Florida`s execution procedure is unconstitutional because of failure to ensure unconsciousness

Florida`s execution procedure is unconstitutional because of failure to ensure unconsciousness

Failure to anesthetize a prisoner before and throughout the lethal injection procedure will result in a violation of the Eighth Amendment. Ensuring unconsciousness in a clinical setting is a complicated and demanding task. Yet even there, accidents happen.

Clinical methods of determining depth of unconsciousness include all of the abilities and judgment of an anesthesiologist or a certified registered nurse anesthetist who is present and monitoring the patient at all times.

He or she monitors the appearance of the patient, response to stimuli, EKG, temperature, blood pressure, heart rate, moisture content of the skin, size of the pupils, carbon dioxide respiration levels, and oxygenation of the blood if on a heart lung machine.

Sophisticated medical equipment is used.

Before beginning the procedure the surgeon administers a painful stimulus to test the patient's condition.

By contrast, the consciousness assessment required by the protocols falls far short of medical standards.

The warden, who is charged with making the consciousness assessment has no medical expertise beyond that required of a law enforcement officer.

He testified that he intends to make that assessment by shaking the prisoner and speaking to him.

That is not a medically acceptable way of making the required assessment.

The greater the painfulness of the stimulation the more the subject must be anesthetized.

Administration of a high dose of potassium chloride is extremely painful and requires that the subject be in a surgical plane of anesthesia.

Notably, the most painful stimulus in the lethal injection procedure occurs after the initial consciousness assessment is made and the execution is well underway.

PC-W Vol. VII 1051-52.

The procedure for assessing unconsciousness is set out in protocol (12) (c) (4) which states: At this point [after injection of the barbiturate], the team warden will assess whether the inmate is unconscious.

The team warden must determine, after consultation, that the inmate is indeed unconscious.

If the warden determine that the prisoner is unconscious, he orders the executioners to proceed.

If he determines otherwise, then the secondary venous access line is assessed and the execution proceeds.

There is no provision for ongoing monitoring of consciousness.

Heart monitors are used during the execution, but they are used only to determine death, not to assess consciousness. Protocol 12 (e).

The court erred by rejecting wholesale the argument that consciousness assessment requires at least some input from medical science.

While execution by lethal injection may not be a medical procedure, by its very nature it requires input from medical science.

It was invented by a doctor and it uses medical chemicals and techniques.

Moreover, the assertion that lethal injection is not a medical procedure has more to do with concerns about the identity and participation of medical team members than with how the procedure is carried out.