The flaws of lethal injection

It's a preferred method of executing inmates, but so much can -- and has -- gone wrong that states need to take a hard look at their procedures.

It has been a year and a half since the Supreme Court ended the nationwide moratorium on lethal injections, finding that Kentucky's three-drug protocol had adequate safeguards to protect inmates from "cruel and unusual" punishment. But in California, executions remain on hold, as they have been for more than three years. Some have urged the governor and others to move things along. They point to executions without incident, like Tuesday's of John Allen Muhammad in Virginia. But other recent executions compel a contrary conclusion: We still haven't found a way to get it right.

The latest debacle came in September, when Ohio botched its third lethal injection execution in as many years. The saga began when corrections officials could not find a vein during the execution of Romell Broom. They tried for two hours, sticking Broom at least 18 times. The process got more macabre when the condemned man tried to help his executioners, pumping his arm and pointing out potential veins. The team of corrections officials finally gave up, and Broom returned to death row.

It was all eerily familiar to those who follow executions in California. In each of the last three executions here, prison staff struggled for more than 30 minutes to insert IV needles. One of the prisoners, Stanley Tookie Williams, asked his executioners, "You doing this right?"

For those who believe that the lethal injection debate is just another concern of defense attorneys, let me assure you that is not the case. I served for 15 years as a federal prosecutor in Los Angeles and with an organized crime and drug enforcement task force based in Maryland. My tenure coincided with the "tough on crime" mind-set of the late-1980s and early 1990s. I sat on a committee that made recommendations regarding when and if to seek the ultimate sanction of death in particularly heinous federal criminal cases.

Over time, however, I have observed the diminution of our standards of justice as we condone a death penalty process that is not only drawn out, costly and of questionable accuracy -- as demonstrated by a few cases in which death row inmates have been exonerated -- but also is flawed in application.

Many prosecutors and judges with varying views on the death penalty share my horror at a process gone awry. In 2006, California's execution protocol was aptly described by a federal judge as "broken." He found there was reason to doubt that the anesthetic -- the first drug in the process -- was being delivered properly, which meant that subsequent injections that paralyze and then kill a condemned inmate could cause pain that violated the "cruel and unusual" punishment prohibition. When state officials came up with a new procedure, the courts ruled that they did so in violation of the Administrative Procedure Act, a "sunshine" law that ensures that government agencies act with transparency and accountability. Earlier this year, prison officials finally submitted their proposed procedures to a public comment period, but it remains to be seen whether our courts will deem these new procedures to be satisfactory.

Unfortunately, what California proposes isn't much different from the previous protocol. It's still a three-drug procedure that depends on the execution team successfully setting a functioning IV so that the anesthetic works. And prison officials also continue to insist on paralyzing inmates, though the proposed paralytic drug is considered inhumane for animal euthanasia in most states.

Even if execution teams are proficient -- which is never easy to guarantee and was clearly not the case in the bungled executions -- a lot can go wrong. The stress of the situation, the state of an inmate's veins and the difficulty of placing multiple IVs under the best of circumstances may put the condemned inmate in jeopardy of suffering extreme agony -- induced paralysis, suffocation and cardiac arrest -- all while fully conscious.

Thirty-five states use lethal injection to execute inmates. The list of those undertaking a review of their execution protocols now includes Maryland and Nebraska, in addition to California and Ohio. A number of states have tweaked their procedures in the last two years. But in too many cases, the "new" protocols that emerge are, like the proposals in California, virtually identical to the old ones. Such cursory reviews are not enough.

In contrast, Ohio says it is going back to the drawing board. "Everything is on the table," a corrections spokesperson recently stated. Ohio is right to take it slowly and give this issue serious reconsideration and open public vetting. Our state leaders should do the same.

The defects in lethal injection affect more than just the person being executed. Corrections officers who perform executions without proper training suffer a terrible strain. Families of crime victims who watch a botched process are further traumatized. And all of us are diminished when we allow an inhumane and unsound process to be the norm.

No state should go forward with another execution until we can be assured that it knows what it is doing in the death house. And if we don't have the ability to get it right, then maybe it's time to revisit the death penalty altogether.

Source: Opinion, The New York Times, Nov. 16, 2009