits cruel, inhuman or degrading treatment or punishment.
Article 7 of the ICCPR reads, in part: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Covenant, art 7.
This prohibition expands upon the Eighth Amendment of our constitution, which prevents "cruel and unusual punishment." U.S. Const. amend. VIII.
2) The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibits torture and cruel, inhuman or degrading treatment or punishment.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provides, in part, the affirmative requirement that, "each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." Torture Convention, art 2(2).
The CAT defines torture to include any act "by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as … punishing him for an act he or a third person has committed." Torture Convention, art 1(1).
Not limited to torture, the CAT requires states to "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture." Torture Convention, art 16(1).
Like the ICCPR, the CAT was approved subject to the reservation that it is not self-executing. 136 Cong Rec S 17486 (1990). This reservation should be similarly invalid.
If the non self-executing nature of the international human rights treaties to which the United States is a party is construed so widely that this court will permit a suspect to be subjected to cruel, inhuman, and degrading punishment, and possibly even torture, then it seems that there is no benefit at all from the mere fact of their ratification.
II. Execution by means of lethal injection is substantially likely to result in torture and / or cruel, inhuman or degrading treatment.
Lethal injections have been described by their proponents as quick painless methods of execution. Available scientific research denies this.
A. Current lethal injection procedures constitute cruel, inhuman or degrading treatment and punishment.
1) The laws that provide for lethal injection do not ensure that the executions are humane.
The majority of states, 33 in all, that have not yet abolished the death penalty, as well as the federal government and the United States military, have chosen lethal injection as their preferred method of execution. (http://www.amnesty-usa.org/abolish/methus.html).
Twenty-one states provide no statutory alternative method of execution. Denno’s study divides these states into two categories, eight that are general, and eleven that are specific. Two additional states use a variation on these laws. Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. 319 (1997).
The general laws are typified by the law in Indiana, which provides that the "punishment of death shall be inflicted by intravenous injection of a lethal substance or substances into the convicted person." Burns Ind. Code Ann. § 35-38-6-1.
The prosecutor’s office in Clark County, Indiana also gives a description of the law in the specific states: "death must be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent until death is pronounced by a licensed physician according to accepted standards of medical practice." (http://www.clarkprosecutor.org/html/death/methods.htm) [hereinafter clarkprosecutor.org].
2) The medical procedure used in lethal injections that was designed to be humane merely hides the victim’s pain from the audience.
Although different jurisdictions vary in the structure of their laws, a consensus has emerged. Most American jurisdictions that use lethal injection follow a three-step process. This method was developed through "a process of educated guess, rather than by an assessment of [scientific evidence]." Brief Of The American Society Of Law And Medicine, The American Society Of Allied Health Professions, Dr. David J. Rothman and Dr. Edmund D. Pellegrino As Amici Curiae Supporting Respondents, Heckler v. Cheney, 724 F.2d 1030 (D.C. Circuit, 1984) (No. 83-1878).
First, a sedative or anesthetic is given. This is usually Sodium Pentothal, which is the manufacturer’s trade name for the chemical sodium thiopental. Given in a lethal dose of 5,000 mg, this barbiturate is intended to "render the prisoner unconscious," according to the prosecutor’s office. (clarkprosecutor.org).
This drug is a hypnotic that "depress[es] your central nervous system, slow[s] your heart rate and lower[s] your blood pressure," according to the Biology Department web page at the University of California at Fresno. When used as an anesthetic in hospitals for minor surgery, Sodium Pentothal causes unconsciousness in less than a minute, and "it only causes a few minutes of sedation." (http://crystal.biol.csufresno.edu:8080/projects98/605.html).
Second, a muscle relaxant is introduced. The chemical used is pancuronium bromide, which "paralyzes the diaphragm and lungs." (clarkprosecutor.org). According to the online encyclopedia, How Stuff Works, this drug takes between one to three minutes to take effect, and is used in lethal injections at a dosage hundreds of times greater than in surgery. (http://www.howstuffworks.com/lethal-injection.htm?printable=1).
Derived from the poison curare, also known by the trade name Pavulon, pancuronium bromide causes the prisoner to be unable to speak, scream, or even breathe. (http://www.cidnet.demon.co.uk/lethalin.htm).
The third and final drug administered is potassium chloride which causes cardiac arrest. (clarkprosecutor.org). Like the first two drugs, this is administered in sufficient quantity and concentration to be lethal on its own. Id.
An electrolyte that is essential in small quantities for the operation of the nervous system, potassium chloride is frequently given to people suffering from dehydration. Carol Benfell, Potassium Chloride: Routine, But Deadly, Santa Rosa Press Democrat, March 23, 1997.
These three chemicals are used together in the belief that the prisoner will be unconscious and therefore feel no pain during the process. In fact, evidence indicates that the prisoner does feel pain and is simply prevented from displaying it.
Injecting potassium chloride into someone has been shown to be terribly painful. It is a salt, and an acid with a pH value higher than 6. When not diluted, it causes muscle tissue to enter maximum contraction and this produces a burning sensation. (http://www.cidnet.demon.co.uk/lethalin.htm). A hospitalized patient screamed, "this hurts," and then she "sat up in bed, seizured and died within a few seconds," when accidentally injected with potassium chloride. A witness described the death as "awful." Carol Benfell, Fatal Errors; Santa Rosa Hospitals Learn Lessons the Hard Way as Potassium Chloride Kills Two Patients, Santa Rosa Press Democrat, March 23, 1997.
With the three drugs administered one minute apart, it is unlikely the Sodium Pentothal, a short-acting barbiturate, is still in effect even by the time the potassium chloride is administered. (clarkprosecutor.org). This is why almost all prisoners executed by lethal injection are reported to have, "a period of time spent gasping for air," when the final drug is injected. Marian J. Borg and Michael Radelet, Botched Lethal Injections, 53 Capital Report, March/April 1998. Because they are physically restrained and the Pavulon has paralyzed their lungs they cannot move or make any other noise.
Lethal injection, proposed as a humane execution alternative as early as 1888 in New York, and finally adopted by Oklahoma in 1977, is not the pain-free method that many people envision. Instead, it subjects the prisoner to severe pain while their body is held so that they are unable to display any reaction beyond a gasp.
3) Lethal injection as it is currently used meets the definition of cruel, inhuman or degrading punishment.
Article VII of the International Covenant on Civil and Political Rights states clearly that, "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Covenant, art. 7.
Lethal injection involves the use of chemicals shown to produce intense pain and suffering. That the combination in which they are used prevents the prisoner from reacting in no way proves that he or she is not suffering and in pain. When someone is injected with potassium chloride, the pain is so great as to fall clearly within the definition of cruel, inhuman or degrading punishment.
Lethal injection provides more than just the physical cruelty produced by respiratory paralysis and asphyxiation.
The United Nations Committee on Human Rights interpreted Article VII of the ICCPR so that it "relates not only to acts that cause physical pain but also to acts that cause mental suffering." (http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General+comment+20.En?OpenDocument).
Amnesty International’s report of a criminological study focuses on "the psychological suffering caused by foreknowledge of death." Keeping someone imprisoned, waiting to be killed, leads to a phenomenon called the "‘death of the personality.’"(http://www.amnestyusa.org/abolish/cruelanddegrading.html).
During the time a convict is held on death row, the legal process allows multiple courts to reverse each other. Alternately faced with hope and despair, many prisoners eventually become so broken in spirit that they eventually chose not to allow their lawyers to pursue further appeals or even ask to be executed. This turns executions into so-called "state assisted suicides," according to reports by the Associated Press and Rick Halperin of Amnesty International. (http://www2.amnesty.se/amnesty.nsf/3and4).
Robert Alton Harris, who was executed in April, 1992, followed just such a tortured legal path to executioner. "After a tense, all-night standoff between the Supreme Court, who wanted to hasten the execution, and several lower-ranking Federal judges, who continued to grant delays," Mr. Harris was executed in the gas chamber, a method since found unconstitutionally cruel and unusual by the Ninth Circuit. Another U.S. Execution Amid Criticism Abroad, New York Times, April 24, 1992.
The Times of London featured an editorial about Mr. Harris’s case, suggesting that, "in any other country such an on-off-on ‘mock execution’, a form of psychological torture, would be universally condemned as a cruel violation of human rights." Id.
B. Lethal injection procedures have a substantial chance of not proceeding as planned and becoming torture.
1) A lethal injection stands a substantial chance of being botched.
The death penalty in the modern era began in 1976 when the Supreme Court ruled that "statutory system under which [the petitioner] was sentenced to death does not violate the Constitution." Gregg v. Georgia, 428 U.S. 153 (1976).
Since then, there have been 706 prisoners put to death in the United States, as of April 13, 2001, according to Amnesty International.
www.amnestyusa.org/abolish/execsince76.html).
Lethal injection is the most commonly used form of execution in the United States, accounting for more than 62% of prisoners killed between the reinstatement of the death penalty in 1976 and the conclusion of a survey by Marian J. Borg and Michael L. Radelet on August 31, 1997. Marian J. Borg and Michael Radelet, Botched Lethal Injections, 53 Capital Report, March/April 1998.
"Lethal injections are also the most frequently botched means of executions," where botched entails "unanticipated problems or delays that caused, or could have caused, unnecessary agony for the prisoner and/or witnesses." Id. According to the Radelet study, six percent of lethal injections since 1982 have developed "major problems." Id.
More than 20 years before the State of New York led the United States into the use of lethal injection, the British Royal Commission on Capital Punishment reported in 1953 that lethal injection was neither humane nor practical. Denno. They cited four factors: (1) In certain individuals it is difficult to find a vein; (2) the need for the subject’s cooperation, which is borne out in several of the examples of botched executions that follow; (3) required medical skill on behalf of non-medical personnel who will administer the punishment; and (4) the likelihood of pain cause by injections into muscle instead of a vein. Denno, footnote #313. Royal Commission on Capital Punishment Report 1949-1953 (1953), J.A. at 37-40.
2) Many botched lethal injections result in severe mental and physical trauma for the prisoner.
With over 700 executions performed since the Gregg Court reinstated the death penalty, many unpredicted difficulties have arisen. Many of these difficulties have lead to prolonged pain and suffering for the prisoner.
(i) Some people do not have veins suitable for easy insertion of an IV needle.
Living up to the first prediction of the Royal Commission 33 years earlier, executioners in Texas were forced to repeatedly stab Stephen Morin in the arm in an attempt to find a vein suitable to administer the poison. Texas officials poked needles into the prisoner’s arms and one leg for nearly an hour before they were able to insert a needle into a vein. Murderer of Three Women is Executed in Texas, NY Times, March 14, 1985. According to the ACLU legal director for Texas, this execution demonstrated that lethal injection is "no more humane than any other method," noting that it took more than 45 minutes before the flow of the chemicals began. Kathy Sawyer, Protracted Execution In Texas Draws Criticism; Lethal Injection Delayed by Search or Vein, Washington Post, March 14, 1985.
Again, in 1986, prison officials were faced with difficulty securing the intravenous line. They were unable to insert a needle into Randy Lynn Woolls because he had veins so damaged from drug use. "Frightened and nervous," he had to find a vein for them to use to kill him. Killer Lends a Hand to Find Vein for Execution, LA Times, August 20, 1986. Billy Wayne White, also a drug user, was subjected to attempted injections for 47 minutes before his execution in Texas in April, 1992. Killer’s Drug Abuse Complicates Execution, Chicago Tribune, April 24, 1992.
(ii) Difficulties in finding a vein are not limited only to drug users; other bodily characteristics can also interfere with lethal injections.
Raymond Landry, described by the Texas Attorney General’s office as being "very muscular" and having "‘Popeye-type’ arms," was finally executed at 12:45 am on December 14, 1988. This was more than twenty minutes after they began injecting him with poisons. After inserting a needle into his vein, the chemicals began to leak out because there was "more pressure in the hose than the veins could absorb." The warden had to cover the viewing window for more than 14 minutes after he began to quiver from the reduced flow of chemicals. Murderer Executed After a Leaky Lethal Injection, New York Times, December 14, 1988.
Physical bulk was also given as an explanation for the almost hour-long effort by Arkansas technicians to insert a needle into the vein of Rickey Ray Rector on January 24, 1992. Rector, 40, Executed for Officer’s Slaying, Arkansas Democrat Gazette, January 25, 1992. While the staff kept the curtain closed to prevent witnesses from watching, they stabbed him with needles repeatedly for over 50 minutes. Rector’s Time Came, Painfully Late, Arkansas Democrat Gazette, January 26, 1992. Witnesses reported hearing eight loud moans from the chamber and were later told that Rector had to help the personnel find a vein to use to kill him. Moans Pierced Silence During Wait, Arkansas Democrat Gazette, January 26, 1992.
(iii) Lethal injections are far from routine, and there exists great possibility for error, both mechanical and human.
The pain of a lethal injection was particularly evident in the case of Charles Walker. Executed by the State of Illinois on September 12, 1990, he suffered because of equipment failure and machine error. The technician administering the poison inserted the needle the wrong way, facing down his arm and away from his heart. This prolonged the pain before the poisons reached his heart. Further prolonging the agony was a "kink" that developed in the tubing. This restricted the flow of chemicals, preventing the barbiturate from building up in a large enough concentration to ensure he was unconscious for the administration of the potassium chloride. Witnesses reported him in "excruciating pain." Niles Group Questions Execution Procedure, UPI, Nov. 8, 1992, cited by Marian J. Borg and Michael Radelet, Botched Lethal Injections, 53 Capital Report, March/April 1998.
The execution of John Wayne Gacy in Illinois in May, 1994, also suffered from equipment failure. Chemicals became clogged in the intravenous line and the flow was blocked. The total amount of time it took to kill Gacy was far longer than the five minute estimate made by the district attorney. (clarkprosecutor.org); Gacy Lawyers Blast Method: Lethal Injections Under Fire After Equipment Malfunction, Chicago Sun-Times, May 11, 1994. In a "macabre" scenario where there was "definitely something wrong," it took more than eighteen minutes from when the chemicals started to flow until the prisoner’s face turned purple and he was declared dead. Lou Ortiz and Scott Fornek, Witnesses Describe Killer’s ‘Macabre’ Final Few Moments, Chicago Sun-Times, May 11, 1994. In a newspaper interview, an anesthesiologist said, "proper procedures taught in ‘IV 101’ would have prevented the error." Gacy Execution Blamed on Clogged IV Tube, Chicago Tribune, May 11, 1994.
An arm restraint made too tight prevented the chemicals flowing into Emmitt Foster from killing him for more than half an hour in May, 1995. The county coroner that it was "a little error," and, "it’s not like the guy suffered." He claimed that since the entire dose of Sodium Pentothal was administered, the prisoner would not have suffered. Too-Tight Strap Hampered Execution, Tim O’Neill, St. Louis Post Dispatch, May 5, 1995. This statement was made despite the fact that the coroner was not present at the beginning of the execution, and witness reports that Foster was "choking and gasping" when the curtain was closed to obstruct their view. Witnesses to a Botched Execution, Editorial, St. Louis Post-Dispatch, May 8, 1995, cited by Marian J. Borg and Michael Radelet, Botched Lethal Injections, 53 Capital Report, March/April 1998.
(iv) The lethal injection drugs are not suited to use for every prisoner to be executed.
When Robin Lee Parks was executed on March 10, 1992 in Oklahoma, he "had a violent reaction" to the poisons used in his lethal injection. His jaw, neck and abdomen "react[ed] spasmodically" for 45 seconds and he "continued to gasp and gag" for 11 minutes until he was declared dead. Marian J. Borg and Michael Radelet, Botched Lethal Injections, 53 Capital Report, March/April 1998.
3) A botched lethal injection can rise to the level of torture according to the ICCPR.
The D.C. Court of Appeals found that petitioners had, "presented substantial and uncontroverted evidence to support their claim that execution by lethal injection poses a serious risk of cruel, protracted death," even though their decision to allow the FDA to regulate chemicals used in lethal injections was overruled by the Supreme Court. Chaney v. Heckler, 718 F.2d 1174, 1191, 1983. They warned that, "Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own slow, lingering asphyxiation." Id.
Torture is, "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person," if it is done, among other reasons, for "punishing him for an act he or a third person has committed or is suspected of having committed." It "does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." Torture Convention.
Lethal injections are performed in all cases in order to punish someone for an act he / she has committed.
Botched lethal injections, as shown previously, certainly produce "severe pain or suffering." They have done so both physically and mentally. Some botched executions have inflicted severe pain and suffering "intentionally" because the officials on hand continued the process after it became evident that severe pain and suffering were resulting from the lethal injection.
While it can be argued that lethal injection is a "lawful sanction," the botched injections that have occurred are certainly not inherent to the process of lethal injection. Nor, since they can arise from a combination of human and mechanical errors, do they arise "only from" the act of lethal injection as it is intended to transpire.
Therefore, in order for a botched execution to fail to qualify as torture as defined by the CAT, it must be incidental to the lethal injection process. Webster’s dictionary defines incidental as "being likely to ensue as a chance or minor consequence," or, "occurring merely by chance or without intention or calculation." Merriam Webster’s New Collegiate Dictionary (2000).
It is central to this phase of the argument that botched executions are likely to occur as a consequence of lethal injections. They are more than mere chance occurrences, which imply a slight possibility, and a botched execution is far from a "minor consequence."
So, botched executions cannot be said to occur "merely by chance." But do they occur "without intention or calculation?" They must be unintended if we are to believe that prison officials and prosecutors intend lethal injection to be the more humane method as it is claimed. (clarkprosecutor.org). Being unintended does not mean that they are without "intention or calculation." The chance of a botched lethal injection, higher than for any other form of execution, seems certainly to approach the Supreme Court’s definition of deliberate indifference. In Farmer v. Brennan, the Court ruled that where likelihood of an inmate attack was "longstanding, pervasive, well-documented," the prison officials "'must have known about it.’" Farmer v. Brennan, 511 U.S. 825, 842, quoted in Deborah Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. 319 (1997).
Knowing the probability that exists for a lethal injection to go wrong and cause extreme pain or suffering, prison officials cannot, in good faith, maintain that botched executions are without "calculation." The occurrence of a botched lethal injection extends beyond the limits of incidental and unintentional possibilities. Therefore, a botched execution constitutes torture under the terms of the CAT to which the United States is a party.
This court has an obligation to the Convention Against Torture to prevent torture from occurring. Given the chance of a botched execution, which is historically greater than 6%, allowing lethal injections to occur is equivalent to allowing torture to take place.
Conclusion
Executions are the "ultimate denial of civil liberties," committed by the government. ACLU, The Death Penalty Briefing Paper (2000). This reality is exacerbated by the use of lethal injection, which is painful to the extent of being cruel, inhuman, and degrading. Given that the United States Supreme Court in Nelson v Alabama 124 S.Ct 383 agrees that substantial probability exists of a lethal injection becoming botched, and have scheduled oral argument, Mr. Robinson should be granted a stay of execution on the acceptance of Nelson onto the Court’s docket.
I HEREBY CERTIFY that a true copy of the foregoing Brief has been furnished by United States Mail, first class postage prepaid, to all counsel of record on January 14, 2004.
Respectfully Submitted,
Professor Francis Boyle, Esp.
Law Building
504 Pennsylvania Ave.
Champaign, Illinois 61820
Copies furnished to:
St. Johns County Courthous
Assistant State Attorney
4010 Lewis Speedway
St. Augustine, Florida 32095
Judy Taylor Rush
444 Seabreeze Boulevard
Fifth Floor
Daytona Beach, Florida 32118
Peter Cannon, Esq.
CCRC-Middle
3801 Corporex Park Drive
Suite 210f
Tampa, Florida 33619
Johnny Robinson #102767
Florida State Prison
7819 NW 228th Street
Raiford, Florida 32026
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