Autopsies of Executed Inmates by State Medical Examiners Reveal Probability of Botched Procedures

An autop­sy of the last man exe­cut­ed in Kentucky, Edward L. Harper, found only 3 to 6.5 mil­ligrams per liter of bar­bi­tu­rate in Harper’s blood — a lev­el leav­ing a high chance that Harper was con­scious through­out the exe­cu­tion and that he felt pain when he was inject­ed with sub­se­quent drugs that par­a­lyzed and suf­fo­cat­ed him, and then stopped his heart. Dr. Mark Dershwitz, the pros­e­cu­tion expert who devel­oped the stan­dards that Kentucky relies upon, said the low lev­el of bar­bi­tu­rate found in Mr. Harper’s body was poten­tial­ly trou­bling, stat­ing “[t]he blood lev­el should be a lot high­er than sev­en,” the lev­el at which about 50 per­cent of peo­ple are uncon­scious and 50 per­cent con­scious. Applying the same stan­dards, autop­sies con­duct­ed by state med­ical exam­in­ers after 23 exe­cu­tions in South Carolina and 11 in North Carolina, would indi­cate a 50 per­cent or greater chance that eight of the con­demned men were con­scious through­out their exe­cu­tions. In one of those cas­es, the like­li­hood of con­scious­ness would have been 90 per­cent. In four, it would have been 100 per­cent. (N.Y. Times, Sept. 16, 2004). See oth­er Botched Executions.

Supreme Court Unanimously Allows Lethal Injection Procedure Challenge to Continue

The U.S. Supreme Court unan­i­mous­ly ruled that an Alabama death row inmate could pur­sue his claim that the lethal injec­tion pro­ce­dures in his case con­sti­tute cru­el and unusu­al pun­ish­ment. David Nelson, who was less than three hours away from his sched­uled exe­cu­tion last fall when the Supreme Court gave him a tem­po­rary reprieve, had filed a claim under sec­tion 1983 of the Civil Rights Law stat­ing that his dam­aged veins would make it impos­si­ble to insert an intra­venous line with­out cut­ting deep into flesh and mus­cle. Nelson said that such a pro­ce­dure was a vio­la­tion of his rights under the Eighth Amendment. Alabama main­tained that this claim was sim­ply part of Nelson’s death penal­ty appeal and should be dis­missed because it was filed too late. The Justices ruled that low­er courts were wrong to block appeals by Nelson, and, in the opin­ion writ­ten by Justice Sandra Day O’Connor, the Justices agreed that Nelson’s claim was sep­a­rate from any chal­lenge to his sen­tence or con­vic­tion. Physicians have stat­ed that the cut-down pro­ce­dure the state would use to find a vein for lethal injec­tion could cause Nelson to bad­ly hem­or­rhage and suf­fer heart prob­lems pri­or to his death caused by the lethal injec­tion drugs. (See Associated Press, May 24, 2004) See Supreme Court.

New Jersey Court Halts Executions, Orders Review of Lethal Injection

The Appellate Division of New Jersey’s Superior Court ruled today that the state’s Department of Corrections (DOC) must exam­ine its lethal injec­tion exe­cu­tion pro­ce­dures before it car­ries out any death sen­tences, there­by halt­ing exe­cu­tions in the state until such a review takes place. The rul­ing notes, “[B]ecause of the patent grav­i­ty of the life and death issues impli­cat­ed by the reg­u­la­tions, we have con­clud­ed that rather than sim­ply strik­ing down those reg­u­la­tions, DOC should have the oppor­tu­ni­ty to give them fur­ther con­sid­er­a­tion, by addi­tion­al hear­ings if nec­es­sary, and to artic­u­late, if it is able to do so, a sup­port­ing basis for those deter­mi­na­tions. In the mean­time, how­ev­er, we are sat­is­fied that the reg­u­la­tions as a whole, as they now stand, may not be imple­ment­ed by the car­ry­ing out of a death sen­tence.” The rul­ing may also require the DOC to release addi­tion­al doc­u­ments regard­ing the state’s lethal injec­tion pro­ce­dures to New Jerseyans for a Death Penalty Moratorium, the non-prof­it orga­ni­za­tion that filed the orig­i­nal chal­lenge to the DOC’s lethal injec­tion pro­ce­dures. Read the opin­ion (Feb. 20, 2004).

Utah Governor Signs Bill to End Firing Squad

Governor Olene Walker, who recent­ly stat­ed that it was a ​“sad com­men­tary” that Utah still had a fir­ing squad, has announced that leg­is­la­tion passed in February 2004 abol­ish­ing the prac­tice will be signed into law. While the pri­ma­ry method of exe­cu­tion has been lethal injec­tion, inmates were allowed the option of fir­ing squad. The last exe­cu­tion by fir­ing squad in 1996 in Utah brought scores of media and curios­i­ty seek­ers to the state. A sec­ond bill elim­i­nat­ed exe­cu­tions on Sundays, Mondays, or hol­i­days, in a cost-cut­ting mea­sure. The last exe­cu­tion to take place in Utah, in 1999, was by lethal injec­tion. (Associated Press, February 21, 2004) On March 15, 2004, Governor Walker signed the leg­is­la­tion into law, to take full effect on May 3, 2004. (Associated Press, March 16, 2004).

Four Executions in Texas and Georgia Stayed, Clemency Recommended for Foreign National in Oklahoma 

Four stays were grant­ed for exe­cu­tions that were sched­uled to take place this week in Texas and Georgia, and Oklahoma’s Pardon and Parole Board unan­i­mous­ly rec­om­mend­ed clemen­cy for a for­eign nation­al fac­ing exe­cu­tion in January 2004. In Texas, courts ordered three stays of exe­cu­tion. Two of the cas­es involved chal­lenges to the use of pan­curo­ni­um bro­mide as part of the state’s lethal injec­tion process. A third case, that of Bobby Lee Hines, was stayed on the basis of a men­tal retar­da­tion claim. Attorneys for Texas death row inmates Billy Frank Vickers and Kevin Lee Zimmerman filed a suit stat­ing that one of the lethal injec­tion drugs, which has been banned by the American Veterinary Medical Association, vio­lates the con­sti­tu­tion­al pro­tec­tion against cru­el and unusu­al pun­ish­ment. The Supreme Court issued a stay for Zimmerman just 20 min­utes before his sched­uled exe­cu­tion. Vickers’ exe­cu­tion was put off by the state because of uncer­tain­ty of how the courts would rule. (Associated Press, December 11, 2003) Pancuronium bro­mide is used in 28 states that exe­cute by lethal injection.

In Georgia, just hours before the sched­uled exe­cu­tion of Eddie Crawford, the state Supreme Court agreed to hear his appeal to have sev­er­al pieces of pos­si­ble blood evi­dence test­ed for DNA. Attorneys for Crawford stat­ed that the evi­dence must be test­ed based on a new law grant­i­ng inmates greater access to post-con­vic­tion DNA-test­ing. Oral argu­ments in the case are expect­ed to take place in February. (Atlanta Journal-Constitution, December 11, 2003).

The Oklahoma Pardon and Parole Board rec­om­mend­ed clemen­cy to Hung Thanh Le, a Vietnamese for­eign nation­al on the state’s death row. The Board vot­ed unan­i­mous­ly to rec­om­mend relief after hear­ing Le’s claim that he did not have access to legal help from his embassy after being arrest­ed and accused of mur­der, and that his orig­i­nal tri­al attor­ney failed to con­sid­er his clien­t’s post trau­mat­ic stress dis­or­der as a pos­si­ble defense. (The Oklahoman, December 10, 2003). See Clemency.

Federal Judge Declares Electrocution Unconstitutional and Ring v. Arizona to be Retroactive 

In a deci­sion vacat­ing the death penal­ty for Nebraska death row inmate Charles Jess Palmer, U.S. District Court Judge Joseph Bataillon declared that elec­tro­cu­tion is uncon­sti­tu­tion­al. Bataillon wrote, ​“In light of evi­dence and evolv­ing stan­dards of decen­cy, the court would find that a death penal­ty sen­tence imposed on a defen­dant in a state that pro­vides elec­tro­cu­tion as its only method of exe­cu­tion is an unnec­es­sary and wan­ton inflic­tion of pain.” Nebraska is the only state that main­tains elec­tro­cu­tion as its sole method of exe­cu­tion. Bataillon’s rul­ing also stat­ed that the U.S. Supreme Court’s deci­sion in Ring v. Arizona — which held that it is uncon­sti­tu­tion­al to have a judge, rather than a jury, decide eli­gi­bil­i­ty for a death sen­tence — is retroac­tive and applies to Palmer’s case. The judge fur­ther decried the lengthy peri­od of time Palmer has spent on death row. Palmer remains incar­cer­at­ed with a sen­tence of life impris­on­ment. (Lincoln Journal Star, October 10, 2003) See Ring v. Arizona, and Life Without Parole.

Experts Warn Execution Drug May Mask Suffering 

A grow­ing num­ber of med­ical and legal experts are warn­ing that the chem­i­cal pan­curo­ni­um bro­mide, a com­mon­ly used lethal injec­tion drug, could leave a wide-awake inmate unable to speak or cry out as he slow­ly suf­fo­cates. Advances in med­i­cine have found that the drug, used by exe­cu­tion­ers to par­a­lyze the skele­tal mus­cles while not affect­ing the body’s brain or nerves, can mask severe suf­fer­ing. While the American Veterinary Medical Association con­demns the use of pan­curo­ni­um bro­mide in the euthana­sia process because ​“the ani­mal may per­ceive pain and dis­tress after it is immo­bi­lized,” the major­i­ty of states that main­tain the death penal­ty con­tin­ue to incor­po­rate it as the sec­ond of three drugs used to exe­cute those on death row. When ques­tioned about what death row inmates would feel if the first short-term anes­the­sia drug did not func­tion prop­er­ly and the remain­ing two drugs, includ­ing pan­curo­ni­um bro­mide, were admin­is­tered, Dr. Mark J.S. Heath of Columbia University stat­ed, ​“It would basi­cal­ly deliv­er the max­i­mum amount of pain the veins can deliv­er, which is a lot.” (New York Times, October 7, 2003). See also Botched Executions.

Alabama Halts Mandatory Electrocutions

Legislation that changes the pri­ma­ry method of exe­cu­tion in Alabama from the elec­tric chair to lethal injec­tion was signed by Governor Donald Siegelman on April 25. As of July 1, 2002, lethal injec­tion will be used as the method of exe­cu­tion unless an inmate requests the elec­tric chair. Nebraska is now the only state in the coun­try to use elec­tro­cu­tion as its sole means of exe­cu­tion. (New York Times, 4/​26/​02 and Associated Press, 4/​26/​02)

Georgia Supreme Court Strikes Down Electric Chair

On October 5, 2001, Georgia’s high­est court held that use of the elec­tric chair was cru­el and unusu­al pun­ish­ment in vio­la­tion of the state con­sti­tu­tion. In the 4 – 3 deci­sion, the court stat­ed that elec­tro­cu­tion ​“inflicts pur­pose­less phys­i­cal vio­lence and need­less muti­la­tion that makes no mea­sur­able con­tri­bu­tion to accept­ed goals of pun­ish­ment.” The court added:

[W]e hold that death by elec­tro­cu­tion, with its specter of excru­ci­at­ing pain and its cer­tain­ty of cooked brains and blis­tered bod­ies, vio­lates the pro­hi­bi­tion against cru­el and unusu­al pun­ish­ment in Art. I, Sec. I, Par. XV of the Georgia Constitution.

Last year, the state passed leg­is­la­tion mak­ing lethal injec­tion the method of exe­cu­tion for those con­vict­ed after enact­ment of the statute, but did not autho­rize the change in method for those con­vict­ed before its enact­ment. With the court’s rul­ing, lethal injec­tion becomes the state’s sole method. (Associated Press, 10/​5/​01)

Currently, 11 states allow the use of the elec­tric chair, but only Alabama and Nebraska use elec­tro­cu­tion as their sole method of exe­cu­tion. See also, the ​“Execution Tapes” record­ed by the Georgia Department of Corrections, which nar­rate the exe­cu­tions of inmates in the electric chair.

The Georgia Supreme Court grant­ed a stay to Ronald Spivey until the court decides whether use of the elec­tric chair con­sti­tutes ​“cru­el and unusu­al pun­ish­ment.” Georgia has not used its elec­tric chair since 1998. The state has since passed leg­is­la­tion to change its method of exe­cu­tion to lethal injec­tion, but the statute only applies to those sen­tenced after May 1, 2000. In a con­cur­ring opin­ion issued just four hours before Spivey’s exe­cu­tion, Justice Sears not­ed that the Legislature changed the method of exe­cu­tion to lethal injec­tion because elec­tro­cu­tion ​“offends the evolv­ing stan­dards of decen­cy that char­ac­ter­ize a mature, civ­i­lized soci­ety.” (Atlanta Journal-Constitution, 3/​6/​01)

Tennessee has approved the use of lethal injec­tion for those sen­tenced after January 1, 1999. Current inmates will have a choice between lethal injec­tion and the electric chair.

Kentucky has also vot­ed to give inmates a choice of lethal injec­tion or the elec­tric chair. Those sen­tenced after March 31, 1998 will be exe­cut­ed by lethal injection.

(Florida’s Electric Chair/​Doug Magee)

On October 20, 1997, the Florida Supreme Court upheld the con­sti­tu­tion­al­i­ty of the state’s use of its elec­tric chair which had caused a fiery exe­cu­tion in March of this year. The vote was 4 – 3. The dis­sent­ing jus­tices wrote: ​“Execution by elec­tro­cu­tion is a spec­ta­cle whose time has passed .… Florida’s elec­tric chair, by its own track record, has proven itself to be a dinosaur more befit­ting the lab­o­ra­to­ry of Baron Frankenstein than the death cham­ber of Florida State Prison.” In 1998, Florida elec­tro­cut­ed 4 people.

The late U.S. Supreme Court Justice, William Brennan, Jr., described elec­tro­cu­tions in his dis­sent in Glass v. Louisiana (1985):

“Th[e] evi­dence sug­gests that death by elec­tri­cal cur­rent is extreme­ly vio­lent and inflicts pain and indig­ni­ties far beyond the ​‘mere extin­guish­ment of life.’ Witnesses rou­tine­ly report that, when the switch is thrown, the con­demned pris­on­er ​‘cringes,’ ​‘leaps,’ and ​‘fights the straps with amaz­ing strength.’ ​‘The hands turn red, then white, and the cords of the neck stand out like steel bands.’ The pris­on­er’s limbs, fin­gers, toes, and face are severe­ly con­tort­ed. The force of the elec­tri­cal cur­rent is so pow­er­ful that the pris­on­er’s eye­balls some­times pop out and ​‘rest on [his] cheeks.’ The pris­on­er often defe­cates, uri­nates, and vom­its blood and drool.”

Brennan ques­tioned whether elec­tro­cu­tions were ​“noth­ing less than the con­tem­po­rary tech­no­log­i­cal equiv­a­lent of burn­ing peo­ple at the stake.”