HOUSTON CRIMINAL ATTORNEY DISCUSSES CRUEL AND

UNUSUAL PUNISHMENT, DEATH PENALTY BY LETHAL

INJECTION

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., ___ Ct. ____, 2007 WL 2075334 (U.S.Ky. 09/25/07).

Baze and Bowling sought certiorari review from a ruling by the Kentucky
Supreme Court on April 19, 2007 denying their declaratory judgment
application which alleged that the state’s method of administering lethal
injection was cruel and unusual punishment. See: Baze, et al. v. Rees, et al.,
217 S.W.3d 207 (Ky. 2007). In rejecting the condemned inmates’
constitutional challenge, the Kentucky Supreme Court clinically outlined
that state’s method of carrying out a lethal injection execution:

“We have previously examined lethal injection as a method of

execution and held it did not violate the constitutional standards
prohibiting cruel and unusual punishment. Wheeler v.
Commonwealth, 121 S.W.3d 173 (Ky.2003). We have no reason to
depart from the position set out in that case. 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.

The Kentucky high court held that while both the federal and state
constitutions bar cruel and unusual punishment, these constitutional
prohibitions do not require that a state execution be carried with a “complete
absence of pain.” Id. The court pointed out that Eddie Lee Harper was the
first, and only, convicted murderer executed in Kentucky under the lethal
injection protocol and that corrections personnel who attended his execution
reported that he was asleep within 15 seconds to one minute after the sodium
thiopental was administered and that he never moved or exhibited any pain
after losing consciousness. Id.

In their certiorari application, Kentucky public defenders David M. Barron

and John Anthony Palombi outlined their objections to the lethal injection
protocol:

“Kentucky carries out lethal injections by injecting the same three

chemicals used by all states other than New Jersey that carry out lethal
injections: 1) sodium thiopental; 2) pancuronium bromide; and, 3)
potassium chloride.

“This tri-chemical cocktail was first adopted in Oklahoma and first

used in 1982 in Texas.

“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.
 “Likewise, the Kentucky courts did nothing about Respondents'
inability to maintain life if a stay of execution is granted after the first
or second chemical was injected. When this issue was raised at the
trial court, it concerned Respondents so much that they purchased a
‘crash cart’ and guaranteed that a doctor would be available during
executions to use the crash cart if a last--minute stay of execution is
granted. While this appears to be an improvement and, on its face,
might appear to resolve the problem, in reality, trial testimony
established that it was the equivalent of a pitcher attempting to hide
the emery board he used to scuff up the baseball.

“At trial, Respondents provided a list of the chemicals and equipment

contained in its crash cart. Respondents' expert, Dr. Mark Dershwitz,
was asked about the equipment and chemicals, and informed the trial
court that those items were insufficient to maintain life after the first
or second lethal injection chemicals were injected. Dr. Dershwitz
testified that medications to increase blood pressure and contract the
heart, as well as, insulin, neostigmine, and artificial ventilation are
necessary to maintain life after sodium thiopental and/or pancuronium
bromide have been injected into a person. As Dr. Dershwitz pointed
out at trial, none of these medications are part of Respondents' crash
cart. Despite the obvious deficiencies with Respondents' crash cart
that render it utterly useless and incapable of maintaining life if a stay
of execution is granted after the first or second chemical is injected,
the trial court denied relief on this claim. Although raised to the
Kentucky Supreme Court, that court failed to address this claim.”

In a June 1, 2007 www.JohnTFloyd.com Front Page article, we reported that

the British medical journal, The Lancet, published a “research letter” in its
April 2007 edition that said inmates previously executed in the United States
by lethal injection may have experienced awareness and physical suffering
because they were not properly sedated.

One author of The Lancet research paper was Leonidas Koniaris, University
of Miami’s Miller School of Medicine. Koniaris, and his colleagues, studied
lethal injection protocols in Texas and Virginia where nearly half of the
more than 1,000 U.S. executions since 1976 were carried out. They
discovered that medical technicians carrying out the executions in these two
states had no training in anesthesia; that the executions were not monitored
for anesthesia; and that there was no post-execution review. The researchers
also analyzed autopsy toxicology reports on 49 condemned inmates
executed in Arizona, Georgia, North Carolina and South Carolina. These
reports revealed that the amount of sodium thiopental was lower in the blood
of 43 of these condemned inmates than is required for surgery; and, more
disturbingly, that 21 of them had such low concentrations of the drug it
indicated an “awareness” of pain during the execution process. In other
words, the condemned inmates probably suffered an excruciating death,
experiencing the horrendous pain of their hearts being suffocated.

Since 1930, when reliable statistics started being kept, and August 2007,
there were 4,936 government-sanctioned executions carried out in the
United States during that seventy-seven year period. It has been reported that
during the sixty-nine year period between 1882 and 1951 an additional 4,730
lynchings occurred in America.

It can reasonably be inferred, therefore, that Americans are a people who

fervently believe in the death penalty’s “eye for an eye” concept of justice.

This was made evident following Furman v. Georgia – the 1972 United
States Supreme Court decision that effectively vacated the 408 death
sentences which had been imposed on condemned inmates in this country.
The Furman decision did not abolish the death penalty. The Supreme Court,
in a split 5-4 decision, simply held that the penalty as it was then
indiscriminately applied violated the Eighth Amendment’s prohibition
against cruel and unusual punishment. Following Furman, thirty-seven
states, and the Federal government, enacted death penalty statutes that
satisfied the Supreme Court’s constitutional guidelines.

The first post-Furman execution was Gary Gilmore in Utah in 1976.

Gilmore actually insisted, to the chagrin of death penalty opponents, that his
death sentence by firing squad be carried out. From Gilmore through August
1, 2007, there were 1090 executions carried out in this country – 921 by
lethal injection, 153 by electrocution, 11 by the gas chamber, 3 by hanging,
and 2 by firing squad.

At least 40 of those executions were botched. One of the worst botched

attempts involved the 1983 execution of a convicted child molester/killer
named Jimmy Lee Gray in Mississippi’s gas chamber. Gray gasped for air,
and repeatedly slammed his head back against a steel pole as he moaned in
horrible agony. It was rumored that the Gray execution was deliberately
botched by prison officials who hated the child rapist.

Four months earlier in Alabama’s death chamber the electrode attached to

the leg of convicted murderer John Evans burst into flames and sparks and
smoke bellowed from under the hood the hood covering his face. Two
physicians entered the death chamber and found Evans’ heart still beating.
The electrode was reattached to his leg, and fourteen minutes later after a
third jolt of electricity had been applied, the physicians were able to
pronounce the charred and smoldering body dead.

Following these and other botched executions by traditional American

execution methods (gas chamber and electric chair), the rest of the country
followed the 1977 lead of Oklahoma and adopted “lethal injection” as the
official method of execution. Today thirty-six states and the federal
government use lethal injection as the official execution method. Only
Nebraska retains the electric chair as its exclusive execution method while
Tennessee offers it as an alternative to lethal injection and two other states,
Utah and Washington, offer the firing squad and hanging as choice options
for the condemned inmate.

The first lethal injection execution was actually carried out the year before
the Gray/Evans botched executions when Texas put Charles Brooks to
death.

But lethal injection has proven to be a less than stellar method of putting
people to death. Adopted as a “humane alternative” much like the guillotine
was in France in the 1700s, lethal injection has also produced some horribly
botched executions. One of the most publicized involved a Florida
condemned inmate named Angel Diaz who in 2006 suffered through a 34-
minute torture ordeal that involved two doses of lethal chemicals being
administered before doctors could mercifully pronounce him dead. A
subsequent autopsy revealed that the needles had been pushed through
Diaz’s veins directly into his arms. Five months later it took Ohio prison
officials 90 minutes to dispatch Christopher Newton to the other side of life.
The process was so drawn out as prison officials tried to locate a suitable
vein that the procedure was halted to allow Newton to take a bathroom
break. At one point Newton became so frustrated with the “lethal injection”
process that he asked prison officials, “can you just give me something by
mouth to end this?”
What is the immediate impact of the Supreme Court’s decision to examine
the constitutionality of the lethal injection protocol in the State of Kentucky?

It meant nothing to Robert Wayne Richard, a convicted murderer from

Harris County, who was put to death by lethal injection at Huntsville only
hours after the Supreme Court granted certiorari in the Kentucky case.

David Dow, a professor at the University of Houston, was quoted in the

Houston CHRONICLE as saying he would request that Gov. Perry and the
Texas Court of Criminal Appeals halt all executions in Texas until the lethal
injection issue is resolved.

“I hope they realize we shouldn’t be executing people in Texas if the

Supreme Court is deciding this issue,” Dow told the CHRONICLE. “The
state court is going to have to say something about it. If it rules in our favor,
I expect it will shut down executions in Texas until March or April or May
or June” when the Supreme Court decides the issue.

Gov. Perry’s office made its position quite clear only moments after the
Supreme Court grant certiorari in the Kentucky case. Krista Moody, a Perry
spokesperson, informed the media that executions in Texas would continue
because “right now the issue only affects Kentucky.”

On September 27, two days after it granted certiorari in the Kentucky case
and one day after it allowed Richard to be put to death, the U.S. Supreme
Court halted the execution of Texas condemned murderer Carlton Thomas
just hours before it was to be carried out. While the Supreme Court did not
give any specific reason for blocking Thomas’ execution, most court
observers attribute his stay to the Kentucky case.

The Texas Court of Criminal Appeals had earlier refused to stay Thomas’
execution, sending its signal that it does not feel any constitutional need to
halt executions pending review of the lethal injection issue by the Supreme
Court. And Gov. Perry’s office reiterated its position that executions would
continue in Texas because the Supreme Court’s action applies only to the
State of Kentucky.

The U.S. Supreme Court has a number of options in the Kentucky case: it
can declare lethal injections unconstitutional, order the removal of one or
more drugs in the protocol, or order Kentucky to revise the entire three-drug
protocol with more effective chemicals.

While it is uncertain what the Supreme Court will do in the Kentucky case,
what is certain is that executions will continue in the United States in the
same manner in which they have since Gilmore was put to death.

Fifty-eight percent of those executions through July 2007 were Caucasian

and thirty-four percent African-American. In April 2006 there were 3,370
inmates on the nation’s death rows awaiting execution – forty-five percent
Caucasian, forty-two percent African-American, and ten percent Hispanic.
With more than 400 post-Gilmore executions to its “Dead Man Walking”
credit, Texas by far leads the nation in administering the death penalty.
Virginia (98) and Oklahoma (85) are a distant second and third in putting
condemned inmates down.

Eleven of those 1090 post-Gilmore executions were female and twenty-two

were offenders who committed their crimes under the age of 18. Some were
mentally ill, others mentally retarded, and more than likely some were
innocent. At least fourteen condemned inmates have been exonerated by
DNA evidence since 1989. Scores of those put to death were convicted by
prosecutors who fabricated evidence, knowingly used perjured testimony,
and suppressed favorable evidence relating to either guilt or punishment.
Most of those put to death were represented at trial and sentencing by state
appointed attorneys who lacked either the competence or resources to
effectively represent their clients.

In April 1996 former President Bill Clinton signed into law the
Antiterrorism and Effective Death Penalty Act which severely limited access
to the federal writ of habeas corpus by state prisoners. AEDPA, as it is
known in the courts, was enacted to allow states to speed up the death
penalty process. The Act has certainly accomplished that objective: 70
percent of the 1090 post-Gilmore executions were carried out in the ten-year
period since 1996 while 30 percent were carried out during the previous 20-
year period between 1976 and 1996.

The death penalty in America has a sordid and ugly history with the
questionable executions of Nicola Sacco and Vanzetta, Bruno Hauptman,
Julius and Ethel Rosenberg, and Caryl Chessman. But it will be the lesser
celebrated post-Gilmore executions fueled by AEDPA that will one day be
the real stain on American history.