Judge allows new lethal injection drug for Oklahoma executions

A federal judge ruled Friday that Oklahoma can use a drug regularly given in physician-assisted suicide and animal euthanasia in its lethal injection formula for death row inmates.

Oklahoma is likely to become the 1st state to use the pentobarbital for lethal injection on Dec. 16, when the state's next execution is scheduled.

The use of pentobarbital "falls short of the level of risk" considered cruel and unusual punishment by the U.S. Supreme Court, U.S District Judge Stephen P. Friot said after a hearing in his Oklahoma City courtroom.

Friot's ruling means the stay of execution for inmate Jeffrey Matthews expires today and his execution will be rescheduled by the state Court of Criminal Appeals. The ruling also means the lethal injection of inmate John David Duty remains scheduled for Dec. 16.

Matthews was convicted of killing his great uncle during a 1994 McClain County home-invasion robbery.

Duty strangled his cellmate in 2001 while in was in prison for armed robbery, first-degree rape and shooting with intent to kill.

Both executions had been in question as the inmates' attorneys and attorneys with the Oklahoma attorney general's office argued over which sedative should be used in Oklahoma's 3-drug, lethal injection cocktail.

Oklahoma's protocol for lethal injection is for the sedative to be administered first, followed by a drug that causes paralysis and stops breathing and then a drug that stops the heart.

There is a nationwide shortage of sodium thiopental, the drug Oklahoma had used as the sedative.

More of the drug will not be on the market until 2011.

Prison officials plan instead to use pentobarbital, a drug usually given in animal euthanasia and physician-assisted suicide in Oregon and the Netherlands.

Attorneys for Matthews and Duty argued the use of pentobarbital constitutes unconstitutional cruel and unusual punishment because it is unknown whether the anesthesia will mask the hurtful effects of the last 2 drugs.

"To be aware while being paralyzed is an awful experience," said Dr. David Waisel, who testified on behalf of the death row inmates. The 3rd drug used in the cocktail will cause a severe burning sensation if the anesthesia does not work properly.

Friday's hearing was largely testimony by 2 experts who disagreed, each calling the other's conclusions inaccurate.

Both experts did agree that pentobarbital never before has been used in executions.

Waisel testified the use of pentobarbital would make an already risky procedure more risky.

"We don't have knowledge about pentobarbital in a patient population like inmates," the anesthesiologist said. "We're in unknown territory, so we have to extrapolate. Often when we extrapolate, we're wrong."

Waisel acknowledged that enough pentobarbital would eventually cause unconsciousness and even death, but he said there is no accepted medical evidence on how much or how long the anesthesia would have to be administered.

The state's expert, Dr. Mark Dershwitz, said the 5 grams of pentobarbital called for by Oklahoma's procedure is more than enough to ensure inmates don't feel the effects of the last 2 drugs.

"5 grams of any barbiturate is an enormous overdose in all cases," the anesthesiologist said. "The 5 grams of pentobarbital will cause a person to stop breathing."

Half that amount would likely be lethal, Dershwitz added. Pentobarbital in the right dose will have the same effect it does in a euthanized animal.

"Certainly after 5 minutes, the person will be unconscious; certainly the person will not be breathing," he said. "After giving someone 5 grams of pentobarbital, the risk of them being conscious for the 2nd or 3rd drug is negligible."

Friot called Dershwitz testimony on the effect of a large pentobarbital dose "very persuasively explained."

Friot also noted Oklahoma's procedure requires a licensed physician be in attendance and that at least 5 minutes lapse from administration of the sedative to beginning the 2nd drug.

After court, attorneys for Matthews and Duty were readying exhibits for an appeal to the 10th U.S. Circuit Court of Appeals in Denver.

Although he was not named in the case heard Friday, Billy Don Alverson, who was convicted of killing a clerk during a 1995 convenience story robbery, was recently scheduled for execution on Jan. 6. The state has not said which sedative it plans to give Alverson.

Source: The Oklahoman, November 21, 2010

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