California Court Case Puts Lethal Injection Under Threat

The Guardian, Thursday October 5, 2006
Dan Glaister

The lethal injection as a method of execution is coming under sustained attack in evidence given to a court in California, which could determine whether the procedure is dropped in the state with the largest death row population in the US.

Lethal injection has come under scrutiny in several of the 37 states where it is used, amid growing evidence that it could violate the US constitution's ban on "cruel and unusual punishment".

Last week Judge Jeremy Fogel, presiding over a US district court in the California city of San Jose, heard the case of Michael Morales, who was sentenced to death for the 1981 murder of 17-year-old Terri Winchell. His execution was called off at the last minute in February after two medical professionals refused to take part, saying it would violate their professional oath.

The court heard that the person responsible for delivering the lethal mixture of chemicals into the arms of condemned prisoners at San Quentin prison, near San Francisco, was the prison's maintenance man. It was also told that the head of the prison's executions team had been diagnosed with clinical depression and was taking antidepressants at the time of the last scheduled execution, and that none of the members of the execution team had read the state's lethal injection protocol.

"I don't study. I just do the job. I don't want to know about it," the prison nurse charged with mixing one of the chemicals for executions said in a court deposition.

Richard Dieter, the executive director of the Death Penalty Information Centre, said the hearings had "revealed that California has made serious errors in past executions and does not have a firm grasp on the medical procedures and implications of lethal injections".

In common with the 36 other states that use lethal injections, California uses a combination of three chemicals to execute prisoners. Sodium thiopental, a barbiturate anaesthetic is administered first, followed by pancuronium bromide to paralyse the inmate and, finally, potassium chloride to induce cardiac arrest. Opponents of the procedure say that if the anaesthetic fails, the second, paralysing drug may mask the pain caused by the final chemical.
They also argue that the procedure commonly used to euthanise pets - a single, lethal dose of a barbiturate - is more humane.

A veterinarian testified in court that he would not use the state's lethal injection procedure on an animal because it would "lead to pain and suffering".

"The critical question, I guess, the court has to look at is what evidence there is of consciousness," Judge Fogel said at the end of the four-day hearing. He is to rule on the case later this year.

The court heard testimony from witnesses and medical professionals that several executions at San Quentin, including that of Stanley "Tookie" Williams in December, had gone awry. When he stayed the execution of Morales in February, Judge Fogel said that he believed there was "substantial evidence" that the last six inmates executed in San Quentin may have been conscious when the final chemical was administered because there was evidence they were still breathing.

Court filings showed that the execution team did not practise mixing the first drug, sodium thiopental, and that the prison employee charged with ensuring that the drugs were combined correctly had no training in mixing drugs.

The most alarming testimony came from Mark Heath, a professor of anaesthesia at Columbia University medical school, who has testified against lethal injection in five states.

He told the court of a shambolic system in which untrained prison employees mixed chemicals in semi-darkness, were unaware of the names or properties of the chemicals used, and had no ability to assess whether an anaesthetic was working. The anteroom where the drugs were prepared, he said, was lit only by a faint red bulb, to conceal the executioners' identities. It was often crowded with witnesses and state officials, he said. One doctor in the room to witness an execution had to use a torch to see what he was writing.

DoubtsDr Heath argued that the paralytic drug served no legitimate purpose, as it neither killed nor anaesthetised. Questioned as to why it was used, he said two experts who support its use had argued it "serves to stop movements associated with death that would be disturbing to witnesses".

The state's chief witness was Robert Singler, an anaesthetist who had volunteered to monitor Morales' execution but withdrew when it became clear he might have to intervene. In the hearing Dr Singler testified that the three drugs used to execute an inmate did not cause pain and suffering.

Some death row inmates are also expressing their doubts about the lethal injection procedure. In Tennessee one inmate opted to be executed by electrocution instead of injection; in Virginia, another inmate did the same at the suggestion of prison guards.

Lance Lindsey, executive director of the San Francisco-based Death Penalty Focus, said he was not surprised at the allegations of incompetence. "We know there's a lack of training and general medical experience in executions," he said. "We realise this is a tragedy and we know there are botched executions."

Deborah Denno, a Fordham University professor of law and lethal injection expert, said the very existence of the California hearing represented a shift in attitudes. "It's significant that this hearing is taking place in a way it couldn't have five years ago," she said. "I think people are realising the weaknesses with the death penalty."

She said the advent of DNA testing and cases of death row prisoners being exonerated had led people to reconsider their support for the policy. "There's been a cultural shift in this country," she said. "There is receptivity to this in a way there never has been."

No executions will take place in California until Judge Fogel issues his ruling, probably in November. Whichever way he rules on whether the state's lethal injection procedure violates the constitution, the issue is likely to go to appeal and could end up before the US supreme court.

Any supreme court ruling on the case could have repercussions in the other states with capital punishment.

Methods since 1976
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Lethal injection 878, Electrocution 153, Gas chamber 11, Hanging 3, Firing squad 2