Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

May 12, 2008

SUPREME COURT RULING ON LETHAL INJECTION WILL PROVE LETHAL

HOUSTON CRIMINAL ATTORNEY John Floyd Discusses Ruling by Supremes in Base v. Rees; Poisoning not Cruel and Unusual Punishment

The Baze Ruling

The United States Supreme Court on September 25, 2007 granted certiorari in the case of Ralph Baze and John C. Bowling, two convicted double murderers, who challenged the constitutionality of lethal injection as it is administered in the State of Kentucky. See: Baze, et al. v. Rees, Comm’r Ky DOC, et al., WL 2075334 (U.S.Ky. 09/25/07).

On April 16, 2008 the Supreme Court rejected the claim by Baze and Bowling that the lethal injection protocol utilized by the State of Kentucky violates the Eighth Amendment’s prohibition against cruel and unusual punishment because “of the risk that the protocol’s terms might not be properly followed, resulting in significant pain.” See: Baze v. Rees, 553 U.S. _____ (2008) [Slip Opinion No. 07-5439].

The constitutional question before the Court was admittedly a narrow one. Baze and Bowling, through counsel, conceded before the court that the Kentucky protocol, if administered properly, would produce a “humane death.” Id., at Slip Opinion 1. After an exhaustive review of the state court record, including the decision by the Kentucky Supreme Court on April 19, 2007 upholding the state’s lethal injection protocol, the U.S. Supreme Court concluded that “ … petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment.” Id., Slip Opinion at 2.

The Kentucky Lethal Injection Protocol

The Oklahoma Legislature in 1977, operating with information provided to it by the anesthesiology department at the University of Oklahoma College of Medicine, enacted the nation’s first “lethal injection” law. Thirty-six states have since enacted laws adopting lethal injection as their method of execution – 30 of whom, including Kentucky, use the same combination of drugs in their lethal injection protocols. Id., Slip Opinion at 3-4. See also: Workman v. Bredesen, 486 F.3d 896, 902 (CA6 2007).

The Kentucky Supreme Court in Baze v. Rees, 217 S.W.3d 207 (Ky. 2007) outlined the state’s lethal injection protocol”

“The protocol for lethal injection execution begins with the availability of a therapeutic dose of diazepam if it is requested. Diazepam, commonly referred to as Valium, is an anti-anxiety agent used primarily for the relief of anxiety and associated nervousness and tension. Certified phlebotomists and emergency medical technicians are allowed up to an hour to then insert the appropriate needles into the arm, hand, leg or foot of the inmate.

”Three grams of sodium thiopental, commonly referred to as Sodium Pentathol, are then injected. This drug is a fast acting barbiturate that renders the inmate unconscious. At this level of ingestion the person is rendered unconscious for hours. The line is then flushed with 25 milligrams of a saline solution to prevent adverse interaction between the drugs.

”Fifty milligrams of pancuronium bromide, commonly referred to as Pavulon, follows. This drug causes paralysis. The purpose is to suspend muscular movement and to stop respiration or breathing. The line is again flushed with 25 milligrams of a saline solution to again prevent any adverse interaction between the drugs.

”Finally, 240 milligrams of potassium chloride is injected. This chemical disrupts the electrical signals required for regular heart beat and results in cardiac arrest. An electrocardiogram verifies the cessation of heart activity. A doctor and a coroner then verify the cause of death.” Id., at 212.

Kentucky has put to death one condemned inmate with this protocol – a convicted murderer named Eddie Lee Harper. Prison personnel who attended his execution reported that he was asleep within 15 seconds to one minute after the sodium thiopenthal was administered and that he never moved or exhibited any pain after losing consciousness. Id.

Less than two weeks after the Baze ruling by the Kentucky Supreme Court, the Tennessee Department of Corrections per instructions from the state’s governor released a report that adopted a new lethal injection protocol: 5 grams of sodium thiopental (two grams more than Kentucky), followed by 100 milligrams of pancuronium bromide (50 milligrams more than Kentucky), and, finally, 200 milliequivalents of potassium chloride (40 milliequivalents less than Kentucky).

On May 9, 2007 Phillip Ray Workman was the first person put to death under Tennessee’s revised protocol. He was lucid two minutes after the sodium thiopenthal was administered at which time he said: “I commend my spirit unto your hands, Lord Jesus Christ.” The death procedure took seventeen minutes to carry out.

Assuming that 5 grams of sodium thiopenthal was properly administered to Workman, the “fast acting barbiturate” as described by the Kentucky Supreme Court did not immediately render the condemned inmate unconscious. Why did the barbiturate put Eddie Lee Harper to sleep within 15 seconds to one minute while allowing Workman to talk to Jesus two minutes after it was administered?

This question was perhaps answered by David M. Barron and John Anthony Palombi, attorneys for Baze and Bowling, in their brief to the U.S. Supreme Court:

“Sodium thiopental is a short-acting barbiturate that begins to wear off almost immediately. When sodium thiopental was first adopted as part of the lethal injection protocol, it was a state-of-the-art anesthetic. Since then, it has been replaced in surgical settings by propafol. Pancuronium bromide is a neuromuscular blocking agent that paralyzes all voluntary muscle movements, but has no impact on the ability to feel pain. It prevents a person from speaking, moving, or expressing any other outward signs of pain or consciousness, but is extremely agonizing in a conscious person as the inflicted person suffocates just as if he or she was drowning with weights on his or her body to prevent movement. Potassium chloride, otherwise known as road salt used to melt ice, is injected to cause cardiac arrest, but is excruciatingly painful in a conscious person.

“When used in lethal injections, sodium thiopental serves the purpose of rendering the condemned inmate unconscious. Pancuronium bromide is supposed to stop respiration, and potassium chloride is supposed to cause cardiac arrest. Because potassium chloride stops the heart from beating, death can and would be caused without the use of pancuronium bromide - - a drug that is not permitted to be used to euthanize animals. Other than to pronounce death, doctors are not involved in Kentucky lethal injections, and the chemicals are injected from a room adjacent to the execution chamber…

“At trial, it was established that Respondents had conducted no studies to determine what chemicals to use in lethal injections, but merely relied upon what other states had ‘successfully’ used. Further, undisputed testimony from both the experts for Petitioners and the expert for Respondent established that, if pancuronium bromide was eliminated from the execution process, death would be caused without any additional risk of pain and suffering. This would lessen the risk of pain and suffering because it would make monitoring for consciousness substantially easier. Likewise, undisputed testimony established that sodium thiopental could be replaced with propafol, or that propafol could be used as the only lethal injection chemical. Eliminating pancuronium bromide would lessen the risk of pain and suffering because it would increase the likelihood that the inmate would be unconscious throughout the execution, and, if used alone, would mean that excruciatingly painful chemicals are not injected.

“Finally, undisputed testimony established that potassium chloride could be replaced by another chemical that would stop the heart, such as Dilantin - - a chemical that is less likely than potassium chloride to cause pain. Despite the fact that this undisputed testimony established that the risk of pain and suffering caused by the currently used tri-chemical cocktail was unnecessary because it could easily be avoided, the trial court and the Kentucky Supreme Court upheld the use of these chemicals.”

SAFEGUARDS IN KENTUCKY’S DEATH PROCEDURE

Quoting the Kentucky district court, the Supreme Court agreed that there “are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds.” Id., Slip Opinion at 2. The Supreme Court observed that when sodium thiopenthal is properly administered, the condemned inmate should be rendered unconscious immediately and not susceptible to any pain associated with the pancuronium bromide and potassium chloride. Id., at 5. The Supreme Court then cited the following safeguards Kentucky officials have implemented designed to reduce the possibility of pain during an execution:

Between injections of the three drugs, the execution team flushes the IV lines with 25 milligrams of saline to prevent a clogging of the lines “by precipitates that may form when residual sodium thiopenthal comes in contact with pancuronium bromide.”
The IV catheters are inserted by “qualified personnel having at least one year of professional experience.”
A certified phlebotomist and an EMT “perform the venipunctures necessary for the catheters.”
The phlebotomist and EMT have one hour to locate “primary and secondary peripheral intravenous sites in the arm, hand, leg, or foot of the inmate.”
Personnel besides the phlebotomist and EMT are “responsible for mixing the solutions containing the three drugs and loading them into syringes.”
The warden and deputy warden “remain in the execution chamber with the prisoner, who is strapped to a gurney.”
An execution team “administers the drugs remotely from the control room through five feet of IV tubing.”
If either the warden or deputy warden determine through visual inspection that “the prisoner is not unconscious within 60 seconds following the delivery of the sodium thiopenthal to the primary IV site, a new 3-gram dose of thiopenthal is administered to the secondary site before injecting the pancuronium and potassium chloride.”
In addition to monitoring the effects of the thiopenthal, the warden and deputy warden also observe “for any problems with the IV catheter and tubing.”
A physician is on standby to “assist in any effort to revive the prisoner in the event of a last-minute stay of execution,” although the doctor is prohibited by law from participating in the actual execution.
An EKG “verifies the death of the prisoner.”

Id., Slip Opinion at 6-7.

These safeguards notwithstanding, attorneys for Baze and Bowling argued that the death protocol creates an “unnecessary risk” of pain; therefore, the Supreme Court under the Eighth Amendment had to evaluate “(a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible, either by modifying existing procedures or adopting alternative procedures.” Id., at 8.

The State of Kentucky argued that if the Supreme Court adopted the “unnecessary risk” standard, death penalty states would be forced to adopt the “least risk” alternatives and thereby impose a “recurring constitutional doubt on any procedure adopted by the States.” Id., at 8-9.

Application of Eighth Amendment to Unnecessary Risk

Straight out of the constitutional chute, the Supreme Court observed that it had never “invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Id., at 9. The court, however, pointed out that its precedents had recognized that subjecting an individual to a “risk of future harm” could qualify as cruel and unusual punishment. Id., at 10. To meet this Eighth Amendment standard, the individual bears the burden of showing that the risk of harm is “’sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” Id., at 11 [quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)].

The court then held that mere possibility an execution method might result in pain, “either by accident or as an inescapable consequence of death,” does not qualify as cruel and unusual punishment. Id. See also: Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 462 (1947) [a second execution attempt after an electric chair malfunction prevented the first attempt did not establish an “objectively intolerable risk of harm” because “accidents happen for which no man is to blame”].

The Constitutional Viability of Alternative Procedures

The constitutional thrust of Baze and Bowling’s argument was that they had demonstrated a “significant risk of harm” in Kentucky’s death penalty procedure that could be “eliminated by adopting alternative procedures, such as a one-drug protocol that dispenses with the use of pancuronium and potassium chloride, and additional monitoring by trained personnel to ensure that the first dose of sodium thiopenthal has been adequately delivered.” Id., at 12.

The Supreme Court stated that under its “risk of future harm” standard, a condemned prisoner could not successfully challenge a state-imposed method of execution with a mere “showing [of] a slightly or marginally safer alternative.” Id. The court then explained its strict position:

“Permitting the Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining ‘best practices’ for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution procedures—a role that by all accounts the States have filled with an earnest desire to provide for a progressively more humane manner of death … Accordingly, we reject petitioners’ ‘unnecessary risk’ standard …” Id

Instead the Supreme Court adopted the standard pronounced in Farmer v. Brennan, 511 U.S. 825 (1993). The court held that any proposed alternative procedure of execution must be considered under a “substantial risk of serious harm” standard. Id., at 13. See also: 511 U.S. at 842. In order to qualify under this Farmer standard, the proposed alternative procedure “must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.” Id.

The court pointed out that if a condemned inmate could show that a state’s execution procedures violates the Farmer standard and the state refuses to adopt an alternative procedure “without a legitimate penological justification for adhering to its current method of execution, then a State’s refusal to change its method can be viewed as ‘cruel and unusual’ under the Eighth Amendment.” Id.

The Three Drug Lethal Injection Protocol Does Not Violate Farmer

Some death penalty opponents found a glimmer of hope in the Supreme Court’s application of the Farmer standard in the death penalty context. In a nutshell, the opponents believe that the procedures employed by some states in the administration of the three drug protocol could possibly offend the Farmer standard. That is like trying to find matter in a black hole.

The Supreme Court made this point poignantly clear when it observed that it would be “difficult’ to regard lethal injection “objectively intolerable” when it is so “widely tolerated” in this nation (36 states and the Federal government). Id., at 14. The court noted that “no State uses or has ever used the alternative one-drug protocol” suggested by Baze and Bowling. Id.

The court then addressed Baze and Bowling’s concern that the Kentucky protocol presented “opportunities for error,” especially the “improper administration of the first drug, sodium thiopenthal.” Id. While the court acknowledged that an improper dose of thiopenthal that failed to render the condemned prisoner unconscious would create a “substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride,” Baze and Bowling failed to show that the “risk of an inadequate dose of the first drug is substantial” and, therefore, there was no Eighth Amendment need to impose the “untested alternative procedures” suggested by the two men on the State of Kentucky. Id., at 14-15.

Baze and Bowling hinged their argument about the potential for an improper administration of thiopenthal on the following recognized difficulties:

“ … doses are difficult to mix into solution form and load into syringes.”
The “protocol fails to establish a rate of injection, which could lead to a failure of the IV.”
There is always a possibility that the “IV catheters will infiltrate into surrounding tissue, causing an inadequate dose to be delivered into the vein.
Kentucky lacks “inadequate facilities and training” in carrying out the execution.
Kentucky has “no reliable means of monitoring the anesthetic depth of the prisoner after the sodium thiopenthal has been administered.”

Id., Slip Opinion at 15.

The Supreme Court dismissed these potential difficulties for the following reasons:

The court adopted the state trial court’s finding that “’if the manufacturers’ instructions for reconstruction of Sodium Thiopenthal are followed … there would be minimal risk of improper mixing, despite converse testimony that a layperson would have difficulty performing this task.’”
Expert testimony described “the task of constituting powder sodium thiopenthal into solution form as ‘[n]ot difficult at all … You take a liquid, you inject it into a vial with the powder, then you shake it up until the powder dissolves and, you’re done. The instructions are on the package insert.’”
Concerning potential problems with IV lines, the court said “Kentucky has put in place several important safeguards to ensure that an adequate dose of sodium thiopenthal is delivered to the condemned prisoner. The most significant of these is the written protocol’s requirement that members of the IV team must have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman.”
Kentucky’s phlebotomist and EMT, along with the rest of the execution team, must participate in 10 practice sessions each year.
The execution protocol requires that there be a backup IV line along with two sets of the lethal drugs.
The warden and deputy warden are present to insure that if unconsciousness is not reached within 60 seconds, a second dose of thiopenthal will be introduced into the backup IV line.

Id., Slip Opinion at 15-16.

In support of their suggested one-drug protocol, Baze and Bowling argued that the paralytic drug, pancuronium bromide, should be eliminated because it serves “no therapeutic purpose while suppressing muscle movements that could reveal an inadequate administration of [thiopenthal].” Id., at 18-19. The court rejected this argument for two reasons:

“First, it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride [and] the Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress.”
“Second, pancuronium stops respiration, hastening death.”

Id., Slip Opinion at 19.

Baze and Bowling attempted to bolster that one-drug protocol by pointing out that veterinarians now routinely use this procedure in putting down animals. They pointed out that at least 23 states prohibit veterinarians from using paralytic drugs like pancuronium in putting animals to sleep. The court was not persuaded, saying:

“ … If pancuronium is too cruel for animals, the argument goes, then it must be too cruel for the condemned inmate. Whatever rhetorical force the argument carries, it overlooks the States’ legitimate interest in providing a quick, certain death. In the Netherlands, for example, where physician-assisted euthanasia is permitted, the Royal Dutch Society for the Advancement of Pharmacy recommends the use of a muscle relaxant (such as pancuronium dibromide) in addition to thiopenthal in order to prevent a prolonged, undignified death…That concern may be less compelling in the veterinary context, and in any event other methods approved by veterinarians—such as stunning the animal or severing its spinal cord—make clear that veterinary practice for animals is not as appropriate guide to humane practices for humans.” Id., at 19-20.

Writing for the majority, Chief Justice John Roberts was critical of the proposal by the dissent that the court continue to stay the execution for Baze and Bowling, as well as all other capital cases, and remand their cases back to the lower courts for hearings to determine whether “added measures” would reduce the risk of “untoward” pain. The Chief Justice said that “an inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the State could take as a failsafe for other, independently adequate measures. This approach would serve no meaningful purpose and would frustrate the State’s legitimate interest in carrying out a sentence of death in a timely manner.” Id., at 22.

Finally, the court put to bed the supposition that its decision “leaves the deposition of other cases uncertain.” The court cemented the finality of its decision by saying “the standard we set forth here resolves more than [Justice Stevens] acknowledges. A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantiated when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.” Id.

That constitutional green light was all the States needed. For example, four days after the Baze/Bowling decision Florida’s Governor Charlie Crist ordered his staff to put together a list of “five or so” death row inmates immediately eligible for execution. One of those being considered for prompt execution is 61-year-old Charles Foster who is one of five condemned inmates who have been on death row the longest. Foster was convicted and sentenced to death in 1975 for murdering a Canadian tourist in Bay County.

In California Michael Angelo Morales, who was convicted of murder in 1981, is considered to be the “first up” in eligibility for immediate execution. Similarly, in Texas, Jose Ernesto Medellin, a Mexican national, who took part in one of the most horrific crimes in Harris County – the brutal 1993 murders of 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena – will get an immediate execution date.

The last person put to death in the United States was Robert Wayne Richard who was executed in Texas on the very day the U.S. Supreme Court agreed to the hear the Baze and Bowling cases. It may well be the Texas will be the first state to resume lethal injection executions to preserve its overwhelming reputation as the execution capital of America.