Lethal injection lacks protocols

Executions halted for courts' questions


As an Oklahoma legislator in the 1970s, Bill J. Wiseman followed the will of his district and voted to restore the state's death penalty. But with deep personal reservations about capital punishment, he also sought out a more humane alternative to electrocution and became the unwitting architect of the injection protocol now used in nearly every U.S. execution.

Now, as then, Wiseman's concerns about the process run deep.

He never anticipated that lethal injection could be botched by problems of inadequate sedation or the use of a chemical to paralyze an inmate's muscles, as a widely publicized medical study reported last year.

And he never anticipated that state after state would adopt the same method and use it for more than two decades without re-examination and, in many instances, without exacting guidelines.

"What you are talking about here is a competency issue," said Wiseman, now a university administrator and Episcopal priest who says that state officials should intervene again to set right a system that across the country - and in Maryland - has become a jumble of prisoner appeals and makeshift moratoriums.

"Whatever you feel about capital punishment, properly done, this is a painless thing. It's just a question of competency."

The push to modernize lethal injection protocols has long been advocated by anti-death penalty activists. It has also gained support from capital punishment supporters, who see it as a practical way to avoid delays in carrying out death sentences.

But few states have implemented changes, even under growing pressure from the nation's courts.

The U.S. Supreme Court, in a unanimous decision last month, opened the door for death row inmates to bring new challenges to the way states use lethal injection. The court did not rule on the merits of the procedure, but it pointedly noted that a Florida inmate's challenge still "appears to leave the state free to use an alternative lethal injection procedure."

Other courts rule

In lower courts across the country, other judges have more bluntly issued the same instruction. Last week, a federal judge in Missouri put executions on hold until the state revises its lethal injection protocols, including the involvement of an anesthesiologist.

That ruling came after a surgeon who assists in Missouri's executions testified that he had used only half the usual dose of anesthesia in recent executions and acknowledged that because he is dyslexic, he sometimes transposes numbers.

Federal judges in California and Arkansas have scheduled evidence hearings to weigh the claims of death row inmates that lethal injection procedures are cruel and unusual.

And some states are acting on their own accord. In Ohio, corrections officials said they would modify protocols to avoid the kind of problem that occurred during a May execution when, after a prolonged effort to inject the deadly chemicals, inmate Joseph Lewis Clark pushed himself up on the gurney and said: "It don't work."

But most states have resisted making changes to the three-chemical cocktail that has become the standard for U.S. executions.

In Maryland last month, an administrative law judge agreed with part of the procedural challenge brought by death row inmate Vernon Lee Evans Jr. - ruling that the protocols were "legally ineffective" because they were not created with public input - but that finding was rejected by Public Safety Secretary Mary Ann Saar.

Oklahoma's highest appeals court found the state's lethal injection procedure constitutional in a ruling last month, with one judge finding that an inmate's request "to be spared the imposition of his legally imposed punishment because it might cause him to suffer or experience pain unpersuasive (and rather ironic) as his murderous acts have been the cause of the ultimate pain and suffering for the victim and her family."

After Oklahoma became the first in the country to adopt lethal injection in 1977, other states steadily followed suit. The federal government and 37 of the 38 states that allow capital punishment now use lethal injection. (Nebraska still uses the electric chair.)

1,029 executions

Since the U.S. Supreme Court reinstated the death penalty in 1976, states had conducted 1,029 executions as of the end of June - 861 of those by injection, according to the Washington-based Death Penalty Information Center.

Douglas A. Berman, an Ohio State University law professor who closely tracks sentencing issues, said there has been little incentive for states to overhaul lethal injection procedures.

"Nobody involved with the process truly has a direct interest in making it better," Berman said. The defendants themselves typically have a greater stake in blocking execution altogether, he said, while state officials fear that they will only face new challenges if they adopt a new method of execution.

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