Closing time at the death chamber

By The Editorial Board Saturday, October 6, 2007, 06:00 PM

Texas finally woke up to the news that executing condemned prisoners by lethal injection may be ruled unconstitutional by the U.S. Supreme Court. But that awakening came too late for Michael Richard.

Two weeks ago, the Supreme Court halted the execution of Carlton Turner Jr., after it agreed to consider the legality of lethal injections. Then last week, the Texas Court of Criminal Appeals halted the execution of Heliberto Chi, who claims lethal injections can cause extreme pain, violating the constitutional prohibition on cruel and unusual punishment.

Between those two reprieves came Richard, whose appeal was ignored because appeals court Presiding Judge Sharon Keller closed the court at 5 p.m. Keller didn’t inform the appeals court judge assigned to Richard’s case, or any of the other judges still in the office after 5 p.m., of the request by Richard’s attorney to stay late to consider the appeal.

Earlier that day, the Supreme Court had accepted an appeal from a Kentucky inmate arguing the legality of lethal injections. Richard’s attorney wanted some extra time to respond in filing an appeal because of the changed circumstance. He didn’t get it because Keller said it is the court’s practice to close on time.

That callous disregard shocked the world, and the international outcry may have prompted Keller’s court to temporarily halt Chi’s execution. Texas was slow to recognize that executions should be banned while the high court determines whether lethal injections violate the Eighth Amendment’s cruel-and-unusual language.

Better late than not at all. If Texas continues to execute condemned prisoners on the eve of the Supreme Court decision, it will incur the scorn of the civilized world. After the offense of Richard’s death, Texas needs to adhere to expected standards of conduct and prohibit all executions until the Supreme Court rules.

Other states are doing just that. Oklahoma Attorney General Drew Edmondson has asked the Oklahoma Court of Criminal Appeals to stop setting execution dates until the Supreme Court decision arrives. Arguments in the Kentucky death row case are set for November. Also, Alabama’s governor issued a temporary halt to an execution last week pending the ruling from Washington.

The issue for Texas and the other 37 states that use lethal injection to execute condemned prisoners is whether the drug cocktail used to anesthetize, paralyze and kill can cause inmates extreme pain.

In a separate but related issue, the American Medical Association has issued a ban on physicians administering lethal injections to condemned prisoners. The AMA says doctors violate their oath to do no harm when they administer lethal injections. That might make it difficult for death penalty states to find qualified people to dispense the fatal injection.

When the Supreme Court agreed to consider the constitutionality of lethal injections, the states that impose it were cautioned to stop a procedure that may be found illegal. Texas should heed that caution and suspend executions until the Supreme Court determines whether that method of execution is allowable.