In Depth Look at the Law: Secrecy in China - Successfully Hiding the Truth About Executions for Profit from the World

Supplying the International Demand for Human Transplant Organs is Big Business in China

The demand for transplantable organs is the main reason why organ procurement is so pervasive in China. [204] It is common knowledge that high-paying customers will receive a prompt organ transplant in China. [205]Former transplant patients have reported that they were expected to hand out "red envelopes" filled with money to every doctor they saw.[206]

The money is shared with both prison and court officials. [207]It has been reported that foreign nationals pay upwards of $200,000 for an organ transplant performed in China, using Chinese donors. [208] Sadly, there is also a reported case where a transplant recipient died because the essential post-operation care and treatment ceased because the patient ran out of money.[209]

Due to the high demand for organs, the large number of death-row prisoners, the improved medical technology, and the huge profits, selling organs from executed prisoners in China will continue. [210] The situation is exacerbated because many of the people who are key participants in the harvesting of the organs are poorly paid prison and hospital administrators.[211]

Executions for Profit Have Extra Benefit -- Intimidation and Control of the Citizenry

China's organ procurement from the bodies of executed prisoners is not only a lucrative money-maker, it is also a method to coerce and intimate the general population into submission of government control.  [212] Actually, since the discovery of the lucrative organ transplant market, the number of crimes punishable by death has increased.[213]

Chinese web bulletins boards have reported information discussing the sale and corruption of the "organ business." [214] Chinese websites advertising organ transplants openly admit to obtaining their organs from executed prisoners. [215] One website specifically targeting foreigners announced on the front page that viscera or soft interior organs including brain, lungs, and heart could be found immediately. [216] This website also thanked the support of the Chinese government, specifically naming the Supreme Demotic Court. [217]

Secrecy in the Chinese government

China has maintained an air of secrecy concerning the sale of organs harvested from executed prisoners, concealing the transfer of profits. [218] China strove to keep the 1984 order on the use of prisoner cadavers confidential in order to avoid international backlash. [219] Even official figures regarding death sentences and executions in China are kept secret from the public and foreigners. [220] Additionally, international human rights organizations are not permitted to visit prisoners in China. [221] Until recently, the Chinese government emphatically denied the legal procurement of organs from Chinese prisoners condemned to death.[222]

The only people that would be present at the scene of an organ harvesting are the victim and the perpetrators. [223] No bystanders would be allowed to witness the event. [224] Afterward, no body would be found, and no autopsy would be conducted. [225] The body would be cremated, and the evidence vanished. [226] The operating room would be left like any other empty operating room. [227] Cremation of the body prevents any evidence from surfacing regarding the harvesting of organs. [228] In addition, any wills created by condemned prisoners are subject to official censorship by the government.[229]

The Supreme People's Court issued a secret regulation concerning a prisoner's last will and testament that states, "Those parts which are slanderous in nature or which make reactionary statements are not to be handed over to the person's family . . . sections complaining about grievances or alleged injustices are not to be passed on to the person's family." [230] When one executed prisoner's brother asked to see the documentation of his brother's consent to donate his organs, the Chinese officials would not give him the information. [231] Furthermore, the government warned the brother that if he did not keep silent, he and his family would face retaliation.[232]

Organ transplant recipients have stated that the entire process is completed with a "don't ask, don't tell" policy. [233] The recipients are typically not told the names of their doctors or the identity of the donors. [234] They are not given any documentation revealing the consent of the donor or family members. [235] Moreover, the procedure is often performed in the middle of the night.[236]

China's Government Keeps Journalists From Reporting On Its Executions for Profit Programs

China continues to crack down on individual journalists, newspapers, and websites for reporting any news the government deems sensitive. [237] In the Shandong province, it was reported that the Pingdu city government issued a document in March 2007 requesting that officials "use all measures to downsize the impact of negative reporting to a minimum level." [238]

Chinese national reporters caught reporting on human rights violations from within China are subjected to imprisonment and often charged with communicating state secrets. [239] For the two years prior to August 2006, the Chinese police had detained foreign journalists at least thirty-eight times for covering social issues, including environmental protests, land disputes, and AIDS victims. [240]

While foreign journalists are only detained for relatively short periods of time, Chinese journalists face much harsher punishment. [241] One Chinese journalist suffered from beatings and sleep deprivation while in prison for posting political essays on the Internet. [242]

Yahoo, Google, and MSN Go Along with China's Secrecy

Some large corporations are aiding China in its agenda to maintain its secrecy of governmental practices and suppress the freedom of its citizens . [243] Yahoo, Google, and Microsoft have all facilitated or at least participated in China's repression of the media, enabling China's claim of state secrets. [244]

Yahoo signed China's "Public Pledge on Self-discipline for the Chinese Internet Industry," which means that Yahoo agreed to officially censor the Internet.  [245] Yahoo has also provided the Chinese government with account holder information, which led to the conviction of at least four Chinese Internet users. [246]

Google has introduced a self-censoring search engine specifically designed for China as an alternative for its existing search engine.[247]

At the Chinese government's request, Microsoft shut down the blog of a China-based researcher working for the New York Times. [248] Microsoft has also prohibited Chinese MSN Spaces account holders from using specific terms including "human rights," "Falun Gong," and "Tibet Independence" in their account names or page titles. [249]

[204]Brown, supra note 1, at 1078.
[205] Id.
[206] Organs, supra note 4, at 46 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation); Traditionally in Chinese culture, money gifts are given in small red envelopes, symbolizing good luck and fortune.
[207] Id.
[208] Hemphill, supra note 29, at 438.
[209] Organs, supra note 4, at 46 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[210] Brown, supra note 1, at 1079.
[211]. Organs, supra note 4, at 11 (statement of Michael E. Parmly, Principal Deputy Assistant Secretary of State, Bureau for Democracy, Human Right and Labor, Dept. of State).
[212] Id. at 1 (statement of Fla. Rep. Ileana Ros-Lehtinen, Member, Comm. on Int'l. Relations, Chairwoman, Subcomm. on Int'l. Ops. and Human Rights ).
[213] Id. at 29 (statement of Nancy Scheper-Hughes, Project Dir., Organs Watch).
[214] Id. at 11 (statement of Michael E. Parmly, Principal Deputy Assistant Secretary of State, Bureau for Democracy, Human Right and Labor, Dept. of State).
[215] Failing, supra note 31, at 3.
[216] Bloody, supra note 67, at 17.
[217] Id.
[218] Hemphill, supra note 29, at 443-44.
[219] Id. at 446.
[220] Repression, supra note 10, at 8.
[221] Bloody, supra note 67, at 4.
[222] Hemphill, supra note 29, at 446.
[223] Bloody, supra note 67, at 3.
[224] Id.
[225] Id.
[226] Id.
[227] Id. at 4.
[228] Brown, supra note 1, at 1068.
[229] Id. at 1068-69.
[230] Allison K. Owen, Death Row Inmates or Organ Donors: China's Source of Body Organs for Medical Transplantation, 5 (No. 2) IND. INT'L & COMP. L. REV. 495, 502 (1995).
[231] Organs, supra note 4, at 2 (statement of Fla. Rep. Ileana Ros-Lehtinen, Member, Comm. on Int'l. Relations, Chairwoman, Subcomm. on Int'l. Ops. and Human Rights ).
[232] Id.
[233] Bloody, supra note 67, at 20.

[235] Id.
[236] Id.
[237] Failing, supra note 31, at 13.
[238] Repression, supra note 10, at 19.
[239] Bloody, supra note 67, at 4.
[240] Failing, supra note 31, at 13.
[241] Id. at 14.
[242] Id.
[243] Id. at 15.

[244] Id.
[245] Failing, supra note 31, at 16.
[246] Id.
[247] Id.
[248] Id. at 15.
[249] Id. at 15-16.

In Depth Look at the Law: China Death Vans and China's Widespread Corruption - There is No Fairness in China's Criminal Justice System

Corruption of China's Communist Party

It has been reported that there is widespread corruption among Chinese government officials including graft, bribery, use of official position for personal gain, blackmail, misuse of public money, and extortion. [161] One source cites graft and bribery as constituting over 50% of the economic crimes in China.[162]

Under the current Chinese government, the rights of individuals are always subject to the drafting of new legislation that may suspend those rights. [163] Moreover, violations of those rights guaranteed by the Chinese constitution are generally not enforceable against the government because of the lack of checks and balances in the system. [164]

The Communist Party always takes precedent over the independent rule of law. [165] Chinese citizens may only exercise their right to freedom if their behavior does not infringe upon the interests of the society and the state. [166] Research has indicated that Chinese citizens who engage in promoting freedom of expression are arbitrarily arrested, detained, tortured, and convicted. [167]

Many crimes involving expression of ideas or even an association with an idea or movement that differs from the party line are classified as political crimes. [168] The ensuing trials are held in secret, excluding observers and even lawyers, under the excuse of maintaining state secrets.[169]

Economic gain from organ harvesting

China sells organs of executed prisoners on a large scale for profit under the guise of state secrets. [170] China has a system that readily sentences, condemns, and executes human beings so that their organs can be sold by government officials for personal gain. [171]

Arrestees are often denied immediate access to legal representation following their detention. [172]  Chinese police even take extreme steps to limit defense attorneys from assisting their clients. [173]

For example, Chinese police severely limit the length and number of times a defendant is allowed to meet with his attorney, require the attorney to brief police concerning the nature of the conversation prior to the meeting, cancel meetings that are intended to cover topics that are not preapproved, and severely restrict the attorney's access to the prosecution's evidence. [174]

Torture Is An Accepted Practice

Moreover, torture is often used to elicit confessions. [175]  International organizations have documented the widespread abuse and torture of prisoners occurring at all types of detention facilities and legal institutions in China. [176]

One individual reported that he was forced to confess to a crime after undergoing torture perpetrated by the police that included electrical shock applied to the toes, fingers and genitals, beating with heavy chains and sticks, and injection of hot pepper, gasoline, and ginger into his nose. [177] Thus, it is not surprising then that China refuses to accept the Optional Protocol to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which allows for regular international inspection of detention centers.[178]

Injustice is Inherent in China's Criminal Justice System

In addition to the arrest and detention of prisoners, trials are often held before defendants are provided adequate time to prepare a defense. [179] Defendants do not have a guaranteed right to cross-examine witnesses. [180]

In addition, verdicts and subsequent sentences are often determined by private committees prior to a proper trial. [181]Unfortunately, it is quite common for a court to have reached a verdict before the defendant even enters the courtroom. [182]

Appeals may be rejected based on a mere summary examination of the case by a judge in his chambers. [183] Official statistics released by the Chinese government note that the conviction rate for all crimes between 1998 through 2002 was 99.1%, an almost perfect conviction rate, which is troubling considering the reports of torture being used to force confessions and the denial of adequate legal representation.[184]

Even though the Supreme People's Court is now supposed to review all death penalty cases, one researcher discovered that during a two and a half month period in early 2007, at least thirteen people were executed without their cases being reviewed and approved by the high court.[185]

Hospitals are Involved in the Death Penalty Process - It's a Profit Center for Them

Once a prisoner is convicted and sentenced to death, the hospital system becomes involved with the harvesting of the organs. [186] With China's social medical system, the government controls all medical personnel and hospital facilities. [187] Such strict controls prevent medical personnel from questioning the source of the organs used in transplants or their duty to perform the transplants. [188] Furthermore, medical personnel are sworn to secrecy regarding the organ transplantation work they perform. [189] Often, they are presented with donor bodies that have bullet holes in the head or other wounds common in execution victims.[190]

Under the communist system, many rural hospitals suffer from a severe shortage of funding. [191] In the face of these conditions, some hospitals are forced to resort to creative ways to generate revenue, including the sale of organs harvested from prisoners. [192]

Hospitals have the unique ability to generate large amounts of revenue from organ transplants. [193] The Organ Transplant Center of the Armed Police General Hospital located in Beijing posted literature stating, "Our Organ Transplant Center is our main department for making money. Its gross income in 2003 was 16,070,000 yuan. From January to June of 2004 income was 13,570,000 yuan. This year (2004) there is a chance to break through 30,000,000 yuan." [194] Due to increased revenue and demand, six new hospitals dedicated solely to organ transplants were constructed between 2001 and 2004.[195]

The majority of the money generated from the sale of organs of executed prisons goes to the People's Liberation Army (PLA), the Chinese military. [196]

China's military is a fully functioning business, sanctioned by the government to raise money for military activities and make up for the lack of resources provided by the government. [197]Most of the hospitals partaking in the sale of the harvested organs are run by the PLA.[198]

The PLA has a close relationship with the prison system as well as the justice system, ensuring that a great number of the victims are actually condemned because of their political or religious beliefs. [199] Chinese military members not only have access to the prison system in China but also to the prisoners themselves. [200]

The PLA's interactions with these prisons and prisoners are more secretive than those of the civilian government, and they are impervious to Chinese laws. [201] A former doctor of the PLA stated that his job required him to remove the corneas and skin from the corpses of over one hundred executed prisoners, which included a few victims of intentionally botched executions. [202] The hospital paid the Higher People's Court a specific dollar amount for each corpse, although no receipts or records of the exchange were documented.[203]
[161]. Lin, supra note 145, at 5-6.
[162]. Id.
[163]. Brown, supra note 1, at 1050.
[164]. Id.
[165]. R.P. Peerenboom, Article: What's Wrong with Chinese Right?: toward a Theory of Right with Chinese Characteristics, 6 HARV. HUM. RTS. J. 29, 33 (1993).
[166]. Id.
[167]. Daniel C. Turack, Article: the New Chinese Criminal Justice System, 7 CARDOZO J. INT'L & COMP. L. 49, 63-64 (Spring 1999)
[168]. Executed, supra note 5, at 21.
[169]. Id.
[170]. Brown, supra note 1, at 1075.
[171]. Organs, supra note 4, at 15 (statement of N.Y. Rep. Benjamin A. Gilman, Member, Comm. on Int'l. Relations).
[172]. Executed, supra note 5, at 1.
[173]. Id. at 21.
[174]. Id.
[175]. Id. at 1.
[176]. Id. at 13.
[177]. Repression, supra note 10, at 6.
[178]. Executed, supra note 5, at 13.
[179]. Id. at 1.
[180]. Id.
[181]. Id.
[182]. Id. at 28.
[183]. Executed, supra note 5, at 1.
[184]. Id. at 3.
[185]. Repression, supra note 10, at 7.
[186]. See Id. at 42-43 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[187]. Brown, supra note 1, at 1072.
[188]. Id.
[189]. Id.
[190]. Id.
[191]. Bloody, supra note 67, at 8.
[192]. Id. at 9.
[193]. Id.
[194]. Id. at 9-10.
[195]. See Id. at 44.
[196]. Organs, supra note 4, at 15 (statement of N.Y. Rep. Benjamin A. Gilman, Member, Comm. on Int'l. Relations).
[197]. Bloody, supra note 67, at 9.
[198]. Organs, supra note 4, at 15 (statement of N.Y. Rep. Benjamin A. Gilman, Member, Comm. on Int'l. Relations).
[199]. Id.
[200]. Bloody, supra note 67, at 10.
[201]. Id. at 10-11.
[202]. Organs, supra note 4, at 57 (statement of Wang Guoqi, former doctor, Chinese PLA Hospital).
[203]. Id.

In Depth Look at the Law: China Death Vans and Harvesting Prisoner Organs for Profit

Due to reports of the torture and anguish of prisoners and the secrecy surrounding the death penalty's application in China, it is virtually impossible to independently verify that any executed prisoners truly gave consent for the use of their organs.[100]

Chinese prisoners are generally not notified of their impending execution until just hours before it occurs.[101] As a result, donor consent is rarely obtained in spite of it being a lawful requirement. [102]The family members of the condemned prisoners are also rarely informed of the execution.[103]

Even when the family members are notified of the execution, they are rarely informed of the prearranged plans for organ extraction. [104] In the rare instances where the family members are notified, they are offered money in advance to authorize the use of the prisoner's organs. [105] If the family refuses the payment, it is then common for the government to provide the family with a large bill following the execution to recoup losses ranging from food and lodging for the prisoner to the cost of the bullet used to perform the execution.[106]

One death row prisoner was witnessed lying on the floor in solitary confinement with all of his limbs stretched out and shackled to the ground by his wrists, ankles, and even his neck. [107] He was fed one meal a day.[108]  Only after he "consented" to donating his organs was he unshackled from the ground. [109] However, he was still in leg irons and handcuffs.[110]

It has also been reported that prisoners who are healthy and have useful organs are often pushed to the front of the waiting lists for executions.[111] In essence, once a prisoner has been deemed fit for an organ transplant, the prisoner becomes nothing more than a warm object sheltering an organ for some other waiting and paying person.[112]

Chinese ideology

The underlying ideological principles of China's social and political culture justify the use of organs from executed prisoners. [113]Society as a whole is deemed more important than individual rights. [114] Because of the organ deficit for transplantation and the demand from high-paying foreigners, China justifies the use of these prisoners' organs for the overall good of the country. [115] The Chinese government considers the use of death row prisoners for organ transplants charity.[116]

The criminals are considered bad people deserving of their death sentence. [117] In producing the death, the prisoners create waste that can be used to help others continue their lives, hence charity. [118] Even hospital and prison employees deem the system of retrieving organs without consent just a way to pay back the state for the expense of the prisoners' care while incarcerated.[119]

China's nonexistent organ donation program

Less than one percent of the organs used for transplants in China are harvested from the recipient's family members or brain-dead donors. [120] China lacks an organized formal system for individuals to volunteer their organs for use after their death. [121]Chinese people are adverse to donating organs based on religious beliefs and out of respect for their elders and ancestors.[122]

Chinese culture insists that regardless of cremation or burial, the body should remain intact after death. [123]Particularly with Buddhist and Confucian beliefs, the bodies must remain whole after death, making true donations very rare or even nonexistent.[124]

China's secret organ transplant policy

In 1984, the Chinese government issued an official order titled "Provisional Regulations on the Use of Dead Bodies or Organs from Condemned Criminals." [125]The order served as the sole legal authority regarding the harvesting of organs from executed prisoners.[126]

However, the directive was not law, just a set of orders to carry out the organ transplants to the benefit of the Chinese government. [127] The order only established basic guidance regarding the procedure but failed to adequately address the human rights of the prisoners. [128]The 1984 order was never officially passed by the Chinese Communist People's Congress, but it served to carry out the government's demands.[129]

The 1984 order regarding the extraction of organs from executed prisoners stipulated the following requirements:

  1. consent of the prisoner or the prisoner's family;

  2. procurement of the organ only after the prisoner's death was confirmed by a supervising official; and

  3. the preservation of absolute secrecy regarding the organ harvesting.[130]

The order also required that medical workers refrain from wearing hospital insignia or drive marked vehicles to or from the executions. [131]In addition, the order states that the organ removal times must be coordinated with crematoriums, so the bodies can be cremated immediately following the procedure.[132]

Even though consent was one of the stipulations in the order, the Chinese government has never produced any evidence confirming a prisoner's consent to donate his or her organs. [133] Furthermore, a prisoner shackled to the ground twenty-four hours a day is in no condition to offer an informed consent.[134]

An unwritten policy also existed ranking the order in which members of society would be recipients of the organ transplants:

  1. high-ranking government officials and military members;

  2. wealthy overseas Chinese and other foreigners;

  3. wealthy Chinese citizens; and finally

  4. the common citizen.[135]

Next week: China made sale of human organs illegal in 2006 - so why is it such a growing industry?

[100]See Repression, supra note 10, at 11.
[101]Brown, supra note 1, at 1066.
[104]Id. at 1066-67.
[105]Id. at 1067.
[106]Brown, supra note 1, at 1067.
[107]Organs, supra note 4, at 47 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[111]Donny J. Perales, Rethinking the Prohibition of Death Row Prisoners as Organ Donors: a Possible Lifeline to Those on Organ Donor Waiting Lists, 34 ST. MARY'S L.J. 687, 699 (2003).
[112]Organs, supra note 4, at 49 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[113]Brown, supra note 1, at 1082.
[116]Organs, supra note 4, at 44 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[119]See Id. at 25 (statement of Nancy Scheper-Hughes, Project Dir., Organs Watch).
[120]Kirk C. Allison, Ph.D., MS, Mounting Evidence of Falun Gong Practitioners Used as Organ Sources in China and Related Ethical Responsibilities, THE EPOCH TIMES, July 24, 2006, ¶ 4, available at (last visited July 29, 2008).
[121]Repression, supra note 10, at 10.
[122]Brown, supra note 1, at 1080; On a personal note, growing up in a Chinese family has provided me with experience and insight into the Chinese way of showing familial and ancestral respect. When my grandfather passed away a few years ago, I experienced the rituals of preserving and worshipping his body after death. My grandfather's body was transported from the hospital to a Buddhist temple. At the temple, the family gathered around his body, along with two Buddhist monks, and chanted Buddhist verses for approximately two hours. Afterward, my grandfather's body remained at the temple until the funeral where he was cremated. My family went back to the temple daily to visit him until the day he was cremated. Everyone in the family spent countless hours making hundreds of water lilies out of gold paper money. We had to make enough to cover his entire body like a blanket. This blanket was burned along with his body. The blanket was meant to be a bed of lilies for my grandfather to float upon in the afterlife. The blanket was made out of gold paper money so that my grandfather would never suffer in the afterlife because he would be surrounded by good fortune.

[123] Repression, supra note 10, at 10.
[124] Organs, supra note 4, at 3 (statement of Fla. Rep. Ileana Ros-Lehtinen, Member, Comm. on Int'l. Relations, Chairwoman, Subcomm. on Int'l. Ops. and Human Rights).
[ 25] Id. at 42 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[126] Hemphill, supra note 29, at 445.
[127] Organs, supra note 4, at 42 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[128] Hemphill, supra note 29, at 445.
[129] Organs, supra note 4, at 42 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[130] Hemphill, supra note 29, at 447.
[131] Id.
[132] Organs, supra note 4, at 52 (translation of "The Provisions on the Entry and Exit of Cadavers and Treatment of Cadavers").
[133] Id. at 43 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[134] Id.
[135] Id. at 42.

In Depth Look at the Law: Death Penalty Organ Harvesting is a Government Business in China

Organ harvesting is a government business in China. [77]

At least ninety percent of all organ transplants performed in China come from executed prisoners. [78] Only the government has the power to carry out these executions, and therefore, only the government can control the organ trade.[79]

Without the death penalty in China, the entire system of organ harvesting would be nonexistent. [80] Recently in 2006, both the Vice-Minister of Health in China and senior transplantation specialists finally admitted that the vast majority of organs used for transplants were harvested from executed prisoners.[81]

Different people in the government play an integral role in the organ transplant process.[82]

The judges and other court officials speed up the process from appeals to death sentence, which ensures that prisoners are available for the optimum time to extract organs for waiting patients. [83] Court officials inform doctors when death sentences are handed down, so they can contact the prisons to make matches for waiting patients. [84] Prison guards and other officials allow hospital staff into the wards to test prisoners to determine appropriate donors for waiting transplant patients.[85]

Many times, prisoners are subjected to a large variety of medical screening tests prior to execution to determine the compatibility of their organs for transplantation. [86] In these instances, medical personnel are strictly forbidden from revealing the purpose of these screenings.[87]

The prison guards also set the execution dates and ensure that family members are unaware of the execution until after-the-fact. [88] The guards also allow the doctors to perform the organ extractions immediately after execution directly at the execution site. [89] In fact, medical personnel are routinely informed of the date, time, and location of executions in advance, so they are prepared for the immediate extraction of organs for transplantation.[90]

Deliberately Botched Execution and Harvesting Organs From the Living

There have also been credible reports of deliberately botched executions to postpone brainstem death to aid in the retrieving of the organs while the blood is still circulating through the body.  [91] It has been reported that organs such as kidneys are removed the night before the scheduled execution. [92]

There are other reports that assert organ removal as the actual method of execution. [93] Living organ donors carry a price premium; thus the use of these methods is on the rise. [94]

One Chinese doctor reported being ordered to remove the organs from a prisoner who was still breathing.  [95] The doctor was in attendance when the firing squad attempted to perform the execution. [96]  Although the prisoner was not killed during the execution attempt, the supervising officer still ordered the doctor to perform the organ extraction.[97]

The doctor noted that the prisoner was still breathing even after both of his kidneys were removed.  [98] Following the doctor's refusal to continue to participate in the organ transplant program, the doctor was forced by the Chinese government to swear never to expose his work or the fact that the organs he removed were subsequently sold for a profit by the government.[99]

Next week, the horrors of China's execution methods for organ harvesting continues ....

[77]Organs, supra note 4, at 41 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[78]Id. at 16 (statement of N.J. Rep. Christopher H. Smith, Member, Comm. on Int'l. Relations, Member, Subcomm. on Int'l. Ops. and Human Rights).
[79]Id. at 41 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[80]Id. at 42.
[81]Repression, supra note 10, at 10.
[82]Organs, supra note 4, at 42 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[84]Id. at 42-43.
[85]Id. at 43.
[86]Brown, supra note 1, at 1071-72.
[87]Id. at 1072.
[88]Organs, supra note 4, at 43 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[90]Brown, supra note 1, at 1070.
[91]Organs, supra note 4, at 2 (statement of Fla. Rep. Ileana Ros-Lehtinen, Member, Comm. on Int'l. Relations, Chairwoman, Subcomm. on Int'l. Ops. and Human Rights).
[92]Brown, supra note 1, at 1070-71.
[93]Organs, supra note 4, at 2 (statement of Fla. Rep. Ileana Ros-Lehtinen, Member, Comm. on Int'l. Relations, Chairwoman, Subcomm. on Int'l. Ops. and Human Rights).
[95]Id. at 58 (statement of Wang Guoqi, former doctor, Chinese PLA Hospital).
[98]Organs, supra note 4, at 59 (statement of Wang Guoqi, former doctor, Chinese PLA Hospital).

In Depth Look at the Law: China's Death Penalty - 3: Who are the Falun Gong? Why are they targeted for execution and organ harvesting?

This is third part of our new Friday Legal Memo Series - In Depth Look at the Law, where we're focusing on an international horror that is not getting enough attention. In China, people are being executed inside mobile death vans, vehicles that drive from village to village. First, the victim is killed inside the van. Thereafter, his organs are taken from him almost immediately so they can be sold for a profit. All this, while grieving loved ones may well be just outside the vehicle. This is real. Take notice. Spread the word.

Practitioners of Falen Gong have been targeted for execution and organ harvesting by China. Why?

Falun Gong was founded in 1992 by Li Honghzi in northeastern China. [46] Falun Gong followers practice meditative, slow-motion exercises and adhere to the movement's guiding principles of truthfulness, benevolence, and forbearance taken from Confucianism, Buddhism, and Taoism.[47]

The Chinese government touts protection of certain religious activities, which include Buddhism, Taoism, Islam, Protestantism, and Catholicism. [48]However, all other religious groups, sects, and denominations are illegal and subject to suppression by the Chinese government.[49]

In April 1999, over ten thousand Falun Gong members gathered in Tiananmen Square to peacefully protest the persecution of their practices.[50]

On April 25, 1999, fifteen thousand members of Falun Gong gathered outside of the government's central headquarters in Beijing and demanded official recognition.[51] Following the April 1999 protests, the Chinese government began a campaign to eradicate the Falun Gong. [52]Leaders of the movement were detained, the organization was outlawed, and a massive media campaign was launched aimed at discrediting the organization.[53]

On July 22, 1999, the People's Republic of China's Ministry of Civil Affairs decreed the Falun Gong an illegal organization.[54]

Following the outlaw of Falun Gong, the international news media and academic groups began producing and disseminating documentation of the group's rapid dismantling. [55] In October 2000, the Chinese government increased efforts to destroy the Falun Gong by pronouncing the group as a "reactionary and hostile" organization.[56]

As a result, detention and re-education efforts were increased. [57] The Chinese government undertook a three-pronged approach to quash the Falun Gong movement: 1) re-education of members; 2) violent treatment of members; and 3) distribution of anti-Falun Gong propaganda.[58]

Eight hundred thirty thousand Falun Gong followers had been arrested by the conclusion of April 2001. [59] However, it was reported in April 2006 that each year, more than twice as many Chinese nationals join Falun Gong than the Communist Party, much to the Chinese government's fear and dismay.[60]

In 2001, the Chinese president, Jiang Zemin, stated, "Religion must never be allowed when it opposes the direction of the Party of the socialist system, or destroys national reunification or ethnic identity." [61]

In late 2001, China declared the use of the Internet to organize or coordinate the activities of "evil cults" a criminal offense. [62] In the years following, thousands of Falun Gong followers were detained and charged with violating the anti-cult laws.[63]

President Jiang Zemin actually created the 6-10 office, a special branch of the Chinese government designed specifically to eliminate the Falun Gong movement. [64] The 6-10 office sent thousands of Falun Gong practitioners to prisons and labor camps.[65]

Falun Gong practitioners have been subjected to torture, capricious detention, and re-education to include confinement, forced labor, and psychological treatments. [66] One research group identified over three thousand Falun Gong practitioners who have lost their lives as a result of persecution by the Chinese government.[67]

Organ harvesting of Falun Gong prisoners may have begun a decade ago

Researchers linked the large surge in organ transplants performed in China to the persecution and imprisonment of Falun Gong members in 1999. [68] In many prisons and labor camps, Falun Gong practitioners have been singled out from non-practitioners for blood tests and organ examinations.[69]

Although those practitioners were given medical screenings, presumably to determine compatibility for organ transplants, many diagnosed with illnesses were not provided with any medical treatments.[70]

One study found that Falun Gong practitioners who die in captivity would officially be categorized as suicide by the Chinese government, and their bodies would be immediately cremated. [71] Furthermore, it has been reported that a large number of these deaths were carried out specifically to gather organs for transplants.[72]

Many family members of executed Falun Gong practitioners have reported seeing corpses with surgical incisions and missing body parts. [73] Moreover, the government gave no explanation as to why the corpses were mutilated.[74]

Many Falun Gong practitioners whose organs were harvested following their execution were never identified by their families because these practitioners refused to identify themselves to the authorities when they were captured. [75]Therefore, it is easy to conclude that these unidentified practitioners were the easiest and safest targets for clandestine organ harvesting.

These findings parallel international human rights groups that have widely reported that executions in China are often performed in conjunction with specific transplant requirements, i.e., shooting a prisoner in the head when kidneys are needed or shooting a prisoner in the chest when corneas are needed.[76]

[46]Christopher Chaney, The Despotic State Department in Refugee Law: Creating Legal Fictions to Support Falun Gong Asylum Claims, 6 (No. 1) Asian-Pac. L. & Pol'y J. 130, 142 (Winter 2005).

[47]Leavy, supra note 50, at 756-57.

[48] 48Id. at 757-59.

[49]Chaney, supra note 51, at 142.

[50]Id. at 131.

[51] Leavy, supra note 50, at 761.

[52] Id.

[53]Matas & Kilgour, supra note 46, at 9.

[54]Id. at 10.

[55]Joseph Watson & Alex Jones, Falun Gong Demonstrator Speaks Out on Chinese Government's Ghoulish Organ Harvesting, Prison, Apr. 25, 2006, ¶¶ 13-14, (last visited July 29, 2008).

[56] Edelman & Richardson, supra note 48, at 254.



[59]Matas & Kilgour, supra note 46, at 10.

[60]Id. at 11.

[61]Leavy, supra note 50, at 756.

[62]David Matas & David Kilgour, Bloody Harvest Revised Report into Allegations of Organ Harvesting of Falun Gong Practitioners in China, OrganHarvestInvestigation.Net, Jan. 31, 2007, at 34 [hereinafter Bloody], available at (last visited July 29, 2008). Matas and Kilgour continued their research after publishing their first report and published this updated report with additional findings.

[63] Kirk C. Allison, Ph.D., M.S., Assoc. Dir., Univ. of Minn., Program in Human Rights and Health, Address at the University of Hawaii at Manoa: Transplantation and Human Rights in China, slide 89 (Oct. 29, 2007), available at (last visited July 29, 2008).

[64]Bloody, supra note 67, at 38.

[65]Allison, supra note 68, slide 70.

[66] Matas & Kilgour, supra note 46, at 9.

[67]Fear of Torture or Ill-Treatment/Prisoner of Conscience, Amnesty Int'l (ASA 17/049/2006), Aug. 29, 2006, at 1, available at (last visited July 29, 2008).

[68]Bloody, supra note 67, at 45.


[70]Id. at 35.

[71]Hemphill, supra note 29, at 439-40.

Next Friday: Prisoners as another source for China's organ harvesting business

Author of Series on China's Death Penalty: Sin-Ting Mary Liu

The next entry in our Friday series -- Friday's Legal Memo, an In-depth Look at the Law -- educates us on how capital punishment is administered in China. 

Its author is our invaluable legal intern, Sin-Ting Mary Liu, and her qualifications for providing us with this trusted work are:


JURIS DOCTOR CANDIDATE, Nova Southeastern University, Expected Graduation 2010

GPA - 3.72

Class Rank - 5 (Top 2%)

• Dean's List
• Fall 2007 Highest Grade Award -Legal research and writing
• Spring 2008 Highest Grade Award -Legal research and writing
• ILSA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW, Staff Member - editing, source pulling, and Bluebooking multiple journal articles
• Nova Southeastern University - Shepard Broad Law Center Merit Scholarship Award

• Phi Alpha Delta (PAD) - Member
• American Bar Association (ABA) - Student Member
• Asian Pacific American Law Students Association (APALSA) - Member

Special Areas of Legal Interest
• Criminal Law
• Employment Law
• Biotechnology
• Family Law

• Minor in East Asian Languages and Literature



RUDEN McCLOSKY May 2009 - July 2009
Summer Associate Law Clerk
• Conducted research and analyzed case law with client issues in various legal disciplines, including but not limited to employment law, real estate, class actions, and evidence.
• Drafted legal memorandums, outlines, critical date schedules, interrogatories, requests for production, and answers to interrogatories.
• Researched and determined the constitutionality of the proposed Academic Freedom Act for a pro bono assignment. Presented findings to the Anti-Defamation League ("ADL"). Executive Summary will be published by ADL.

Research Assistant / Teaching Assistant
• Assisted professor with first-year students in the Legal research and writing class.
• Assisted students with legal research and writing problems.
• Designed and developed a legal research and writing problem for future students, including writing the model answers.
• Tested viability of a different prospective legal research and writing problem.
• Assisted in researching, editing, fact-checking, and Bluebooking professor's Law Review article concerning the value and future of unpublished opinions (published in the 2009 MARQUETTE LAW REVIEW).

ILSA Journal of International and Comparative Law 2008 Summer Candidacy Program
• Researched and wrote an article titled: Corruption in China's Death Penalty System -- The Deceptive Use of Mobile Death Vans and Falun Gong Prisoners for Organ Harvesting in the Black Market.
• Accepted as a Staff Member for the Journal


Thirteen years of professional experience in the employment, management consulting, biotechnology, ecommerce, high-tech consulting, utilities, and publishing industries. Extensive experience consulting, negotiating, interviewing, and leading seminars and workshops. Former clients and employers include Liberty Power Corporation, Cord Blood America, TMP Worldwide, CPG Solutions, and The Curtiss Group International. Positions held include Director of Client Relations, Senior Career Consultant, Senior Placement Specialist, Business Development Manager, and Editor-in-Chief.


Languages -- Bilingual in English and conversational Chinese (Mandarin and Cantonese).

Computer -- Lexis/Nexis, Westlaw, HeinOnline, Legal Scholarship Network, WorldCat, Microsoft Office, Adobe Photoshop.

Personal -- Runner with the Boca Raton Road Runners Club since 2005 (Medaled 10th in the 2005 PAL Holiday Mile race), editor of monthly newsletter for A Physical Therapist, Inc., and editor of FADING TOWARD ENLIGHTENMENT (published by Missing Man Press).

In Depth Look at the Law: The Judges' Dilemma: They Have to Meet the Constitutional Mandate of an Indigent Defendant's Right to Effective Assistance of Counsel

At this juncture, we've got lots of criminal defendants needing constitutionally-guaranteed representation, and an overwhelmed public defender's office as well as a beleaguered OCCCRC. So, who's next at bat? The private attorney licensed by the State of Florida.

Let's consider the complex criminal case. Major felonies, multiple defendants. Criminal cases that involve more than two indigent co-defendants (or any case where both the Public Defender and the OCCCRC both have a conflict of interest) are handled by private criminal defense attorneys, who are then paid by the government for their time and expenses. Chapter 2007-62, § 27.40(2)(a), Fla. Stat. (2007).

How Big Was the Loss of Attorneys Willing to Take Appointments after 2007? Huge. HUGE.

Earlier, we discussed how the 2007 revision to the appointment statutes caused many criminal defense attorneys to take their names off the county lists of attorneys voluntarily making themselves available for appointment. It was not because these attorneys didn't want to represent the poor people of Florida - the changes in the statute made it impossible for them to do so. Many defense attorneys simply could not afford to do the work and stay open for business.

One news report has shown that after the Legislature's action in 2007, the appointment list for the Tenth Judicial Circuit dropped sixty percent (60%), leaving just one (yes, 1) lawyer who was legally qualified to defend someone, as lead attorney, in a capital case. (Don't you know that is one busy lawyer?)

Practically speaking, in the criminal courtrooms of Florida, defendants continue to come before the bench and announce themselves as unable to pay for legal counsel on their own. According to Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 791 (1963) and its progeny, these folk are still deserving of legal assistance (the proverbial "effective assistance of counsel" under the 6th Amendment) and the government must provide them with an attorney. The judge has a legal duty he must meet.
Faced with Gideon, what are Florida Judges doing? Throwing attorneys under the bus sounds harsh, unless you're the attorney caught in the crossfire. Because that judge has to find an attorney somewhere, and the Legislature isn't giving that judge much of a choice.

What's to be done, when you are a judge facing a multiple defendant murder case and the demands of Gideon v. Wainwright? Well, if you're Circuit Judge Michael Hunter, setting in Polk County, you call over to your fellow judge in Hillsborough County and try and borrow a qualified lawyer. See if they'll travel over the county line and try and case or two. And maybe they will. If the travel's not too bad, and the county will cover the travel expenses, and his firm can handle the financial burden, maybe a dedicated defense attorney in the neighboring county will be available to help out.

It would be nice if the answer was as simple as "borrowing" from your neighbor. It's not. The other county may not have anyone to offer up.

The Involuntary Appointment List Begins Because Judges Need to Find Attorneys Somehow

Which leave judges frustrated and needing to move on their dockets. The judges' solution? They're just creating "involuntary appointments list" with all the local lawyers who hold themselves out as criminal defense attorneys being listed, A to Z. Then, the judges are making appointments from that list: picking names of attorneys at random, out of a hat as it were, with no consideration of the lawyer's finances, or more importantly for the client, the amount of his or her criminal defense experience.

In the short run, this is getting a lawyer with an indigent client. How well that client will be represented is at issue here, as is what the long term ramifications are to these members of the bar.

The Elephant in the Room: The Fifth Amendment Applies Here, Too.

Apparently, the crisis in counsel is so great that no one is looking much at the elephant in the room. Under the precedent long established by the Florida Supreme Court, even when the Sixth Amendment rights of criminal defendants to effective counsel are involved, the law does not allow unacceptably low, "token" compensation for these attorneys. And this is true when the attorneys have voluntarily undertaken the caseload, much less where they have been appointed via an Involuntary Appointment List. Makemson v. Bd. of Cty. Commissioners, 491 So. 2d 1109 (Fla. 1986); White v. Bd. of Cty. Commissioners, 537 So. 2d 1376 (Fla. 1989). It seems obvious that adequate compensation must be legally provided to attorneys who have been drafted into duty by frustrated judges.

Why? Aren't all lawyers rich? Easy answer is NO. And, even those who are successful won't stay successful long if they are involuntarily assigned to represent a defendant in a complex, time-consuming case essentially for free. There are so many hours in a day, and days in a week. If you're working on the appointment, you cannot be working on the case that generates revenue to pay the office salaries, the overhead, etc.

Kansas Supreme Court Gives the Answer the Legislature Doesn't Want to Hear: Pay the Lawyer or Dismiss the Defendant

Just as the Sixth Amendment protects the rights of the accused to legal representation, there are federal and state laws that protect the rights of the lawyer not to be forced out of business by involuntary servitude via judicial appointment. The truth is that these big appointments are the death's knell for many a criminal practice. And, according to the Kansas Supreme Court (which has already dealt with a lot of these same issues), the Fifth Amendment is violated when an attorney necessarily spending an "unreasonable" amount of time on indigent appointments in order to be effective is then caused a "genuine and substantial interference with his or her private practice[.]" State ex rel Stephen v. Smith, 747 P.2d 816, 835-36, 842 (Kansas 1987).

The Kansas Court succinctly identifies that elephant in the room: "[t]he obligation to provide counsel for indigent defendants is that of the State, not of the individual attorney". Id. at 850-51.

What if the money isn't there? Kansas answers: charges against indigent defendants must be dismissed if the government cannot provide adequate compensation to their attorneys.

What about those pro bono requirements?

Phooey. That dog won't hunt. The Florida Bar "suggests" 20 hours/year as charitable service for each attorney licensed in the state (Fla. Bar R. Prof. Cond. 4-6.1(b)). It's almost insulting to suggest that pro bono considerations should apply to the months of solid work that is required to effectively represent criminal defendants in major cases.

For over half a century now, there has been debate about whether or not attorneys are working as a profession or as a business. Clearly (look at the precedent dealing with lawyer advertising for details on this), it has been clearly established that law firms are run for profit, they are businesses, and there's nothing sinister or to be ashamed of because of this truth and fact. Pro bono work is a worthwhile activity. It is not meant to supplant the daily operations of the law firm.

Next week: The Ethical Duties of the Criminal Defense Attorney in Representing the Indigent

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: Death in Florida - 2

The mitigating circumstances that can apply in any given first degree murder case are those set forth in Florida Statute § 921.141(6):

1. § 921.141(6)(a): The defendant has no significant history of prior criminal history.

2. § 921.141(6)(b): The capital felony was committed while the defendant was under influence of extreme mental or emotional disturbance.

3. § 921.141(6)(c): The victim was a participant in the defendant's conduct or consented to the act.

4. § 921.141(6)(d): The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.

5. § 921.141(6)(e): The defendant acted under extreme duress or under- the substantial domination of another person.

6. § 921.141(6)(f): The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law were substantially impaired.

7. § 921.141(6)(g): The age of the defendant at the time of the crime.

8. § 921.141(6)(h): The existence of any other factors in the defendant's background that would mitigate against imposition of a death sentence.

In Depth Look: Death in Florida

At the outset, death is different.

In State v. Dixon, 283 So. 2d 1 (Fla. 1973), the Supreme Court of Florida upheld the constitutionality of the death penalty statute. The court found that "death is unique punishment in its finality and in its total rejection of the possibility of rehabilitation." As such, the court confirmed that it was the intent of the legislature to reserve application of the death penalty "only to the most aggravated and least mitigated of the most serious crime." Accordingly, the Florida Legislature put into place a special process with safeguards so that the death penalty is applied properly after conviction of a capital crime.

Multi-Step Process Between Conviction and Imposition of the Death Penalty

A separate multi-step process exists between conviction and the imposition of the death penalty. After a defendant is found guilty of a capital offense subject to the death penalty, the first step is a second trial to determine whether death will be imposed. At this trial, the jury hears evidence concerning aggravators, circumstances that weigh toward death, and mitigators, which weigh in favor of mercy.

The defense and prosecution can present new evidence supporting these circumstances. The jury then makes a sentencing recommendation based on these aggravators and mitigators. Florida, unlike many other states, does not require that the death recommendation be unanimous. A simple majority, a single person, is all it takes for a recommendation of death.

The Fifteen Aggravating Circumstances As Defined by Florida Statute

The aggravating circumstances that can apply in any given first degree murder case are limited to those set forth in Florida Statute § 921.141(5). These circumstances are limited to fifteen possible aggravators:

1. § 921.141(5)(a): The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed in community control or felony probation ("while serving a sentence").

2. § 921.141(5)(b): The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person ("prior violent felony conviction").

3. § 921.141(5)(c): The defendant knowingly created a great risk of death to many persons ("great risk of death").

4. § 921.141(5)(d): The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit , any robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing , or discharging of a destructive device or bomb ("during course of a felony").

5. § 921.141(5)(e): The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or affecting an escape from custody ("escape or avoiding arrest").

6. § 921.141(5)(f): The capital felony was committed for pecuniary gain ("pecuniary gain").

7. § 921.141(5)(g): The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws ("disrupting government function").

8. § 921.141(5)(h): The capital felony was especially heinous, atrocious, or cruel ("HAC").

9. § 921.141(5)(i): The capital felony was a homicide and was committed in cold, calculated and premeditated manner without any pretense of moral or legal justification ("CCP").

10. § 921.141(5)(j): The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties ("LEO victim").

11. § 921.141(5)(k): The victim of the capital felony was an elected or appointed public official engaged in the performance of his or her official duties if the motive for the capital felony was related, in whole or in part, to the victim's official capacity ("government official performing duties").

12. § 921.141(5)(l): The victim of the capital felony was a person less than 12 years of age ("child under 12").

13. § 921.141(5)(m): The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because the defendant stood in a position of familial or custodial authority over the victim ("advanced age or disability").

14. § 921.141(5)(n):The capital felony was committed by a criminal street gang member, as defined in § 874.03 ("street gang member").

15. § 921.141(5)(o):The capital felony was committed by a person designated as a sexual predator pursuant to § 775.21 or a person previously designated as a sexual predator who had the sexual predator designation removed ("sexual predator").

Next Friday - an in-depth look at Death in Florida continues with the mitigating factors that can apply in any first degree murder case under Florida law.

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