Sunday, July 8, 2007
Vague state law could lead to problems, experts say
By Jeff Martin
A new state policy on executions lacks crucial details, raising the specter that South Dakota could botch its first execution in 60 years, some experts say.
The policy, which took effect July 1, does not specify how much of each drug should be used. Such information is important in light of what's happened in other states, where executioners failed to put inmates completely under with an anesthetic.
In Ohio last year, an inmate raised his head up from a gurney as chemicals flowed into his veins during a failed attempt to put him under.
"Don't work, don't work, don't work," Joseph Clark moaned repeatedly, according to witnesses. It took an hour and a half to execute him.
The concerns are underscored by an April 24 study by researchers at the University of Miami's medical school. They found several problems with the method South Dakota intends to use at this week's execution of Elijah Page.
State officials almost killed Page last August with a drug concoction that didn't comply with South Dakota law. The new policy and a new law were supposed to correct the problems, but some say the changes could lead to horrific deaths.
South Dakota Attorney General Larry Long has said the state took every step to ensure the execution "is going to be done by the numbers, in accordance with the law."
The public has a tendency to believe that state officials are prepared to carry out executions in states which have the death penalty. The reality is that many are not ready, and executioners end up improvising procedures, said Deborah Denno, a law professor at Fordham University in New York.
"It is critical information, and typically when states don't provide that, it's because they either don't have anything in writing or they do something different for each execution, which is not proper," Denno said. "Therefore, every execution becomes sort of a mini-experiment."
This week, Page is to be executed at the South Dakota State Penitentiary. His lawyer, Mike Butler, said the public ought to know exactly how it will be carried out.
"Every one of the details should be available for any interested party to look at," Butler said, adding that, "I'm not suggesting that would change anything regarding Mr. Page."
"When someone is in a state of mind such as Mr. Page, I'm afraid that the details are not the difference to him," he said. "He's chosen to have his sentence carried out. ... He wants to die."
Among the potential problems: If a prisoner isn't completely unconscious, he will essentially suffocate to death, or feel an intense burning sensation, "something like being put on fire," said Dr. Leonidas Koniaris, a surgeon who co-authored the Miami study.
The researchers concluded that the three-drug protocol used here and in many other states is "deeply flawed."
Denno has done extensive research on the methods used to carry out executions in the U.S. In many states, she has found that "they sort of do it hit or miss and at the very last minute, in a really slap-dash, sloppy sort of way."
South Dakota's policy is more vague than ones used by other states. It was revised after Page's scheduled execution last summer was halted - hours before it was to have happened - because of a conflict between state law and prison policy. The law specified two drugs, but corrections officials had planned to use three.
Doctor isn't required in South Dakota
South Dakota's law also was changed during the past legislative session so that a doctor is not required to be on hand. The lack of doctors being involved heightens the potential for something to go wrong, Denno said.
Butler shares that concern.
"If there was something that occurred during the administration of the first drug and it didn't do what it was intended to do for some reason, there is no medical oversight, to my knowledge, that is provided for," Butler said.
"The problem arises because the American Medical Association has come out and informed its membership that they should not be involved in this process," he said.
Because of such concerns, states commonly use paramedics to carry out executions. With no requirement that a doctor be on hand for South Dakota's execution, the state policy calls for the county coroner to declare Page dead after he is executed.
Such questions about ill-equipped executioners and inconsistent policies should be cause for concern on both sides of the death penalty debate, experts say.
Denno found that 13 of 27 states in 2005 disclosed the quantities of the drugs to be used in executions. South Dakota's new policy does not specify this information. The state is not releasing such information ahead of Page's execution, Department of Corrections spokesman Michael Winder said.
South Dakota's policy also:
Lacks details on the training of executioners and others involved. It makes reference to a page from a federal appeals court ruling, but that document doesn't offer any specifics as to training, only that personnel should be "properly trained" to carry out the procedure.
Doesn't specify that drugs should be given according to a person's body weight, even though that's how they are used in a clinical setting. Though it is not mentioned in South Dakota's policy, Winder said Friday that an inmate's weight will be taken into consideration.
Specifies the use of Sodium Pentothal (a.k.a. Sodium Thiopental), even though an Oklahoma medical examiner who helped develop the chemical injection process now says an anesthetic called Diprivan would work much better. (The three drugs used in South Dakota and elsewhere haven't changed since the process was designed in Oklahoma in 1977).
Appears to contradict itself on whether executions are considered medical procedures. On one hand, it states that a lethal injection "is not considered the practice of medicine in South Dakota." On the next page, it discusses "each medical step of the lethal injection."
Does not state what to do if the inmate takes too long to die, or whether more drugs should be injected or how that should be done.
11 states have halted chemical injections
Winder said typical problems with lethal injection have been attributed to the improper establishment of an IV line. "Our policy requires us to use two IV's so that there is a designated backup line," he said in an e-mail.
Nationwide, 11 states have suspended the use of chemical injections after opponents said the methods are cruel and ineffective.
In Florida, Gov. Jeb Bush put a moratorium on all executions after the December death of Angel Nieves Diaz, who required extra chemicals and twice as long to die. An autopsy found that the injection needle had been stuck through the man's vein and into his flesh.
In California, state officials unveiled a new execution plan in May after a federal judge highlighted several flaws in the process. California's new policy requires that inmates be monitored by electrocardiogram (South Dakota's policy does not state whether such a device will be used); the execution team will consist of a minimum of 20 members; and someone will be in charge of making sure the inmate is unconscious after injection of the first drug.
While the drugs used for injections have been widely criticized in many states, the method has its supporters. The Criminal Justice Legal Foundation, which supports the death penalty, features on its Web site an article by a Texas state lawmaker who is also an anesthesiologist. He says the concerns about pain and suffering are overblown.
Butler isn't sure exactly how the process will unfold this week, partly because it's not spelled out in detail in law or state execution policy.
"I hope it's done as intended so that he doesn't suffer," he said.
This story includes reports from the Associated Press. Jeff Martin can be reached at 331-2373.