January 17, 2007
Lethal Injection on Trial
By Kavan Peterson, Staff Writer
|Stateline.org highlights significant state policy developments and trends each year in its State of the States report|
The execution in Ohio last May of double-murderer Joseph Clark is a stark example of why America is taking a harder look at lethal injection.
Although Ohio had carried out 20 lethal injections without incident, prison officials encountered serious problems in executing Clark, a long-time intravenous drug user convicted of killing a service station attendant and a convenience store clerk. Reporters who witnessed the execution said Clark, 57, raised his head off the gurney and said repeatedly, "It don't work. It don't work." Prison officials closed the viewing curtain as they struggled to find a vein to inject the deadly chemicals. The procedure took almost 90 minutes.
Sparring over lethal injection will resume in courts and legislatures this year as authorities grapple with tough questions about how much pain the condemned feel as they die and what role, if any, medical professionals should play in executions.
The battle over lethal injection is the latest strand in a long-running debate over the ultimate punishment. The United States is among a handful of industrialized countries that sanction capital punishment. China, a totalitarian state, remains the leader, executing thousands of prisoners annually.
Recent court rulings have narrowed the grounds for capital punishment, and public support generally has slipped. The U.S. public still favors the death penalty by a 65 percent-to-30 percent margin, according to USA Today/Gallup polls over the last three years, but that is down from 80 percent that supported capital punishment in 1994.
In the most recent test of public sentiment, Wisconsin voters in November approved a non-binding ballot measure calling for restoration of the death penalty in cases where DNA evidence proves multiple counts of first-degree murder. The result shattered Wisconsin tradition. The Badger State, currently one of a dozen states without the death penalty, last executed criminals in the 1850s. But any attempt by the Legislature to reinstate the death penalty likely would be vetoed by Gov. Jim Doyle (D).
The death penalty effectively was put on hold in 12 states last year - nine because of questions over lethal injection.
Just two weeks before leaving office on Jan. 2, Florida Gov. Jeb Bush (R) suspended all executions until at least March 1 while a state commission reviews the state's lethal injection process. Bush formed the commission after the Dec. 13 execution of Angel Diaz, 55, took 34 minutes - twice the normal time - and required a second dose of lethal drugs because the first needle was improperly inserted. In South Dakota, Gov. Mike Rounds (R) last August gave a temporary reprieve to Elijah Page, 24, so the state could update its lethal injection procedure to include the "most modern and efficient" methods. When rescheduled, Paige's execution would be the state's first in 59 years.
Maryland's highest court suspended executions in December, ruling the state's lethal injection procedures were improperly adopted without public comment. Arkansas, California, Delaware, Kentucky, Louisiana and Missouri also temporarily suspended executions to deal with challenges to lethal injection, the primary or exclusive form of execution in 37 of the 38 states with capital punishment. (Nebraska uses the electric chair.)
The three-drug lethal injection process works like this: First, a sedative is administered through an IV, rendering the inmate unconscious, then a paralyzing agent stops the breathing muscles and finally a shot of potassium chloride stops the heart.
Those challenging the procedure say that if the first chemical is not properly administered, an inmate may remain conscious and die an excruciating death from the other two chemicals. Critics contend mistakes are likely, because correctional officers, not medical practitioners, administer the fatal dose in most states.
California's lethal injection process was ruled unconstitutionally cruel and unusual in December. U.S. District Judge Jeremy Fogel suspended executions until the state overhauls its lethal injection procedures. The ruling came in an appeal by Michael Morales, sentenced to die for the 1981 rape and murder of a 17-year-old girl. Postponing Morales' execution in February 2006, the judge cited a British medical journal report that 21 inmates executed in Texas and Virginia had such low levels of the anesthetic thiopental in their blood that they probably were awake but unable to move or scream when the fatal potassium chloride was injected. After four days of hearings and a visit to the execution chamber in San Quentin, Fogel concluded it was impossible to determine whether inmates executed in California were unconscious before the fatal shot.
More than a dozen states saw similar lawsuits. A Missouri doctor who mixed the three-drug cocktail used in that state's executions admitted in court he was dyslexic and had difficulty reading numbers.
Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit group that opposes capital punishment, said nearly every state uses "the same protocol that's raising so many questions, so it's a very important issue affecting virtually everyone on death row."
The U.S. Supreme Court hasn't taken any cases that test whether lethal injection is cruel and unusual punishment outlawed by the U.S. Constitution. But it has narrowed use of the death penalty in recent years, banning executions of the severely retarded in 2002 and in 2005 prohibiting the execution of those under age 18 when they committed their crimes.
New York's capital punishment system was struck down by the state Supreme Court in 2004 on procedural grounds. It could be reinstated if the state Assembly rewrites sentencing rules, but lawmakers failed to do so in 2005 and 2006.
Death penalty moratoriums also were in effect in Illinois, where a probe of police corruption and racial bias led to the freeing of a dozen men from death row, and in New Jersey, where a one-year hiatus imposed by Gov. Jon Corzine (D) ended in December.
David Elliot, communications director for the National Coalition to Abolish the Death Penalty, predicted that debate over capital punishment will see a resurgence in state capitols this year. Lawmakers in Minnesota, New York, North Dakota and Wisconsin served notice of plans to seek restoration of capital punishment.
Meanwhile, legislatures in California, Maryland and Missouri are expected to consider death penalty moratoriums or studies examining death sentences in 2007. New Jersey, which has spent $250 million to prosecute capital cases but has executed no one since restoring the death penalty in 1982, will study recommendations of a legislative-appointed commission that looked at the death penalty's cost and fairness. ( The New Jersey Death Penalty Study Commission recommended Jan. 5, 2007, that state lawmakers abolish the death penalty.)
More than 15,000 people have been executed in the United States since colonial days. In 1972, the Supreme Court invalidated all state death penalty statutes as arbitrary and capricious, but four years later it opened the door for states to put their death chambers back into use. Even before recent moves to bar executions of juveniles and the severely retarded, the high court in 1986 ruled out the death penalty for the insane, and in 1977 it held that rape alone was not a crime punishable by death.
The current court's stance on whether someone can be executed for a crime short of murder could be tested by recent laws in several states, including Florida, Louisiana, Montana, Oklahoma and South Carolina, authorizing the execution of repeat child rapists and molesters. No one yet has been executed under those laws, but one Louisiana man - Patrick O. Kennedy - was sentenced to die in 2003 for raping an 8-yearold girl. His case is being appealed in Louisiana courts.
Legislators in Alabama, Georgia, Mississippi, Texas, and even Minnesota, which doesn't have the death penalty, have said they will push this year for similar laws.
The preceding article was excerpted from State of the States 2007 , Stateline.org's annual report on significant state policy developments and trends.