Lethal injections spur new debate

Drug used in execution may just mask pain, some activists argue

Opponents scoff at claims

December 29, 2003|By Stephanie Hanes | Stephanie Hanes,SUN STAFF

In recent months, death penalty opponents and some defense attorneys have begun new protests of the country's most common execution method, saying the deadly drug combination used by most states to kill death row inmates may be causing, and masking, excruciating pain.

Now, with Maryland death row inmate Steven Oken running out of appeals, local opponents to the death penalty are joining the fray, saying that death by injection may violate the Eighth Amendment's protection against cruel and unusual punishment.

"It's another in a whole series of instances when the death penalty is being sold to the public as one thing, and the more we perceive the process, we see that it is something very different," said Michael Stark, the Baltimore-Washington coordinator of the Campaign to End the Death Penalty. "We were being sold that it is humane, quick. But it's not."

Capital punishment supporters scoff at the recent outcry, as well as the accompanying wave of appeals contesting lethal injection. To them, it marks another attempt to derail the capital punishment system.

"No matter what method is used, they will always find issues," said Kent S. Scheidegger, legal director for the Criminal Justice Legal Foundation in California, which generally supports the use of the death penalty. "This has been going on for 30-plus years. It's just every little thing they can find to argue about, they do."

The argument against lethal injection issue has been raised in a number of cases in the federal court system. This month, the 4th U.S. Circuit Court of Appeals, which has jurisdiction over Maryland, stopped a Virginia execution in part because of the issue.

The most recent argument against lethal injection has to do with the drugs used. Most states, including Maryland, use a three-drug procedure. The first is an anesthetic that puts the inmate to sleep; the second paralyzes the inmate's muscle system and halts breathing; and the third stops the heart.

At issue is the second drug -- in Maryland, succinylcholine chloride -- which paralyzes the inmate. Anti-death penalty advocates say this neuromuscular blocker does nothing other than make the inmate look placid for witnesses.

They say it is possible that, because the first drug is not a long-lasting anesthetic, the inmate might be feeling the painful cardiac arrest induced by the third drug. The death looks peaceful only because the second drug has prevented the inmate from screaming or moving, they said.

"Because there is a chemical mask, we may not be able to ascertain the amount of pain and suffering that the individuals are experiencing," said attorney Jerome H. Nickerson Jr., who has defended death row inmates, and who watched Maryland's last execution, in which his client, Tyrone X. Gilliam, was given a lethal injection.

Advocates and defense attorneys have pointed to the American Veterinary Medical Association's condemnation of a drug that functions in the same fashion as succinylcholine chloride. The association said that pancuronium bromide -- which is used by most states in lethal injections -- should not be used in combination with typical euthanasia drugs because it can mask suffering in an immobilized animal.

Lethal injections are also often difficult to get into inmates' veins, death penalty opponents say. When veins have collapsed, because of regular drug use or other reasons, executioners may have to do a "cut down" procedure, where they cut into the vein to insert the chemicals.

Because of these complications, defense attorneys and anti-death penalty activists say that lethal injection likely violates the Eighth Amendment.

"There is nothing in the constitution that says the execution has to be humane or painless," said Richard C. Dieter, executive director of the Death Penalty Information Center, a Washington think-tank that is generally against capital punishment. "But it can't be unnecessarily painful."

Fred Bennett, the attorney for death row inmate Oken, said he would be interested in pursuing a similar argument if his appeals -- he has asked the Maryland Court of Appeals to reverse its earlier decision rejecting Oken's arguments -- are not successful.

"We are looking carefully at the number of federal cases that are percolating dealing with the method and manner of execution and the drugs that are being used," he said. "But we don't have to deal with that yet."

But Scheidegger said he doubts the lethal injection appeals will have much success.

"I don't expect [the issue] to be around too long," he said. "If there is a problem with the chemicals the states are using, it would be easier and cheaper for the states to change the chemicals than to litigate the issue."

Maryland switched to lethal injection from the gas chamber in 1994, about the time courts in other states were considering whether the gas chamber violated the Eighth Amendment.

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