The most important events relating to capital defense this come not from the courts but from the political realm.In Maryland the second state governor this week announceda moratorium on executions.Governor Parris Glendening of Maryland issued a moratorium Thursday on all executions in that state pending completion, and General Assembly review of, a study on the state's use of the death penalty currently in progress at the University of Maryland College Park. This is the first state moratorium since Illinois Governor George Ryan halted executions in that state in January 2000.The immediate effect is a stay for Wesley Baker who was scheduled to be executed next week, the long term effects remain to be seen. The moratorium movement will be covered in depth in a future edition.

The current edition highlights as hot just one case,Caldwell v. Bell. InCaldwella split panel of the Sixth Circuit granted relief on a the trial court's error in instructing the jury on "presumed malice." The panel split not on whether the instruction was error, but how that error impacted the proceedings. Relief granted.

The Focus section this week examines the constitutionality lethal injection as currently practiced.Excerpts from Denise Denno's "When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us"Ohio State Law Journal's Death Penalty Symposium Issueappear below. Additionally, excerpts from motions challenging lethal injection that have won evidentiary hearings recently in Tennessee and Georgia also appear below. Additional materials on lethal injection will be posted on the newCapital Defense Weeklywebsite in the next few days.

As noted briefly in the last edition several severe technical glitches have troubled the site (coramnobis.com) where the weekly has been housed for the last three years. The troubles included no email for most April. Effective as of this issue I have moved the site forCapital Defense Weekly The new website location is www.capitaldefenseweekly.com. The new site is up but being seriously "remodeled" and should be fully functioning in a few days.

Having mentioned websites,deathpenaltydefense.comis another site to add to your hotlinks. The site covers all the nuts and bolts of death penalty defense at trial in a concise and thought provoking manner. If you have not visited the site yet, please do.Deathpenaltydefense.com is run by Prof. William S. Geimer of Washington and Lee University. Prof. Geimer has defended capital cases in the courtroom, and as director of Virginia Capital Case Clearinghouse, has provided direct trial-level assistance to defense attorneys in more than 400 death penalty cases. His work has appeared here in the past and I have added the site to the very small list of "five star websites" that appears in the footer of every edition.

A reminder that the the Montana Bar Association on June 6-7 is holding their Capital Crimes Defense Certification (http://montanabar.org/cle/capitalcrimescle.html).The CLE examines the nuts and bolts of trying a capital case, including such classes as "Trying Your First Death Penalty Case and Voir Dire in Capital Cases" and "Deathics: What the Defense Lawyer Must Do and the Prosecutor Must Not."The course include many of the leading experts in the field of capital defense and looks to be quite rewarding.

Finally, Thomas H. Kimbell, Jr., became the 101st former death row inmate (at least) to be released for reasons of actual innocence and freed since 1973.Kimbell had been sentenced to death in 1998 following his conviction for the murder of four members of a family in Lawrence County, Pennsylvania in 1994.The Pennsylvania Supreme Court overturned his conviction in 2000 because evidence which might have thrown doubt on his guilt was not admitted at his trial. Kimbell was acquitted of all charges at his re-trial on May 3.

Execution Information

Since the last edition the following have been executed:

May

3 Richard Johnson South Carolina

9 Reginald Reeves Texas

10 Lynda Lyon Block Alabama----female

The following executions dares are considered serious:*

May

7 Brian Davis Texas (stay)

10 Lynda Lyon Block Alabama----female

10 Leslie Martin Louisiana

13-19 Wesley Baker Maryland (stay)

14 Henry Dunn Texas

16 Ronford Styron Texas

22 Johnny Martinez Texas

28 Napoleon Beazley Texas----juvenile

30 Stanley Baker Jr. Texas

June

5 Christopher Simmons Missouri---juvenile

11 Willie Mac Modden Texas

13 Daniel Reneau Texas

25 Robert Coulson Texas

26 Jeffrey Williams Texas

27 Gary Etheridge Texas

HOT LIST

Caldwell v. Bell, (6th Cir 04/30/2002) (dissent) Where the trial court erred in instructing the jury on "presumed malice" by use of a firearm and the court stands in equipoise as to whether the instruction 'substantial and injurious effect or influence in determining the jury's verdict,' relief must issue.

In a criminal trial in this country, it is an elementary principle of due process that every element of the crime must be proven by the prosecution beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 520 (1979). An instruction that tells a jury to presume any element of a crime without evidence is unconstitutional, for "the Fourteenth Amendment's guarantees prohibit a State from shifting to the defendant the burden of disproving an element of the crime charged." Id., 442 U.S. at 527 (Rehnquist, J., concurring). The Supreme Court has made clear that an instruction that a jury should presume malice from use of a deadly weapon falls under this constitutional prohibition. Yates v. Evatt, 500 U.S. 391, 401-02 (1991); Francis v. Franklin, 471 U.S. 307, 317 (1985); see also Houston v. Dutton, 50 F.3d 381, 385 (6th Cir. 1995). A mandatory rebuttable presumption is equally unconstitutional. Francis, 471 U.S. at 317.

"The judge's instructions to the jury as to the law and how the evidence should be assessed are crucial to a fair trial. They should guide the jury's deliberations and are not mere technicalities in our legal system." Houston, 50 F.3d at 385. When faced with a Sandstrom error a court should not assume it is harmless but must review the entire case under the harmless-error standard the Supreme Court most recently expounded in Brecht v. Abrahamson, 507 U.S. 619 (1993), and O'Neal v. McAninch, 513 U.S. 432 (1995). These cases adopt the principles set out in Kotteakos v. United States, which held that an error is not to be deemed harmless if it had a "substantial or injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 622 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). When the reviewing court has "grave doubt" as to the harmlessness of an error, the writ should issue. O'Neal, 513 U.S. at 435.

Although Brecht was a 5-4 decision, four members of the Court deviated from the Kotteakos standard of assessing harmless error when they held that habeas petitioners "are not entitled to habeas relief unless they can establish that it resulted in actual prejudice." O'Neal, 513 U.S. at 438 (quoting Brecht, 507 U.S. at 637). Justice Stevens, who joined the majority opinion but who also authored a concurring opinion, differed from the majority in that respect, and wrote separately to explicate the Kotteakos standard. O'Neal, 513 U.S. at 439 (stating that Justice Stevens agreed in part because the Kotteakos standard "places the burden on prosecutors to explain why . . . errors were harmless").(3) In O'Neal, the Court held that, in assessing harmless error, we must follow the somewhat more restrictive approach of Justice Stevens's concurring opinion in Brecht, which "stated explicitly that the Kotteakos standard applied in its entirety." See O'Neal, 513 U.S. at 439 (emphasis in original) (noting that Brecht was not controlling to the extent it failed to adopt the Kotteakos standard in its entirety and citing with approval Justice Stevens's concurrence).

The Kotteakos standard is "appropriately demanding." Brecht, 507 U.S. at 641 (Stevens, J. concurring).

If, when all is said and done, the [court] is sure that the error did not influence the jury, or had but very sight effect, the verdict and the judgment should stand....But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Kotteakos, 328 U.S. at 764-65; see also Houston, 50 F.3d at 386 n. 1(noting that in assessing whether error is harmless, the Supreme Court has "quoted with approval" the standard from Kotteakos outlined above). This is the test we must apply.

Here, the jury was instructed that "[w]hen the defendant is shown to have used a deadly weapon, and death is clearly shown to have resulted from its use, it is a presumption of law that the killing was done maliciously, that is, with the malice necessary to support a conviction of murder in the second degree." J.A. at 279. As the State concedes, this instruction violated the rule laid down in Sandstrom and Yates. See Yates, 500 U.S. at 401-02; Sandstrom, 442 U.S. at 527. The question before us therefore is whether this instruction, considered in light of the other instructions and the trial record as a whole, had a "substantial and injurious" effect on the verdict. Brecht, 507 U.S. at 622; Kotteakos, 328 U.S. at 764-65, 776.

Houston v. Dutton is directly on point. In Houston, the defendant was found guilty of first-degree murder after a jury had been instructed that malice is presumed if the State proves beyond a reasonable doubt that a killing occurred, and that "the use of a weapon by the party killing . . . raises a presumption of malice sufficient to sustain a charge of Second Degree Murder." Houston, 50 F.3d at 385. On review we found the instruction to presume malice from these facts harmful because it prevented the jury from considering the defense's alternative theory of the killing. In Houston the state contended that the defendant had "executed" his victim after robbing a gas station, while the defense argued instead that he had shot the victim accidentally, in a struggle over a gun. Id. at 386-87. "In both law and common sense, accident and malice are conceptually incompatible." Id. at 386. Once jurors had been instructed to presume malice, they were unable seriously to consider the defense's theory of accident. This left the jury with only the State's theory that the killing was first-degree murder. As a result, this court held that the jury instructions were not harmless.

At Caldwell's trial, the jury was told during closing arguments that malice for first-degree murder can "come from the use of a deadly weapon," and the jury was then instructed by the court that when a killing is done with a deadly weapon, "it is a presumption of law that the killing was done maliciously, that is, with the malice necessary to support a conviction of murder in the second degree." As a result, as in the Houston case, there is a reasonable likelihood that jurors concluded that use of a deadly weapon raised a presumption of malice for first-degree murder as well as second-degree murder. Absent the presumption, had a member of the jury in this case entertained a reasonable doubt that the State had proved malice, the juror would have been required to acquit as to first and second degree murder. Once the faulty instruction was given, however, a conscientious juror could have entertained a reasonable doubt that the State had proved malice and still voted to convict Caldwell of murder, because the trial judge had told him to presume malice from the use of a gun and the prosecutor indicated that the State had proved all the elements of first degree murder and that malice can come from the use of a deadly weapon. The erroneous instruction given by the trial judge, coupled with the prosecutor's comment, arguably had the same effect on the jury in Caldwell's case that the instruction to presume malice from certain facts given in Houston had on the jury in that case. We are unable to find this "error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." Yates, 500 U.S. at 403.

Our dissenting colleague's argument to the contrary is unpersuasive. He argues that the jury somehow clearly distinguished between two different forms of malice -- the use of a deadly weapon to kill another and the intent to kill. The jury was told that "malice" was required for both first and second degree murder, but the jury was not told that first degree murder could not be based on the presumption of malice from the use of a deadly weapon. There is no obvious common sense reason for the jury to think that the presumption of malice did not operate uniformly with respect to all forms of malice, and the prosecutor, just before the instruction was given, had just argued to the jury to convict for first degree murder because the use of a deadly weapon is the "embodiment of the word malice." Hence most normal jurors would think that the use of a deadly weapon gives rise to the inference of intent to kill. At least it is unreasonable to think that some jurors did not believe that the use of a deadly weapon was equivalent to an intent to kill after listening to both the judge's instructions and the prosecutor's argument.

We believe the instruction did particular damage by undermining Caldwell's alternative theory of the killing based on a claim of "provocation." At trial, Caldwell's confession was admitted into evidence and his counsel conceded that Caldwell shot Climer. Caldwell contended, however, that he shot Climer in a rage after being provoked by homosexual advances and by having whiskey "slapped" in his one good eye. Caldwell's trial strategy was to convince the jury that Climer had so provoked him that the killing was not "malicious" in the eyes of the law. Manslaughter and malice are incompatible because at the time of the trial, Tennessee law defined manslaughter as the "unlawful killing of another without malice, either express or implied." Tenn. Code Ann. § 39-2409 (1981) (emphasis added); see also State v. Williams, 38 S.W.3d 532, 536 (Tenn. 2001) (discussing the distinction between murder and manslaughter under Tennessee's pre-1989 criminal code).

The unconstitutional jury instructions in effect trumped Caldwell's defense of provocation. As in Houston, once the instruction was given, jurors were unable fairly to consider the defense's theory of provocation leading to manslaughter because manslaughter would be inconsistent with malice and jurors had already been instructed to presume malice from use of a deadly weapon.

The State argues at pages 20-22 of its brief that this instruction was harmless because "[p]rovocation is not 'conceptually incompatible' with malice, but can readily coexist with it," since a killing from a trivial provocation can be done with malice. Malice and manslaughter are, however, incompatible, because real provocation negates the concept of malice. Once the jury was instructed to presume malice, it would have been "substantially swayed" to reject the defense's theory of the killing that there was adequate provocation to produce a verdict of manslaughter. This left it with only the prosecution's theory of the killing: that it was first-degree murder. Thus, the instruction substantially and injuriously affected the verdict, resulting in prejudice to the petitioner.

"When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had 'substantial and injurious effect or influence in determining the jury's verdict,' that error is not harmless. And, the petitioner must win." O'Neal, 513 U.S. at 436. We are in grave doubt about whether the unconstitutional instruction given to the jury prejudiced Caldwell's substantial rights. For the foregoing reasons, we grant petitioner's plea and remand with instructions to issue a writ of habeas corpus.(4)

SUPREME COURT

The Court has stayed the execution of xxx Brian Davis of Texas.The issue on which the Court purportedly granted the stay is mental retardation.The stay in Davis appears to be (at least) the second stay issuedrecent weeks on the issue of mental retardation.

CAPITAL CASES (Favorable Disposition)

See above

CAPITAL CASES (Unfavorable Disposition)

Wiggins v. Corcoran, 2002 U.S. App. LEXIS 8390 (4th Cir 05/02/2002) District Court erred in granting relief on claims relating to sufficiency of the evidence & trial counsel's failure to develop appellant's social history at sentencing

Johnson v. Luebbers, 2002 U.S. App. LEXIS 8056 (8th Cir. 05/01/2002) (dissent) Relief denied most notably on allegations trial counsel "failed to investigate and present substantial mitigating evidence to the sentencing jury." Other grounds included jury instruction on murder was not ambiguous, claims of ineffective assistance of counsel were properly denied, confession was properly admitted, and denial of evidentiary hearing was upheld.

Basden v. Lee, 2002 U.S. App. LEXIS 8634 (4th Cir 05/03/2002) Relief denied on claims that at his trial the State withheld exculpatory evidence and knowingly presented perjured testimony, that his counsel provided ineffective assistance (concession of guilt & failure to request sentencing continuance), and that the indictment under which he was convicted was constitutionally defective.

Alabama v. Phillips, 2002 Ala. Crim. App. LEXIS 110 (Ala Crim App. 05/3/2002) Trial court improperly concluded for purposes of bail eligibility that the complaint did not charge a potentially capital crime.

Hocker v. Alabama, 2002 Ala. Crim. App. LEXIS 99 (Ala Crim App. (Ala Crim App. 05/3/2002) Relief, most notably, denied on venue, refusal to grant a circumstantial evidence charge, extraneous acts evidence, constitutionality of the state's death penalty statute, jury instructions on degree of proof and "heinous, atrocious, or cruel" aggravator, improper sentencing determinations.

Indiana v. Barker, 2002 Ind. LEXIS 341 (Ind 04/26/2002) Indiana's death penalty does not violate Apprendi v. New Jersey.

Ohio v. Smith, 2002 Ohio LEXIS 1015;2002 Ohio 1753 (OH 05/01/2002) Relief denied on Appellants allegations of ineffective assistance of appellate counsel.

OTHER NOTABLE CASES

Nadeau v. Matesanz,No. 01-2288(1st Cir 04/30/2002) Trial judge's instructions to the jury did not violate petitioner's constitutional right to present a defense and to have his guilt determined by a jury of his peers.

Portley-El v. Brill, No. 00-1923 (8th Cir. 05/01/02) Relief denied as prisoner's right action as the appellant failed to show thirty days in punitive segregation was "atypical and significant hardship"

Oliver v. Keller, No. 00-15849 (9th Cir 05/02/2002) For purposes of the PLRA's section 1997e(e) the requisite physical injury must be more than de minimis; but this injury requirement will apply only to claims for mental and emotional injury and will not bar relief.

Sorrels v. McKee, No. 01-35222 (9th Cir 05/02/2002) Qualified immunity appropriate where prison officials enforced a policy, prohibiting inmates from receiving books and magazines that they did not pay for, while the direct issue was pending on appeal in another case as the law was not "clearly established."

Moore v. Schoeman, No. 01-6016 (10th Cir 04/29/2002) The district court's order impermissibly employed a hybrid approach dismissing with prejudice one unexhausted claim on the merits and another unexhausted claim without prejudice. A district court must chose one approach or the other and hence can not chose both.

Farmer v. Perrill, No. 00-1395 (10th Cir 05/03/2002) Individual prison officials ineligible for qualified immunity where genuine fact issues exist as to the justification for conducting body searches in an open area.

AMENDED OR DELAYED PUBLICATION CASES

No cases noted.

FOCUS

Over the last few weeks the issue of lethal injection has been "bubbling" to the surface in several different locations. Denise Denno's "When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us"Ohio State Law Journal's Death Penalty Symposium Issue. has recently been published and for those who are unfamiliar with Denno she is the foremost expert on the Eighth Amendment and the manner of execution. In Georgia a very successful evidentiary hearing has drawn attention to the inherent problems with most lethal injection regimens. In Tennessee Abdur'Rahman (who had been scheduled for execution last month until stayed by the US Supreme Court on other issues) has been granted an evidentiary hearing on lethal injection received a stay from Supreme Court on a different issue. Excerpts Denno, as well as excerpts from motions challenging lethal injection in Tennessee and Georgia. Additional materials on lethal injection will be posted on the newCapital Defense Weeklywebsite in the next few days.

A. The Beginning of Lethal Injection

Lethal injection was considered a potential method of execution as early as 1888.173 The procedure was briskly rejected, however, predominantly because of the medical profession’s belief that the public would begin to link the practice of medicine with death.174 In 1953, the renowned British Royal Commission on Capital Punishment questioned both the humaneness and practicality of lethal injection because of the problems that could result from the peculiar physical attributes of many inmates (for example, abnormal veins) or the medical ignorance of the executioners.175 Regardless, the United States commenced a renewed interest in lethal injection in 1976 after Gregg v. Georgia,176 when the country again confronted the dilemma of executing people.177

There is a range of opinion concerning the source of the country’s interest in lethal injection. Some scholars insist that legislatures at the time seemed to show no preference for a particular execution method.178 However, others claim that lethal injection became popular along with the conservative shift in the nation’s politics.179 In 1973, for example, then-Governor Ronald Reagan of California recommended the idea of lethal injection for executions when he compared it to animal euthanasia, specifically, the ease of putting a horse to sleep.180 Still others contend that legislatures favored lethal injection because it appeared more humane and palatable relative to other methods,181 and it was cheaper.182

Irrespective of the origins of lethal injection, legislatures embraced the method quickly. In May 1977, Oklahoma became the first state to adopt lethal injection and by 1981, five states had adopted it.183 However, the procedure was not even used until 1982, in the botched lethal injection of Charles Brooks, Jr.184 The substantial numbers of other botched lethal injections, particularly at the start,185 did not deter other states from adopting the method with relative confidence and speed.186

C. The Lethal Injection Procedure

The constitutional issues concerning lethal injection have as much to do with the substance of the chemicals, as with how they are administered. In line with the paradoxical tale of execution methods generally, the motivation behind the origins of the specific lethal injection procedure that most states follow in this country was linked with improving the humaneness and cost of executions, as well as the palatability of the death penalty. Moreover, it appears that a prominent doctor—Stanley Deutsch—may have had far more influence than he realized.

In 1977, the now-deceased Senator Bill Dawson of Oklahoma asked Dr. Deutsch, then head of Oklahoma Medical School’s Anesthesiology Department, to recommend a method for executing prisoners through the administration of drugs intravenously.205 Senator Dawson was concerned that it would cost the state $62,000 to fix its electric chair and $300,000 to build a gas chamber, and he had been informed that a lethal injection procedure would be substantially cheaper.206 In his letter of reply to Dawson,207 Deutsch advised that lethal injection was “[w]ithout question . . . extremely humane in comparison to” electrocution and lethal gas.208 As Deutsch explained in a news article, “[f]rom what I had heard of electrocution, . . . it was pretty grotesque, with eyeballs popping out of their sockets and smoke coming out of the head helmet. It seemed to me a lethal injection would be much more humane. I thought it was a pretty good idea, myself.”209

The state adopted lethal injection based in part on Deutsch’s recommendation that anesthetizing would be a “rapid[ly] pleasant way of producing unconsciousness” and ensuing death.210 Indeed, Oklahoma’s lethal injection statute, which is representative of other state statutes,211 repeats nearly verbatim the terminology that Deutsch used in his letter to describe to Dawson the two main types of drugs that Deutsch recommended. According to Deutsch’s letter, unconsciousness and then “death” would be produced by “[t]he administration . . . intravenously . . . in [specified] quantities of . . . an ultra short acting barbiturate” (for example, sodium thiopental) in “combination” with a “nueormuscular [sic] blocking drug[]” (for example, pancuronium bromide) to create a “long duration of paralysis.”212 According to Oklahoma’s statute, “[t]he punishment of death must be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent until death is pronounced by a licensed physician according to accepted standards of medical practice.”213 Deutsch’s recommendations of specific drugs also are incorporated in all of the latest lethal injection protocols in those states that identify the chemicals that executioners use.214

The typical lethal injection consists of three chemicals,215 the first two of which were suggested by Deutsch;216 the origins of the use of the third chemical are not clear.217 The first chemical is a nonlethal dose of sodium thiopental, commonly known by its trademark name, Sodium Pentothal, a frequently used anesthetic for surgery.218 This article uses the generic name sodium thiopental, unless it is referring to a particular state’s protocol, in order to avoid partisanship toward companies that, theoretically, are competing in the same market.219 Like the Oklahoma statute, other lethal injection statutes refer generally to an “ultrashort-acting barbiturate” or an “ultrafast-acting barbiturate,”220 which appropriately characterize the brevity of sodium thiopental’s effect.221 Sodium thiopental is supposed to induce a deep sleep and the loss of consciousness, usually in about twenty seconds.222

The second chemical is pancuronium bromide, also known as Pavulon, a total muscle relaxant. Given in sufficient dosages, pancuronium bromide stops breathing by paralyzing the diaphragm and lungs.223 Again, this article refers to the generic name, pancuronium bromide.

The third and last chemical, potassium chloride—which physicians most frequently use during heart bypass surgery—induces cardiac arrest and stops the inmate’s heartbeat permanently.224 Many states now use a saline solution225 to flush the intravenous line before and after each chemical is administered so that the chemicals do not clog the tubing.226

It is not clear how or why this chemical combination has persisted, although increasingly, the chemical manufacturers have come under attack for their roles in lethal injections.227 Sodium thiopental—an “ultra-short” acting drug as Deutsch and the statutes specify228—typically wears off very quickly; other similar drugs, such as pentobarbital, endure far longer.229 The “fast acting” aspect of sodium thiopental can have horrifying effects if the inmate awakens while being administered the other two drugs.230 Deutsch recommended a dosage that appears to some doctors sufficient to keep even a drug-resistant individual asleep for an adequately long time period.231 However, most states do not specify the dosage that the executioners use,232 so that it is unclear whether the amounts are proper. Most importantly, it is totally unnecessary for the barbiturate to be “fast acting” given the availability of longer acting chemicals.233

The third drug, potassium chloride, may have been recommended initially for use in lethal injections by two possible sources: (1) advising doctors, some of whom were involved in developing state execution protocols (such as New Jersey’s), and/or (2) Fred Leuchter, the highly controversial and later-discredited creator of much, if not most, of the execution equipment in this country,234 including lethal injection machines.235 According to Leuchter, the New Jersey doctors agreed with his recommendation that potassium chloride be used as the third chemical in the machine Leuchter created for New Jersey’s executions.236 Because the medical literature did not have articles specifying what dosages of the drugs were adequate to be lethal, Leuchter relied on the information that was available for pigs and estimated accordingly.237

When Deutsch recommended to Dawson two chemicals rather than three,238 the second chemical, pancuronium bromide (or a chemical similar to it),239 was intended to cause death. However, when potassium chloride is used as an additional third chemical, pancuronium bromide serves no real purpose other than to keep the inmate still while potassium chloride kills.240 Therefore, pancuronium bromide creates the serene appearance that witnesses often describe of a lethal injection execution, because the inmate is totally paralyzed.241 The calm scene that this paralysis ensures, despite the fact that the inmate may be conscious and suffering, is only one of the many controversial aspects of this drug combination.242

As the following sections discuss, from the start, lethal injection was fraught with constitutional challenges that courts regularly have dismissed, despite continuing evidence of egregious mishaps. Such challenges have focused on issues suggesting that lethal injection is cruel and unusual, including, the types of drugs used and their effects, the vagueness of the lethal injection statutes, and the substantial amount of discretion that prison officials have in administering injections.

D. Judicial Challenges to Lethal Injection

Judicial dismissals of lethal injection challenges have resembled those cases dismissing electrocution challenges. However, the variations between the two types of execution methods have introduced some different legal issues as well. Of particular interest in this article are challenges concerning the extent to which a state can delegate to prison personnel the discretion and power to punish, a problem of greater relevance in lethal injection cases. In Ex parte Granviel,243 for example, the Texas Court of Criminal Appeals rejected the first Eighth Amendment challenge to lethal injection by emphasizing that courts, such as In re Kemmler,244 had upheld the constitutionality of other execution methods and that injection complied with “evolving standards of decency.”245 But, the Granviel court also countered a wide range of the appellant’s additional claims, arguments that would be echoed by other courts over the next quarter century: (1) any possible pain associated with injection-related complications “could be characterized as a possible discomfort or suffering necessary to a method of extinguishing life humanely”;246 (2) the Texas statute’s failure to specify the substances to be used in the injection was no less clear than those statutes pertaining to other execution methods, such as electrocution, which no court had declared unconstitutionally vague;247 and (3) the fact that the Director of the Department of Corrections determined the lethal substance and procedure to be used did not constitute an improper delegation of the state’s legislative power.248

Using Granviel as precedent, courts successfully thwarted two other lethal injection challenges249 prior to the Court’s consideration of a different line of argument in Heckler v. Chaney.250 In Heckler, death row inmates claimed that the drugs used for lethal injection had been approved by the Food and Drug Administration (FDA) only for the medical purposes stated on their labels251—for example, animal euthanasia252—and not for the executions of humans.253 Given this designation and the likelihood that the drugs would be applied by unknowledgeable prison personnel, “it was also likely that the drugs would not induce the quick and painless death intended.”254 Such practices constituted the “unapproved use of an approved drug” and therefore a violation of the prohibition against “misbranding” under the Federal Food, Drug, and Cosmetic Act.255 Regardless, the Court steadfastly held that the FDA’s discretionary authority in refusing to initiate proceedings according to the inmates’ demands was not subject to judicial review.256 One year later, the Fifth Circuit Court of Appeals relied on Heckler in Woolls v. McCotter257 to deny Randy Woolls’s claim that Congress failed to provide judicial review for the FDA’s refusal to evaluate the use of sodium thiopental as a lethal drug; the court emphasized that the use of such a drug did not constitute cruel and unusual punishment.258 Six days after his challenge, Woolls’s execution was botched.259

After Woolls, courts have rejected a range of additional challenges to lethal injection,260 including two group actions by inmates. In the first, a class action, Illinois death row inmates contended, among other things, that the State’s use of Leuchter’s lethal injection machine was unconstitutional because of Leuchter’s lack of qualifications and because prison officials administered the wrong drugs.261 Similar arguments condemning lethal injection were raised and dismissed prior to the execution of John W. Gacy.262 Yet, Gacy’s execution was notoriously botched.263 In a second group suit, thirty-six Missouri death row inmates claimed that lethal injection is unconstitutional because of the nature and length of Emmitt Foster’s 1995 execution.264 Although a judge granted an order halting all executions in Missouri, the Eighth Circuit Court of Appeals overturned it.265

In Sims v. State266 and a number of preceding cases,267 the litigation focused again on many of the issues raised in Ex parte Granviel.268 The Supreme Court of Florida discounted Sims’s constitutional challenge to lethal injection based upon a range of arguments.

First, Sims was not denied a full and fair evidentiary hearing because of “the State’s failure to disclose the execution procedures or the chemicals to be used in administering the lethal injection.”269 According to the court, Sims received a copy of the Florida Department of Corrections’ “Execution Day Procedures,” which disclosed the chemicals to be used during the execution, and the State presented at the evidentiary hearing three Department of Corrections (DOC) witnesses who gave more specific information about the lethal injection chemicals.270

Second, the Florida DOC’s execution protocol provided adequate details and procedures for administering lethal injection.271 The trial court was correct in ruling that lethal injection was neither cruel nor unusual and that “the Department of Corrections is both capable and prepared to carry out executions in a manner consistent with evolving standards of decency.”272 According to the Sims court, a comparable kind of challenge to lethal injection was “raised and rejected” by the United States District Court in LaGrand v. Lewis,273 in which the court held that “the written procedures are not constitutionally infirm simply because they fail to specify in explicit detail the execution protocol.”274 Moreover, in Sims, the expert testimony offered by a sociologist documenting lethal injection botches “came from newspaper accounts of the execution and did not come from first-hand, eyewitness accounts or formal findings following a hearing or investigation into the matter.”275 The Sims court also discounted the expert testimony from a neuropharmacologist who provided examples of how a lethal injection execution could be botched if the chemicals were not injected properly or if prison personnel were not fit to administer them.276 According to the court, the expert “admitted that lethal injection is a simple procedure and that if the lethal substances to be used by DOC are administered in the proper dosages and in the proper sequence at the appropriate time, they will ‘bring about the desired effect.’”277 The expert also stated that “at high dosages of the lethal substances intended [sic] be used by the DOC, death would certainly result quickly and without sensation.”278 As the Sims court concluded, “[o]ther than demonstrating a failure to reduce every aspect of the procedure to writing, Sims has not shown that the DOC procedures will subject him to pain or degradation if carried out as planned.”279

Third, Florida’s lethal injection statute does not violate the Separation of Powers Clause in the Florida Constitution due to the improper delegation of legislative power to an administrative agency.280 Relying on Granviel,281 the Sims court explained that the lethal injection statute “clearly defines the punishment to be imposed (i.e., death)” and “makes clear that the legislative purpose is to impose death.”282 While the statute allows the DOC to determine the methodology and chemicals to be used, the court thought that delegation was more preferable than relying on state legislators because the DOC “has personnel better qualified to make such determinations.”283

The following sections of this article point out the weaknesses of the Sims court’s analyses. The discussion first shows that the precedent the Sims court cited is grossly insufficient. For example, Sims turns to Ex parte Granviel,284 the first case to challenge lethal injection. However, Granviel was decided in 1978, a quarter century ago and four years before lethal injection was ever used in this country.285 Like Kemmler is to electrocution, Granviel is to lethal injection—entirely inappropriate as precedent scientifically.286 The Sims court also relied heavily on LaGrand v. Lewis.287 Yet, Lewis—a two-page court order that never involved an evidentiary hearing on lethal injection—presents merely a short and diluted look at lethal injection and cites comparably limited reviews of the method.288

As this article makes clear, an Eighth Amendment analysis of lethal injection also requires that inmates have a public and detailed protocol of the lethal injection procedure far in advance of litigation. The kind of notice the Sims court and other courts have found acceptable is out of touch with modern science. The following sections offer a further glimpse of what these courts have lacked.

V. A Modern Eighth Amendment Analysis of Lethal Injection

A modern Eighth Amendment assessment of lethal injection relies on the same kinds of standards that guide evaluations of electrocution: the “unnecessary and wanton infliction of pain,” the “risk” of such pain, “physical violence,” the offense to “human dignity,” and the contravention of “evolving standards of decency.”289 Granted, there is an ironical dearth of literature available on how to execute people. Much of this article’s, and the case law’s, analysis of the constitutionality of lethal injection relies on the expert opinions of experienced anesthesiologists290 because their profession is so involved in this country’s execution industry.291

A. The Significance of Media Coverage of Executions

This article’s Eighth Amendment analysis of electrocution recognized judicial validation of a diversity of evidence to determine if an inmate experienced “unnecessary and wanton infliction of pain.”292 This evidence included scientific research and eyewitness accounts of actual executions.293 More recent cases have, once again, emphasized the importance of eyewitness accounts of actual executions, this time in the context of lethal injection executions.294 Courts have addressed in particular media witnesses295 who “almost invariably now serve as the public’s surrogate” to ensure that “no untoward conduct has occurred.”296 The majority of state protocols allow for media witnesses at lethal injection executions.297

In California First Amendment Coalition v. Woodford,298 the United States District Court for the Northern District of California listed many of the reasons why it considered the media’s viewing of executions to be significant: (1) the Eighth Amendment and the First Amendment both mandate the public’s presence during the entire execution because the public’s perception is needed to determine whether an execution protocol meets evolving standards of decency;299 (2) courts assessing the constitutionality of execution methods partly rely on eyewitness testimony because it “is crucial to the review of execution protocols which the courts frequently undertake”;300 (3) the prevailing opinion that lethal injection is the most “humane and painless” available execution method may change with the evolution of technology and society’s perceptions;301 and (4) eyewitness media reports provide the documentation needed for society to make its judgments.302 In a striking statement, the Woodford court made clear that “[e]xecution witnesses present by statute [were] entitled to view the entire execution, not just ‘the dying.’”303 Therefore, witnesses could observe “the condemned entering the chamber, his placement on the gurney and the installation of the intravenous device.”304

Given such strong reliance on the presence of the media, the Sims court’s dismissal of an expert sociologist’s organization of newspaper accounts of botched lethal injection executions305 makes no scientific or legal sense. Granted, the expert did not witness the executions; however, the reporters who wrote the newspaper articles did, oftentimes in accordance with statutes and state protocols either requiring or allowing media witnesses.306 Moreover, the Sims court contradicts its own conclusions when it quotes for support a portion of LaGrand v. Lewis307 which refers specifically to “eye-witness reports” of two lethal injections that confirm “the finding that the condemned lose consciousness within seconds, and death occurs with minimal pain within one to two minutes.”308 The Sims court’s conclusions regarding newspaper accounts disregard two critical criteria: (1) accepted legal standards concerning the significance of media witnesses, and (2) the court’s own evidence for finding lethal injection constitutional.309

B. An “Unnecessary and Wanton Infliction of Pain”310

The most significant facet of the media case law on executions concerns the extent to which witnesses can see the earlier stages of the lethal injection process—specifically, the point at which the lethal chemicals begin to enter an inmate’s body.311 For example, California now allows witnesses to view the procedure from the point just prior to the inmate “being immobilized,” i.e., strapped to the gurney, to the point just after the inmate dies.312 However, acquiring this range in view was a legal struggle. Prison officials preferred that witnesses see the proceedings only after officials had strapped the inmate to the gurney and had inserted intravenous tubes.313 Yet, the most serious problems with lethal injection executions oftentimes occur at the start of the procedure, especially when executioners try to find a suitable vein for the first injection.314 Regardless, many execution protocols enforce strict limits on viewing witnesses.315

In general, executioners strap the inmate to a gurney in the execution chamber, insert a catheter into a vein, and inject a nonlethal solution. After the reading of a death warrant, a lethal mixture is injected by one or more executioners or, depending upon the state, by a machine.316 This entire procedure involves potential Eighth Amendment concerns that have not been sufficiently addressed by courts or legislatures. Moreover, given the breadth and scope of the potential difficulties associated with lethal injection, witnesses for the public should be available to monitor the inmate’s last twenty-four hours (with due privacy protections of course)—including the last meal, the walk to the gurney, the tie down, intravenous injections, the pronouncing of death, and the removal of the corpse.317

There are many practical reasons for suggesting a wide scope. First, prisoners differ in their physiological constitution as well as their drug tolerance and drug use histories; therefore, some prisoners may need a far higher dosage of sodium thiopental than others “before losing consciousness and sensation.”318 Inmates can experience substantial pain and suffering if they receive an inadequate dosage of sodium thiopental and therefore regain consciousness and sensation while being injected with the second and third chemicals.319 For example, the procedure initially applied in Illinois required an amount of sodium thiopental that would be insufficient to produce unconsciousness in approximately twenty percent of the population.320 If the three chemicals are administered out of sequence—for example, pancuronium bromide is administered first—there is a near certainty that the inmate will experience excruciating pain during a lethal injection even without the outside appearance of pain because the pancuronium bromide paralyzes him.321

Second, the discretion allowed prison officials in administering every procedure322 enables executioners to ignore each prisoner’s physical characteristics (for example, age, body weight, health), even though these factors strongly affect an individual’s reaction to the chemicals as well as the condition of their veins.323 For example, physicians have particular difficulty finding suitable veins among individuals with diabetes, heavily pigmented skin, obesity, or extreme muscularity, as well as the very nervous or drug users.324 Nearly one quarter of prison inmates’ veins may be inaccessible “because they are deep, flat, covered by fat or damaged by drug use.”325

Third, medically trained people have enough difficulty finding a vein with certain individuals; for untrained executioners, the problems are compounded substantially.326 Executioners experiencing trouble finding a vein can unnecessarily insert the catheter: (1) into a sensitive area of the body, such as the groin327 or hand;328 (2) in the wrong direction so that chemicals flow away from the inmate’s heart and therefore hinder their absorption;329 (3) intramuscularly instead of intravenously.330 In some cases, executioners must perform a “cutdown,” a surgical procedure that exposes the vein if there is difficulty finding one.331 In addition, if the inmate eats or drinks six-to-eight hours before the execution, he may choke or gag after the injection of sodium thiopental.332

Finally, lethal injection is considered the most humane method for the euthanasia of animals.333 However, the Humane Society firmly states that the chemicals must be injected by “well trained and caring personnel”334—a sharp contrast to the qualifications available for those executing death row inmates.

Over time, such difficulties have resulted in a high risk of lethal injection botches,335 which some experts contend “is the most commonly ‘botched’ method of execution in the United States.”336 Botches are particularly prevalent in Texas because of the state’s frequent and early use of the method.337 Even Leuchter contends that “about eighty percent” of the lethal injections in Texas “have had one problem or another,”338 although he does not document this estimate.

The execution errors in Texas are glaring and repetitive. For example, in 1985, Stephen Peter Morin waited forty minutes while executioners probed both of his arms and legs to find a vein suitable for the injection; in 1988, Raymond Landry also endured forty minutes of needle probing, shortly after which the catheter popped out of his vein and spurted the chemicals toward witnesses two feet across the room; and in 1989, Stephen McCoy’s violent physical reaction to the lethal injection drugs was so great (chest heaving, gasping, and choking) that one witnesses fainted while others gasped.339

The high percentage of botches in Texas appeared to be partly attributable to the dearth of written procedures provided to the executioners concerning how to perform an execution. Originally, these “procedures” listed little more than the chemicals to be used (in incorrect order of application) and a vague account of the content of the syringes. Moreover, there was no information specifying the nature and extent of the qualifications that executioners should have in order to perform an execution.340 After Stephen Morin’s 1985 botched execution, a prison spokesperson stated that the difficulty caused from inserting the needles “would probably prompt the Texas Department of Corrections to review its procedures for administering the drugs when the condemned person has a history of drug abuse.”341 Notably, the Texas Department of Corrections has never changed its procedures to accommodate the special injection problems associated with damaged veins.342 Indeed, a botched execution attributable to an inmate’s unsuitable veins occurred each year following Morin’s execution until Landry’s botched execution.343 Texas continues to have difficulties starting intravenous injections in former drug users.344 These problems also occur in other states.345 Georgia is now the most pronounced example of the problems that can result when executioners are ignorant and inexperienced.346

C. “Physical Violence” and Offends “Human Dignity”

Lethal injection does not entail mutilation in the same way as electrocution. Yet, lethal injection does offend an inmate’s dignity in light of the accounts of botched lethal injections listed in Table 9347 and those discussed in this Part.

D. Evolving Standards and Legislative Trends

Legislative trends are moving exclusively in the direction of lethal injection.348 Regardless, there are significant issues concerning lethal injection that bear on the standards of decency factor. Most predominant is the ongoing stance by the American Medical Association’s (AMA) Council on Ethical and Judicial Affairs, which prohibits physicians’ participation in executions.349 Although the Council’s position pertains to all methods of execution, it is particularly applicable to lethal injection, which requires relatively more medical skill350 and has long been affiliated with the medical profession.351

The question of what does and should constitute physician involvement in executions is controversial.352 The AMA and state medical associations have publicly condemned physician participation in lethal injection executions, stating that a physician’s role should be limited to the pronouncement of death.353 In the past, some states had attempted to solve this dilemma by employing Leuchter’s lethal injection machines in which syringes are activated by a mechanical plunger.354 Yet, Leuchter’s reputation has since been destroyed355 and no state lethal injection protocol that this author studied mentions the use of a machine.356 In turn, a number of state statutes are extremely vague on the subject of the procedure to be used and the involvement of medical personnel.357

This situation is unlikely to change, which raises a number of contentious issues. For example, is it unethical for the medical profession to loan its instruments to the state for the purposes of execution?358 Is it wrong for physicians to be present at a lethal injection execution even if they could prevent a mishap that could prolong the pain and death of an inmate?359 While some commentators raise concerns that medical involvement may inappropriately “sanitize or humanize executions,”360 others warn that if physicians relinquish involvement in executions to less trained individuals, there could be far greater inhumanity.361 A fringe of commentators compare the condemned inmate’s situation to that of the terminally ill because neither has a recourse for living. Physicians are responsible for ensuring that the terminally ill die as smoothly and as painlessly as possible. Should inmates have comparable treatment?362 Would it be cruel and unusual to afford anything less?

Regardless of these kinds of debates and the stance of the medical societies, physicians do participate in lethal injection executions in different ways.363 Since 1977, for example, physicians have been part of every stage of an execution, “whether preparing for, participating in, or monitoring executions or attempting to harvest prisoners’ organs for transplantation.”364 While physicians find some stages more acceptable than others, a substantial minority are involved in every possible stage. In 2001, a cross-sectional survey of 413 practicing physicians showed that forty-one percent of the respondents were willing to perform at least one action involving capital punishment by lethal injection that was disallowed by the American Medical Association.365 The proportion agreeing to perform a disallowed action ranged from the 19% who were willing to administer the lethal chemicals to the 36% who were willing to determine death.366

The next Part of this article discusses in greater depth the medical problems with state delegation of death in the context of lethal injection by examining all lethal injection protocols in use in this country in the first half of 2001. The Part focuses on the problems that prison officials face in having to enforce a punishment deemed acceptable in theory by legislatures but extremely difficult to apply in practice.367

VI. State Delegation of Lethal Injection

This Part reports the author’s study of lethal injection protocols in the thirty-six states that used lethal injection as an execution method in 2001. Lethal injection protocols or information about them were gathered in at least one of three major ways, summarized in Tables 19 and 20:368 (1) by mail, which was forwarded by a prison official; (2) by website, in those states that had them; and (3) by e-mail or phone communication, in those states that had no available protocol or when the protocol that was available had missing information that could not be obtained in any other way except by telephone or e-mail. This Part concludes that because of the extremely vague nature of lethal injection statutes, prison officials have far too much discretion in administering injections.

A. Missing Protocols and Missing Information

One of the most striking aspects of studying lethal injection protocols concerns the sheer difficulty involved in acquiring them. As Table 11 shows, in four states, prison officials explained by phone or by e-mail that information concerning the types of chemicals used in their lethal injection executions was confidential.369 Yet, two of these four states—Virginia and South Carolina—ranked high, second and eighth respectively, among those states with the most number of executions since 1976; indeed, Virginia was second only to Texas.370 In three other states—Kansas, Kentucky, and New Hampshire—officials explained that the information on lethal injection chemicals does not exist; for Kansas and New Hampshire, there is no protocol because there is no prospect of having an execution any time soon.371 While on the surface such a rationale seems understandable since neither state has executed anyone for decades,372 it makes it impossible to conduct a complete evolving standards of decency analysis of execution methods. If a state is going to have a death penalty with a certain method of execution, the details of that execution method should be provided. Moreover, Kentucky does engage in executions with some regularity;373 there is no reason why the state does not have a protocol.

As Tables 11 and 12 show, not surprisingly, the great majority (twenty-seven) of the states use the standard three lethal injection chemicals: sodium thiopental, pancuronium bromide, and potassium chloride. Nineteen, or 70% of these states and 53% of all states, also specifically mention the use of a saline solution in their protocol.374 This is important because, if the lethal injection lines are not properly flushed through with a solution such as saline, “flocculation” (clogging) can occur, as some of the protocols warn.375 Notably, North Carolina’s and New Jersey’s decision to use only two—rather than all three—chemicals, can have a bearing on how the execution proceeds.376 Of particular interest is the fact that although both states use sodium pentothal as their first chemical, they do not use the same second chemical. In North Carolina, where the second chemical is pancuronium bromide, a prisoner would take far longer to die (as much as twenty minutes) because potassium chloride kills so much more quickly. In New Jersey, where the second chemical is potassium chloride, the prisoner may die far more quickly, but the death may not be as still or “serene” as in other states because the prisoner will not be paralyzed. At the same time, there is not the prospect that a prisoner will be paralyzed in pain and unable to scream out—a potential reality in every other state.377

A closer look at New Jersey’s lethal injection practice suggests, however, that statutes may not reflect the reality of an execution when power is delegated to prison officials. For example, the New Jersey Department of Corrections has stated consistently over the years that it plans to use three drugs when administering a lethal injection, including one to stop breathing.378 This approach indicates that, contrary to statute, pancuronium bromide or a chemical similar to it will in fact be administered.

B. Problems with the Quantities of Lethal Injection Chemicals

Tables 13–15 show the additional kinds of details that states provide in their protocols beyond simply listing chemicals. According to Tables 13 and 14, only nine states—or one-quarter of all death penalty states—specify the quantity of the lethal injection chemicals that they use.379 In other words, those states that merely list their chemicals give no indication of whether executioners are injecting sufficient quantities of those chemicals, much less whether they are injecting the chemicals in the correct order. Nor is there any indication that executioners are avoiding flocctuation and additional potential problems that witnesses may not be able to detect.

Table 15 lists the nine states that do specify the quantities of chemicals that executioners are supposed to use in lethal injection executions.380 However, a close examination of Table 15 shows that simply because a state lists the quantities of chemicals that it uses does not mean that it provides such information properly. In order to determine the proper concentration of lethal injection chemicals, chemical quantities should be designated two ways: (1) by weight, which is indicated by grams (gm) or milligrams (mg), and (2) by volume, which is indicated by cubic centimeters (cc) or milliliters (ml). One needs to know both the weight of a chemical and the volume of diluent to determine the chemical’s effectiveness. The volume of diluent for chemicals should be (1) at least large enough so that all the chemicals will be dissolved, and (2) sufficiently dilute so that it will not irritate the inmate’s vein and cause that inmate pain. For example, 2.5 gm of thiopental sodium is lethal; however, that amount will merely end up as precipitated sludge if there is an attempt to dissolve it in 5 ml. If there is an attempt to dissolve the 2.5 gm of thiopental sodium in 50 ml, the resulting solution will be very irritating to the inmate’s veins and therefore painful. However, dissolving 2.5 gm in 100 ml would create an effective concentration.

An examination of California’s chemical quantities in Table 15 provides a good illustration of the limited amount of information that state lethal injection protocols offer. The California protocol indicates that the executioner first injects five grams of sodium pentothal (weight) in 20–25 cc of diluent (the diluent is a normal saline solution). This amount of sodium thiopental is more than enough to kill any human being. Thus, the concentration of the injection is “sufficient” at the very least; a twenty percent concentration of sodium thiopental can burn when it goes into the vein. Like most states, California has two additional chemicals to ensure death: pancuronium bromide and potassium chloride. As Table 15 shows, however, there is no designation of weight for either chemical, only volume (cc’s). Therefore, it is impossible to know how much California executioners inject.

Similarly, all the chemical designations for Tennessee mention only volume (cc’s) and not weight. There is not enough information to determine the adequacy of Tennessee’s protocol.

Florida’s chemical specifications are accurate, but incomplete, demonstrating a problem that is the converse to California and Tennessee. According to many anesthesiologists, “no less than” two grams of sodium pentothal is enough to put even a very resistant person into a long, deep, sleep;381 however, Florida’s protocol does not mention the volume of fluid used to dissolve the sodium pentothal. Nor does it mention the amount of fluid used to dissolve the pancuronium bromide and potassium chloride. Therefore, in Florida, the concentrations of all three chemicals are unknown.

In contrast to California, Florida, and Tennessee, the weights and volumes for all three lethal injection chemicals in the protocols for Connecticut, Mississippi, New Mexico, and Washington are predictably lethal. Of all the states included in Table 15, however, Connecticut has the most technically sophisticated protocol. The amounts provided are described in a scientific way and the protocol refers both to volume (ml) and to weight (mg), as well as to “mEq” (milliequivalent), a sound technical description. The doses administered in Connecticut are certainly enough to kill even a very resistant person.

For Mississippi, the amounts and descriptions of all three chemicals also seem lethal per syringe. However, the Mississippi protocol’s reference to two syringes for pavulon and three syringes for potassium chloride creates considerable confusion regarding how officials actually administer the injection. The Mississippi Department of Corrections representative was unable to elaborate further,382 making the protocol difficult to evaluate.

The North Carolina protocol specifies the weight for sodium pentothal (typically far more than sufficient). However, the rest of the protocol’s description is very confusing. For example, the same protocol provides the unit of liquid for pavulon, but not the weight. The concentration is unknown.

In Montana, the amount of sodium pentothal is not a lethal dose; it is one-fourth or less than that used in other states. Therefore, if the pancuronium bromide is effective while the sodium penothal is wearing off, the inmate would be paralyzed but awake. In turn, the Montana protocol refers only to ampules for the pavulon and the potassium chloride, so that the concentration of either chemical is unknown.

Overall, there is inordinate variation and incompleteness across the nine states that provide quantities of lethal injection chemicals in Table 15. Note that Table 15 does not list those states where most lethal injection executions have been performed (those among the top five) and lists only two states that have had at least five lethal injection executions between 1977–1999 (North Carolina and California).383 Whereas Montana and Washington have had two and one lethal injection executions, respectively, between 1977–1999, the remaining states listed in Table 15 did not have any (Connecticut, Florida, Mississippi, New Mexico, and Tennessee).384 Paradoxically, then, those states with the most number of lethal injection executions are the least informative about how they perform executions. In contrast, those states that have among the fewest lethal injection executions, or who had not lethally injected anyone at all during this time period, are the most informative.

Simply because some states specify the amounts of their chemicals, however, does not mean that their efforts are valid and reliable. Those states that do provide quantities of injection chemicals vary so widely in terms of their doses and instructions, it is not surprising that botched executions result. Furthermore, with rare exceptions, there is no information available on who measures the chemicals or even whether the executioner gives the full amount of chemical quantities that are indicated. For example, even if an execution takes place in a state that appears to have some sophistication in listing its chemicals (for example, Connecticut), there is no assurance that the executioner actually injects what the Connecticut protocol lists. The practice in New Jersey suggests that prison officials may not even follow what the state legislature dictates, much less what the lethal injection protocol may describe.385 As the following section discusses, protocols mention little to nothing about the medical expertise of the executioners.

C. Executioners and Execution Procedures

The thirty-six lethal injection states provide minimal information in their protocols on the quality or training of those individuals selected to execute an inmate (Table 17). Fourteen states—or approximately 39% of all the states386—for example, mention “training” or “competency” or “preparation” or “practice” for the executioners. Moreover, even among those states that mention some training, there is little to no indication of what kind of preparation the department of corrections offers. Likewise, only eight states give any direction concerning how an executioner should proceed if there are serious, foreseeable, or unexpected problems with the execution procedure or with the inmate: (1) Florida (if death does not occur initially), (2) Georgia (if a suitable vein cannot be found), (3) Indiana (if an inmate has “extremely small veins”), (4) New Jersey (if a vein cannot be found, warns that medication “must not be rapidly or sporadically injected,” and directs that executioners should provide life saving techniques if a stay is called), (5) New Mexico (warns that flocculation can occur if sodium pentothal is not flushed from the line and recommends using the other injection tube), (6) New York (warns that if sodium pentothal is not flushed from the line, flocculation may occur if it mixes with the pavulon), (7) Tennessee (if death does not occur initially), and (8) Washington (notes that the “condemned’s file is examined to see if any special instructions may be required”).387

Ironically, the mere fact that the protocols in eight states warn executioners of problems, suggests that prison officials are aware of the hazards involved if ill-trained individuals administer a lethal injection. An experienced anesthetist would not need such warnings, or surely not in the context of a written protocol to be learned at the time of the execution. Furthermore, the remaining states basically say nothing about preventing problems.

Criteria for selecting or training executioners in these states appear to be nonexistent. In eight states, the executioners are anonymous department of corrections staff members,388 whereas in five states, the warden or commissioner selects executioners without specifying if they are staff members.389 Five other states simply mention the number of people on an execution team or the mere fact that there is a team.390 Only Arkansas relies on “unpaid volunteers.”391 In turn, eight states392 do not provide any information whatsoever. Regardless of such silence about training, state protocols also are lax on giving directions concerning what executioners should do if there is a stay of execution. For example, seventeen states do not indicate whether they have phone lines in effect for the governor or other individuals to call to stop an execution.393

In some states, it is unclear who is to pronounce death when the execution goes through, or whether there is any involvement of medical personnel, particularly physicians. Because of the significance of physician contributions, Table 17 examines lethal injection protocols as well as all state statutes specifying the involvement of medical personnel in executions. For most (twenty-seven) states, the protocols overlapped substantively with the statutes. In nine states, however, the statutes offered some additional information.394 Regardless of the source (protocol or statute), in eight states, there is no mention that medical personnel are to participate in any way, even in pronouncing death.395 If only protocols are examined for this information and not statutes, this figure would rise to fifteen states.396 Relying on both protocols and statutes, Table 17 shows that physicians are present to declare or “pronounce” death in thirteen states,397 a coroner pronounces death in five states,398 and the warden or deputy commissioner in one state.399 In South Dakota, there is a required post-mortem exam and report.400 Only Florida states specifically that a pharmacist prepares the lethal injection.401 In general, states allow for substantial physician participation, although the roles are limited, at least officially.

There is strikingly little information on the time of the last meal and the time of the execution (Table 16).402 The length of time between the meal and the execution is important because if the inmate ingests food or drink six-to-eight hours before the execution, the inmate may choke or gag when sodium thiopental is injected.403 There are six states that provide some information on this time frame:404 (1) Indiana, five-to-six hour span; (2) New Jersey, not less than eight hours; (3) Ohio, approximately six hours; (4) Oregon, approximately six hours; (5) Texas, approximately two-to-three hours; and (6) Virginia, not less than four hours.405 Ironically, Texas and Virginia, the states with the highest numbers of lethal injection executions,406 have the shortest time span between the meal and the execution (of those states that mention any time span), and neither time span even approximates the six-to-eight hour parameter.

The next section examines the extent to which protocols allow or encourage witnesses to view an execution. This issue is particularly significant given the litigation brought by journalists concerning how much of a lethal injection they can watch.407

D. General Witnesses and Media Witnesses

Table 18 shows how many states have “general witnesses” for executions—individuals who include anyone from a family member to a physician to a corrections officer—as well as “media witnesses”—individuals who represent one or more of a broad range of media.408 The great majority of states specify that there should be general witnesses present for the execution, although the types of witnesses vary substantially. Of the seven states that do not provide such specification, four have no protocol at all.409 Only two states omit any mention of general witnesses from the protocols they do have and one state (Nevada) indicates that the information is confidential.410 Most states also allow for media witnesses, although eight of the states that provide for general witnesses do not mention explicitly whether they allow for media witnesses as well.411

Altogether, fourteen state protocols specified what media witnesses could view during an execution. None of these protocols echoed the liberal scope upheld by the court in California First Amendment Coalition v. Woodford,412 which allowed witnesses to see the entire lethal injection procedure, including the inmate being injected.413 Rather, all fourteen protocols shield witnesses from the actual injection of the inmate and differ to the extent they cover other parts of the procedure. The protocols can be divided into four general categories (minor differences between them are presented in Table 18), ranging from the least restricted (1) to the most restricted (4) viewing:

1. Witnesses arrive to view the execution before the execution team has inserted intravenous catheters into the inmate’s arm. The curtain to the witness room is then closed only to be reopened after the intravenous catheters have been inserted into the inmate. The execution continues and, presumably, death is pronounced (Louisiana and Virginia).
2. Witnesses arrive to view the execution after the execution team has inserted intravenous catheters into the inmate’s arm and they stay to view until the inmate’s death is pronounced (Colorado, Georgia, Mississippi, New Mexico, North Carolina, Oregon, South Dakota, and Texas).
3. Witnesses arrive to view the execution after the execution team has inserted intravenous catheters into the inmate’s arm and they stay to view until all the chemicals have been injected. The curtain is then closed and a physician is called in to pronounce death. After the physician pronounces death, the curtain is raised and there is an official pronouncement of death made to the witnesses (New York, Ohio, and Tennessee).
4. Witnesses arrive to view the execution after the execution team has inserted intravenous catheters into the inmate’s arm and they stay to view until all the chemicals have been injected. The curtain is then closed and the inmate’s death is pronounced (Connecticut).

The four categories indicate that the primary distinction among them is whether witnesses are allowed to see the inmate die (categories one and two only). While this distinction may appear to be minor, the practical implications can be significant. Lethal injection botches can occur even if the injection procedure has been hidden from view or has seemingly gone smoothly (for example, the inmate may react to the chemicals). The following Part reviews the preceding sections of this article in the context of the Timothy McVeigh execution which, from most accounts, appeared quiet and serene except to some of those with a more trained eye.

VII. Discussion: Lethal Injection and Timothy McVeigh

This article discusses the paradoxical motivations behind legislative changes from one method of execution to the next. Legislatures and courts have consistently stated that the primary reason states switch execution methods is to ensure greater humaneness and decency for death row inmates.414 Throughout history, however, it appears that such moves were prompted primarily because the death penalty itself became jeopardized due to a state’s particular method—be it hanging, electrocution, or lethal gas.415 The result has been a warped legal “philosophy” of punishment, at times peculiarly aligning both friends and foes of the death penalty alike. This “death-penalty goal” also has wrongly enabled legislatures to delegate death to uninformed prison personnel.

What frames this paradox are the competing and contradictory efforts by legal actors to abolish or expand the death penalty. Such wrangling has become all the more acute as states increasingly drop electrocution in order to adopt lethal injection.416 For example, some death penalty proponents feel that electrocution better represents the retributive goal of the death penalty and that lethal injection is far too soft on criminals. This perspective was stunningly represented by Bob Butterworth, the Attorney General of Florida, who stated that Pedro Medina’s horrendously botched electrocution417 would serve as both a means of retribution and as a deterrent.418 “People who wish to commit murder, they better not do it in the state of Florida because we may have a problem with our electric chair.”419 Yet, Butterworth’s pronouncements were consistent with this country’s century-long tendency to use execution methods as a punishment device extending well beyond “death,” both symbolically and politically.420

Other death penalty proponents claim that lethal injection is not cruel enough. As the mother of one crime victim stated in an interview preceding the execution of her daughter’s killer, lethal injection “is too quick. . . . He would need to suffer a little bit more according to what he gave [my daughter], which was a lot of suffering.”421 Justice Scalia may have mirrored such views when describing a gruesome case he considered particularly eligible for the death penalty—the rape and murder of an eleven-year-old girl.422 “How enviable a quiet death by lethal injection compared to that!”423 At the same time, legislatures and courts are appealing to such anecdotal accounts from a vengeful minority; the majority of Americans in public opinion polls424 as well as some prison officials425 prefer lethal injection because they consider it to be the most humane method. Others view injection as an effective way to perpetuate the death penalty because it makes the process seem less gruesome.426

The dialogue surrounding the federal execution of Timothy McVeigh illustrates these tensions. The protocol for federal execution by lethal injection, which is not released to the public without a Freedom of Information Act request, uses the same three chemicals applied in most states.427 Because McVeigh’s death was so rapid,428 some witnesses complained that it was too painless as compared to that of his victims. “He didn’t suffer at all,” recounts one witness, but rather “just went to sleep.”429 In general, witnesses appeared to believe that McVeigh’s transition from life to death was “subtle”;430 the relaxing of his eyes and lips was the only indication of his “remarkably uneventful” death.431

Other witnesses’ observations suggested, however, that McVeigh’s death was slightly more difficult. As the first injection occurred, McVeigh’s chest moved up and down, his lips puffed air out, his jaw clenched, and his eyes glassed over but remained open.432 As the next two chemicals were injected, his skin turned pale yellow.433 The most dramatic account came from a media witness who recalled McVeigh’s eyes glassing over to the point of being watery as the injections were administered,434 a sign to some anesthesiologists that McVeigh may have been tearing due to pain.435

The point here is not to invoke sympathy for McVeigh, but rather to scrutinize the process by which he was executed and the inconsistencies surrounding it. On the one hand, the public outrage against McVeigh seemed limitless and death in the form of lethal injection too good for him.436 On the other hand, the impending execution educated the public about the lethal injection procedure itself and some of the potential hazards associated with it.437 For these reasons, some death penalty opponents consider lethal injection to be inhumane and not the “deep sleep” it appears to be.438 Although far less publicized, the events also gave some visibility to those who actually perform the executions and the toll it takes on them emotionally.439 Regardless of what side the public was on, lethal injection appeared to be a paradox revealing the complexities of the execution process as well as the death penalty itself.

GEORGIA

“The fundamental respect for humanity underlying the Eighth Amendment's prohibition against cruel and unusual punishment gives rise to a special ‘need for reliability in the determination that death is the appropriate punishment’ in any capital case.” Johnson v. Mississippi, 486 U.S. 578, 584, 108 S.C. 1981, 100 L. Ed.2d. 575 (1988) (quoting Gardner v. Florida, 430 U.S. 349, 363-64, 97 S.C. 1197, 51 L. Ed.2d 393 (1977) (White, J., concurring) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.C. 2978, 49 L. Ed.2d 944 (1976))). It is now well established that when a defendant's life is at stake, a court must be “particularly sensitive to insure that every safeguard is observed.” Gregg v. Georgia, 428 U.S. 153, 187, 96 S.C. 2909, 49 L. Ed.2d 859 (1976). As this Court is acutely aware, the penalty of death is qualitatively and profoundly different from any other sentence. E.g., Ford v. Wainwright, 477 U.S. 399, 411, 106 S.C. 2595, 91 L. Ed.2d 335 (1986) (“In capital proceedings generally, this Court has demanded that fact-finding procedures aspire to a heightened standard of reliability. This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.” (citations omitted)); California v. Ramos, 463 U.S. 992, 998-99, 103 S.C. 3446, 77 L. Ed.2d 1171 (1983) (recognizing “the qualitative difference of death from all other punishments”); Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.C. 869, 71 L. Ed.2d 1 (1982) (“the imposition of death by public authority is . . . profoundly different from all other penalties”). For this reason, our system of justice must go “to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake.” Eddings v. Oklahoma, 455 U.S. at 118 (O’Connor, J. concurring) (emphasis added). These “extraordinary measures” must be taken at both stages of any capital trial. Beck v. Alabama, 447 U.S. 625, 638, 100 S.C. 2382, 65 L. Ed.2d 392 (1980).

The members of the General Assembly left the details of Georgia’s lethal injection to the Department of Corrections. Preliminary information from the Department of Corrections reveals that Georgia will use the same drugs that other states have commonly used for the lethal injection execution are sodium pentothal (as a sedative), pancurium bromide (stops respiration), and potassium chloride (stops the heart). The sedative is usually administered first so that the death spasms caused by the administration of pancurium bromide and potassium chloride will not disrupt the execution process. It also makes it easier for the executioner(s) to locate a vein suitable for the administration of the deadly mixture of drugs. However, of all the current methods of execution in use, lethal injection presents the greatest risk of malfunction, and consequently of unnecessary pain. The risk of a bungled execution is particularly grave here since, unlike some injection jurisdictions, no stage of the process is automated, thus increasing the chance for human error. Further, since no physician involvement is contemplated in what is essentially a medical procedure, the risk of human error is dangerously compounded. Worse, the regulations governing injection executions fail to mandate the involvement of medical professionals in the execution process. Perhaps most importantly, the regulations fail in material ways to answer critical questions governing the volume and mixture of the drugs, the pressure in the catheter lines, etc. An evidentiary hearing is necessary to insure that the lethal injection procedures do not inflict unnecessary pain.

One expert in this area, Dr. Joseph Lipman, a neuropharmacologist, has provided sworn testimony in Florida Courts that if the drugs are not administered properly or if the personnel are not adequately trained to administer the lethal substances serious consequences will follow. For example, Dr. Lipman has testified that if too low a dose of sodium pentothal is administered, the condemned person could feel pain because low dosages of such drug have the oppostite effect–it makes the pain more acute. In addition, if the drugs are not injected in the proper order, the inmate could suffer pain because he would not be properly anesthetized. Dr. Lipman has further testified that if the drugs are not administered in a timely manner, the sodium pentothal could wear off, causing the inmate to regain consciousness.

Regardless of the manner in which “execution protocols” are drafted, there is no automatic injection of the lethal drugs. The process of execution, from start to finish, is entirely manual from start to finish. The administration of these drugs by non medical personnel certainly have created numerous, and horrific, mistakes and errors. These mistakes include ““blow-outs”” and improperly inserted catheters (no doubt attributable to the fact that, for ethical reasons, physicians are not involved in the process). Texas reports the highest number of lethal injection executions. Texas also reports the highest number of bungled deaths.

The new death penalty statute will not require a physician to participate in the execution process. The Act provides that no one may “compel or require or compel a physician to participate in the execution of a death sentence.”

The cruel and unusual punishment clauses of the state and federal constitutions must be read in a "flexible and dynamic manner." Gregg v. Georgia, 428 U.S. 153, 171 (1976); Fleming v. Zant, 259 Ga. at 689, 386 S.E.2d at 341. As this Court put it: "whether a particular punishment is cruel and unusual is not a static concept, but instead changes in recognition of the 'evolving standards of decency that mark the progress of a mature society.'" Fleming v. Zant, 259 Ga. at 689, 386 S.E.2d at 341 (quoting Trop v. Dulles, 356 U.S. at 101). Giving substance to what is and is not an evolving standard of decency is the focal point of analysis under the Eighth Amendment and Article I, Section I, Paragraph 17. Gregg, 428 U.S. at 172-73; Fleming v. Zant, 259 Ga. at 689, 386 S.E.2d at 341. While the inquiry is flexible and must by definition change over time, it is anything but a "subjective judgment," that turns judges into legislators. Gregg 428 U.S. at 173, 175. Instead, the evolving standards of decency test turns on "objective indicia" of contemporary values. Gregg, 428 at 173. Accord Penry v. Lynaugh, 492 U.S. 302, 331 (1989); Coker v. Georgia, 433 U.S. 584, 592 (1977); Fleming v. Zant, 259 Ga. at 689, 386 S.E.2d at 341.

Under the modern Eighth Amendment analysis, lingering death accompanied by pain and torture is only one of the many factors demonstrating that execution by electrocution constitutes cruel and unusual punishment. The Eight Amendment of the U. S. Constitution and Article I, Paragraph I, Section 17 of the Georgia Constitution were specifically enacted to proscribe torturous and barbarous punishments. The use of an execution method commonly referred to as “lethal injection” is a torturous and barbarous punishment. A review of the use of lethal injection by other jurisdictions clearly shows that this method of execution violates the prohibitions against cruel and unusual punishment.

The following is but a brief anecdotal summary of twenty (20) executions carried out by the use of lethal injection. This summary clearly shows that the use of intravaneous drugs to carry out state sponsored killings shows a pattern of violations of the Eighth Amendment’s prohibitions against inflicted cruel and unusual punishments.

Texas: March 13, 1985. Stephen Peter Morin was executed by Lethal Injection. Because of Morin's history of drug abuse, the execution technicians were forced to probe both of Morin's arms and one of his legs with needles for nearly 45 minutes before they found a suitable vein.

Texas: August 20, 1986. Randy Woolls was executed byLethal Injection. A drug addict, Woolls helped the execution technicians find a useable vein for the execution.

Texas:June 24, 1987.Elliot Rod Johnson was executed by Lethal Injection. Because of collapsed veins, it took nearly an hour to complete the execution.

Texas: December 13, 1988.Raymond Landry was executed by Lethal Injection. Pronounced dead 40minutes after being strapped to the execution gurney and 24 minutes after the drugs first started flowing into his arms.Two minutes after the drugs were administered, the syringe came out of Landry's vein, spraying the deadly chemicals across the room toward witnesses. The curtain separating the witnesses from the inmate was then pulled, and not reopened for fourteen minutes while the execution team reinserted the catheter into the vein.Witnesses reported "at least one groan."A spokesman for the Texas Department of Correction, Charles Brown (sic), said,"There was something of a delay in the execution because of what officials called a 'blowout.' The syringe came out of the vein, and the warden ordered the (execution) team to reinsert the catheter into the vein."

Texas: May 24, 1989.Stephen McCoy was executed by Lethal Injection.He had such a violent physical reaction to the drugs (heaving chest, gasping, choking, back arching off the gurney, etc.) that one of the witnesses (male) fainted, crashing into and knocking over another witness.Houston attorney Karen Zellars, who represented McCoy and witnessed the execution, thought the fainting would catalyze a chain reaction.The Texas Attorney General admitted the inmate "seemed to have a somewhat stronger reaction," adding "The drugs might have been administered in a heavier dose or more rapidly."

Illinois: September 12, 1990.Charles Walker was executed by Lethal Injection.Because of equipment failure and human error, Walker suffered excruciating pain during his execution.According to Gary Sutterfield, an engineer from the Missouri State Prison who was retained by the State of Illinois to assist with Walker's execution, a kink in the plastic tubing going into Walker's arm stopped the deadly chemicals from reaching Walker.In addition, the intravenous needle was inserted pointing at Walker's fingers instead of his heart, prolonging the execution.

Arkansas: January 24, 1992.Rickey Ray Rector was executed by Lethal Injection. It took medical staff more than 50 minutes to find a suitable vein in Rector's arm. Witnesses were kept behind a drawn curtain and not permitted to view this scene, but reported hearing Rector's eight loud moans throughout the process.During the ordeal Rector (who suffered from serious brain damage) helped the medical personnel find a vein.The administrator of State's Department of Corrections medical programs said (paraphrased by a newspaper reporter) "the moans did come as a team of two medical people that had grown to five worked on both sides of his body to find a vein."The administrator said "That may have contributed to his occasional outbursts."The difficulty in finding a suitable vein was later attributed to Rector's bulk and his regular use of anti-psychotic medication.

Oklahoma: March 10, 1992.Robyn Lee Parks was executed by Lethal Injection.Parks had a violent reaction to the drugs used in the lethal injection.Two minutes after the drugs were dispensed, the muscles in his jaw, neck, and abdomen began to react spasmodically for approximately 45seconds.Parks continued to gasp and violently gag until death came, some eleven minutes after the drugs were first administered.Tulsa World reporter Wayne Greene wrote that the execution looked "painful and ugly," and "scary.""It was overwhelming, stunning, disturbing -- an intrusion into a moment so personal that reporters, taught for years that intrusion is their business, had trouble looking each other in the eyes after it was over."

Texas: April 23, 1992.Billy Wayne White was executed by Lethal Injection.White was pronounced dead some 47 minutes after being strapped to the execution gurney.The delay was caused by difficulty finding a vein; White had a long history of heroin abuse.During the execution, White attempted to assist the authorities in finding a suitable vein.

Texas: May 7, 1992.Justin Lee May was executed by Lethal Injection. May had an unusually violent reaction to the lethal drugs. According to one reporter who witnessed the execution, May"gasped, coughed and reared against his heavy leather restraints, coughing once again before his body froze ..." Associated Press reporter Michael Graczyk wrote, "Compared to other recent executions in Texas, May's reaction was more violent.He went into a coughing spasm, groaned and gasped, lifted his head from the death chamber gurney and would have arched his back if he had not been belted down.After he stopped breathing, his eyes and mouth remained open."

Illinois: May 10, 1994.John Wayne Gacy was executed by Lethal Injection.After the execution began, the lethal chemicals unexpectedly solidified, clogging the IV tube that lead into Gacy's arm, and prohibiting any further passage.Blinds covering the window through which witnesses observed the execution were drawn, and the execution team replaced the clogged tube with a new one. Ten minutes later, the blinds were then reopened and the execution process resumed. It took 18minutes to complete.Anesthesiologists blamed the problem on the inexperience of prison officials who were conducting the execution, saying that proper procedures taught in "IV 101"would have prevented the error.

Missouri: May 3, 1995.Emmitt Foster was executed by Lethal Injection. Seven minutes after the lethal chemicals began to flow into Foster's arm, the execution was halted when the chemicals stopped circulating.With Foster gasping and convulsing, the blinds were drawn so the witnesses could not view the scene.Death was pronounced thirty minutes after the execution began, and three minutes later the blinds were reopened so the witnesses could view the corpse.According to William "Mal" Gum, the Washington County Coroner who pronounced death, the problem was caused by the tightness of the leather straps that bound Foster to the execution gurney; it was so tight that the flow of chemicals into the veins was restricted. Foster did not die until several minutes after a prison worker finally loosened the straps.The coroner entered the death chamber twenty minutes after the execution began, diagnosed the problem, and told the officials to loosen the strap so the execution could proceed.In an editorial, the St. Louis Post-Dispatch called the execution "a particularly sordid chapter in Missouri's capital punishment experience."

Virginia: January 23, 1996.Richard Townes, Jr was executed by was executed by Lethal Injection. This execution was delayed for 22 minutes while medical personnel struggled to find a vein large enough for the needle.After unsuccessful attempts to insert the needle through the arms, the needle was finally inserted through the top of Mr. Townes's right foot.

Indiana: July 18, 1996.Tommie J. Smith was executed by Lethal Injection.Because of unusually small veins, it took one hour and nine minutes for Smith to be pronounced dead after the execution team began sticking needles into his body.For sixteen minutes, the execution team failed to find adequate veins, and then a physician was called.Smith was given a local anesthetic and the physician twice attempted to insert the tube in Smith's neck.When that failed, an angio-catheter was inserted in Smith's foot.Only then were witnesses permitted to view the process.The lethal drugs were finally injected into Smith 49 minutes after the first attempts, and it took another 20 minutes before death was pronounced.

Oklahoma: May 8, 1997.Scott Dawn Carpenter was executed by Lethal Injection Carpenter was pronounced dead some11 minutes after the lethal injection was administered. As the drugs took effect, Carpenter began to gasp and shake."This was followed by a guttural sound, multiple spasms and gasping for air"until his body stopped moving, three minutes later.

South Carolina: June 13, 1997.Michael Eugene Elkins was executed by Lethal Injection.Because Elkins's body had become swollen from liver and spleen problems, it took nearly an hour to find a suitable vein for the insertion of the catheter.Elkins tried to assist the executioners, asking "Should I lean my head down a little bit?" as they probed for a vein.After numerous failures, a usable vein was finally found in Elkins's neck. Texas: April 23, 1998.Joseph Cannon was executed by Lethal Injection.It took two attempts to complete the execution. After making his final statement, the execution process began. A vein in Cannon's arm collapsed and the needle popped out. Seeing this, Cannon lay back, closed his eyes, and exclaimed to the witnesses, "It's come undone." Officials then pulled a curtain to block the view of the witnesses, reopening it fifteen minutes later when a weeping Cannon made a second final statement and the execution process resumed.

Nevada: October 5, 1998.Roderick Abeyta was executed by Lethal Injection.It took 25 minutes for the execution team to find a vein suitable for the lethal injection.

Florida: June 8, 2000. Bennie Demps was executed by Lethal Injection.It took execution technicians 33 minutes to find suitable veins for the execution. "They butchered me back there," said Demps in his final statement."I was in a lot of pain.They cut me in the groin; they cut me in the leg.I was bleeding profusely.This is not an execution, it is murder."The executioners had no unusual problems finding one vein, but because Florida protocol requires a second alternate intravenous drip, they continued to work to insert another needle, finally abandoning the effort after their prolonged failures.

Missouri.: June 28, 2000.Bert Leroy Hunter was executed by Lethal Injection.Hunter had an unusual reaction to the lethal drugs, repeatedly coughing and gasping for air before he lapsed into unconsciousness.An attorney who witnessed the execution reported that Hunter had "violent convulsions.His head and chest jerked rapidly upward as far as the gurney restraints would allow, and then he fell quickly down upon the gurney.His body convulsed back and forth like this repeatedly. ... He suffered a violent and agonizing death."

Tennessee

1. Lethal Injection: Procedures and Problems

The Department of Corrections intends to kill Mr. Abdur’Rahman by injecting into his body three substances, one after the other: Sodium Pentathol (an ultrashort-acting barbiturate that induces brief general anesthesia), Pavulon (pancurium bromide, a curare-derived paralyzing medication) (when potassium chloride is used as an additional third chemical, Pavulon serves no real purpose other than to keep the inmate still while potassium chloride kills), and potassium chloride (stops the heart). Mr. Abdur’Rahman submits that the combination of these drugs does not cause instantaneous unconsciousness and painless death. It is impossible for this or any Court to have confidence, in the absence of an evidentiary hearing, that the procedures and methods actually being employed by the execution personnel do not include a significant risk of inflicting severe and unnecessary pain and suffering upon Mr. Abdur’Rahman.

Sodium pentathol is a barbiturate that does not necessarily cause instantaneous or rapid anesthesia.Drug manufacturers warn that without careful medical supervision of dosage and administration, barbiturates can cause “paradoxical excitement” and can heighten sensitivity to pain.See Physicians Desk Reference, 50th Ed. 1996 at 438-440.Manufacturers warn against administration by intravenous injection (hereinafter “IV”) unless a patient is unconscious or out of control. Id. A patient’s weight, physical condition and age is critical when adjusting dosage. The protocols for lethal injection promulgated by the Tennessee Department of Correction (hereinafter “TDOC”) do not take any of these issues into consideration. In fact, the guidelines are devoid of any mention of dosage, examination of the subject, supervision by an anaesthesiologist, or other safeguards. Therefore, there is a great risk of the unnecessary and wanton infliction of severe pain and suffering.

Prisoners differ in the physiological constitution as well as their drug tolerance and drug use histories; therefore, some prisoners may need a far higher dosage of sodium pentothal than others "before losing consciousness and sensation." Inmates can experience substantial pain and suffering if they receive an inadequate dosage of sodium pentothal and therefore retain consciousness and sensation while being injected with the second and third chemicals. For example, initially the procedure applied in Illinois required an amount of pentothal that would be insufficient to produce unconsciousness in approximately twenty percent of the population. If the three chemicals are administered out of sequence (for example, pancuronium bromide is administered first), there also is a high risk that the inmate will experience excruciating physical pain during a lethal injection even without the outside appearance of pain because pancuronium bromide paralyzes him.

Deborah Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, Ohio St. L.J. (forthcoming February 2002)(footnotes omitted).

Pancurium bromide is derivative of curare that, ironically, has been outlawed by the Tennessee legislature for euthanization of non-livestock animals, defined as “living creatures.” See Tenn.Code Ann. §44-17-303(c), §39-14-201.The reason these drugs are outlawed for animal euthanasia is because of the torture and lingering death caused by paralysis of the lungs and other organs.Mr. Abdur’Rahman is a human being, and should be entitled to at the least the same protection as other living creatures.

The risk of inflicting severe and unnecessary pain and suffering upon the Petitioner in the lethal injection process is particularly grave in Tennessee because the procedures and protocols designed by TDOC fail to include safeguards regarding the manner in which the execution is to be carried out, fail to establish the minimum qualifications and expertise required of the personnel performing the critical tasks in the lethal injection procedure, and fail to establish appropriate criteria and standards that these personnel must rely upon in exercising their discretion during the lethal injection procedures.For instance, TDOC execution protocols do not explain what to do in case an IV port cannot be established.The experience of other states teaches that, in such a case, a medically trained person must perform a “cut down” to expose a deeply buried vein, or perform an infraclavicular catheterization, or other invasive medical procedure to facilitate the subsequent lethal injection such as an attempt to establish a port through the carotid enclosure in the neck. Infra. The contract that TDOC provides for a physician limits his or her participation to pronouncing death. See Contract, attached as Attachment 4.

The scenario that might arise in an emergency is even more critical in light of the ethical rules governing physicians in Tennessee.No physician, physician’s assistant, nurse or any other licensed health-care provider of any nature can provide or administer the substances necessary to cause plaintiff’s death.TDOC was informed of this early in its adoption of lethal injection protocols. See Attachment 5 (Letter from Tennessee Medical Association (“TMA”) to Commissioner Donal Campbell, dated October 25, 1999, stating that the TMA Board of Trustees is against physician participation in executions. The letter notes that the TMA has adopted applicable sections of the American Medical Association (“AMA”) Code of Ethics prohibiting physicians from participating in executions, and the Tennessee Board of Medical Examiners may suspend a physician for unethical conduct.)

There are no directions and no standards for the necessary training, education, or expertise of the personnel who will be exercising this critical discretion and performing these tasks and duties.TDOC guidelines totally fail to articulate the criteria or standards that such personnel must rely upon in exercising this discretion.The consequences of this failure will likely result in the unnecessary and wanton infliction of severe pain and suffering.

Perhaps most importantly, the TDOC regulations fail in material ways to answer critical questions governing a number of crucial tasks and procedures in the lethal injection procedure such as

(a) the minimum qualifications and expertise required for the different personnel performing the tasks involved in the lethal injection procedure;

(b) the methods for obtaining, storing, mixing, and appropriately labeling the drugs, the minimum qualifications and expertise required for the person who will determining the concentration and dosage of each drug to give, and the criteria that shall be used in exercising this discretion;

(c) the manner in which the IV tubing, three-way valve, saline solution and other apparatus shall be modified or fixed in the event it is malfunctioning during the execution process, the minimum qualifications and expertise required of the person who shall have the discretion to decide to attempt such action, and the criteria that shall be used in exercising this discretion;

(d) the manner in which the heart monitoring system shall be modified or fixed in the event it is malfunctioning during the execution process, the minimum qualifications and expertise required of the person who shall have the discretion to decide to attempt such action, and the criteria that shall be used in exercising this discretion;

(e) the manner in which the IV catheters shall be inserted into the condemned prisoner, the minimum qualifications and expertise required of the person who is given the responsibility and discretion to decide when efforts at inserting the IV catheters should be abandoned and the cut down procedure begun, and the criteria that shall be used in exercising this discretion;

(f) the manner in which the condition of the condemned prisoner will be monitored to confirm that proceeding to the next procedure would not inflict severe and unnecessary pain and suffering on the condemned prisoner;

(g) the minimum qualifications and expertise required of the person who is given the responsibility and discretion to order the staff to divert from the established protocols if necessary to avoid inflicting severe and unnecessary pain and suffering on the condemned prisoner, and the criteria that shall be used in exercising this discretion; and

(h) the minimum qualifications and expertise required of the person who is given the responsibility and discretion to insure that appropriate procedures are followed in response to unanticipated problems or events arising during the lethal injection procedure, and the criteria that shall be used in exercising this discretion. An evidentiary hearing is necessary to insure that the lethal injection procedures do not inflict unnecessary pain and suffering.

Regardless of the manner in which “execution protocols” are drafted, the process of lethal injection, from start to finish, is entirely manual. The administration of these drugs has created numerous, and horrific, mistakes and errors in other states. These mistakes include “blow-outs”, prison personnel spending almost two hours probing and sticking the condemned prisoner with various intravenous needles in efforts to start an IV catheter, improperly inserted catheters (no doubt attributable to the fact that, for ethical reasons, most physicians refuse to be involved in the process), kinks in the IV tubing or other problems restricting the rate at which the drugs flow into the condemned prisoner, and executions in which the condemned prisoner appeared to be conscious during the course of the execution and made unusual verbal noises or the condemned person’s body jerked violently and moved against the restraint straps during the execution.

Where, as here, evidence about how future executions will be carried out is limited given the lack of experience using lethal injection in Tennessee, the fact the TDOC protocols are incomplete, and that independent official witnesses are precluded from observing most of the processes of lethal injections, heightens the risk of a cruel and torturous death.Absent experience, it is incumbent upon this Court to look to expert and other objective proof about the method and protocol and any other evidence produced at a hearing. See also, Sech, Hang’em High: A Proposal for Thoroughly Evaluating the Constitutionality of Execution Methods, Val. U.L. Rev. 381, 401 (1995) ("courts need to consider all relevant scientific . . . evidence when analyzing an execution method's constitutionality"). There can be no "one free execution" rule under applicable constitutional doctrine that would automatically entitle Tennessee to "try out" newly adopted procedures of execution regardless of how flawed or likely to result in pain.

Though Tennessee may not be constitutionally obliged to make executions absolutely pain-free, significant, conscious pain that lasts for more than a few seconds is constitutionally intolerable. See Fierro v. Gomez, 865 F. Supp. 1387, 1413 (N.D. Cal. 1994) (execution by lethal gas in California held unconstitutional where evidence indicated "death by this method is not instantaneous. Death is not extremely rapid or within a matter of seconds. Rather . . . inmates are likely to be conscious for anywhere from fifteen seconds to one minute from the time that the gas strikes their face" and "during this period of consciousness, the condemned inmate is likely to suffer intense physical pain" from "air hunger"; "symptoms of air hunger include intense chest pains ... acute anxiety, and struggling to breath"), aff'd, 77 F.3d 301, 308 (9th Cir. 1996), vacated on other grounds, 519 U.S. 918 (1996).

There is a significant risk that the Petitioner’s execution by lethal injection will cause him significant pain and suffering. A prisoner who has been executed in a painful and inhumane fashion obviously has no remedy after-the-fact. Moreover, it is unreasonable to subject the Petitioner, or any other condemned prisoner, to what amounts to a game of Russian Roulette, requiring him to bear a significant risk that his execution will be botched.

2. Legal Standard: Cruel and Unusual Punishment

The Tennessee Supreme Court has recently held that, in at least one area, the Tennessee Constitution provides a stricter standard against cruel and unusual punishments than its federal counterpart. Van Tran v. State, 66 S.W.3d 790 (Tenn. 2001) (holding that executing the mentally retarded is cruel and unusual punishment under article I, § 16 of the Tennessee Constitution). This greater protection may extend to the method of execution, and not only the the subject upon whom it is administered. Even under a minimal federal constitutional standard, the issues presented here support the conclusion that the lethal injection of Mr. Abur’Rahman will violate both the state and federal constitutions.

“The fundamental respect for humanity underlying the Eighth Amendment's prohibition against cruel and unusual punishment gives rise to a special ‘need for reliability in the determination that death is the appropriate punishment’ in any capital case.” Johnson v. Mississippi, 486 U.S. 578, 584 (1988) (citations omitted). It is well established that when a defendant's life is at stake, a court must be “particularly sensitive to insure that every safeguard is observed.” Gregg v. Georgia, 428 U.S. 153, 187 (1976). This heightened standard of reliability is “a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.” Ford v. Wainwright, 477 U.S. 399, 411 (1986).

Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.

Woodson v. North Carolina, 428 U.S. 280, 305 (1976). The United States Supreme Court has repeatedly emphasized the principle that because of the exceptional and irrevocable nature of the death penalty, "extraordinary measures" are required by the Eighth and Fourteenth Amendments to ensure the reliability of decisions regarding both guilt and punishment in a capital trial. Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (O'Connor, J., concurring). See also Beck v. Alabama, 447 U.S. 625, 637-38 (1980); Lockett v. Ohio, 438 U.S. 586, 604 (1978); and Gardner v. Florida, 430 U.S. 349, 357-58 (1977).

When evaluating the constitutionality of a challenged execution method under the cruel and unusual punishment provision, courts must look at whether the method involves “something more than the mere extinguishment of life, such as torture or a lingering death...something inhuman and barbarious or inflicts “unnecessary pain, undue physical violence, or bodily mutilation and distortion.” In re Kemmler, 136 U.S. 436, 447 (1890); Louisiana ex rel. Francis v. Resweber, 329 U.S. 445, 473-474 (1947) (plurality opinion). In addition, the execution method and the manner it is carried out must comport with evolving standards of decency. Thus, the cruel and unusual punishment clauses of the state and federal constitutions must be read in a "flexible and dynamic manner." Gregg v. Georgia, 428 U.S. 153, 171 (1976), Van Tran v. State, supra."Whether a particular punishment is cruel and unusual is not a static concept, but instead changes in recognition of the 'evolving standards of decency that mark the progress of a mature society.'" Trop v. Dulles, 356 U.S. 86 at 101 (1958), accord Van Tran v. State, supra. Failure to pass any one of the prongs mentioned above amounts to a violation of the Eighth Amendment and Article I, § 16. Gregg, 428 U.S. at 172-73.The Tennessee Supreme Court agrees with the three prong approach, stating that, “This Court has applied the same analysis to determine whether a particular punishment constitutes cruel and unusual punishment under article I, § 16 of the Tennessee Constitution.” Van Tran at__ (citing State v. Black, 815 S.W.2d 166, 189 (Tenn.1991)). While the inquiry is flexible and must by definition change over time, it is anything but a "subjective judgment" that turns judges into legislators. Gregg 428 U.S. at 173, 175. Instead, the evolving standards of decency test turns on "objective indicia" of contemporary values. Gregg, 428 at 173. Accord Penry v. Lynaugh, 492 U.S. 302, 331 (1989); Coker v. Georgia, 433 U.S. 584, 592 (1977).

Central to this analysis is the risk of inflicting substantial and prolonged pain. See Farmer v. Brennan, 511 U.S. 825, 847 (1994) (punishments are cruel when they entail exposure to risks that “serve[] no ‘legitimate penological objective’”; prison official may be held liable under 8th Amendment for denying humane conditions of confinement if he knows that inmates face substantial risk of serious harm) (citations omitted); Helling v. McKinney, 509 U.S. 25, 36 (1993) (8th Amendment analysis, “requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency”).

The prohibition against cruel and unusual punishment embraces unnecessary mental as well as physical pain and suffering during the execution process. Trop v. Dulles, 356 U.S. 86, 111 (1958) (Brennan, J., concurring). See also Fierro v. Gomez, 865 F. Supp. 1387, 1413 n.34 (N.D. Cal. 1994) ("terror" of prisoner in midst of prolonged execution that is linked to effect of execution process on body is constitutionally significant to determination of whether method is cruel and unusual; court distinguishes anxiety presumably experienced by all inmates awaiting and fearing execution), aff'd, 77 F.3d 301, 308 (9th Cir. 1996), vacated on other grounds, 519 U.S. 918 (1996).

Accordingly, lower courts confronted with modern challenges have found the infliction of unnecessary pain and suffering on a prisoner during his execution, pain and suffering beyond that inherent in the extinguishment of life and required to carry out any death sentence, constitutes cruel and unusual punishment. See Fierro v. Gomez, 77 F.3d 301, 308 (9th Cir. 1996) (execution by lethal gas in California held cruel and unusual where substantial risk that prisoners would suffer "intense pain" for more than "a matter of seconds"), vacated on other grounds, 519 U.S. 918 (1996); Booker v. Murphy, 953 F. Supp. 756, 759 (S.D. Miss. 1997) (denying motion for summary judgment by Commissioner of Corrections in lawsuit challenging execution by lethal gas in Mississippi; given evidence of type and length of pain plaintiff prisoners would suffer if put to death by this method).

Under the modern Eighth Amendment analysis, lingering death accompanied by pain and torture is only one of the many factors demonstrating that execution by lethal injection constitutes cruel and unusual punishment. The attempt to adopt and adapt procedures used therapeutically in the medical field to judicially sanctioned state killings create an unacceptably high risk of inflicting severe and unnecessary physical pain and suffering upon a condemned person during an attempted execution. The Eight Amendment of the United States Constitution and Article I, § 16 of the Tennessee Constitution were specifically enacted to proscribe torturous and barbarous punishments. The use of an execution method commonly referred to as “lethal injection” is a torturous and barbarous punishment. A review of the use of lethal injection by this and other jurisdictions clearly shows that this method of execution violates the prohibitions against cruel and unusual punishment.

Where, as here, the Petitioner has demonstrated the existence of genuine and realistic concerns about the humaneness of the execution procedure, no court can, in good conscience, condone the risk of sending a man to his state sponsored death without first assuring itself that the constitutional prohibition against the infliction of “unnecessary pain in the execution of the death sentence” will be honored. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947)(plurality opinion). Mr. Abdur’Rahman seeks the protection of this Court against the unnecessary and wanton infliction of pain, physical violence and offense to his human dignity.To allow its infliction would be a derogation of evolving standards of decency.

OTHER NEWS

TheDeath Penalty Information Centerreports:

Maryland Governor Imposes Moratorium on Executions

Maryland Governor Parris Glendening announced the nation's first state-wide death penalty moratorium since Illinois halted executions more than two years ago. Glendening said that the moratorium will remain in place until a death penalty study regarding racial bias is completed and the legislature has had an opportunity to review its findings. Maryland Lt. Governor Kathleen Kennedy Townsend, who has declared her candidacy to succeed Glendening, recently announced her support for the moratorium. She noted that it would be "tough to have a report come out and say this wasn't fair knowing that while the report was going on, that people were executed." (Associated Press, May 9, 2002). See also, Moratorium Now! Press Release and Illinois Commission on Capital Punishment.

New Voices: Illinois Commission Chair Questions Wisdom

of "Fixing" Death Penalty

Thomas Sullivan, a former U.S. Attorney and Co-Chair of the Illinois Commission on Capital Punishment, stated that spending millions of dollars to salvage Illinois's broken death penalty system would be a "misuse of public funds." It would cost millions of dollars to implement many of the 85 recommendations issued last month by the blue-ribbon Commission appointed by Governor George Ryan in 2000. Sullivan noted that it would be wiser to invest the public's tax dollars into other areas, such as education and rehabilitation. "You have to look at the cost of putting that money into what really is just a few cases," he said. (Associated Press, May 7, 2002). See also, Illinois Commission on Capital Punishment and Costs.

Texas Demands Child Support Payment from Exonerated

Death Row Inmate

Despite the fact that Clarence Brandley was wrongfully held on Texas's death row for 9 years, the state is requiring him to pay child support for that time. While Brandley's children are now adults, Texas is demanding that his employer deduct weekly child support back-payments from his salary for the next five years. The Texas Attorney General's Office child support division claims that the "special circumstances" of Brandley's wrongful conviction do not supersede his obligation to make the payments, which were current when he was arrested for murder more than 20 years ago. Brandley's conviction was thrown out when State District Judge Perry Picket said that in his 30 years on the bench, "no case has presented a more shocking scenario of the effects of racial prejudice, perjured testimony, witness intimidation (and) an investigation the outcome of which was predetermined." (Amarillo Globe-News, April 28, 2002). See also, Innocence.

Council of Europe Ends War-Time Death Penalty Exception,

Urges U.S. to Halt Executions

During a recent meeting in France, the 44-member Council of Europe discarded a 1982 clause in its original protocol that allowed capital punishment during war time. The ban was supported by 36 members of the council. "It's a strong political message...to our friends outside Europe," said Walter Schwimmer, Secretary General of the Council of Europe. The members also urged the United States and Japan, which both have observer status on the Council, to halt executions. (Agence France Presse, May 3, 2002). See also, International.

101st Former Death Row Inmate Exonerated and Freed in Pennsylvania

Thomas H. Kimbell, Jr., became the 101st former death row inmate to be cleared of charges and freed since 1973.Kimbell had been sentenced to death in 1998 following his conviction for the murder of four members of a family in Lawrence County, Pennsylvania in 1994.However, the Pennsylvania Supreme Court overturned his conviction in 2000 because evidence which might have thrown doubt on his guilt was not admitted at his trial.Kimbell was acquitted of all charges at his re-trial on May 3. (Pittsburgh Post-Gazette, 5/4/02).Kimbell is the 3rd former death row inmate to be freed this year and the 4th person freed in Pennsylvania since the death penalty was reinstated. See also, Press Release and Innocence.