Lethal injection challenges pick up in Georgia, but court not swayed

Vicky Eckenrode July 22, 2007

Had Troy Anthony Davis not been given a last-minute stay, he would have become the 18th inmate Georgia has put to death through lethal injection.
More and more defense attorneys representing convicts on death row are taking up the national arguments against lethal injection, maintaining that it still constitutes cruel and unusual punishment, even if it appears to be less painful than other methods.
Davis was scheduled to die July 17 after being convicted of the 1989 killing of off-duty police officer Mark Allen MacPhail.

The state Board of Pardons and Paroles decided late Monday to delay the execution for up to three months as they review testimony from supporters and former witnesses who have recanted their testimonies against Davis.
Attorneys for Davis have focused their arguments on those witness reversals. Meanwhile, an increasing number of death-penalty appeals are being pinned solely on attacking the execution process.

Started in 2001
Meant to be a less gruesome way to execute criminals, the deadly chemicals replaced the electric chair in 2001 as Georgia's means of execution.
"It is a bizarre combination of drugs that everybody seems to have signed on to, but no one's given much thought to the type of horrors it could be implementing on someone," said lawyer Jack Martin, who has been involved with about 30 death-penalty cases in Georgia.

Martin represented John Hightower, the latest condemned inmate in Georgia to die by lethal injection. He was executed a month ago for the murders of his wife and two stepdaughters.
Martin pointed out that several states have begun taking a closer look at their lethal-injection programs after some high-profile, problematic executions - with some of those states even temporarily suspending executions during the studies.

Nationally, 26 death-row inmates won stays on their executions since the beginning of 2006 based at least in part on their challenges of lethal injection, according to the Death Penalty Information Center.
Defense attorneys in Georgia have not had the same response.
"There's not much reaction so far in Georgia," Martin said.
Out of the 38 states with the death penalty, 37 can use lethal injection, with Nebraska solely relying on the electric chair.

3-drug cocktail
Most states, including Georgia, use a similar three-drug cocktail when executing someone by injection.
The first - sodium pentothal - acts as a sedative and is intended to keep the person being executed from feeling pain. Next, a paralyzing drug, such as Pavulon, is administered, which stops the breathing muscles and keeps the inmate from moving around or flinching while dying. The final chemical - potassium chloride - causes cardiac arrest, killing inmates by stopping their hearts.

The basis for many challenges is that the combination of the anesthetic sedative and muscle paralyzer make it nearly impossible to tell what inmates feel as they die.
Even in executions where there have not been visible signs of distress, the paralyzing drug could be masking pain if the sedative has unexpectedly worn off, critics charge.

"If the anesthesia doesn't get into the vein or some of the chemicals get into the bloodstream, the paralyzing agent will make them feel like they're suffocating and the potassium will feel like your veins are on fire to your heart," said Sarah Tofte, a researcher for the anti-death-penalty group Human Rights Watch. "If those are the things that they're feeling, it would be an excruciating way to die."

Not much success
Lawyers have tried to pitch those arguments to Georgia Supreme Court justices in several death-penalty appeals with little success.
One of those cases was an appeal last year on behalf of Joseph Williams, who was convicted of strangling another inmate while being held at Chatham County's jail and trying to make it look like a suicide. He had been found guilty of other murders in the past and was sentenced to the death penalty.

David Lock, chief assistant district attorney for Chatham County, recalled the case last week and said the state's lethal injection process did not equal cruel and unusual punishment, a claim that has been backed by other Georgia court decisions.

"The drugs put you to sleep and, in fact, probably put you to death just through the anesthetic," he said. "You're given a couple of drugs to follow it up. I believe it to be a painless proceeding."
The state's highest court so far has agreed that there has not been evidence to show lethal injection is cruel or unusual punishment.

Justices stated that in the Williams case, as well when similar arguments were raised for convicted murderer Gregory Walker Jr., a Brunswick man found guilty of shooting a woman he said stole from him.

Trend on stays?
Judges and elected officials in a handful of other states have either ordered an official moratorium on executions or are issuing stays in death sentences to allow for closer study of lethal-injection programs.

In October, Florida is set to carry out its first execution since the state put its program on hold after a botched execution last year that raised questions. The process took longer than usual and required two rounds of drugs to execute Angel Diaz, who was found guilty in the shooting death of a bar manager during a robbery.

Advocates said the improper procedures used to put Diaz to death, in which a needle went past his vein and prevented sedatives from getting into his bloodstream, highlight the need to look at better ways to administer lethal injection.
"It may be more humane than electrocutions," Tofte said. "But that's not what the test is."

STATES TAKING A CLOSER LOOK AT LETHAL INJECTION:

California
A federal judge put the state's lethal-injection program on hold before Michael Morales was scheduled to die in February of last year, causing the state to review its practices. The judge is expected to hold the next hearing in October to decide what happens next.
Delaware
A federal judge put all executions formally on hold after ruling the state's death-row inmates were part of a class-action suit challenging lethal injection.

Florida
Former Gov. Jeb Bush stopped signing new death warrants in December and created a commission to look into problems with the execution of Angel Diaz. Current Gov. Charlie Crist signed the first death warrant since then last week for Mark Schwab, who raped and killed an 11-year-old boy. Schwab is scheduled to die in November, and a legal challenge to lethal injection is expected to be heard before then.

New Jersey
In 2004, an appellate court put all executions on hold until the state could justify its lethal-injection process.

Tennessee
In February, Gov. Phil Bredesen ordered all executions stayed until May so that the state's lethal-injection program could be studied. A new protocol was issued to designate what each person does during the process, but the three drugs used remained the same. Philip Workman was executed May 9.

Source: Death Penalty Information Center