Death penalty stayed for now

12:02 PM PST on Tuesday, November 27, 2007

By JANET ZIMMERMAN
The Press-Enterprise

It's too late for Stephen Wayne Anderson, the last Inland killer executed by the state. But for condemned inmates whose appeals are nearing the end, an upcoming U.S. Supreme Court case could alter the way they get the three-drug lethal-injection cocktail used in executions nationwide.

At issue before the Supreme Court is not the death penalty itself, but whether the protocols used in administering lethal injections violate the Eighth Amendment, which prohibits cruel and unusual punishment. The debate has halted executions across the country.

The drugs used to anesthetize, paralyze and stop the heart of condemned inmates can, if administered incorrectly, cause a sensation of suffocation and excruciating pain, lawyers and doctors said.

"This method, which everybody thought would be much less cruel and a more humane way to kill people, maybe isn't so humane," said Frank Peasley, a Riverside lawyer who has defended eight capital cases but does not oppose the death penalty. Some people deserve to die because of the atrocity of their crimes, he said.

The Supreme Court has agreed to consider a case filed by attorneys for two Kentucky inmates, Ralph Baze and Thomas Clyde Bowling Jr., who contend that the protocol creates "an unnecessary risk of suffering." In hearings set to start in January, they will ask the high court to set a standard for lethal injection.

Used by 36 States

Lethal injection is used in all but one of the 37 states that have the death penalty -- Nebraska uses the electric chair -- and most use the same three drugs.

Among the potential problems cited by foes of lethal injection: The execution team is unable to find a suitable vein for the intravenous drip; the flow from the intravenous drip is directed toward the hand rather than the heart; the chemicals are shot into tissue instead of the bloodstream; or the prisoner does not react normally to the drugs. Such problems could cause an inmate to feel torturous pain from the final two drugs, even while sedated from the first drug.

Increasing numbers of court cases challenging lethal injection have sprung up in the past few years.

In a recent case in federal court in California, an expert witness testified that intravenous bags for administering the drugs at San Quentin State Prison hang from ducts so high that it would be impossible to determine whether they were working properly. The leader of the execution team testified that he had carried out executions while he was suffering from post-traumatic stress disorder and was taking antidepressants and after he had been disciplined for a drunken-driving conviction.

After the 2002 execution of Inland killer Anderson, who shot 81-year-old Elizabeth Lyman in the bed of her Bloomington home, opponents of capital punishment were astounded that the procedure had taken 29 minutes to complete, twice as long as most. Even after Anderson was unconscious, his stomach heaved dozens of times for about four minutes, far more than the once or twice that is typical, witnesses said.

In their arguments, opponents cite the 2005 execution of Stanley "Tookie" Williams, founder of the Crips gang, who had shot and killed four people during robberies in 1979. In the death chamber at San Quentin, north of San Francisco, it took the execution team 20 minutes to set the intravenous lines, causing Williams to wonder, "You doing that right?," according to witness accounts.

Attorneys in court filings have said a nurse, after struggling to start a backup line in Williams' left arm, left the chamber in frustration without setting it properly, and the execution continued without the backup.

'I Just Want Him to Hurt'

Riverside resident Carol McVeigh, whose 34-year-old son, Tim, was murdered during a 1994 robbery, is tired of the debate about killers' rights. "What about the victims?" she wonders.

Tim McVeigh was working as night manager at an Orange County supermarket when Stephen Redd entered the store with a gun and demanded money. Tim was shot point blank in the stomach and bled to death three hours later.

Carol McVeigh can't help thinking about her son's slow, painful death. She often wonders what Tim, an aspiring commercial pilot and a history buff, would be doing today.

Whatever Redd's punishment -- death or life in prison -- McVeigh said she wants it carried out. If he is finally executed after more than 20 years of appeals and he suffers some pain in the process, she is OK with that.

"When I hear that it's cruel and inhuman punishment, was it not what (many convicted killers) do?" McVeigh asked. "I just want him to hurt, and maybe that will cause him someday to have remorse."

California Executions

When the Supreme Court takes up the matter, it will be the first time in more than a century that it has ruled on an execution method. Over the years, the United States has used hanging, firing squads, poison gas and electrocution to execute its condemned killers.

Even before the Supreme Court agreed to hear the case, California's executions already were on hold.

Last year, U.S. District Judge Jeremy Fogel in San Francisco blocked the execution of Michael Morales, who was condemned for the 1981 murder of 17-year-old Terri Winchell, of Lodi. Fogel, concerned that the sedation drug might not work, ordered prison officials to have medical experts oversee the execution to ensure that the man was not in pain.

When medical professionals refused to participate, all state executions were halted.

After hearings, Fogel ruled that the state's methods were flawed and unconstitutional because executioners lacked proper screening, training and supervision, improperly mixed the fatal drugs, worked in inadequate facilities and failed to keep reliable records.

The state has proposed revisions to the procedure, including the construction of a new death chamber. Fogel is awaiting the Supreme Court's decision before proceeding with the case.

Further complicating the issue was a ruling last month by a judge in Marin County, who said the state's proposed new lethal-injection protocols were invalid because they were not subjected to public comment or reviewed by the office that oversees state regulations.

Dennis Christy, a San Bernardino County assistant district attorney, said prosecutors are concerned about the impact of the delays on families of victims, who suffer "tremendously waiting for finalization and the opportunity for closure."

Capital punishment is the law, and not carrying out the sentences is contrary to the will of voters, he said.

Nation's Largest Death Row

California has the largest death row in the country, with 660 inmates awaiting execution; 96 of them are from Riverside and San Bernardino counties. Only 13 people have been executed since voters reinstated the death penalty in 1978.

In the past five years, more inmates on California's death row have died from suicide or natural causes than have been executed, according to state Department of Corrections records.

Among the inmates appealing their cases is one of Peasley's most infamous clients, William Lester Suff, convicted and sentenced to death in 1995 for the slayings of a dozen prostitutes he had picked up in Riverside and Lake Elsinore between 1989 and 1991.

"He'll die a natural death before all the appeals ... are done," Peasley said. "If any of them get executed, it will probably be long after I'm dead."

'It Doesn't Make Sense'

The tremendous cost and lengthy appeals of capital cases make the death penalty impractical, said Peasley, who prefers a sentence of life imprisonment so the families of victims can have closure.

"When people's crimes are so atrocious and they've lived such a life in which they preyed upon other people, I think people forfeit their right to live," he said. "But I just think that (the death penalty) is so unwieldy that from a pragmatic standpoint, it doesn't make sense."

Housing an inmate on death row is expensive, according to a 2005 study cited by Death Penalty Focus, an anti-execution group. It costs $90,000 a year more to house a condemned prisoner than one serving a sentence of life without parole because of the individual cells and extra guards needed. Millions of more dollars are spent on the attorneys involved in the appeals process, according to the study.

Riverside lawyer Steve Harmon, who has defended five capital cases, said the price is too high when the state needs new schools and highways. He also said the death penalty does not serve as a deterrent.

"It is absurd to kill people to get them to stop killing other people. That is the worst kind of example. What pro death penalty people say is that we need the death penalty to protect us, and I have never encountered anyone, never, who stopped and thought and decided not to kill somebody because of the death penalty," Harmon said.

Death-penalty proponent Michael Rushford of the Criminal Justice Legal Foundation called the latest round of challenges "a hiccup" in the system.

Efforts to challenge lethal injection ultimately could backfire on death-penalty foes because once the matter is settled, states may start executing killers more quickly, he said.

"It's like plugging a hole in the dam. The whole thing is going to go very soon," he said. "It's resulted in about a year of delays, and it will be settled in a few months."

Proposed Initiative

Rushford said his group is supporting a proposed initiative for next year's ballot that seeks to speed up the appeals process, which, in California, leaves killers on death row for an average of 17 ½ years.

The public's frustration with the long appeals process and the few executions being carried out is among the problems with the death penalty, said Richard Dieter of the Death Penalty Information Center.

Even before the latest series of court actions, death-penalty sentences nationwide had decreased, he said, adding that there were 330 in 1999 and 128 in 2005. Executions also have declined. There were 98 nationwide in 1999 and 53 last year.

And despite steady voter support for the death penalty across the United States during the past 50 years, some states are beginning to question capital punishment. Lawmakers in New Jersey will decide next month whether to abolish executions in that state.

"The rationale seems to be we're not getting anything out of this. The frustration of it not being of much use, risks of mistakes and unfairness: It's that bigger package of problems with the death penalty that I think is causing its demise," Dieter said. "Lethal injection is just another straw on the camel's back."

Reach Janet Zimmerman at 951-368-9586 or jzimmerman@PE.com