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

By Terry Lenamon / Reba Kennedy on May 25, 2009

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

Lethal Injection is the Most Commonly Botched Method of Execution

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

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

Some of The Horrific Examples of Botched Executions Using Lethal Injection

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

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

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

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

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

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

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

These Horrors Were Foreseeable – Look at Angola and Auschewitz’s Earlier Examples

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

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

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

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

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

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

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

a. How are the lethal drugs labeled, stored and distinguished before and during the execution?
b. What are the percentage concentrations of the solutions of lethal drugs determined, and by whom are they determined?
c. What are the volumes of each of the lethal drugs used, and by whom are they determined?
d. What level of pressure is applied to each of the injections by the executioner(s)?
e. What period of time is prescribed for the initial “Normal Saline” drip before injection of the first lethal chemical?
f. What period of time is prescribed to administer each injection of lethal chemical and each intervening “flush” injection of “Normal Saline” solution?
g. What volume of “Normal Saline” solution is prescribed for the initial “Normal Saline” drip and for each intervening “flush” injection of “Normal Saline” solution?
h. How many executioner(s) are present during the procedure?
i. What activity does each of the executioner(s) perform?
j. What procedure is prescribed if two of the lethal chemicals mix together and solidify (precipitate) during the lethal injection procedure?
k. What is the medical training and expertise of the executioner(s) which establish that the executioner(s) is/are qualified to insert I. V.’s and perform I. V. cutdown[8] as needed and to inject chemicals in an sequence and a percentage concentration and flow of pressure to prevent unnecessary pain, torture or lingering death.

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

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

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

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

infiltration (the failure to correctly insert an IV line in a vein);
retrograde injections (the improper dilution of the lethal drugs with saline solution in the IV bag);
IV tubing leakage (caused by the need to join lengths of IV tube together to reach behind the executioner=s curtain); and,
incorrect dosages (the failure to administer a sufficient dosage given the individual differences from one person to another, including matters as diverse as body mass and drug use history).

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

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

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

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

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

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

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

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

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