Issue isn't the penalty, it's whether drug mix is painless enough

12:00 AM CDT on Monday, May 1, 2006

By DIANE JENNINGS / The Dallas Morning News

When the death penalty was reinstated a quarter century ago, officials hailed lethal injection as a dignified and relatively painless alternative to the electric chair, the gas chamber, the gallows and the firing squad.

Texas death row inmate Charles Raby disagrees. And after years of routine dismissals of such claims, a federal judge in Houston has allowed him to pursue the issue. A hearing is scheduled in June.

It is among a series of challenges around the country to lethal injection, following more than 1,000 such executions. Opponents say the chemical cocktail administered by state workers can cause an agonizing death, violating the constitutional prohibition against cruel and unusual punishment.

"It seems like a silly question on one level: Is there a way to kill somebody with kindness?" said Gary Clements, a Louisiana defense attorney who has raised the issue for 15 years. But as long as the state can take someone's life, "we're going to take the position as defense attorneys, 'You'd better damn well do it right.' "

Some death penalty supporters see the legal challenges as a stalling tactic. "That's the goal of all these appeals," said Dudley Sharp, founder of Justice Matters, a criminal justice reform group based in Houston. "There's no question about it, the goal is to make everybody exhausted with the system."

The tactic may be having an effect: Court battles have slowed down or stopped executions in some states.

Last week, the U.S. Supreme Court heard a Florida case that raises the issue of whether such claims can be filed as a civil rights violation. Though the case will decide only a procedural issue, the justices debated the merits of lethal injection.

The Constitution does not require painless deaths, said Justice Antonin Scalia. "Hanging was not a quick and easy way to go."

But Justice Anthony Kennedy asked, "Doesn't the state have a minimal obligation" to investigate whether its executions cause gratuitous pain?

The appropriateness of lethal injection is not being questioned; the issue is about the drugs used and the executioner's competence.

Most states, including Texas, use a combination of three drugs:

• Sodium thiopental or sodium pentothal, which serves as an anesthetic;

• Pancuronium bromide, which paralyzes the muscles;

• And potassium chloride, which stops the heart.

If administered incorrectly, the combination can be excruciating because the second drug suffocates the person and the final drug feels like burning in the veins if the person is still conscious. Some experts say that's why veterinarians use only one drug. Texas law requires dogs and cats be euthanized with sodium pentobarbital, which shuts down the nervous system, or by compressed carbon monoxide, which reduces oxygen to the brain.

"You can do it like you do to dogs and cats and we would have much less argument," said Mr. Clements, the Louisiana attorney.

Defense attorneys say officials could solve the problem by simply switching to a single overdose of barbiturates. But "there's a certain rigidity to the way bureaucrats think that seems to interfere with sensible solutions," said David Dow, a University of Houston law professor who represents death row inmates.

Critics of the procedure say there is no reason to paralyze the inmate with pancuronium bromide other than to make the procedure more palatable for witnesses. The drug paralyzes the inmate, so he cannot writhe or otherwise show pain that would make those performing or watching the process uncomfortable.

State officials haven't changed the chemicals used "because there's nobody ordering them to change, and there's no scientific knowledge in that group to know that it might need to be changed," said Richard Dieter, executive director of the Death Penalty Information Center.

The Texas attorney general's office declined comment on the subject, but in the Raby case raising the issue, officials said they believe the "cocktail" used is "quick and painless."

Texas state Sen. Kyle Janek, R-Houston, an anesthesiologist and a death penalty supporter, has written that people who protest the lethal injection protocol are "practicing medicine without a license."

"This argument involving pancuronium bromide is bogus," he wrote in a column published in The Dallas Morning News two years ago, a position his staff says he still holds. He said that an inmate would be in pain if he could feel the effects of the second and third drugs, but the first drug administered is 10 times the normal amount.

"I can attest with all medical certainty that anyone receiving that massive dose will be under anesthesia," he wrote.

Mr. Sharp speculated that officials don't want to change the protocol because they know a new one will be challenged as well.

"All it's going to be is one more delaying tactic," he said. "It's inevitable when you change either method or the procedure or the drugs involved that you'll have another challenge. That's the history of the death penalty."

The pain of lethal injection has been an issue since states adopted the needle as an execution method, but it has only begun to gain traction in recent months.

In Florida, Gov. Jeb Bush has said he will not sign death warrants until the Supreme Court hands down a decision in the case heard last week.

A federal judge in California stopped an execution until officials change the procedure or find an anesthesiologist to monitor it. An evidentiary hearing is scheduled for Tuesday.

In the Texas case, Mr. Raby faces execution after confessing to murder and attempted rape in Harris County in 1992. He killed the 72-year-old grandmother of one of his friends by beating her, repeatedly stabbing her and slitting her throat.

Mr. Raby claims the drugs to be used in his execution will cause him "to consciously suffer an excruciatingly painful and protracted death." His lawsuit alleges that if the sodium thiopental wears off before the execution is complete, the pancuronium bromide would prevent him from expressing pain as he suffocates while conscious.

"The problem with the procedure is ... the use of drugs whose sole purpose is to paralyze the inmate during the execution process, [which] creates the appearance of a peaceful and pain-free execution," said Kevin Mohr, an attorney for Mr. Raby.

According to the Texas Department of Criminal Justice, death is usually pronounced seven minutes after injection begins.

Though some observers say executions have been botched, with needles popping out or inmates gasping, most witnesses say the inmates appear to pass away peacefully, as if they were going to sleep. But that may only appear to be the case, Mr. Mohr stressed.

Defense attorneys also are concerned about the people administering the drugs.

Whether the inmate feels pain may depend "on the absolute, precise and perfect administration of the process," said Mr. Dow. Lack of training and experience could raise "a serious likelihood that inmates would experience pain."

According to Michelle Lyons, spokeswoman for the Texas Department of Criminal Justice, executioners are not correctional officers but "prison volunteers who work for the state and have a background in medical training. They're not nurses, they're not doctors, but they do have backgrounds in medical training."

Such credentials aren't good enough for a federal judge in North Carolina, however.

Judge Malcolm Howard allowed the state to proceed with a recent execution only after officials agreed to use a brain wave monitor to measure the inmate's consciousness level and to have medical personnel ready to sedate him again if necessary.

A doctor and nurse were present in an adjacent room.

In California, an execution was postponed when no anesthesiologist could be found to participate.

Both the Texas Medical Association and the American Medical Association prohibit "participation" by a physician. The Texas group does allow a doctor to pronounce the inmate dead.

Mr. Dieter of the Death Penalty Information Center, said that in his opinion the North Carolina doctor and nurse were participating. "Maybe in a passive way," he said, "but without that doctor, that execution could not have gone forward."

And finally, some death penalty supporters don't care if the execution is not pain-free. They point out that crime victims rarely have painless deaths.

Mr. Dow understands that perspective but says it's irrelevant.

"That is a very strong argument that proponents of the death penalty could make," he said. "The problem with that argument is that the Supreme Court has already addressed it by saying that, although there may be some moral force to that, the Eighth Amendment forbids the infliction of excessive pain. It doesn't matter how the murderer killed his victim."

E-mail djennings@dallasnews.com

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