William Patrick Castillo, a Nevada inmate who was convicted of murder, waived the remainder of his appeals and asked to die rather than live on death row. (Anonymous - Associated Press)
With Supreme Court Taking On Issue, Some States Apply Brakes to Executions
By Darryl Fears Washington Post Staff Writer Tuesday, October 16, 2007
An eleventh-hour reprieve in Nevada last night for condemned murderer William Patrick Castillo marked the latest victory for opponents of the death penalty who do not regard lethal injection as the humane method of execution that its supporters say it is.
The Supreme Court is scheduled to hear oral arguments on the subject in the coming months, and death penalty opponents plan to argue that the three-chemical cocktail used by most of the 37 states that carry out lethal injection immobilizes the condemned and hides the pain they experience before they die. They say the process violates the Eighth Amendment's ban against cruel and unusual punishment.
Under the procedure followed by most states, the condemned inmate is strapped to a gurney, sedated with sodium thiopental, injected with pancuronium bromide to collapse the diaphragm and lungs, and then administered potassium chloride to stop the heart. Death penalty opponents have argued for years that the procedure is a cold and painful way to kill people, and that even veterinarians do not recommend it in the euthanization of animals.
Condemned inmates are "alive all the way through the process, feeling pain until the bitter end," said Lisa McCalmont, a lawyer and consultant to the death penalty clinic at the University of California at Berkeley's law school.
State corrections officials say lethal injection is a sound, scientifically tested and suitable alternative to the electric chair. They assert that challenges to the method are often attempts by death penalty opponents to end capital punishment. Still, several states have modified lethal-injection protocols to address concerns raised in lawsuits.
The case before the Supreme Court originated in Kentucky, where inmates Ralph Baze and Thomas C. Bowling, both convicted of double murders, challenged the state's protocols, saying they violated federal and state constitutions.
The court must now determine the effectiveness of the drugs used by Kentucky, McCalmont said. With the high court set to hear the case, more than a dozen courts, state commissions and governors have delayed lethal injections. Among those waiting are Texas, Oklahoma, Alabama, North Carolina and California.
Nevada joined that list last night, as its Supreme Court postponed all scheduled executions for the next 20 days. Castillo's death warrant is set to expire at week's end.
"It's really wonderful," Nancy Hart, president of the Nevada Coalition to End the Death Penalty, said after last night's court ruling. "This court did not want to stand out there and be the only state to go ahead with an execution."
Other states, such as Georgia, intend to go ahead with executions.
Nevada officials attempted to go forward with the Castillo case largely because Castillo waived the remainder of his appeals and asked to die rather than live on death row. The appeal that halted the lethal injection was filed by the American Civil Liberties Union on behalf of those who witness executions and argued that the paralytic effect of the pancuronium bromide creates a false impression of the event.
Even if the court ultimately agrees with opponents of lethal injection, the opinion probably will not stop the method, many legal experts say. Rather, they predict, the court will demand that the federal government and states consider stricter and more uniform standards.
In the 30 years since lethal injection was first proposed in Oklahoma, lawsuits have challenged the methods states have used to carry out the punishment in the absence of specific federal regulations. Some have accused the executioners of being poorly trained and unable to position a needle.
"I think the thing that the Supreme Court has recognized is that different states are applying different legal standards to the Eighth Amendment claim about lethal injection, and people are living and dying based on the differing application," McCalmont said. "Lethal injections can be performed humanely, they just simply are not being performed humanely by departments of correction."
A spokeswoman for the Texas Department of Criminal Justice said a pharmacologist who was hired to review the state's lethal-injection protocols after a court challenge found that the procedure does not "unwontedly inflict unnecessary pain."
"That's what we stand by," said the spokeswoman, Michelle Lyons. "We would stress that our method of execution is constitutional and does not pose a substantial risk of pain."
Lyons said officials who administer the injections are medically trained volunteers who must attend at least four executions as part of their training before being allowed to participate. Lyons said the specifics of their medical training is withheld to protect their identities.
Last month, the Supreme Court halted an execution in Texas by granting a reprieve to Carlton Turner Jr., who was convicted of killing his adopted parents nine years ago. Turner and his lawyers asked the court to review the constitutionality of the state's protocols.
About a week later, a Texas appeals court stayed the execution of another convicted killer, Heliberto Chi, giving the state 30 days to explain why the sentence should be carried out. Lawyers for Chi, who was convicted of killing a store manager, argued that Texas injections are unconstitutional because the chemicals paralyze the condemned as they slowly and painfully suffocate.
Veterinarians are reluctant to weigh in on lethal injection. A spokesman for the American Veterinary Medical Association said his group does not take issue with state protocols for the procedure, but the organization does not recommend anything similar in the euthanization of animals.
In a 2000 report, the association recommended using barbiturates to depress the nervous system and inhalant anesthetics to stop breathing and induce cardiac arrest. The use of other chemical agents on animals was considered to be excessive, the spokesman said. The association attached a caution to its report telling opponents and supporters of lethal injection for condemned inmates that the recommendations have no bearing on the issue.
The history of how the three-drug combination came to be used is spelled out in a lawsuit that delayed the scheduled execution of Michael Angelo Morales in California.
Thirty years ago, an Oklahoma legislator "sought a cost-effective alternative to fixing that state's broken electric chair," the California suit said. The legislator turned to the state medical examiner, who had no experience in lethal injections, but came up with a procedure that the lawmaker jotted down.
A year later, the state legislature adopted the recommendations almost verbatim: "An intravenous saline drip should be started in the prisoner's arm, into which shall be introduced a lethal injection consisting of an ultra-short-acting barbiturate in combination with a chemical paralytic."