Missouri officials are headed for a showdown with a federal judge after informing him that the state cannot comply with a key part of his order directing the state to change its lethal injection execution procedures.
The clash in Missouri raises two thorny questions about capital punishment that are becoming increasingly significant -- one concerning judicial oversight, the other the role of the medical community.
On June 26, U.S. District Judge Fernando J. Gaitan Jr. said Missouri's current procedure created an unnecessary risk that an inmate could be subjected to "unconstitutional pain and suffering when the lethal injection drugs are administered," thus violating the 8th Amendment's prohibition of cruel and unusual punishment.
Gaitan, who was appointed by President George H.W. Bush, told state officials that, among other things, a board-certified anesthesiologist had to ensure that inmates were sedated enough during execution that they would not feel unnecessary pain.
Late Friday, Missouri proposed a new protocol to the judge in court papers filed by the office of Atty. Gen. Jay Nixon. They reported that Missouri corrections officials had been unsuccessful in finding an anesthesiologist who would participate in an execution.
Missouri officials sent letters to 298 board-certified anesthesiologists in Missouri and southern Illinois "inquiring of their willingness to participate in execution," according to the court filing by two assistant attorneys general, Michael E. Pritchett and Stephen D. Hawke. "To this date, no one has accepted."
The attorneys wrote that they were not surprised, noting that four days after Gaitan issued his order, Dr. Orin F. Guidry, president of the American Society of Anesthesiologists, sent letters to the organization's 40,000 members strongly urging them to "steer clear" of any participation in an execution. "So they have," Pritchett and Hawke said.
On Saturday, Guidry said in a telephone interview that he was "pleased that anesthesiologists have taken our advice." Guidry emphasized that he was not taking a position on capital punishment. Rather, he said, the matter is between the state and the judge and is not anesthesiologists' obligation to resolve.
In their latest brief, the state's attorneys said: "A requirement of using a board-certified anesthesiologist is a requirement that cannot presently be met. To enforce it may effectively bar implementation of the death penalty in Missouri. Surely that is not what the court intended."
In recent years, lethal injection has become the dominant mode of capital punishment in the U.S. The challenge to lethal injection in Missouri is among many pending across the country -- including in California, where a hearing in federal court is set for Sept. 19 in San Jose.
Although some of the 38 states that have capital punishment offer the condemned an alternative method of execution, such as the electric chair, all use a three-stage lethal injection procedure. The first drug administered, the sedative sodium thiopental, is meant to induce sleep; the second, pancuronium bromide, paralyzes the prisoner; the third, potassium chloride, stops the heart. According to the lawsuits, sedative dosages have at times been inadequate to anesthetize inmates.
The Missouri confrontation stems from the pending execution of Michael Taylor, who was sentenced to death for the 1989 murder of a 15-year-old girl in Kansas City, Mo.
In their court papers, Missouri officials said they were submitting a protocol that met "the spirit," if not "the letter," of Gaitan's order. They said that 5 grams of sodium thiopental would be administered and that "standard clinical techniques for assessing consciousness will be used" by "qualified medical personnel." Among the techniques would be "checking for movement, open eyes, eyelash reflex and response to verbal commands and physical stimuli." State officials also said they had a contingency plan to administer an extra dose of sodium thiopental if state personnel determined that the condemned inmate was not sufficiently anesthetized.
In his earlier ruling, Gaitan said he was "gravely concerned" that the physician who was responsible for "mixing the drugs which will be responsible for humanely ending the life of condemned inmates has a condition [dyslexia] which causes him confusion with regard to numbers." There was no mention of this doctor in the state's latest filing. The state said that its intent was to have a doctor present if at all possible but that some medical roles might have to be filled by an emergency medical technician.
Missouri maintained in its brief that no court had held that "the assistance of an anesthesiologist at an execution" was constitutionally required and that Gaitan "legally erred in imposing such a requirement."
The state's attorneys also said that when U.S. District Judge Jeremy D. Fogel ordered California to modify execution procedures in February, the presence of an anesthesiologist was one of two options the judge presented. The other was execution by a massive dose of one barbiturate, eliminating the other two drugs. California postponed the execution of Michael Morales after two anesthesiologists backed out of participating.
A lawyer for Taylor, Ginger D. Anders, said his legal team thought it had demonstrated in hearings before Gaitan that "if potassium chloride is going to be used, it's necessary to have an anesthesiologist measure anesthetic depth," to ensure that the inmate is sufficiently sedated. One witness, Dr. Thomas K. Henthorn, chairman of the department of anesthesiology at the University of Colorado at Denver, testified that because sodium thiopental lowers the pain threshold, it "increases the necessity" of having the drug administered by a trained individual.
Fordham University law professor Deborah W. Denno, an expert on methods of punishment, said she was troubled that the proposed protocol was "pretty vague" about what kind of "medical personnel" would be at the execution and what the training of such personnel might be. She said that just because no judge to date had required a board-certified anesthesiologist did not mean that Gaitan had exceeded his bounds, as the state asserted.
Denno said, "This is what courts are supposed to do -- make sure that government officials are complying with the Constitution."