Ruling opens door for executions to resume in Missouri

A federal appeals court says lethal injections do not constitute ‘cruel and unusual punishment’ in violation of the Constitution.

By Henry Weinstein, Times Staff Writer
11:17 AM PDT, June 4, 2007

In the first detailed examination by a federal appeals court of the way in which a state administers lethal injections, a court in St. Louis today paved the way for the resumption of executions in Missouri.The ruling becomes the guiding principle within the U.S. 8th Circuit Court of Appeals, which includes parts of the Midwest and the South and could become a factor in other challenges. A federal court in San Jose is weighing California's lethal injection procedure, which uses the same drugs as those in Missouri.

The 3-0 ruling by a panel of 8th Circuit judges reversed a decision issued by a federal judge in Kansas City last year that said the state's execution methods created an unnecessary risk that an inmate could be subjected to "unconstitutional pain and suffering when the lethal injection drugs are administered."But the panel said it found "no wanton infliction of cruel and unusual punishment in violation of the 8th Amendment."

"We have very carefully examined the entire record, and we find no evidence to indicate that any of the last six inmates executed suffered any unnecessary pain that would rise to an 8th Amendment violation, or that any state¼was deliberately indifferent to the Constitution's requirement that no unnecessary pain be wantonly inflicted during the execution process," wrote Judge David R. Hansen, an appointee of President George H.W. Bush.Missouri has executed 66 people -- the fourth most in the nation -- since the Supreme Court permitted states to reinstate the death penalty in 1976. Missouri has 51 people on its death row.

Missouri is among nine states that have put executions on hold as it grapples with whether lethal injection is inhumane.Like three dozen other states, Missouri uses a three-drug cocktail in its lethal injections. The first drug, sodium thiopental, is a fast-acting barbiturate, which is supposed to deaden pain; the second, pancuronium bromide, paralyzes the condemned inmate; the third, potassium, causes cardiac arrest.

In Missouri, the challenge was raised by Michael Taylor, who was sentenced to death for the 1989 murder of a 15-year-old girl in the Kansas City area.In June 2006, U.S. District Judge Fernando J. Gaitan Jr., in ruling that Missouri's procedure had violated the Constitution, said he was particularly troubled that the doctor the state used to mix the drugs for executions was dyslexic and admitted during a hearing that he had difficulty reading numbers.Missouri then revised its execution protocol. But in July, Gaitan rejected it again, saying it subjected a condemned inmate to an unnecessary risk of excessive pain. He ordered the state to take five actions to improve the procedure, including barring the dyslexic doctor.He said the state had to purchase additional equipment to adequately monitor anesthesia, and improve its record-keeping.

Additionally, he said, the protocol "may not be implemented by medical personnel such as paramedics or [emergency medical technicians] unless they are employed by the supervising physician."The 8th Circuit panel disagreed with most of the conclusions."The written protocol does not violate the 8th Amendment, and thus the district court had no basis on which to impose equitable remedy requiring further modification of the protocol. The concerns that the district court noted and required to be modified do not rise to the level of creating a constitutionally significant level of pain," Hansen wrote.

"The evidence reveals that the only inherent risk in Missouri's written procedure arises from the specific chemicals chosen by the state to carry out the sentence of death by lethal injection," wrote Hansen, who was joined by judges C. Arlen Beam, an appointee of President Reagan, and William J. Riley, an appointee of President Bush."Lethal injection itself is commonly thought to be the most humane form of execution," Hansen added.There has been considerable debate in recent years over whether it is necessary for states to use a trained anesthesiologist to ensure that the execution is carried out lawfully.

The 8th Circuit said no."We know of no decision holding that the Constitution requires a physician to become the executioner," Hansen wrote. He added: "The Constitution does not require the use of execution procedures that may be medically optimal in clinical contexts."

henry.weinstein@latimes.com