ACLU Targets Death Penalty Drug

Contending that a drug used during executions prevents inmates from showing their pain by paralyzing them, the American Civil Liberties Union has filed a lawsuit alleging that the procedure violates the 1st Amendment.

The lawsuit, filed on behalf of the liberal Pacific News Service in San Francisco, is the latest challenge to the state’s use of lethal injections for capital punishment.

Such executions have been challenged in a number of states recently.

The practice was temporarily halted in California in February, when state officials called off the execution of murderer Michael A. Morales because a federal judge said more evidence was needed to determine how much pain he might suffer while dying.

(The judge, Jeremy Fogel of the U.S. District Court in San Jose, gave the state the option of proceeding with the execution if it could get medical professionals to stand by, but officials couldn’t meet that requirement: Doctors, as a rule, deem it unethical to participate in executions.)

In California and elsewhere, controversy over lethal injections has focused on whether the method causes deaths so painful that they violate constitutional prohibitions against cruel and unusual punishment.

But the ACLU suit, filed Wednesday in U.S. District Court of the Northern District of California, approaches the issue from a different angle: It challenges not the method’s alleged cruelty but rather its alleged potential to mislead the public.

According to the lawsuit, one of the drugs used during California executions conceals inmates’ reactions to the other two drugs by preventing muscle response.

That makes it impossible for a dying convict to writhe, flinch, convulse, make sounds or otherwise communicate pain to journalists who are witnessing the execution, ACLU attorneys maintain.

The drug, pancuronium bromide, is a paralytic agent. It is the second of three drugs administered during execution. The first drug is a strong tranquilizer to render the inmate unconscious, and the final one is a heart-stopping agent that causes a deadly, potentially painful heart attack.

“We believe the second drug is only used to mask potential problems with the first,” said Jon Streeter, a lawyer with the San Francisco firm Keker & Van Nest and a pro bono attorney for the ACLU in the case.

“If the inmate is not unconscious ... it could be that for about 10 or 15 minutes he is laying on the table in excruciating pain but unable to express that. In effect, the state is throwing a chemical curtain -- a mask -- over what is happening in the death chamber.”

Streeter cited prior court rulings that held it was a violation of press freedom for the state to bar reporters from executions or to use curtains to conceal portions of the process.

Similarly, use of a paralytic drug presents “a false picture of what’s happening by effectively putting a gag” on the inmate, Streeter argued.

The state has not yet filed a formal response to the lawsuit, and Nathan Barankin, a spokesman for the California attorney general’s office, said the office has not decided whether to do so.

But he dismissed the suit’s contentions, saying the paralyzing drug serves not only to keep the inmate motionless but also to stop his breathing. Its purpose, he said, is to hasten death. The state holds that its use with the other two drugs is constitutional, he said.