Sunday, 25 March 2007

Killing Protocols

Killing Protocols

The governor plays down the way the state executes the condemned. So why a moratorium—and all the secrecy?

When Tennessee temporarily stopped executions last month, Gov. Phil Bredesen tried to minimize the issue, referring vaguely to “deficiencies with written procedures” and assuring the public that the two lethal injections performed here since 2000 were humane.

But there is mounting evidence of botched executions around the country, including Tennessee. Supposedly benign lethal injections may actually cause intense pain, and there is a growing realization that the way the executions are carried out is seriously flawed and frequently bungled by inept prison teams.

The prisoner is supposed to lie on a gurney and drift away to sleep before he is put painlessly to death. But the process used in Tennessee and around the country is complex—needlessly so, critics say—and fraught with opportunities for mistakes, especially since medical authorities generally are banned ethically from participating.

Here, a prison warden without even a college degree, or his equally untrained designee, mixes the fatal cocktail himself by guessing at the proper dosages, according to lawyers for death row inmates.

A series of three chemicals is used—a barbiturate to make the inmate unconscious, a paralyzing agent whose sole purpose is to make the execution more acceptable to observers by preventing inmate seizures or involuntary gasps of pain, and finally a poison used in road salt to stop the prisoner’s heart. That last chemical is banned by state law for use in euthanizing animals because it is considered too inhumane. Each is pumped from syringes to twist and turn through a bizarre Rube Goldberg-type contraption and finally—barring any unforeseen kinks in the machine’s tubes—into the prisoner’s veins.

One nationally recognized anesthesiologist, contradicting the state medical examiner, says child murderer Robert Glen Coe’s autopsy shows he did not receive enough barbiturate during his 2000 execution. That would mean Coe “was probably awake, suffocating in silence and felt the searing pain of injection” of the heart-stopping chemical, says Dr. David Lubarsky, who has offered affidavits in at least two Tennessee inmates’ lawsuits that claim the state’s lethal injection procedures are unconstitutional.

The medical expert was forced to rely on Coe’s autopsy because, amazingly, no one on the execution team checks whether the inmate is adequately sedated by the barbiturate before the rest of the chemicals are injected, according to testimony in inmate lawsuits. The whole process was developed by Ricky Bell, the warden at Nashville’s state prison, without the help of any medical authority.

“It’s so absurd when you think about it,” says Bradley MacLean, the lawyer for condemned prisoner Abu-Ali Abdur’ Rahman. “It’s like something out of some kind of fantasy world—this ridiculous method that has no similarity even to the way that veterinarians are required to put down dogs.”

“How did they come up with this process?” asks Steve Kissinger, the federal public defender representing death row inmate E.J. Harbison. “Who knows? Maybe it was Ricky Bell sitting in his office saying, ‘Ha, this is how I’d like to kill people.’ Talk about indifference toward needless pain and suffering.”

Tennessee is late to review its execution procedures. Despite a series of lawsuits laying out these problems, state Correction Commissioner George Little was insisting to the media as late as 2006 that there was no need for any changes.

Virtually every state with the death penalty faces legal challenges to lethal injection as violating the Eighth Amendment’s prohibition against cruel and unusual punishment.

The news media are full of horror stories. In California, the chests of at least six prisoners were heaving long after the anesthetic drug was administered, suggesting they were not unconscious as they died. In Florida, an inmate suffered burns because lethal chemicals mistakenly flowed not into his veins but into the soft tissue in his arms. The executions should take only four minutes, but his lasted 34 minutes. In Ohio, an inmate raised his hand during his own execution to say, “It’s not working.”

Before Bredesen stayed four executions and ordered a review of lethal-injection procedures with his Feb. 1 executive order, a dozen states already issued moratoriums. The governor could have acted before the 2006 execution of Sedley Alley because basically the same information was available to Bredesen at that time.

The subject of what took the governor so long is one of speculation within the legal community. Some lawyers point out that Bredesen was safely re-elected in November and is term-limited, making it easier for him to make unpopular decisions.

In addition, the Harbison case, which prompted Bredesen’s moratorium, is presided over by federal Judge Aleta Trauger, a close friend of the governor’s. Trauger has signaled her concern over the way lethal injections are carried out in Tennessee and was about to appoint an anesthesiologist to determine for the court whether Coe was conscious during his execution when Bredesen issued his moratorium. There was no autopsy of Alley because his family wouldn’t allow one.

Bredesen has given the Correction Department until May 2 to develop new procedures, but so far, the process hasn’t seemed designed to inspire public confidence. The department won’t say who is developing the new procedures, how many times they have met or what exactly they are talking about. The public is not invited, although “public input” may be sought later, department spokes-woman Dorinda Carter says.

The critical issue, of course, is whether any scientific or medical authority is involved. Given the Hippocratic Oath, there may be no reputable physician willing to help the Correction Department. In that case, inmate advocates say the state may be unable to withstand legal challenges and eventually may be forced to abandon the death penalty.

For his part, Dr. Donald Boatright, the department’s acting medical director, has made it clear he won’t participate. In a letter to the commissioner obtained by the Scene, Boatright wrote, “Participation in any aspect of capital punishment presents an extreme case of ethical conflict for health professionals. In this capacity, the skills and knowledge of the health care staff are directed towards potentially causing the death of a person. The vast majority of physicians and other health professionals recognize this as an intrinsic conflict.”

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