Saturday, 13 January 2007

Lethal injection challenged as “cruel and unusual” fate

A ruling by a California judge that requires a qualified anaesthetist to be present during executions by lethal injection has postponed the planned killing of a convicted murderer—because no medical professionals could be found to participate in the procedure in time.

Michael McCarthy reports.

California officials have postponed the execution of a convicted murderer by lethal injection after they were unable to find medical personnel willing to participate in the execution.
Lawyers for 46-year-old Michael Angelo Morales had sought a stay of execution, arguing that the state's standard execution method exposed the prisoner to excessive pain and therefore violated the 8th Amendment of the US Constitution, which forbids “cruel and unusual punishments”.

In 1981, Morales, then 21 years old, with his cousin Ricky Ortega, murdered 17-year-old Terri Winchell. According to prosecution testimony, Ortega was angry with Winchell because she had become the girlfriend of his homosexual lover. Morales was convicted of the crime and sentenced to death. Ortega was given a life sentence. Morales' legal appeals and petition for clemency have been rejected.

Current California protocol for execution calls for the administration of 5 g of the barbiturate sodium thiopental to induce unconsciousness, followed by 50 or 100 mg of pancuronium bromide to induce paralysis, and then 50 to 100 milliequivalents of potassium chloride to induce cardiac arrest.

Morales' lawyers argued that there was an undue risk that Morales would be conscious when the pancuronium bromide and potassium chloride were administered so that he would be awake when he suffocated as a result of the paralysis and would feel excruciating pain when the potassium was injected.

The state argued that the dose of the sodium thiopental was more than sufficient to render Morales unconscious. Morales' lawyers challenged that claim by pointing to state execution logs indicating that several prisoners had continued to breathe and move after the sodium thiopental should have taken effect.

The US District Court Judge who heard the case, Judge Jeremy Fogel, ruled that the state must either do the execution with an overdose of barbiturates alone administered by someone medically qualified to give intravenous medications or, if the state wished to use the standard three-drug protocol, a qualified anaesthetist must be present at the execution.
To comply with Fogel's order, corrections officials recruited two anaesthetists, one for back up, but they pulled out just hours before the execution after learning that they would be required to intervene should Morales seem to regain consciousness.

“While we contemplated a positive role that might enable us to verify a humane execution protocol for Mr Morales”, the two anaesthetists said in a statement, “what is being asked of us now is ethically unacceptable.”

Guidelines from the American Medical Association, the American College of Physicians, and the American Society of Anesthesiology forbid doctors from participating in executions.
But support for capital punishment is strong in the USA with 64% expressing support for the death penalty in a recent Gallup poll, and a survey of US physicians found that 21% of those polled said they would be willing to administer the lethal dose of drugs.

After the anaesthetists backed out, correction officials tried to find a medical professional to administer the barbiturate overdose allowed by the judge's order but were unable to do so before the death warrant had expired.

The case will now return to Judge Fogel's courtroom where in early May he will hold an evidentiary hearing on legal and scientific aspects of the states lethal injection protocol.
Supporters of the death penalty said the case did not present a serious legal challenge to capital punishment. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he expected that Fogel would rule either to uphold the current procedure or require minor changes. “I don't think a murderer has a [Constitutional] right to a painless death”, Scheidegger says.

But Richard Dieter, executive director of the Death Penalty Information Center, which tracks death penalty issues in the USA and abroad, predicted the issue will eventually end up in the US Supreme Court. But he noted the Supreme Court has not “shown much willingness to throw out the death penalty” and predicted that the Court would most likely require the states to come up with the “most humane, yet practical process”.

by Michael McCarthy

The Lancet, Volume 367, Number 9512, 04 March 2006

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