Sunday, 11 February 2007

Death penalty stuck in quagmire

Death penalty stuck in quagmire

Thirty years ago, a Davidson College graduate named Bill Wiseman was the Oklahoma lawmaker who crafted legislation creating lethal injection.

Wiseman's method of execution, devised to make capital punishment more humane than the electric chair, soon spread to all but one of the 38 states with the death penalty.

But now, the procedure Wiseman created with the help of the Oklahoma medical examiner has come under increasing legal scrutiny, most of it focused on whether lethal injection is cruel and unusual punishment. Lawsuits and a botched execution in Florida have created a death-penalty standstill. In a dozen states, including North Carolina, officials are struggling to change executions and satisfy the courts.

"This is a question that is arising one lawsuit at a time in several states." said Michael D. Rushford, president of the Criminal Justice Legal Foundation, a pro-death penalty nonprofit group based in Sacramento, Calif.

Wiseman, an Episcopal priest and university administrator, has granted several interviews about his role in the creation of lethal injection -- a part of his history that he has said he now regrets. He could not be reached last week for comment about the legal challenges blocking the death penalty across the country.

Last month, a Wake County judge halted executions for three North Carolina death row inmates. Prison officials had modified their execution procedures in an effort to accommodate first a federal judge who required that a doctor be involved and then the N.C. Medical Board, which adopted an ethics policy forbidding doctors from participating in any way beyond simply being present.

The conflict has created a bizarre situation: A doctor must be present, monitoring the inmate's vital signs, but cannot step in unless there is some need for medical assistance. Lawyers say that would presumably involve trying to save the inmate's life.

Raleigh lawyer Elizabeth Kuniholm addressed this death-chamber confusion in a recent court filing.

"At this point," she wrote, "one assumes that the efforts will change from death to resuscitation. It is here that the new protocol defies logic." The likely outcome, she argued, would be a brain-damaged inmate who could not be executed and who, because of his condition, would require intensive medical care.

Three-drug protocol

Kuniholm represents James Campbell, one of the three North Carolina inmates whose execution has been put on hold.

The legislation that Wiseman proposed -- and many states mimicked -- called for the inmate to be injected with a fast-acting barbiturate followed by drugs to paralyze and kill the inmate. The three-drug protocol became:

* Sodium pentothal to put the inmate to sleep.

* Pancuronium bromide to cause paralysis.

* And potassium chloride to stop the heart.

Kuniholm and the other inmates' attorneys say that if an inmate weren't fully sedated before the other two drugs are administered, he would be awake to experience the paralyzing and heart-stopping drugs. Unless a doctor were involved, no one present would be sufficiently trained to determine whether the sedation was adequate. They say that means prison officials cannot guarantee a "constitutional" execution -- one that is free of cruel and unusual punishment.

Now North Carolina prison officials are left to negotiate with the medical board and will probably end up back in court.

Inmates' attorneys and medical experts for both sides say that the second and third drugs are not required to kill an inmate -- a large enough dose of the barbiturate can be lethal -- and that the other two drugs are used mostly for the benefit of witnesses. The second drug prevents the inmate's body from moving, and the third quickly ends the inmate's life.

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