Ohio's Second Execution of Romell Broom Stayed for 30 Days by Federal Judge - How Do You Think He'll Rule?

Death Row inmate Romell Broom was setting in the courtroom this week as his attorneys stood ready for an evidentiary hearing that would take a couple of days in front of Federal District Judge Gregory Frost.  Romell Broom sat there, ready to testify. Think of it -- Broom left his small Death Row cell to set in that public courtroom, look out at all those faces and tell about the pain and suffering he experienced on that gurney as his executioners spent over two hours trying to find a vein in which a needle could be inserted.  We've posted about this earlier - including the media reports that Broom was "sobbing in pain" that day.  The hearing was based upon Broom's motion.  Romell Broom is seeking to stop his scheduled execution by Ohio by arguing that it is unconstitutional for the State of Ohio to try and kill him a second time after its horrific failure to execute him earlier this year by lethal injection.  Judge Frost doesn't hold a evidentiary hearing  Surprising some, Judge Frost took the bench and soon thereafter advised everyone that he wouldn't be hearing testimony in the Broom matter.  Nope.  According to Judge Frost, he's really able to decide only a narrow question of the law.  No fact-finding is needed, so no testimony would be taken.  Attorneys were asked to file their arguments addressing the issue, and the Judge would rule based upon the paper.  Judge Frost did give everyone a big hint -- he's stated that he doesn't see how Broom can circumvent the decision made by the Sixth Circuit Court of Appeals and denied review by the United States Supreme Court earlier this week in the Biros case.  Ken Biros died as a guinea pig to the new Ohio single-drug injection method.  What is Judge Frost Going to Decide? All that Judge Frost is going to answer is the limited question of whether or not the State of Ohio, after it has failed to execute an inmate, has the right under law to try again.  And while it is critical to consider the pain and suffering that Romell Broom experienced on that gurney that day, Frost is saying that he's not hearing anything on pain because of the federal appellate court ruling Monday in Kenneth Biros's case. On Monday, Biros unsuccessfully argued that the method of execution Ohio would be using hadn't been vetted and Ohio couldn't show that the execution method couldn't cause severe pain.  Severe pain during an execution violates the prohibition of cruel and unusual punishment of the U.S. Constitution.  The appellate court specifically stated that Biros had provided no evidence on pain.  Arguing about the pain that might occur during an untested method of execution seems easily distinguishable from an argument concerning the two bites at the apple situation facing Broom.  Yet Judge Frost is moving forward without any evidence on pain -- there was no evidence on pain in the Biros appellate record and he's prohibiting having Romell Broom take the stand in the present case.  Given this factual vacuum and the precedent of Louisiana v. Resweber, 329 US 459 (1946), where the failure of an electric chair during an initial execution did not prevent the second execution from proceeding, what Judge Frost is going to rule probably isn't that hard to predict regardless of whether your perspective is based upon double jeopardy, due process, or cruel and unusual punishment.

As These Words Are Being Typed, Ohio Is Killing Ken Biros in an Unvetted Execution Method, Unless You Count Euthanasia of Dogs as Vetting

All this morning, there have been almost minute by minute updates on the web regarding whether or not the appellate attorneys feverishly fighting to stop this morning's execution of Kenneth Biros by the State of Ohio will be successful. 

Biros' attorneys are literally banging on the doors of the United States Supreme Court, asking that the highest court in the land act immediately to stay the execution of Ken Biros -- who is set to die this morning  (the execution is scheduled for 11 am) unless something BIG happens. 

And this needs to be stopped.  We've already written here about all the reasons why.

The State of Ohio is about to execute a man in the same way that the vet down the street "executes" pets everyday - by a single, massive injection of a drug.  As we've posted about before, no one knows how a human being will react to this procedure.  It hasn't been scrunitized in the standard legal way -- Ohio is allowing Biros to be a guinea pig.  Will this be cruel and unusual?  We don't know.

The New York Times legal blog has periodic updates.  A local TV station in Ohio has a reporter at the prison.  The Tribune Chronicle in Lucasville is posting almost minute by minute events as they transpire.   

At 9:20 am, prison officials announced that the execution might be delayed - Ohio would wait until the United States Supreme Court ruled on the defense attorneys' last minute request. 

At 10:00 am, it was announced that the United States Supreme Court will not stop the killing of Kenneth Biros by an unvetted execution method. 

Ken Biros will die today. 

And the horror exists -- if this single injection method is later shown to be legally unacceptable as a method of executing humans, there will be no way to help Mr. Biros.  

May God have mercy on us all.

Kentucky Just Stopped Executing People Today - But It's Temporary

Today, the Kentucky Supreme Court issued a ruling that no one is going to be executed in the State of Kentucky until things are done by the book regarding the lethal injection killing method.  The high court set no deadline on when capital punishment might resume in Kentucky, either.  Its formal opinion is already published online at the court's official web site.

The story starts with Ralph Baze

Ralph Baze sits on Kentucky's Death Row after being convicted and sentenced to death by lethal injection for the murder of Sheriff Steve Bennett and Deputy Arthur Briscoe of Powell County, Kentucky, back in 1992 while the lawmen were trying to arrest him.  (Baze unsuccessfully urged self-defense.)   After his conviction, Baze joined with fellow Death Row inmate Thomas Clyde Bowling, Jr. in a constitutional fight.

Baze and Bowling both argued by appeal that execution of someone with the three drug "cocktail" established by Kentucky law (and used here in Florida, as described in our earlier series) constitutes cruel and unusual punishment and is therefore unconstitutional under the 8th Amendment. 

Baze v. Rees (Baze's appeal) was heard by the United States Supreme Court, and in April 2008, that court ruled that the three drug cocktail did not violate the constitution.  Ginsburg and Souter dissented.

Baze did not stop there.  He then urged a state appeal (joining with Bowling) challenging state procedure, and the Kentucky Supreme Court has heard him. 

What the Kentucky Supreme Court Ruled Today

In today's opinion, the state high court has found that the legal steps that are taken when Kentucky puts a condemned man (or woman) to death through the use of its three drug cocktail have to be specified -- spelled out -- in a state regulation.  

Writing for the majority, Justice Abramson states, ""[t]his court cannot ignore the publication and public hearing requirements set forth in Kentucky statutes."  The opinion then orders the Kentucky Department of Corrections "...to adopt as an administrative regulation all portions of the protocol implementing the lethal injection statute...." 

This will take time.  An adminstrative regulation doesn't just get voted upon by some group -- due process requires much more than that.  What the Kentucky Supreme Court has done is to require the agency to write a regulation and then formally debut it as proposed law.  Then, the public gets a say in the matter as there is a set amount of time for public contributions on the language of the proposed regulation.  Things are discussed, edits may happen.  And only then is the proposal taken to Kentucky's Administrative Regulation Review Subcommittee, an arm of the state legislature that votes to adopt/reject the proposal.

Ohio First State in the Nation to Change Lethal Injection Execution Method to Single Drug - What Are the Consequences?

Last week, the State of Ohio announced that it was changing its method of execution from a lethal injection involving three drugs (sodium thiopental, pancuronium bromide and potassium chloride) to a single injection of the drug sodium thiopental

Ohio changes to a single-drug form of execution after its failed execution of Romell Broom on September 15, 2009

You'll recall the travesty of Mr. Broom's attempted capital punishment -- as we described here, Romell Broom suffered for two and one-half hours on the gurney that day:

Romell Broom was sentenced to die for the rape and murder of Tryna Middleton by the State of Ohio and last Tuesday, Mr. Broom was strapped to a gurney and his execution by lethal injection began. 

The 2+ Hour Failed Execution

Except they couldn't find a vein in which to insert the needle.  They tried his arms.  They tried his legs.  Broom lay there, tied to the table by long leather straps covering the length of his body.  Imagine this being done to you.

Broom lay there for OVER TWO HOURS while lab techs tried to kill him.  They failed.  Broom went back to his Death Row cell, and his execution was "rescheduled."  The Governor of the State of Ohio was contacted about the problem and he ordered a one week "postponement."

According to the New York Times, Broom "sobbed with pain".  And afterwards, not only did Ohio Governor Strickland order that Romell Broom's execution be stopped, but the Ohio federal court issued a stay of his execution after hearing Broom's attorneys argue that a second try at executing Broom would be unconstitutionally cruel and unusual.  

The Consequences of Ohio's New Single Drug Execution Method

Proponents are arguing that this single, massive dose of sodium thiopental is merciful and that it's going to be the NextBigThing for death penalty proponents, since its success will hamper constitutional arguments against execution by lethal injection under the three-drug approach. 

And those are serious and substantive arguments, as we've outlined here in a three-part series of articles.  No one can truly say that a paralyzed person, laying on that gurney, isn't suffering because they are incapable of communicating what they are experiencing.  The "drug cocktail" is simply horrific.

Ohio is so confident in its new execution method -- the same type of killing method that vets use on dogs and cats -- that it's planning on having the new protocol in place by the end of this month, and there's talk that Ohio will want to try out its new One-Drug Injection procedure on Kenneth Biros, who is scheduled for execution on December 8, 2009, subject to a temporary stay. 

What has yet to be determined, however, is how this massive dose of this single drug will truly work on a human being.  What works on dogs and cats might not be as merciful, fast, and painfree on humans.  We simply don't know, and undoubtedly there will be medical testimony with the appropriate medical experts providing their opinions on this procedure before Ken Bios or anyone else is subject to Ohio's new killing option.  Or there should be.

And, what about if the Ohio one drug option doesn't work as swiftly and cleanly as its proponents suggest it will?  Well, they've got a backup -- two more drugs that would then be injected into the condemned, there on the gurney:  the executor will shoot in massive amounts of  hydromorphone and midalzolam.   

None of This Makes a Bit of Difference in the Broom Situation

With Ohio's big announcement, death penalty proponents are gleefully rubbing their hands together at the thought that the remaining 35 states using lethal injection as their primary execution method can now circumvent all number of death penalty appeals based upon the cruel and inhuman nature of the three-drug cocktail, just by adopting the Ohio One Drug method. 

Well, it's not as simple as that.  First, this method needs to be vetted by medical experts before a condemned person is used as a guinea pig here, nevermind those back-up syringes filled with hydromophone and midazolam. 

Second, has no one stopped to think that the answer is more complex than this?  Romell Broom suffered great agony on September 15th not because of the type of drug used upon him, or the number of drugs selected to be injected into his body, but because they could never find a way to successfully insert the needle.

Two Points to Ponder

So, point one, the Ohio One Drug "innovation" doesn't resolve the Romell Broom travesty and it's fascinating to watch Death Penalty proponents distract themselves from the cruelty of that day in their excitement over this new find. 

Point two:  is anyone out there thinking that executing men and women in the same way that that vets euthanize animals (even if they are beloved pets) is just plain wrong?  When did we forget about human dignity?

Washington Sniper Seeks Clemency With Mental Illness Argument To Halt Nov 10th Execution

At this point, it's pretty late in the legal game for John Muhammad, known as The Washington Sniper.  Tried and sentenced to death for the killing of Dean Meyers, the victim of a sniper's bullet at a Manassas, Virginia gas station in 2002, Muhammad has already exhausted appellate avenues aside from the United States Supreme Court.  His attorneys have announced they'll be filing an appeal with the Supreme Court on or before November 3rd.

Asking for Clemency Now Rather than Later

Usually, going to the Governor with a clemency request wouldn't happen until all the court remedies had been exhausted.  With the Washington Sniper, the strategy is different.  Already, his attorneys have met with Virginia Governor Timothy Kaine -- and they've shown the governor a video prepared to support their position.

Mental Illness as a Bar to the Death Penalty

There is already precedent from the United States Supreme Court (Ford v. Wainwright) holding that the mentally ill cannot be condemned to die because it constitutes cruel and unusual punishment. 

Why urge clemency with the Governor's Office now?

At the Devine, Connell, Sheldon & Flood website, defense counsel have posted their arguments in the unusual clemency request: 

  • 1.  a juror has said they would not have voted for death if they had known of Muhammad's mental illness; 

  • 2.  experts report that the Washington Sniper suffers from severe mental illness, and this is documented by his brain damage, brain dysfunction, and other neurological deficits as well as his psychotic and delusional behavior; 

  • 3.  he may additionally suffer from Gulf War Syndrome. 

According to media reports, the Governor hasn't been that open to considering clemency for the Washington Sniper -- he's said so, and his office has also leaned on the standard operating procedure of clemency considerations occuring only after judicial review is finished.  

It's an interesting and aggressive tactic that the Sniper's defense counsel is taking.  For all of us that oppose the death penalty, we're rooting for 'em.

Today, the US Supreme Court Considers Whether Victim of Fetal Alcohol Syndrome Can Suffer the Death Penalty

The U.S. Supreme Court is back at work, and today it will begin deciding whether or not it will hear the case of Holmes v. Louisiana. What's at stake is whether or not Brandy Holmes, who is only 23 years old and suffers mental retardation as a result of Fetal Alcohol Syndrome, should die by execution for a 2003 murder.  The case docket is available online.   

Fetal Alcohol Syndrome is a totally preventable cause of mental retardation

When mothers drink alcohol during pregnancy, they damage their unborn child. FAS babies are born with an assortment of disorders, and Fetal Alcohol Syndrome is the leading cause of mental retardation in the world.

Brandy Holmes is known to be a victim of her mother's drinking and suffers from FAS. During Brandy's trial, her mother testified about drinking alcohol all throughout her pregnancy. Get this:  this mother testified that she actually named Brandy after her favorite type of alcohol.  Wow.  There's no factual controversy that Brandy's mental retardation is the result of her mother's drinking alcohol as she carried Brandy.

Thirty-three states already find that the mental retarded should not be executed - what will the US Supreme Court do?

Right now, 33 states have decided it is wrong to execute those who suffer from mental retardation.   For details in the arguments against Louisiana executing this woman, read the amicus curaie brief of the Constitution Project.

Ohio Set for Second Execution Attempt of Romell Broom Unless His Lawyers Work Fast

Romell Broom was sentenced to die for the rape and murder of Tryna Middleton by the State of Ohio and last Tuesday, Mr. Broom was strapped to a gurney and his execution by lethal injection began. 

The 2+ Hour Failed Execution

Except they couldn't find a vein in which to insert the needle.  They tried his arms.  They tried his legs.  Broom lay there, tied to the table by long leather straps covering the length of his body.  Imagine this being done to you.

Broom lay there for OVER TWO HOURS while lab techs tried to kill him.  They failed.  Broom went back to his Death Row cell, and his execution was "rescheduled."  The Governor of the State of Ohio was contacted about the problem and he ordered a one week "postponement."

Ohio Has Scheduled a Second Execution

Well, now Broom's execution -- again, by lethal injection -- has been put back on the calendar, and a national outcry is joining with the arguments of his lawyers that this amounts to cruel and unusual punishment.   According to his counsel, this event has traumatized inmate Broom.  That's probably an understatement. 

Legal Arguments Based Upon Cruel and Unusual Punishment are Being Advanced in the Face of Willie Francis Precedent

Broom's attorneys -- as well as organizations like the American Civil Liberties Union -- are advancing the argument that Governor Strickland should grant clemency to Broom and commute his sentence to one of life imprisonment because of this botched execution.  Of course, the U.S. Supreme Court has held that a second execution is not, in and of itself, cruel and unusual.  Those in the know with their legal death penalty history will remember the Louisiana case of 16 year old Willie Francis, where an electric chair execution failed and the issue of whether or not a second try at killing Francis would be cruel and unusual.  In Francis v. Resweber, the High Court held second executions were constitutional.

Florida's Contribution -- the Lesson of Angel Diaz

Here in Florida, we remember the case a couple of years back where the execution of Angel Diaz was excruciating, as the executioners pushed the needs through his veins and into muscle tissue -- which meant Mr. Diaz took over half an hour to die, laying there in front of everyone on that gurney.  After that botched business, the State of Florida stopped lethal injection executions for a period of time.  Florida resumed executing inmates in 2008, under purportedly new and better injection procedures. 

Maybe Ohio needs to look at its own procedures instead of cavalierly putting Broom's name back on its death calendar.  Or maybe they should just stop executing people, period....

Considering the Importance of Sonya Sotomayor and Capital Punishment, looking back to Furman v. Georgia and its 5 -4 vote

The news has been filled this week with the questioning of the Latina who may well be our next U.S. Supreme Court Justice, and some may be wondering why all the hoopla. Well, let's look back to 1972, where one single justice's vote successfully halted capital punishment in this country for four years.

Furman v. Georgia, 408 U.S. 238 (1972)

This was a case of a robbery gone bad. Billy Furman was robbing a house in the middle of the night and the homeowner woke up. The homeowner challenged the burglar, and ended up dead. Billy Furman gave two versions of what happened: in one statement, he was trying to escape, tripped, and his gun went off, killing the homeowner. In another statement, Furman shot blind into the darkness, trying to get away, and inadvertently shot the victim.

Either way, someone died during the commission of a felony and under Georgia law, Billy could die for this. And after a jury trial, Bill Furman was sentenced to death for killing the person whose home he was trying to rob.

The case made its way through the appellate courts to the U.S. Supreme Court. Furman's lawyers' question to the high court: does imposing the death penalty constitute cruel and unusual punishment under the 8th and 14th Amendments of the U.S. Constitution?

One page opinion - death penalty was unconstitutional

After reading briefs from the Furman team as well as the State of Georgia and various interested parties in their "friend of the court" briefs (amicus curaie), a majority vote of 5 to 4 held that the death penalty violated the United States Constitution.

One vote, by a single justice was the deciding factor. A very, very important swing vote.

Lots of written explanations by the Justices

Of course, that one page opinion didn't get filed of record all by itself. The justices wrote to justify their positions on the vote, filing concurrences with the majority opinion and formal dissents to the outcome.

Every single justice wrote his own explanation of why he voted the way he did in Furman v. Georgia:

Justice William Brennan voted yes, believing that the death penalty was unconstitional, period. "...Ours would indeed be a simple task were we required merely to measure a challenged punishment against those that history has long condemned. That narrow and unwarranted view of the [Cruel and Unusual Punishment] Clause, however, was left behind with the 19th century. Our task today is more complex. We know "that the words of the [Clause] are not precise, and that their scope is not static." We know, therefore, that the Clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." ... That knowledge, of course, is but the beginning of the inquiry."

Justice Thurgood Marshall agreed with Brennan. "...The elasticity of the constitutional provision under consideration presents dangers of too little or too much self-restraint. Hence, we must proceed with caution to answer the question presented. By first examining the historical derivation of the Eighth Amendment and [408 U.S. 238, 316] the construction given it in the past by this Court, and then exploring the history and attributes of capital punishment in this country, we can answer the question presented with objectivity and a proper measure of self-restraint. Candor is critical to such an inquiry. ... Candor compels me to confess that I am not oblivious to the fact that this is truly a matter of life and death. Not only does it involve the lives of these three petitioners, but those of the almost 600 other condemned men and women in this country currently awaiting execution. While this fact cannot affect our ultimate decision, it necessitates that the decision be free from any possibility of error."

Justice Potter Stewart didn't believe that the way that the death penalty was imposed was constitutional. He voted yes. "I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."

Justice William Douglas had problems with an apparent arbitrary imposition of the death penalty and on those grounds, found capital punishment to be unconstitutional. He also voted yes. "The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions. It would seem to be incontestable that the death penalty inflicted on one defendant is "unusual" if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices."

Justice Byron White agreed with Justice Douglas on the arbitrariness concern. Another yes vote. "The narrower question to which I address myself concerns the constitutionality of capital punishment statutes under which (1) the legislature authorizes the imposition of the death penalty for murder or rape; (2) the legislature does not itself mandate the penalty in any particular class or kind of case (that is, legislative will is not frustrated if the penalty is never imposed), but delegates to judges or juries the decisions as to those cases, if any, in which the penalty will be utilized; and (3) judges and juries have ordered the death penalty with such infrequency that the odds are now very much against imposition and execution of the penalty with respect to any convicted murderer or rapist. It is in this context that we must consider whether the execution of these petitioners would violate the Eighth Amendment."

Justice William Reinquist voted no. "The Court's judgments today strike down a penalty that our Nation's legislators have thought necessary since our country was founded."

Justice Burger voted no. "If we were possessed of legislative power, I would either join with [Justice Brennan and Justice Marshall] ... or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes. Our constitutional inquiry, however, must be divorced from personal feelings as to the morality and efficacy of the death penalty, and be confined to the meaning and applicability of the uncertain language of the Eighth Amendment."

Justice Blackmun voted no. "...I trust the Court fully appreciates what it is doing when it decides these cases the way it does today. Not only are the capital punishment laws of 39 States and the District of Columbia struck down, but also all those provisions of the federal statutory structure that permit the death penalty apparently are voided."

Justice Powell voted no. "It is the judgment of five Justices that the death penalty, as customarily prescribed and implemented in this country today, offends the constitutional prohibition against cruel and unusual punishments. The reasons for that judgment are stated in five separate opinions, expressing as many separate rationales. In my view, none of these opinions provides a constitutionally adequate foundation for the Court's decision."

Florida's 30th Anniversary for the Death Penalty

There was a time in the mid-twentieth century when this country had essentially suspended the death penalty. It didn't last long.

First, in 1972, the United States Supreme Court issued its opinion in Furman v. Georgia, opening the doors for capital punishment to be an accepted form of punishment should a state seek to impose it upon a defendant. In Furman, the Supreme Court ruled that it was unconstitutional for the death penalty to be imposed at the same time that a defendant was found guilty. Deciding the penalty of death would have to take place only after a guilty verdict was announced.

Second, in the 1976 case of Gregg v. Georgia, the U.S. Supreme Court issued an opinion that capital punishment, in and of itself, was not in violation of the U.S. Constitution. In other words, it was legal to kill citizens as punishment for certain crimes in this country, should the state choose to do so. They just had to follow the two-prong trial phase of guilt/punishment established in Furman.

Many state statutes were unconstitutional under Furman, and if a state wanted to impose capital punishment as allowed by Gregg, a new law would have to be enacted that comported with Furman's requirements. It fell upon the Great State of Florida to be the first state to act in accordance with the Furman decision, and to reinstitute the death penalty with a newly written statute in August 1972.

Florida's 30 Year Anniversary

And while Florida did commute over 90 cases because of the Furman decision, Florida was also the first state to impose the penalty of death since 1964 - a moratorium of 15 years - when in 1979, John Arthur Spenkelink was executed by electric chair ("Old Sparky") in 1979.

There has been some worthwhile media coverage of this thirty year milestone, and of particular interest is:

1. Coverage by the Associated Press' Ron Wood, where interviews of Richard Dugger, the assistant warden of the Florida State Prison at the time of the Spenkelink Execution, as well as David Kendall, Spenkelink's attorney - and eyewitness to the execution, are provided. There is some worthwhile discussion of death by electrocution, including some graphic details of the botched executions involving Florida's electric chair, known as "Old Smokey."

2. Naples Daily News' Jeff Weiner's article focusing upon the ten Florida Death Row inmates pertaining to Southwest Florida (Lee and Collier County). Note the length of time that these individuals have been facing death, and consider once again what daily life on Death Row is like (see 04/04/09 post, "What it's Really Like on Florida's Death Row.").

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.

[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.

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