US Supreme Court Heard Oral Arguments Yesterday in Wood v. Allen, reviewing Actions of Defense Counsel in Sentencing Phase

Representing clients facing the sentence of dying by the government's hand for crimes they have allegedly committed is what I do.  And, while I represent clients in both phases of a death penalty case, I am particularly known for my work in representing defendants during the sentencing phase. 

So, I'm watching Wood v. Allen with particular interest as it winds its way through review by the highest court in the land.

By way of background, a man named Holly Wood was convicted in an Alabama court of killing his girlfriend.   He was sentenced to die for this act.  Mr. Wood was represented by defense counsel, and Mr. Wood is now arguing that he received ineffective assistance of counsel at the trial because one of his trial lawyers failed to introduce key evidence during the sentencing phase of the trial. 

What was that crucial evidence?  It was evidence of a mitigating factor to be considered in Mr. Wood's sentencing -- that he was mentally retarded. 

Holly Wood had three lawyers during the trial, but like many death penalty cases the defense duties were divided, and it's uncontested here that the lawyer responsible for the sentencing phase of the case was a novice.   And here is where things get complicated.

As Mr. Wood's case manuevered through the waters of the state appellate process, his appellate counsel argued that this novice attorney did not provide adequate representation -- and all the state reviewing courts failed to agree.  Instead, they held that Wood's more experienced counsel intentionally withheld the mental retardation evidence as part of their overall trial strategy. 

Entering the federal appellate system under a writ for habeas corpus under the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal district court went Wood's way and the Eleventh Circuit Court of Appeals reversed, opining that that the AEDPA limits review to "...whether there is evidence to support the state courts' findings" and the Alabama court's fact finding was reasonable since Wood failed to show that the defense decision not to present the evidence was not strategic.   Of course, there was a strong dissent which wisely pointed out that the Eleventh Circuit opinion was based upon nothing but "pure speculation" that not presenting key mitigating evidence was a "strategic decision."

There are several critical things to be considered in the Wood case, not the least of what are these two: 

(1) procedurally, the AEDPA limits the power that a federal court has in reviewing state court decisions regarding the death penalty and is this right?  (Most of the oral argument involved an analysis of the AEDPA's application to the Alabama case.)   And how badly written is this law (the two provisions addressed in Wood arguably support that this legislation was very badly drafted)? 

(2) a man faces death here -- a man that no one is arguing is mentally retarded.  It's not subject for debate that it is cruel and unusual punishment to execute someone who is mentally retarded.  That was already decided in Atkins v. Virginia.  

Still, despite the procedural loggerheads of the AEDPA and the reality that Mr. Wood is mentally retarded, Holly Wood may well be put to death by the State of Alabama.  Consider the comments of Justice Scalia during the arguments yesterday, where he stated that the defense counsel had been savvy not to put the mental retardation facts into evidence at trial because "[t]here was nothing here that was going to help them, and there might be stuff that would hurt them."   Practically speaking, following Scalia's way of thinking, should we allow a mentally retarded man to be executed assuming arguendo that it was best during the trial phase not to reveal his mental incapacities?

The transcript of the oral argument heard by the US Supreme Court yesterday in Wood v. Allen  is already online for your review.

In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution? (Part 3)

Today, in the final part of our three part series: the record of errors in Florida's use of lethal injection as a method of execution is discussed. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

Lethal Injection is the Most Commonly Botched Method of Execution

The history of execution by lethal injection in the United States is a miserable one. It has been characterized as the most commonly botched method of execution in the United States. Sims v. State, 754 So. 2d 657, 667, n.19 (Fla. 2000) (quoting the expert testimony of Professor Michael Radelet).[6]

Since 1985, there have been at least twenty-one executions by lethal execution that were botched. Marion J. Borg and Michael Radelet, On Botched Executions in Capital Punishment: Strategies for Abolition 143-168 (Peter Hodgkinson and William Schabas eds., 2001). Lethal injection, meant to be the neat and modern execution method, [has been] plagued with problems, or execution glitches, as they are also referred to in the business. Stephen Trombley, THE EXECUTION PROTOCOL: INSIDE AMERICA'S CAPITAL PUNISHMENT INDUSTRY 14 (1992).

Some of The Horrific Examples of Botched Executions Using Lethal Injection

Texas, Oklahoma, Arkansas, Missouri, and Illinois have reported bungled attempts to dispatch prisoners by lethal injection. These mistakes include blow-outs, improperly inserted catheters (no doubt attributable to the fact that, for ethical reasons, physicians are not involved in the process), and the improper mixture of the lethal solution. Id. A few notable examples follow. [7]

Stephen Morin, in Texas, lay on the gurney for 45 minutes while technicians punctured him repeatedly in an attempt to find a vein suitable for injection. Denno, supra at 111.

In April, 1998, the needle popped out during Joseph Cannon's execution, also in Texas. Seeing this, Cannon lay back, closed his eyes, and exclaimed to the witnesses, It's come undone. Officials then pulled a curtain to block the view of witnesses, reopening it fifteen minutes later when a weeping Cannon made a second final statement and the execution process resumed. Borg & Radelet, supra at 143-168.

In Louisiana, witnesses to the April, 1997, execution of John Ashley Brown saw Brown go into violent convulsions after he was administered the drugs.

In May 1997, Oklahoma inmate Scott Dawn Carpenter shook uncontrollably, emitted guttural sounds and gasped for breath until his body stopped moving. Borg & Radelet, supra at 143- 168.

An attorney who witnessed the June, 2000, execution of Bert Leroy Hunter reported that Hunter had violent convulsions. His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney. His body convulsed back and forth repeatedly. Id.

Perhaps the most grotesque of all was the blow-out during the Texas execution of Raymond Landry on December 13, 1988. Two minutes into the execution, the syringe came out of Landry's vein, spraying the deadly chemicals across the room toward witnesses. . . . The tube had to be reinserted while Landry was half-dead. It took twenty-four minutes for him to die. Trombley, supra at 14 - 15.

These Horrors Were Foreseeable - Look at Angola and Auschewitz's Earlier Examples

Plainly, this is a disturbing history and there can be no principled argument that similar problems with lethal injections were not foreseeable.

But then instead of doing it for medical purposes, it was for killing . . . . It was very much like a medical ceremony . . . . They were so careful to keep the full precision of a medical process but with the aim of killing. - Auschwitz prisoner doctor, quoted in The Nazi Doctors, Lifton, R. (Basic Books, Inc., p. 254)

The executions which occur at F Camp at Angola have much in common with those which occurred during one of the darkest moments of the 20th Century--in the hospitals at the Nazi concentration camp at Auschwitz. Both involved the use of injections via a hypodermic syringe with many of the trappings of a legitimate medical procedure.

The major difference is that the Auschwitz executions were carried out by physicians or their assistants: AA patient was brought to a treatment room and there administered a drug by a physician or (in most cases) his assistant, who wore a white coat and used a syringe and needle for the injection. Lifton, supra, at 254. For ethical reasons, physicians are not involved in lethal injections at Angola, which presents serious problems for condemned prisoners. Much is unknown about the execution process at Angola, but it is clear that no physicians are involved.

Florida Executions Have No Medical Standards and No Physician Attends to the Lethal Injection For Ethical Reasons

A serious problem with is that Florida regulations is that they fail to provide any semblance of the medical standards that should attend an injection execution. Absent such standards, the defendant is not guaranteed that his execution will be carried out under procedures which minimize the risk of needless pain, suffering and the risk of lingering death.

In particular, the regulations do not address the following matters:



  • a. How are the lethal drugs labeled, stored and distinguished before and during the execution?


  • b. What are the percentage concentrations of the solutions of lethal drugs determined, and by whom are they determined?


  • c. What are the volumes of each of the lethal drugs used, and by whom are they determined?


  • d. What level of pressure is applied to each of the injections by the executioner(s)?


  • e. What period of time is prescribed for the initial "Normal Saline" drip before injection of the first lethal chemical?


  • f. What period of time is prescribed to administer each injection of lethal chemical and each intervening "flush" injection of "Normal Saline" solution?


  • g. What volume of "Normal Saline" solution is prescribed for the initial "Normal Saline" drip and for each intervening "flush" injection of "Normal Saline" solution?


  • h. How many executioner(s) are present during the procedure?


  • i. What activity does each of the executioner(s) perform?


  • j. What procedure is prescribed if two of the lethal chemicals mix together and solidify (precipitate) during the lethal injection procedure?


  • k. What is the medical training and expertise of the executioner(s) which establish that the executioner(s) is/are qualified to insert I. V.'s and perform I. V. cutdown[8] as needed and to inject chemicals in an sequence and a percentage concentration and flow of pressure to prevent unnecessary pain, torture or lingering death.


As described earlier, in the second part of this three part series, the injection of pancuronium bromide and potassium chloride are guaranteed to produce a horrifying and agonizing death unless the prisoner is fully anaesthetized and remains anaesthetized throughout. This, in turn, depends wholly and solely upon the non-medical personnel accurately measuring out and then successfully administering an adequate dose of sodium Pentothal.

Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own slow, lingering asphyxiation. Chaney v. Heckler, 718 F.2d 1174, 1191 (D.C. Cir. 1983), rev'd on other grounds, 470 U.S. 821, 837-38 (1985).

Common Medical Errors During an Execution by Lethal Injection Without Proper Medical Standards

As an expert anesthesiologist explains, the common errors that bedevil such a process include:


  • infiltration (the failure to correctly insert an IV line in a vein);

  • retrograde injections (the improper dilution of the lethal drugs with saline solution in the IV bag);

  • IV tubing leakage (caused by the need to join lengths of IV tube together to reach behind the executioner=s curtain); and,

  • incorrect dosages (the failure to administer a sufficient dosage given the individual differences from one person to another, including matters as diverse as body mass and drug use history).


See Affidavit of Dr. Mark Heath, M..D. && 27-35, on file in State v. Stephen Howard Oken, Ct.of App. of Md., No. 143 and Misc. No. 31 September Term 2003 (Motion for Stay of Execution and Supporting Exhibits, Exhibit 9, Appendix B, filed June 1, 2004, motion denied, State v. Oken, 851 A.2d 538 (Md. Ct. App. 2004)).

Over 50% of the Prisoners Are Aware - Not Unconscious As Assumed by the Use of an Anesthetic - As They Die

As a result of these common errors, prisoners executed by lethal injection suffer an unacceptable risk of being conscious during the administration of the pancuronium bromide and the potassium chloride. It has now been discovered that post-mortem blood levels of the anesthetic thiopental from prisoners executed by lethal injection show that in many cases there is a more than 50% likelihood that the prisoner was conscious as he died and in some cases, such as the execution of Desmond Carter in 2002, there was no more than a trace of the anesthetic left in the prisoner's system, guaranteeing consciousness. Id. at & 37.

Secret Execution Process in Lethal Injection - Unlike Electrocution - Guarantees No One Knows For Sure What Is Happening Here

Unlike execution by electrocution, fundamental stages of the process of execution by lethal injection are conducted in secret, out of view of counsel or the general public. For the reasons detailed below, such secrecy is constitutionally intolerable.  The regulations provide that the curtains to the witness chamber are closed for large portions of the procedure, including during the placement of the IV lines into the individual being executed and the adjustment of those lines.

Witnesses and, indeed, counsel for the condemned, view only a portion of the entire process that constitutes the execution. Certainly, witnesses are permitted to view the inmate during the period of time when the poison solution is flowing throughout his veins. But the execution proper begins when the needle breaks the skin. Significant problems are frequently encountered in this stage of the process. See Denno, supra at 95-128; Borg & Radelet, supra at 143-169; Trombley, supra at 14-15, 76; and other authorities cited in n. 5, supra. However, the regulations provide that this process is carried out in secret, out of the presence of counsel, the public and the media.

This Method of Execution - and the Secrecy Surrounding It - Is Unconstitutional

In a free and democratic society, and one which cherishes both the vigilant eye of the media and the presence of counsel, such secrecy cannot be countenanced. The execution of a sentence of death must be viewed as a critical stage of the criminal process, at which counsel may be present. Without the presence of counsel during this critical stage of the execution, the condemned is robbed of an advocate who could, in an appropriate manner, request that a bungled execution be halted.

Sources:
[6] Cited in Denno, supra, at 111 n. 336. Professor Denno also independently canvases the protocols employed by all the states that employ lethal injection, and describes in detail, and with reference to the possible failures of the drugs used to do as they were expected, the federally administered execution of Oklahoma City bomber Timothy McVeigh. Denno, supra, at 117-128. Her survey exposes numerous instances in addition to the examples recounted in this motion.
[7] Borg & Radelet, supra and Trombley, supra catalogue dozens of events similar to those listed here. Press reports on specific executions also report horrific incidents throughout the country and across the years. See, e.g. Scott Fornek and Alex Rodriguez, Gacy Lawyers Blast Method: Lethal Injections Under Fire After Equipment Malfunction, CHICAGO SUN-TIMES, May 11, 1994, at 5; Rich Chapman, Witnesses Describe Killer's 'Macabre' Final Few Minutes, CHICAGO SUN-TIMES, May 11, 1994, at 5; Rob Karwath & Susan Kuczka, Gacy Execution Delay Blamed on Clogged IV Tube, CHICAGO TRIB., May 11, 1994; Witnesses to a Botched Execution, ST. LOUIS POST- DISPATCH, May 8, 1995, at 6B. 34; Tim O'Neil, Too-Tight Strap Hampered Execution, ST. LOUIS POST-DISPATCH, May 5, 1995, at B1; Jim Slater, Execution Procedure Questioned, KANSAS CITY STAR, May 4, 1995, at C8. 35; Sherri Edwards & Suzanne McBride, Doctor's Aid in Injection Violated Ethics Rule: Physician Helped Insert the Lethal Tube in a Breach of AMA's Policy Forbidding Active Role in Execution, INDIANAPOLIS STAR, July 19, 1996, at A1; Suzanne McBride, Problem With Vein Delays Execution, INDIANAPOLIS NEWS, July 18, 1996, at 1; Rhonda Cook, Gang Leader Executed by Injection Death Comes 25 Years after Boy, 11, Slain, ATLANTA JOURNAL CONSTITUTION, Nov. 7, 2001, p. B1; Store Clerk's Killer Executed in Virginia, N.Y. TIMES, Jan. 25, 1996, at A19; Killer Helps Officials Find A Vein At His Execution, CHATTANOOGA FREE PRESS, June 13, 1997, at A7; Michael Graczyk, Reputed Marijuana Smuggler Executed for 1988 Dallas Slaying, ASSOCIATED PRESS, August 27, 1998; Sean Whaley, Nevada Executes Killer, LAS VEGAS REVIEW- JOURNAL, Oct. 5, 1998, at 1A; Ron Moore, AAt Last I can be with my Babies," SCOTTISH DAILY RECORD, May 4, 2000, at 24; Rick Bragg, Florida Inmate Claims Abuse in Execution, N.Y. TIMES, June 9, 2000, at A14; Sarah Rimber, Working
[8] A "cutdown" (not referred to in the regulations) is a practice common in injection jurisdictions that involves a surgical intervention to insert the catheter. In non-medical terms, the prisoner's arm is cut with a knife to introduce the catheter. No local anesthetic is applied. The Supreme Court has noted that cutdowns have been described as Adangerous and antiquated medical procedure[s].@ Nelson v. Campbell, 541 U.S. 637, 125 S.C. 2117, 2122,158 LED. 2d 924 (2004).

In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution? (Part 2)

Today, in part two of our three part series: the three drugs that make up the Florida execution cocktail are discussed in detail. Again, much of the language used here can be seen in any number of defensive motions filed in capital punishment matters across the state today.

1. Thipental Sodium - the First Drug to be Administered

Thiopental sodium is the first drug to be administered during an execution by lethal injection in Florida. As a general anesthetic, thiopental sodium poses special risks because it is so short-lasting that for any number of reasons it can cease to operate as sufficient anesthesia long before the other drugs cause the death of the condemned.[1] Think about that.

It stops working within minutes.

In an affidavit submitted during litigation in Tennessee, Dr. Dennis Geiser, the chairman of the Department of Large Animal Clinical Sciences at the College of Veterinary Medicine at the University of Tennessee, swore under oath that:


the dosage of thiopental sodium must be measured with some degree of precision, and the administration of the proper amount of the dosage will depend on the concentration of the drug and the size and condition of the subject. Additionally, the drug must be administered properly so that the full amount of the dosage will directly enter the subject's blood stream at the proper rate. If the dosage is not correct, or if the drug is not properly administered, then it will not adequately anaesthetize the subject, and the subject may experience the untoward effects of the neuromuscular blocking agent . [Further], under Thiopental Sodium the anesthetic effect is extremely short-lived, and will be effective for surgical restraint and anesthesia for a period of only five to seven minutes.

Affidavit of Dr. Dennis Geiser, in the case of Abu-Ali Abdul Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), cert. granted on other grounds, 535 U.S. 1016, cert dismissed as improvidently granted, 537 U.S. 88 (2002), on remand on other grounds, ___F.3d___, 2004 WL 2847749 (6th Cir. Dec. 13, 2004) (en banc) (emphasis supplied).

It actually heightens sensitivity to pain.

Drug manufacturers warn that without careful medical supervision of dosage and administration, barbiturates like thiopental sodium can cause paradoxical excitement and can actually heighten sensitivity to pain. See Physicians Desk Reference, 50th Ed. 1996 at 438-440. Manufacturers warn against administration by intravenous injection (hereinafter AIV) unless a patient is unconscious or otherwise incapacitated. Id. Thus, there are serious problems with the first drug, the anesthetic, actually operating to anesthetize the person being executed sufficiently or for long enough to prevent suffering caused by the subsequent two drugs. Denno, supra, at 95-98.

2. Pancuronium Bromide - The Second Drug to be Administered

The second chemical involved in the lethal injection process, pancuronium bromide, or Pavulon, is also constitutionally problematic under existing law. A derivative of curare, it operates to suppress any muscular movement, including breathing, in the condemned, but does not anesthetize him or affect his consciousness in any way.

It Keeps the Inmate Still While He Dies - But It Doesn't Stop His Pain, It Only Paralyzes Him

According to recent scholarship, it is completely unnecessary to causing the condemned's death, and serves only to make the execution seem more palatable to the other participants and witnesses when the other drugs have their effects, which can include spasm, twitching and other movements of the voluntary muscles:

[P]ancuronium bromide serves no real purpose other than to keep the inmate still while potassium chloride kills. Therefore, pancuronium bromide creates the serene appearance that witnesses often describe of a lethal injection execution, because the inmate is totally paralyzed. The calm scene that this paralysis ensures, despite the fact that the inmate may be conscious and suffering, is only one of the many controversial aspects of this drug combination. Denno, supra, at 100 (footnotes omitted).


It is Illegal to Use Pancuronium Bromide When Euthanizing Animals

Because it prevents muscular activity, including that associated with breathing, but does not render the subject unconsciousness or cause immediate death, the use of pancuronium bromide B or any other neuromuscular blocking agent -- to euthanize animals is absolutely condemned by the American Veterinary Medical Association. 2000 Report of the AMVA Panel on Euthanasia, Journal of AVMA, March 1, 2001 at 681.

Some states, including Tennessee, have legislatively banned the use of Pavulon as a means of euthanizing non-livestock animals precisely because it causes torture and suffering in the subject. See Tenn. Code Ann. '44-17-3038), '39-14-201. While Pavulon paralyzes skeletal muscles, including the diaphragm, it has no effect on consciousness or the perception of pain or suffering. The effect of the administration of Pavulon is characterized to an insufficiently anesthetized person as like being tied to a tree, having darts thrown at you, and feeling the pain without any ability to respond. See paragraph 8, supra.

"Anesthesia Awareness"--a Chemical Straightjacket and Gag

This is known as anesthesia awareness, a phenomenon which has been documented during surgical operations performed by qualified anesthesiologists and surgeons. Anesthesia awareness occurs when the patient has not been properly anaesthetized, as is no doubt happening with the use of Pentothal in the lethal injection process. Not being anesthetized means that the condemned will be conscious of being paralyzed and of being poisoned, but will be powerless to demonstrate his distress.
Pavulon in the lethal injection protocol serves no purpose other than to guarantee that the condemned inmate will be forced into a chemical straightjacket with and gag while he consciously experiences the potassium chloride ravaging his internal organs. Persons viewing the lethal injection procedure and the public will never realize that a cruel fraud is being perpetrated upon them: instead of witnessing an inmate quiet and motionless while being put to sleep, they are in fact witnessing the cover-up of a deliberate act of excruciating torture for which only the inmate is fully conscious. See Denno, supra, at 100.

3. Potassium Chloride - The Third Drug to be Administered

Finally, the use of the third drug -- the actual killing agent potassium chloride -- also raises important constitutional concerns. According to Dr. James J. Ramsey, a certified perfusionist and currently the Program Director in the Program in Cardiovascular Perfusion at Vanderbilt Medical Center, Nashville, Tennessee, the adequacy of the potassium chloride to cause death by stopping the heart is in question. [2]

The Inmate Suffocates - The Lethal Injection Does Not Just Peacefully Stop the Heart

Dr Ramsey has stated:


AIt is my understanding that during the performance of lethal injection as carried out during the death penalty, potassium (and other agents) are administered intravenously to the defendant. Such administration is, in my professional opinion based upon my knowledge, training, and experience, and within a reasonable degree of medical certainty, entirely inadequate in order to achieve reasonable cardiac standstill. Since the agents are introduced intravenously, there will occur an immediate dilution of the solution, weakening any potential effect it may have. By illustration an 80 kilogram person would have a blood volume of approximately 5.5 to 6 liters. An administration of 100 milli-equivalents of potassium intravenously to the 80 kilogram person would result in a blood concentration of only 16.6 meq/L. Such a dose is according to scientific literatureY and as evidenced in my practice, inadequate to achieve cardiac standstill.

Furthermore, it must be remembered that [in contrast to the administration of potassium chloride in the surgical context] such administration is: (1) not directed into the coronary arteries; (2) directed only in an antegrade fashion; and (3) is at mormothermia (37 degrees Celsius, not at five degrees Celsius). Without reasonable data regarding any one person=s anatomic and pathologic state as to their myocardial function prior to administration of the potassium, there can be no reasonable certainty that the potassium solution intended to arrest the heart would be distributed in a fashion that would arrest the heart. Thus, the very orchestrated and methodical methods used in surgery should not be thought of as optimizing the arrest of the heart, but should be considered to be necessary as the only reasonable means of ensuring that the heart is arrested. If the heart could be arrested by intravenous objections, cardiac surgery today would be a very different animal- science and research tell us that mere intravenous injection of potassium is not sufficient.

* * *

Additionally, in my professional opinion and within a reasonable degree of medical certainty, barring an effective cardiac arrest, it is entirely possible that a lethal injection as I understand it will serve only to arrest the function of the pulmonary system, thereby causing a state of ischemia to the entire body (no oxygen delivery), which, in turn, will ultimately arrest the heart as well (with no oxygen delivery to it.) As a result, the defendant is simply suffocated due to lack of oxygen.

Next week, in part three of the series, the series concludes with a discussion of why Florida's method of execution is unconstitutional and wrong.

[1] Sodium thiopental, an ultra-short acting drug . . . typically wears off very quickly; other similar drugs, such as pentobarbital, endure far longer. The fast acting aspect of sodium thiopental can have horrifying effects if the inmate awakens while being administered the other two drugs. . . Most importantly, it is totally unnecessary for the barbiturate to be fast acting, given the availability of longer acting chemicals. Denno, supra, at 98 (footnotes omitted).
[2] Perfusion involves the study of medicine related to the artificial circulation technologies, including but not limited to the operation of the heart-lung machine, a medical device commonly used during open-heart surgeries of all kinds. The arena involving the chemical arrest of the heart lies uniquely within the practice of the clinical perfusionist.

In-Depth Look at the Law: Does the Florida Death Penalty by Lethal Injection Violate the Constitution?

I have real concerns about the constitutionality of the current means of capital punishment here in Florida - and really, in most of the country today. And it's not just me - many Death Penalty Qualified Defense attorneys here in Florida share the same concern regarding execution by lethal injection.

Why?

There is a strong argument that execution by lethal injection violates both the Florida Constitution and the U.S. Constitution. In the next series of scholarly posts that appear here on the blog every Friday, we'll be looking at this issue.

The State and Federal Constitutions forbid foreseeable and unnecessary pain in the execution of an individual.

Much of the language that you will be seeing here is language that commonly appears in motions filed by counsel representing defendants who have been sentenced to death by the State of Florida. It's a solid and sturdy argument against the use of lethal injection, and there are many attorneys, legal scholars, professors, sociologists, and other professionals, who stand on this position:

Both the Florida and the U.S. Constitutions forbid the infliction of unnecessary pain -- that is, any pain that could reasonably be avoided -- in the execution of a sentence of death. The courts have ruled that the infliction of a severe punishment by the state cannot comport with human dignity when it is unnecessary and nothing more than the pointless infliction of suffering. Furthermore, [p]unishments are held to be cruel when they involve . . . a lingering death. In re Kemmler, 136 U.S. 436, 447 (1890); see also Nelson v. Campbell, 541 U.S. 637, 125 S.Ct. 2117, 2122,158 L.Ed. 2d 924 (2004).

A punishment is particularly constitutionally offensive - and therefore, illegal -- if it involves the foreseeable infliction of suffering. Furman v. Georgia, 408 U.S. 238, 273 (1973). Such things as (1) the probable length of time the condemned remains conscious of the process; (2) the physical or psychological pain he or she suffers during this period; and (3) the time it takes for death to occur must all be taken into consideration in determining whether a means of execution violates the constitution. See Fierro v. Gomez, 865 F. Supp. 1387, 1413 (N.D. Cal. 1994), aff'd, 77 F.3d 301, 308 (9th Cir. 1996), vacated on other grounds, 519 U.S. 918 (1996).

The Analogy of Death by Inhalation of Lethal Gas

In the Fierro case, execution by the inhaling of poisonous gas in a gas chamber was being considered. The court explained what it found to be a lingering death and foreseeable suffering:

[D]eath by this method [lethal gas] is not instantaneous. Death is not extremely rapid or within a matter of seconds. Rather . . . inmates are likely to be conscious for anywhere from fifteen seconds to one minute from the time that the gas strikes their face and during this period of consciousness, the condemned inmate is likely to suffer intense physical pain from air hunger; symptoms of air hunger include intense chest pains . . . acute anxiety, and struggling to breathe.


The" Three Drug Cocktail" Used in Florida Executions by Lethal Injection -it's really three injections, not just one.

While much of the lethal injection process is shrouded in secrecy in this state, it has been determined that the Florida execution process involves the injection of numerous chemical substances:

1. The first substance administered is an anesthetic -- sodium Pentothal, an ultrashort-acting barbiturate that causes the inmate to go to sleep for a very short time in ordinary doses.

2. Next, the person being executed is administered a neuromuscular blocking agent, pancuronium bromide, (brand name Pavulon), a curare-derived agent which paralyzes all skeletal or voluntary muscles, but which has no effect whatsoever on awareness, cognition or sensation.

3. Finally, the condemned is administered the agent actually designed to cause death -- potassium chloride, a chemical which causes death by cardiac arrest, an extremely painful process that activates nerve fibers in the veins as the drug proceeds through the prisoner's system and ultimately interferes with the rhythmic contractions of the heart and stops its beating.

See generally Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What it Says about Us, 63 Ohio St. L.J.63, 95-99 (2002) (discussing the chemicals used in lethal injection and their medical effects).

Therefore, far from producing rapid loss of consciousness and a humane death, this particular combination of chemicals chosen by the State of Florida causes the inmate to suffer an excruciatingly painful, protracted death.

The sequence of the administration of the chemicals, and failure to provide professional medical monitoring of the effects of the drugs, virtually assure that the actual pain and fear being suffered by the execution victim -- the very things by which a court can judge whether a method of execution transgresses the constitutional standards -- will go undetected. (See, Denno, 63 Ohio St. L.J. at 100.)

Next week, in part two of the series, the three drugs that make up the Florida execution cocktail are discussed in detail.

 
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