Cruel and unusual

Ohio's failure to kill a man has stirred another hornet's nest in the fight over the death penalty.

Kenneth Biros, 51, gave his brothers and sisters his seven CDs, his address book and his rosary beads as he waited out his last hours in an Ohio prison before becoming number 15,229 on the list of American executions since 1608. His last words, two weeks before Christmas, were: "I am paroled to my Father in heaven."

Far away in Ohio's east, a Catholic church bell tolled Father Bernard Schmalzried's lament for another executed man. The blackened life of Kenneth Biros ended 13 minutes before noon that day; he became the first person executed in the United States by a single lethal injection.

The mega-dose of sodium thiopental that coursed into his body took 10 minutes to kill Biros, who had descended into unconsciousness within a minute. It was the merciful ending that his victim, Tami Engstrom, 22, did not have. Biros met her in a bar. He tried to rape her. She fought. Parts of her body were found scattered across two states.

Small amounts of sodium thiopental are commonly used in humans as an anaesthetic. That is why it is the first in the three-drug sequence used for nearly 30 years to carry out the death penalty across the United States; its task in an execution is to make a doomed prisoner unconscious before the injection of two other drugs - one to halt breathing, another to stop the heart.

Single mega-doses of sodium thiopental have long been used to put down animals. Its use as the sole drug to execute Biros marked the first departure in an American death chamber from the traditional three-drug cocktail used in lethal injection executions. Other states - burdened by intense legal assaults on their right to execute with the three drugs - are looking at the Biros execution as a means to see off legal challenges.

Ohio did not change its execution method to spare suffering, save money or time; it was done so the state could continue capital punishment and beat back the relentless legal offensive of America's anti-death penalty lobby.

What was supposed to be another unremarkable execution in the Southern Ohio Correction Facility last September went so badly wrong it gave serious support to the long-held contention of death penalty opponents that the three-drug execution method breached the US constitutional ban on cruel and unusual punishment - the Eighth Amendment.

Romell Broom embarrassed death penalty advocates when he became the first condemned man - since the Supreme Court's re-instatement of the death penalty 34 years ago - to walk out of a death chamber. And the first to be facing a second visit. Because of his dismal experience, Ohio switched execution tactics.

Broom, 53, abducted, raped and murdered 14-year-old Tryna Middleton while she was walking home in 1984. At lunchtime on September 15 last year he was served what was meant to be his final meal of creamed chicken, mashed potatoes and biscuits before being strapped on to a gurney to die by lethal injection.

The sodium thiopental was meant to induce unconsciousness and protect Broom from the pain of paralysis and cardiac arrest, the consequences of the second and third drugs, Pavulon and potassium chloride. Death should have come within minutes. Broom was supposed to go to sleep and die.

What followed were grim, hapless hours for Broom and the 12-man execution team - all volunteers and chosen by their colleagues in a ballot. They struggled to find a vein capable of accepting a needle for the anaesthetic. When Broom tried to help, they patted him on the back for his efforts. They tried his arms, then his legs, and finally the veins in his hands. He screamed at one point. When he covered his face with his hands and cried they gave him toilet paper to wipe away the tears. The prison doctor ordered the execution team to take several 10-minute rest breaks

The Associated Press seeks to cover every execution. Its representative on that occasion was Stephen Majors. "You could see the visible frustration on his face … after he had tried to help them find a vein,'' Majors said later. ''He turned on his back and took his hands and covered his face. And he was heaving up and down, appearing to be crying. And the staff handed him a roll of toilet paper. And he ripped a good portion off it and started to wipe his eyes and his brow."

They stuck Broom 18 times with the needles that long afternoon - including once to a bone and several to muscle - but could not insert an intravenous line to begin the flow of killer potion. At 4.24pm - two and a half hours after the ''execution'' began - Ohio's governor granted Broom a one-week reprieve. The prisoner ate bread and beans that night and contemplated how fate that day had thrashed like a gate in the wind.

Broom has since won more time from a judge who granted his lawyers leave to argue the attempted execution was cruel and unusual punishment. To again try to kill him, the lawyers argued, would be further cruel punishment. A court is yet to hear the case.

Romell Broom's veins, withered by years of injecting illegal drugs, have forced the greatest change in the application of the death sentence in the United States since Texas, the leading state of execution, pioneered the lethal injection in 1982. Concerned that Broom might win a challenge to the lawfulness of lethal injection, Ohio argues its switch to a single injection demonstrates it has reviewed and changed its execution method since the botched attempt on Broom's life.

As of last July, 3226 men and 53 women were on American death rows. Any victory by Broom in contesting the best means of ending a life will be cold comfort for them. But it would be a fresh inroad for the lobby opposing the death penalty. Already, it has changed Ohio's approach.

The state faced fresh embarrassment this week when it filed court papers admitting a key member of the Broom execution team was under-trained and had failed to attend "rehearsals".

The long and testy skirmish over the three-drug method used in all 35 death penalty states - except Ohio now - centres on use of the anaesthetic, sodium thiopental. When used as the first of three drugs, it is not intended to hasten death but unconsciousness ahead of the killer drugs.

Opponents say the low dosage of sodium thiopental cannot be guaranteed to anaesthetise the prisoner against the pain and distress of respiratory paralysis and cardiac arrest.

Such distress in a person still conscious, they argue, could be masked by his or her inability to move or speak. Indeed, in Ohio in 2004, Christopher Newton kept talking and moving minutes after the lethal drugs were administered. He was neither unconscious nor paralysed and took 16 minutes to die. In 2005 the British medical journal Lancet published a devastating study of toxicology reports on blood samples taken from 49 prisoners executed by lethal injection. Twenty-one of them probably did not lose consciousness.

Soon after, California halted executions when doctors refused to monitor prisoners during lethal injection. By 2006 eight more states had followed suit under pressure from legal challenges. With death rows banking up, the US Supreme Court stepped into the argument in 2007. It would decide whether the three-drug lethal injection was capable of violating the constitutional ban on cruel and unusual punishment because of a significant risk that executioners failed to follow drug protocols.

As it cleaves America, the death penalty splintered the court. Seven of the nine judges rejected the challenge to the three-drug cocktail, but the members of that majority decision issued seven separate opinions, leaving open the possibility that the court would hear fresh challenges if another method could demonstrate significant reduction in the risk of severe pain.

But the Chief Justice, John Roberts, was sceptical about the one-drug method pursued by Ohio and considered by other states. Delivering the court's majority opinion, Roberts noted Tennessee's rejection of the one-drug method because it would extend the time it takes to die.

And he dismissed argument that America treated its animals better because 23 states barred veterinarians from paralysing animals because it was cruel to do so. Treatment of animals, said Roberts, was no guide to humane practices for humans.

No longer is the difference so clear in Ohio.

Source: The Sydney Morning Herald, January 16, 2010