Judges in several states have started to put up potentially insurmountable roadblocks to the use of injections to execute condemned inmates.
Their decisions are based on new evidence suggesting that prisoners have gone through agonizing executions. In response, judges are insisting that doctors take an active role in supervising executions, even though the American Medical Association's code of ethics prohibits that.
A federal judge in North Carolina has ordered state officials to find medical personnel by tomorrow to supervise an execution scheduled for next week. Otherwise, the judge said, he will impose a stay of execution.
"This, of course, will make lethal injections difficult, if not impossible, to perform," said Dr. Jonathan I. Groner, a professor of surgery at Ohio State University who has studied lethal injection and opposes the death penalty.
A California judge plans to hold hearings on the issue next month; an execution there was called off for lack of doctors. The U.S. Supreme Court will hear arguments this month on whether death row inmates may use a civil rights law to challenge lethal injection as cruel and unusual punishment.
Scores of similar suits, asserting that lethal-injection procedures are illogical and potentially torturous, are pending around the nation. But, until recently, they had met with limited success, said Jamie Fellner, the director of the U.S. programs for Human Rights Watch, which will issue a report on lethal injections this month.
"When prisoners first started making these challenges," Fellner said, "the courts ... thought these were stalling tactics."
The recent decisions, by contrast, rely on accounts of witnesses, post-mortem blood testing and execution logs that seem to show that executions meant to be humane have, in fact, caused excruciating pain.
Three chemicals are used in lethal injections in about 35 states.
The first chemical is sodium thiopental, a short-acting barbiturate. Properly administered, all sides agree, it is sufficient to render an inmate unconscious for many hours, if not to kill him. The second chemical is pancuronium bromide, a relative of curare. If administered by itself, it paralyzes the body but leaves the subject conscious, suffocating but unable to cry out. The third is potassium chloride, which stops the heart and causes excruciating pain as it travels through the veins.
Problems arise, lawyers and experts for the inmates say, when poorly trained personnel make mistakes in preparing the chemicals, inserting the catheters and injecting the chemicals into intravenous lines. If the first chemical is ineffective, the other two are torturous.
In veterinary euthanasia and in assisted suicides in Oregon, a single lethal dose of a long-acting barbiturate is typically used. But corrections officials and their medical experts say using that method in executions would take too long and would subject witnesses to discomfort.
Though some states give prisoners a choice between lethal injection and a second method and Nebraska uses only electrocution, lethal injection is the all but universal way condemned prisoners are sent to death in the United States. Every state that has made its lethal-injection protocols public uses the three-chemical combination.