Judge to Hear Challenge to Use of Lethal Injection

A federal judge in San Jose will take up an issue today that has the potential to block all executions in California: whether lethal injections used on death row inflict so much pain that they violate the Constitution.

Although lethal injections have been used for more than a quarter century, the question of whether they violate the Constitution’s ban on “cruel and unusual punishment” has suddenly become a hot issue in the courts.

In recent weeks, the U.S. Supreme Court has temporarily blocked executions in two Florida cases to allow time for lower court judges to consider arguments against lethal injection.

Last week, the Maryland Supreme Court stayed the execution of a convicted murderer on several grounds, including a challenge to the state’s lethal injection procedure.

The case coming before U.S. District Judge Jeremy Fogel in San Jose raises the same questions that have come up in those cases. Opponents of lethal injection say that rather than being more humane than a gas chamber or electric chair, lethal injections may cause a very painful death.

California corrections officials -- like those in virtually every state that uses the method -- execute condemned inmates with a combination of three chemicals: sodium pentothal, a short-acting sedative; pancuronium bromide, which paralyzes all voluntary muscles; and potassium chloride, which causes cardiac arrest.

In theory, the sodium pentothal, a barbiturate, renders the prisoner unconscious long enough for the potassium chloride to kill him. Without the sodium pentothal, the injection of potassium chloride would cause great pain. But with it, the condemned inmate feels nothing, lawyers for the state argue.

“There is no dispute that 5 grams of sodium pentothal will quickly render the inmate unconscious, that he will remain in that state while the other drugs are delivered and that no inmate can, while unconscious, experience pain,” Deputy Atty. Gen. Dane Gillette, who heads the state attorney general’s capital appeals unit, told Fogel in a brief.

But lawyers for Michael A. Morales, a convicted rapist and murderer scheduled to be executed Feb. 21, question that assertion.

California’s lethal injection procedure “was adopted without any medical research or review to determine that a prisoner would not suffer a painful death,” they argue, noting that a former warden of San Quentin, Daniel Vasquez, adopted the current procedure after watching two executions in Texas.

Morales’ lawyers -- David A. Senior of Los Angeles, John R. Grele of San Francisco and Richard P. Steinken of Chicago -- say the sodium pentothal may not always work effectively. Because the second drug, pancuronium bromide, paralyzes all of an inmate’s muscles, the prisoner would have no way of signaling that he or she was still conscious and able to feel pain, they say.

Several years ago, the American Veterinary Assn. outlawed the use of sedatives in combination with paralyzing drugs when euthanizing animals because of the prospect of “pain and distress,” the lawyers told the judge.

Their suit asserts that California has no effective way to guarantee “that the anesthetic agent is flowing properly into the prisoner.”

Fogel has ordered the state to turn over information and logs about the last three executions in California. State officials said after the Jan. 16 execution of Clarence Allen that completing his execution required an extra dose of potassium chloride. The same thing had happened in two previous executions, they said.

Vernell Crittendon, a spokesman for the San Quentin warden, said it was unclear why the state needed to use the extra chemicals in those executions.

The U.S. Supreme Court has never found any method of execution to be unconstitutional. And so far no lower federal court or state supreme court has issued a ruling striking down lethal injection.

Some courts have explicitly rejected challenges to lethal injections. In October, the Tennessee Supreme Court issued a unanimous ruling saying there had been “no evidence of problems” in any of the states using injections.

Fogel has previously rejected two other challenges to lethal injection, but those rulings were based primarily on procedural grounds. Last year, the U.S. 9th Circuit Court of Appeals, while allowing one execution to go forward, cautioned that California’s procedure for lethal injections “raises extremely troubling questions.”

The most successful challenge to lethal injections so far has come in New Jersey. There, a mid-level state appeals court in 2004 ruled against the procedures, because the state had stopped requiring an emergency cart containing equipment and medications that could be used to revive an inmate in the event of a last-minute stay.

“We think it plain that an inmate who is being executed in error because a stay of execution has been issued after the injection is administered is wrongfully deprived of due process and fundamental fairness, to say nothing of life itself,” Judge Sylvia Pressler wrote for a unanimous three-judge panel.

The judges ordered the state to come up with new procedures. That effort became moot in January when New Jersey enacted a moratorium on executions.

Lethal injection was first adopted by Oklahoma when it enacted a new death penalty statute in 1977. The procedure is now the predominant method of execution nationwide, used in 37 of the 38 states with capital punishment laws.

In California, the first person executed by lethal injection was triple murderer Keith D. Williams in 1996. That year the 9th Circuit had ruled that executions in the San Quentin gas chamber constituted cruel and unusual punishment. Ten other people have been executed by lethal injection in the state since then.

Deborah Denno, a Fordham University law professor and prominent critic of lethal injections who has reviewed such procedures used by every state, said most adopted them without any meaningful help from medical professionals.

She predicts that a challenge to lethal injection will succeed eventually after more medical experts review the procedures and more sophisticated post-mortem testing is done.

“The more we know about lethal injections, the more problems that are revealed,” she said.