Missouri Execution Ban Stands

Times Staff Writer

A federal judge on Tuesday found that Missouri's revised lethal injection procedure was not adequate to ensure that condemned inmates did not suffer unnecessary pain.

The state had modified its protocol in response to a ruling last month by U.S. District Judge Fernando J. Gaitan Jr., who barred executions until Missouri made significant changes to its procedure, which is similar to those used by about three dozen other states.

The existing procedure created an unnecessary risk that an inmate could be subjected to "unconstitutional pain and suffering when the lethal injection drugs are administered," Gaitan said.

In particular, he ordered that the state employ a board-certified anesthesiologist to make sure inmates are sufficiently anesthetized before the lethal drugs are administered.

Missouri's procedure involves a three-drug cocktail. The first to be 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 lawsuit that prompted the Missouri ruling, and to other suits across the country, sedative doses at times have been inadequate to anesthetize inmates -- who were unable to tell officials they were in severe pain because they were paralyzed by the second drug.

Last week, Missouri corrections officials submitted a revised procedure that they said met the spirit, if not the letter, of Gaitan's order.

They said the sodium thiopental would be administered and that "standard clinical techniques for assessing consciousness will be used" by qualified medical personnel. Among the things officials said they would check for were movement, eyelash reflex and response to commands and stimuli. And they said there was a contingency plan to administer an extra dose of sodium thiopental if corrections personnel determined the inmate was not sufficiently anesthetized.

However, the state said it could not comply with a key part of Gaitan's order: Officials said they had contacted 298 anesthesiologists in Missouri and southern Illinois, and none was willing to participate in executions. The state also asserted that the judge had overstepped his bounds in requiring a board-certified anesthesiologist.

Attorneys for Michael Taylor, the death row inmate who filed suit earlier this year, said in court papers Monday that Missouri's new procedures fell short of what was required under the 8th Amendment, which bars cruel and unusual punishment.

"The state's proposed protocol ... utterly fails to protect inmates from the errors, ad hoc improvisations, and poor judgment of inadequately trained personnel forced to carry out executions without adequate guidance," the brief said.

Taylor's defense team submitted a declaration from Dr. Mark Heath, a Columbia University Medical Center anesthesiologist, who has testified in a number of lethal-injection challenges. He said that an overarching problem with the new protocol was that state corrections officials believed that they could, "without the on-site ... supervision of an anesthesiologist, reliably assess (and if needed deepen) anesthetic depth." The state's approach, he added, "shows that they do not understand what is at stake here."

In Tuesday's order, Gaitan indicated that he agreed.

"Missouri's revised proposal is an improvement over the current procedure," the judge wrote. "However, there continue to be inadequacies with the personnel required to monitor and oversee the use of the anesthetic.

"While the use of a board-certified anesthesiologist may not be possible," he said, "the alternative proposed by the state falls short of ensuring the protection required.... Missouri's current lethal injection procedure subjects condemned inmates to an unnecessary risk of unconstitutional pain and suffering. Without appropriate monitoring of the anesthesia, there is a strong argument that these executions might even be torturous."

Ginger D. Anders, one of Taylor's attorneys, said: "We are happy that Judge Gaitan recognizes that ... the state has to ensure that inmates are sufficiently anesthetized against the excruciating pain" of the potassium chloride.

The Missouri attorney general's office had no immediate comment. But on Monday, the state filed a notice that it was appealing Gaitan's original order calling for the lethal injection procedure to be revised.

Taylor is on death row for the 1989 murder of a 15-year-old girl in Kansas City, Mo. His lawsuit is one of several challenges to lethal injection procedures pending in federal courts around the country -- including one set for a hearing in San Jose on Sept. 19 and another case during the same week in Baltimore.

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