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Unfit to execute

States know that their lethal injection procedure may cause excruciating pain, yet they defend it anyway.

By Eric Berger

November 26, 2007

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For years, the conventional wisdom has been that lethal injection is a humane means of execution. In fact, nothing could be further from the truth.

In one case, which the Los Angeles Times reported on this month, the federal government is carrying out executions with the assistance of a doctor who was barred from participating in Missouri's lethal injection procedure. In 2006, a federal court in Kansas City, Mo., found that Alan R. Doerhoff's dyslexia interfered with his ability to administer the drugs correctly -- making him the only doctor in the country who has been barred by a federal court from participating in lethal injection executions. Despite this finding and his public reprimand for failing to disclose more than 20 malpractice suits against him, Doerhoff continues to assist with federal executions in Indiana.

Thirty-seven states have selected potentially excruciating chemicals, and many have delegated administration of those drugs to unfit personnel. As a result, it is virtually certain that inmates have needlessly suffered painful deaths and that more will continue to do so -- unless states and the federal government substantially revise their methods.

In January, the U.S. Supreme Court will hear arguments in Baze vs. Rees, a case that will set the standard for determining whether the pain and suffering inflicted during lethal injection violates the 8th Amendment's ban on cruel and unusual punishment. Governments thus may be required to take greater care in administering lethal injections.

The prevailing method of lethal injection employs three drugs that simultaneously create a risk of terrific pain and conceal that pain from all observers. The first chemical is a volatile, difficult-to-administer anesthetic. The second paralyzes all the inmate's muscles, including his diaphragm. The third burns intensely as it courses through the veins toward the heart, where it induces cardiac arrest. Insufficiently anesthetized inmates thus lie paralyzed while experiencing conscious suffocation and searing pain before death.

Execution by lethal injection need not be so inherently painful. Experts agree that other drugs could cause death without the risk of also causing undue suffering. Because the states have selected drugs that are so sensitive to error, however, it is imperative that they employ the right people to administer them. But numerous states employ people who are manifestly unfit.

States try to conceal their personnel's qualifications, but some details have begun to emerge. In one California case, an execution team leader had sole control over the addictive anesthetic, even though he had been disciplined for bringing illegal narcotics into the prison. Other members of that same team were allegedly never trained in the procedures and became so confused when preparing the anesthetic that they may have administered one-tenth of the intended dose. In a separate incident, massive quantities of the anesthetic disappeared, and no one knows how much was actually administered to inmates.

Unsurprisingly, courts presented with such evidence in California and other states have begun to find that unqualified personnel's participation in executions creates a significant risk of excruciating pain.

If they fail to employ people capable of, among other things, correctly mixing the drugs and setting the intravenous lines, states are inviting problems. The paralyzing drug usually hides the execution team's mistakes, but occasionally the errors are in plain, gruesome view. Last year in Florida, for instance, Angel Diaz writhed on the gurney, gasping for breath for more than half an hour before death. An autopsy revealed that his IV lines had been improperly set.

It is disturbing that states not only use needlessly painful chemicals but that some also employ unqualified people to administer them. What is intolerable, though, is for states to insist on retaining those same chemicals and personnel once they have been alerted to the significant risk of profound suffering. Numerous states have done exactly this -- and then sought to conceal all information about their procedures.

Regardless of one's views on the death penalty, carrying out executions is a solemn responsibility that should be approached with care and deliberation. Government's failure to act responsibly is a disservice not only to inmates but to the citizens who have made the death penalty state policy. As a federal judge in California explained, if the state wants to resume executions, its refusal to recognize its procedure's many problems is "self-defeating."

It is outrageous that states and the federal government have elected to carry out executions with dangerous, painful chemicals and then abdicated responsibility for the procedures to untrained, unqualified personnel. Government owes its citizens a transparent, careful reconsideration of this deeply flawed procedure that, as currently constituted, is bound to fail.

Eric Berger teaches constitutional law at the University of Nebraska College of Law.