Supreme Court to Hear Lethal Injection Case

Jan 06, 09:10 PM

Several minutes into his execution in 2006, the Florida inmate's mouth was moving and he was gasping for breath. Twenty minutes later, he was still breathing.

That same year, Ohio inmate Joseph Clark took even longer to die. As he was injected with the drugs to first anesthetize him, then paralyze him and then finally kill him, he raised his head and exclaimed: "It don't work." According to the medical examiner's report, Clark was conscious for almost an hour.

Diaz and Clark were convicted murderers who were sentenced to death. Their executions, however, gave life to a legal movement in the nation to re-examine whether lethal injection in its current form is the humane alternative to the electric chair and the gas chamber that proponents promised.

On Monday, the Supreme Court will hear arguments in the case of two Kentucky prisoners who contend that the three-chemical mix of drugs used for most of America's executions constitutes cruel and unusual punishment under the Eighth Amendment.

In that respect, the question before the justices is narrow _ whether the combination of chemicals causes a risk of unnecessary pain and suffering and should be fine-tuned to produce a more efficient poison. The larger issue of whether executions are constitutional is not on the table.

But the case represents the latest collision between two diametrically opposing forces: those who want to do away with capital punishment entirely and those who believe that too many legal obstacles already stand in the way of executing criminals. Lethal injection is that battle's middle ground.

"The Supreme Court needs to provide a clear answer regarding what is and is not permissible in this area, so that justice can be carried out," said Kent Scheidegger, counsel to the Criminal Justice Legal Foundation, which has filed a friend-of-the-court brief in the case. "That is far more important than whether any particular method is upheld or struck down. These cases have already dragged on far too long."

In 1992, a Kentucky man named Ralph Baze used an assault rifle to kill a county sheriff and deputy sheriff who were trying to arrest him. Thomas Dowling in 1990 murdered a husband and wife and wounded their child in a dry cleaner parking lot. Both Blaze and Dowling were sentenced to death. In 2004, they filed suit challenging Kentucky's execution protocol.

The Kentucky Supreme Court held that the procedure did not violate the U.S. Constitution. Kentucky is one of 37 states that have adopted lethal injection as the primary or sole means of execution.

At issue is the three-drug sequence used in carrying out the death penalty. The first drug, sodium thiopental, is an anesthetic intended to cause unconsciousness. The second, pancuronium bromide, is a neuromuscular blocking agent that paralyzes the inmate. The third, potassium chloride _ which is, in fact, found in road salt _ is used to cause cardiac arrest and death.

Effective application of the drugs is critical. If the anesthetic doesn't function properly, the next two drugs cause excruciating pain. The neuromuscular paralyzer produces the sensation of suffocation in a conscious individual. And an effect of the second agent is that the inmate cannot speak or relay that the anesthetic didn't work. Advocates for changing the procedure have pushed for a single drug protocol involving a barbiturate, but no state has yet adopted it.

The fractured nature of the debate has forced some of those who oppose the death penalty to argue for a humane approach to executions, saying essentially, if you are going to kill them, at least do it right. In briefs in support of the prisoners, the Death Penalty Information Center and other anti-capital punishment groups argue that many states have insufficient requirements that trained personnel administer the drugs.

Complicating the issue is the stance of physician groups like the American Medical Association, which says a doctor's participation in ending life is a breach of medical ethics. (And in fact, Kentucky prohibits physicians from being involved.)

Dr. Atul Gawande, a surgeon at Brigham and Women's Hospital in Boston, wrote an article for the New England Journal of Medicine in which he interviewed doctors who participated in executions. He concluded that physicians have no role to play in the machinery of death. "The medicalization of punishment is a serious mistake," Gawande said. "I'm glad to find the issue is being forced to a head."

But John McAdams, a death penalty scholar at Marquette University, sees legal challenges to lethal injection procedures as nothing more than the latest attempt to slow executions through litigation. "Nothing government ever does is perfect," he said, "but the death penalty opponents' strategy is to insist that the policy has to work to absolute perfection to be acceptable."

McAdams said that the Supreme Court shouldn't mandate such perfection. "The best anesthesiologist will, sometime in his or her career, have a patient who dies or reacts horribly badly when put under," he said. "So the mere fact that some prisoner somewhere suffered before expiring doesn't make a procedure unconstitutional."

The court's decision to hear the case triggered a de facto moratorium on executions nationwide, although several states still have them scheduled. Richard Dieter, executive director of the Death Penalty Information Center, said the respite from executions has given the American public a chance "to step back and maybe look at the broader questions" concerning capital punishment: "Why are we doing this anyhow? And is this ever going to be fixed?"

Dieter said that the grotesque deaths of inmates like Diaz and Clark force people to address their discomfort with executions. "We'd like it to be quick and painless," he said, "so our anger at the defendant can be carried out without laying guilt on us."

Scheidegger, however, says the case simply is about adjusting procedures and to not expect a sweeping statement from the justices about capital punishment in America. "Nobody wants to have another execution like Diaz's," he said. And even Dieter concedes that if the Supreme Court provides clear guidance in terms of a constitutionally acceptable process, the result could be a "surge" of executions, making the moratorium short-lived.

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