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Not Fit for Beasts

How a Challenge to Lethal Injection May End the Death Penalty

BY BARTHOLOMEW JAMES

The execution of Michael Morales on February 21 was expected to be as routine as the January execution of Clarence Ray Allen and the December execution of Stanley "Tookie" Williams. But, less than six weeks before the government was scheduled to stop Morales' heart, Jeremy Fogel, a federal court judge in San Jose, allowed Morales' lawyers to present evidence that the lethal injection execution process could cause the inmate to suffer an excruciatingly painful and protracted death.

The evidence presented by Morales' lawyers included the sworn declarations of medical experts and detailed logs from prior California executions. The expert testimony and execution data revealed problems with the process that have existed but remained essentially under the radar for over 25 years. After reviewing the evidence, Fogel allowed the execution to proceed but only if the state used licensed medical professionals to administer the lethal chemicals used to induce death. To comply with Fogel's order, the government hired two anesthesiologists to carry out the procedure. But after they learned what the work would entail, they refused to participate, saying it would violate their medical ethics. Morales' execution was postponed indefinitely, pending the outcome of further court proceedings scheduled for May.

The claim that the lethal injection process -- for years thought to be a humane method of execution -- was anything but humane and instead constituted cruel and unusual punishment, had never been seriously considered by any court in the United States, according to Fordham University law professor and death-penalty researcher, Deborah Denno. "I give Judge Fogel credit for wanting to get involved and do something about this ... usually judges just turn a blind eye," she said.

The assertion that lethal injection could be declared unconstitutional caught even the most diligent death penalty opponents off-guard. Just four months ago, the United States Conference of Catholic Bishops issued a statement, A Culture of Life and the Penalty of Death, which listed a number of reasons why the government should forego the use of the death penalty. That the lethal injection procedure itself was, or might be, cruel and unusual wasn't one of them. "This is a brand new area and one that we haven't really even thought of," said Andrew Rivas, an attorney and policy advisor on criminal justice issues for the U.S. bishops. "We worked so hard advocating getting rid of the electric chair and the firing squad and hanging, that everything was pushed toward lethal injection as a painless way of doing it. We really hadn't thought about it, what sort of pain is involved in this," he said.

Denno, however, has been thinking about it. While taking no position for or against capital punishment, she has been researching and writing about the death penalty and methods of execution for 15 years. And lethal injection, she said, is past due for scrutiny. "I think there is a substantial amount of evidence that the testimony [from the Morales case] has some validity to it," she said. "There are obvious, repeated problems with this execution method." Known in California as "San Quentin Institution Procedure No. 770," the execution protocol mandates the injection of three drugs in sequence. The first drug, sodium thiopental, is a strong tranquilizer which induces unconsciousness. The second drug, pancuronium bromide, paralyzes all muscles; and potassium chloride, the third drug, stops the heart. If the first injection isn't done properly, the second doses would cause torturous pain, similar to the sensation of boiling oil or branding with a red hot iron, according to a Columbia University anesthesiology professor who testified in a court case in Connecticut.

Although more than 840 people across the nation have been executed by lethal injection in the last 30 years, Denno explained that the issue is just now coming to a head because, in the past, the details of the process have been kept hidden from the public and the courts. "The first court case [challenging lethal injection] was in 1978, but in that case they didn't even know what drugs were being used, and the court said the department of corrections didn't even have to say what drugs were being used," she said.

As it turns out, the first two parts of the drug combination being used to kill condemned inmates is similar to a euthanasia method for animals declared unacceptable by the American Veterinary Medical Association. "In 2000, the association stated that that drug combination is cruel for euthanizing animals," Denno said. "But that's the drug combination we use for execution [of humans]." In addition, California state law requires that veterinary employees who perform animal euthanasia undergo strict training by a veterinarian or a registered veterinary technician who specializes in anesthesia. "The department of corrections' lethal injection protocol under Procedure No. 770 includes no comparable requirement; in fact, it does not require any training of the personnel who use the same drug in executing prisoners," according to court records from the Morales case.

To address the problem, Judge Fogel required the state to use licensed medical professionals to carry out the execution of Morales. But in the process, Fogel inadvertently exposed the primary problem with the lethal injection process, according to Denno. Lethal injection is essentially a medical procedure, requiring that it be administered by medical professionals. "It certainly involves the need to have some sort of medical sophistication if one is going to be doing this properly," she said. But the ethical standards of virtually every professional qualified to carry out the process prohibits deliberately causing death. "It's actually a sign of a lack of sophistication as well as knowledge on [Fogel's] part that he would even ask doctors to do that, not realizing that they might refuse," she said.

Shortly after Fogel issued his order, the American Medical Association responded with a blunt statement. "The American Medical Association is alarmed that Judge Jeremy Fogel has disregarded physicians' ethical obligations when he ordered procedures for physician participation in executions of California inmates by lethal injection." The medical association reminded Fogel that even to have a doctor assist, supervise, or otherwise contribute to the ability of a state employee to directly cause the death of a condemned prisoner would violate the association's code of medical ethics. Nurse and anesthesiologist professional organizations took the same position.

Fogel has positioned himself between a rock and a hard place, and the ramifications may be felt across the nation. Previous execution method changes from electrocution and lethal gas to lethal injection came about because of court challenges claiming those methods constituted cruel and unusual punishment. If a court challenge to the constitutionality of lethal injection is successful, the government may be out of options, according to Denno. "It's a unique situation because there is not another method to change to -- they've run into a wall here," she said.

Although they have submitted friend-of-the-court briefs in past death penalty challenges, the U.S. bishops are taking a wait-and-see approach and letting the California Catholic Conference decide what role, if any, the national Church hierarchy should play in the Morales lethal injection issue. "It doesn't seem that at this point to be a national issue, it's just not getting much play back here in Washington," said Rivas. "It's got to be handled by the California conference in that regard because they're the ones who are there; unless they ask us to do something, which they haven't." Ned Dolejsi, executive director of the California Catholic Conference said they are watching the Morales case but don't yet see a need to get actively involved. "The means of execution are certainly not the major concern of the Catholic Church, it's the fact that society should not be executing people," he said. "We wouldn't be in a position to argue the technical merits of lethal injection, because we don't support perfecting lethal injection."

Dolejsi said that the conference has made a successful effort to raise media awareness about the parallels between the state's attempt to enlist doctors to perform prisoner executions and the attempts by the proponents of assisted suicide to co-opt doctors into assisting the terminally ill to end their lives deliberately. "That's why the medical association remains opposed to physician-assisted suicide, because their role is not to help people kill themselves, and not to help someone else kill someone,"he said. "We're supportive of their particular role, and hopefully the connection between that and physician assisted suicide will begin to dawn on some of our leadership and public policy makers."

In addition to the assisted suicide connection, Father Frank Pavone of Priests for Life sees a link between the pain inflicted during lethal injection executions and the pain felt by a fetus whose life is terminated by an abortion. "Morally speaking, the question of pain felt by both fetuses and those on death row is related. It is wrong to torture anyone, no matter what their age," he said. In fact, legislation currently pending in California would require physicians who perform abortions to offer their patients information and counseling on fetal pain before terminating the life of a fetus. Doctors who fail to provide the information would be subject to civil penalties imposed by the state attorney general, and the California medical board would revoke or suspend the medical license of a doctor who violated the law. If passed, the law would legally recognize that a fetus 20 weeks or older "has the physical structures necessary to experience pain." In support of the assertion that a fetus is capable of pain, the text of the law notes that anesthesia is routinely administered to 20-week or older unborn children who undergo prenatal surgery.

The California Medical Association opposes the fetal pain notification bill. "This bill criminalizes the actions of doctors and adds unnecessary regulations," said medical association spokesman Peter Warren. "This bill is an effort by a small minority in California to politicize and make more difficult a legal medical procedure and interfere, through politics, with the doctor-patient relationship." Warren called the claim that a fetus can feel pain "pseudo-science" and said he wasn't aware of any published research that supported the premise. And any implication that there was a contradiction between California Medical Association's position on abortion and execution was erroneous, he said. "There is no doctor-patient relationship between the doctor who is being asked to come into a state prison to be an employee of the state and execute a prisoner," he said. "And in the case involving abortion, abortion is legal, a woman may choose abortion. The physician's patient in the case of an abortion is the woman, and that's the relationship the physician is honoring," he said.

Dr. Priscilla Ray, chairman of the council on ethical and judicial affairs of the American Medical Association, concurred. "We don't think it's unethical to perform an abortion as long as it's not violating the law, is consistent with the needs of the patient and follows good medical practices," she said. "Certainly our role isn't to cause pain or harm to anybody or anything, but the relationship there is between the physician and his patient," she said. "I don't think anybody is for abortion that I know of, but we say we don't take a stand against it as long as it is consistent with good medical care and is not illegal."

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