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Tuesday, January 08, 2008

Ind. Decisions - Lethal injection case heard before SCOTUS; Indiana implications

"Justices seem unswayed by lethal injection foes" is the headline to an article today by David G. Savage of the LA Times that begins:

Supreme Court justices reacted skeptically Monday to the claim that the lethal injections used to carry out executions in the United States were flawed in practice and amounted to cruel and unusual punishment.

Death penalty critics had hoped that the court would declare unconstitutional the use of a three-drug compound that has been the standard means of execution since the early 1980s. They say the use of a paralyzing drug could mask the fact that the condemned man may suffer searing pain when given a heart-stopping drug.

Such a ruling, if handed down by the high court, would not spell the end of capital punishment or bar the use of lethal injections. But, defense lawyers argued, switching to a single powerful barbiturate could result in painless deaths. Veterinarians put horses to death using just such a barbiturate, they said.

None of those arguments appeared to gain much traction during Monday's argument in a closely watched Kentucky case. Instead, in their comments and questions, most of the justices said they were not convinced Kentucky's method was flawed.

They also said they had seen no strong evidence that a single barbiturate would work better. Several of the conservative justices said they saw this attack on lethal injections as part of the long campaign to abolish capital punishment altogether.

"This is an execution, not surgery," Justice Antonin Scalia told the attorney who was representing two Kentucky inmates who say the use of the three-drug compound poses "an unnecessary risk of pain" to the dying man.

"Where does that come from, that you must find the method of execution that causes the least pain?" Scalia continued. "We have approved electrocution. We have approved death by firing squad. I expect both of those have more possibilities of painful death than the protocol here."

Linda Greenhouse of the NY Times has a story today that begins:
With conservative justices questioning their motives and liberal justices questioning their evidence, opponents of the American manner of capital punishment made little headway Monday in their effort to persuade the Supreme Court that the Constitution requires states to change the way they carry out executions by lethal injection.

Donald B. Verrilli Jr., the lawyer for two inmates on Kentucky’s death row who are facing execution by the commonly used three-chemical protocol, conceded that theoretically his clients would have no case if the first drug, a barbiturate used for anesthesia, could be guaranteed to work perfectly by inducing deep unconsciousness.

But as a practical matter, Mr. Verrilli went on to say, systemic flaws in Kentucky’s procedures mean that there can be no such guarantee, and the state’s refusal to take reasonable steps to avoid the foreseeable risk of “torturous, excruciating pain” makes its use of the three-drug procedure unconstitutional.

It was here that Mr. Verrilli met resistance from both sides of the court, and the closely watched case appeared to founder in this gap between theory and practice.

Of the 36 states with the death penalty, all but Nebraska, which still uses only the electric chair, specify the same three-drug sequence for lethal injections. The second drug, pancuronium bromide, paralyzes the muscles with suffocating effect. The third, potassium chloride, stops the heart and brings about death, but not before causing searing pain if the anesthesia does not work as intended. The paralyzing effect of the second drug gives the inmate a peaceful appearance and, even if he is in great pain because of inadequacy of the anesthesia, renders him unable to communicate that fact.

Mr. Verrilli said the risk of pain could be eliminated if medically trained personnel, rather than the prison warden, monitored the anesthesia. When Justice Antonin Scalia objected that the American Medical Association’s ethical code prohibited doctors from participating in executions, Mr. Verrilli replied, “That’s why there is another practical alternative here, which solves that problem.” The alternative, he said, is a “single dose of barbiturate, which does not require the participation of a medically trained professional.”

The case is Ralph Baze and Thomas C. Bowling v. John D. Rees, Commissioner, Kentucky Department of Corrections, et al. Check here for the summary, briefs, etc.

What about Indiana? The ILB has had a number of entries, on the Kentucky case and other lethal injection issues. Also relevant is the Indiana motion of Norman Timberlake/David Woods for a preliminary injunction against use of the lethal injection protocol, which federal Judge Richard L. Young denied May 1, 2007, concluding: "Based on the facts and law set forth in this Entry, therefore, Woods’ application for a preliminary injunction, which is the functional equivalent in the present circumstances of a stay of execution, must be and is now DENIED." See this May 1, 2007 ILB entry for details and a link to the ruling.

This earlier ILB entry, from April 26, 2007, quoting from a story by Jon Murray in the Indianapolis Star, interestingly explains that Indiana officials reported they had changed the protocol, at least in Woods' case:

Officials have recently changed execution plans. For Woods, they plan to double the dose of anesthetic and will place an ammonia tablet under his nose to verify that he's sedated.

"We looked at experts' testimony in other states," Buss said, and decided the new amount, 5 grams of sodium pentothal, was certain to be effective.

"It's an increased safety margin," Heath said of the higher dose. "But in the absence of verifying the anesthetic depth in a meaningful way, it doesn't matter."

Heath said the second paralyzing drug -- used to keep the inmate from convulsing -- could prevent one who isn't adequately sedated from grimacing or showing other signs of consciousness.

Concerns about lethal injection have prompted 11 states to suspend executions, by court order or on their own. But Buss and other officials defend Indiana's procedures.

Tom Walker of Indy Eyewitness News (13) reported last evening:
Washington, D.C. - Attorneys went before the U.S. Supreme Court Monday, arguing against execution by lethal injection, and Indiana has a stake in the outcome.

The arguments are the most direct attack on the death penalty the court has heard in years. Critics argued that lethal injections used in many states, including Indiana, should be ruled unconstitutional if they pose a risk of being cruel and unusual.

"Where the pain is excruciating and horrifying and where that excruciating pain can be readily avoided through feasible alternatives," said inmate rights attorney Donald Verrilli.

They point to examples such as Joseph Clark described as writhing in pain during a botched execution in Ohio's death chamber. In a challenge to Kentucky's death penalty, state officials insisted such cases are rare.

"There is very, very little evidence that people have ever felt excruciating pain in executions carried out by lethal injection," said Kentucky attorney Roy Englert.

Defenders say injections have been given hundreds of times without problems, but the debate goes on.

"We don't know how many problems, because the states have gone to great lengths to keep the data on executions secret," said Jamie Fellner of Human Rights Watch.

With the issue before the high court, executions across the United States have been put on hold. Legal experts say it's unlikely the court would order states like Indiana to stop using lethal injection altogether.

"The Supreme Court may end up telling them, 'Look, just change the drug cocktail so that you can execute people without this potential problem'," said Supreme Court lawyer Thomas Goldstein.

The court appears deeply divided on whether executions intended to be less painful are, in fact, inhumane.

The Indiana Attorney General's office says the state's lethal injection law has worked well, but the Supreme Court case is being watched closely.

Finally, check out this interactive chart from CNN, that allows you to compare death penalty policies and statistics for each state. Look at Indiana and its neighboring states, but don't miss Texas.

Posted by Marcia Oddi on January 8, 2008 07:21 AM
Posted to Ind Fed D.Ct. Decisions