Judges Set Hurdles for Lethal Injection

April 12, 2006

By ADAM LIPTAK

http://www.nytimes.com/2006/04/12/us/12lethal.html?ex=1302494400&en=e062b7df4b3d052e&ei=5088&partner=rssnyt&emc=rss

Judges in several states have started to put up potentially insurmountable roadblocks to the use of lethal injections to execute condemned inmates.

Their decisions are based on new evidence suggesting that prisoners have endured agonizing executions. In response, judges are insisting that doctors take an active role in supervising executions, even though the American Medical Association's code of ethics prohibits that.

A federal judge in North Carolina, for instance, ordered state officials there to find medical personnel by noon today to supervise an execution scheduled for next week. Otherwise, the judge said, he will impose a stay of execution.

"This, of course, will make lethal injections difficult, if not impossible, to perform," said Dr. Jonathan I. Groner, a professor of surgery at Ohio State University who has studied lethal injections and opposes the death penalty.

A California judge plans to hold hearings on the issue next month, after an execution there was called off for lack of doctors, and the United States Supreme Court will hear arguments this month on whether death row inmates may use a civil rights law to challenge lethal injections as cruel and unusual punishment.

Scores of similar suits, asserting that lethal-injection procedures are illogical and potentially torturous, are pending around the nation. But, until recently, they had met with limited success, said Jamie Fellner, the director of the United States programs for Human Rights Watch, which will issue a report on lethal injections this month.

"When prisoners first started making these challenges," Ms. Fellner said, "the courts gave them short shrift. They thought these were stalling tactics. And there was not a lot of evidence."

The recent decisions, by contrast, rely on accounts of witnesses, post-mortem blood testing and execution logs that seem to show that executions meant to be humane have, in fact, caused excruciating pain.

The three chemicals used in lethal injections in about 35 states have long attracted attention for what critics say is their needless and dangerous complexity.

The first chemical in the series is sodium thiopental, a short-acting barbiturate. Properly administered, all sides agree, it is sufficient to render an inmate unconscious for many hours, if not to kill him. The second chemical is pancuronium bromide, a relative of curare. If administered by itself, it paralyzes the body but leaves the subject conscious, suffocating but unable to cry out. The third, potassium chloride, stops the heart and causes excruciating pain as it travels through the veins.

Problems arise, lawyers and experts for the inmates say, when poorly trained personnel make mistakes in preparing the chemicals, inserting the catheters and injecting the chemicals into intravenous lines. If the first chemical is ineffective, the other two are torturous.

In veterinary euthanasia and in assisted suicides in Oregon, a single lethal dose of a long-acting barbiturate is typically used. But corrections officials and their medical experts say using that method in executions would take too long and would subject witnesses to discomfort.

The three chemicals are to be used to execute Willie Brown Jr. on April 21 in North Carolina. Mr. Brown was convicted in 1983 of murdering Vallerie Ann Roberson Dixon, a convenience store employee, in Williamston, N.C. He had a long criminal history and had just been released from a Virginia prison after serving 17 years of an 80-year sentence for armed robbery and shooting a police officer in an effort to escape.

Lawyers for Mr. Brown said in a court filing that all he was asking for was that state officials adopt "a protocol for anesthesia that affords him the same assurance of dying without conscious suffering of excruciating pain that is given to household pets."

J. Donald Cowan Jr., a lawyer for Mr. Brown, said the state's reluctance to adopt a simpler protocol was "a little puzzling." That was especially so, he added, given that Mr. Brown's legal position amounted to saying, "State, this is how you can execute people properly."

Doctors helped fashion and promote earlier modes of execution, including the guillotine and the electric chair. Similarly, the original lethal-injection protocol was developed in Oklahoma in 1977 in consultation with state's medical examiner and an anesthesiology professor. Other states, typically acting through their corrections departments and individual prison wardens, apparently copied the protocol.

Though some states give prisoners a choice between lethal injection and a second method and Nebraska uses only electrocution, lethal injection is the all but universal method of execution in this country. Every state that has made its lethal-injection protocols public uses the three-chemical combination.

Unlike the earlier methods, lethal injections appear to mimic medical procedures and so require doctors' participation, said Kenneth Baum, a doctor and lawyer who supports the medical oversight of executions.

"If the process is medicalized," Dr. Baum said, "you must have physicians playing a central role in the execution chamber and in analyzing the protocols."

But the American Medical Association's ethics code forbids doctors to perform an array of acts at executions, including prescribing the drugs, supervising prison personnel, selecting intravenous sites, placing intravenous lines, administering the injections and pronouncing death.

The code is not legally binding, and doctors in many states have participated in executions, often anonymously. In the recent California case, however, doctors willing to participate in the execution could not be located in time.

Judge Malcolm J. Howard of the Federal District Court in Greenville, N.C., on Friday ordered state officials to make certain that Mr. Brown would be provided with medical personnel capable of ensuring unconsciousness as the second and third chemicals were administered and of "providing appropriate medical care" if Mr. Brown woke up. Judge Howard did not say that the personnel had to be doctors, but medical experts said his meaning was unmistakable.

"He's describing a physician, specifically an anesthesiologist," said Dr. Richard J. Pollard, the president of the North Carolina Society of Anesthesiologists.

Noelle Talley, a spokeswoman for the North Carolina attorney general, would not say how the state planned to respond. "We're still reviewing the judge's order," Ms. Talley said.

Judge Howard based his order on what he said were "substantial questions" about the possibility of agonizing death. He noted that post-mortem levels of sodium thiopental in the bodies of four North Carolina inmates executed in the last six months suggested that they might have been conscious as they endured the suffocation and pain caused by the final two chemicals. Prosecutors said the testing might not have been conducted properly.

Judge Howard also noted that three lawyers who had witnessed executions in the state submitted sworn statements saying that some of the condemned men were writhing and gagging during their executions.

"Instead of the quiet death I expected," one of the lawyers, Cynthia F. Adcock, said in a sworn statement about her client Willie Fisher, who was executed in 2001, "Willie began convulsing. The convulsing was so extreme that Willie's cousin jumped up screaming."

Such convulsions are inconsistent with a proper dosage of sodium thiopental, a medical expert for Mr. Brown said.

An appeals court in New Jersey halted executions there in 2004 pending an explanation from corrections officials of an aspect of that state's lethal injection procedures. "Nothing in the record," the court said, "suggests medical consultation." The corrections department has yet to issue new regulations, and the State Legislature adopted a one-year moratorium in January.

Lawyers for a Missouri death row inmate, Reginald Clemons, said they would file their own challenge this month, asking that an anesthesiologist supervise his execution. "The state has chosen to proceed with an execution that requires the use of highly trained medical personnel," said Jill M. O'Toole, a lawyer with Simpson Thacher & Bartlett in New York. "It's put itself in this bind."