Some states listen, will Georgia?
By Vicky Eckenrode | Morris News Service | Story updated at 10:41 PM on
Saturday, July 21, 2007
ATLANTA - Had Troy Anthony Davis not received a last-minute stay last week, he would have become the 18th inmate Georgia has put to death through lethal injection.
More and more defense lawyers representing those on death row are taking up the national arguments against lethal injection, arguing that it still constitutes cruel and unusual punishment even if it appears to be less painful than other methods.
Davis was scheduled to die Tuesday for the 1989 killing of off-duty Savannah police officer Mark Allen MacPhail.
The state Board of Pardons and Paroles decided late Monday to delay the execution for up to three months as they review testimony from supporters and former witnesses who have recanted their testimonies against Davis.
Davis' attorneys have focused their arguments on those witness reversals, but an increasing number of death-penalty appeals are being pinned solely on attacking the execution process.
Meant to be a less gruesome way to die, the deadly chemicals replaced the electric chair in 2001 as Georgia's means of execution.
"It is a bizarre combination of drugs that everybody seems to have signed onto, but no one's given much thought to the type of horrors it could be implementing on someone," said defense attorney Jack Martin, who has been involved with about 30 death-penalty cases in Georgia.
Martin represented John Hightower, the latest Georgia condemned inmate to die by lethal injection. Hightower was executed a month ago for the murders of his wife and two stepdaughters.
Martin pointed out that several states have begun taking a closer look at their lethal injection programs after some high-profile problematic executions, with some even temporarily suspending their executions during the studies.
Twenty-six death-row inmates nationally received stays in their executions since the beginning of 2006 based at least in part on their challenges of lethal injection, according to the Death Penalty Information Center.
Defense attorneys in Georgia have not had the same response.
"There's not much reaction so far in Georgia," Martin said.
Out of the 38 states with the death penalty, 37 can use lethal injection; Nebraska relies solely on the electric chair.
Most states, including Georgia, use a similar three-drug cocktail when executing someone by injection.
The first, the fast-acting anaesthic Sodium Pentothal sedates a prisoner and is intended to keep him from feeling pain. Next, a paralyzing drug, such as Pavulon, is administered, which stops the breathing muscles and keeps the inmate from moving around or flinching while dying. The final chemical, potassium chloride, causes cardiac arrest, killing convicts by stopping their hearts.
The basis for many challenges is that the combination of the anesthetic sedative and muscle paralyzer make it nearly impossible to tell what inmates feel as they die.
Even in executions where there have not been visible signs of distress, the paralyzing drug could be masking pain if the sedative has unexpectedly worn off, critics charge.
"If the anesthesia doesn't get into the vein ... the paralyzing agent will make them feel like they're suffocating and the potassium will feel like your veins are on fire," said Sarah Tofte, a researcher for the anti-death penalty group Human Rights Watch. "If those are the things that they're feeling, it would be an excruciating way to die."
Lawyers have tried to pitch those arguments to Georgia Supreme Court justices in several death-penalty appeals with little success.
One of those cases was an appeal last year on behalf of Joseph Williams, who was convicted of strangling another inmate while being held at the Chatham County Jail and trying to make it look like a suicide. Williams had been convicted of other murders in the past and was sentenced to the death penalty.
David Lock, chief assistant district attorney for Chatham County, recalled the case last week and said the state's lethal injection process did not equal cruel and unusual punishment, a claim that has been backed by other Georgia court decisions.
"The drugs put you to sleep, and in fact, probably put you to death just through the anesthetic," Lock said. "You're given a couple of drugs to follow it up. I believe it to be a painless proceeding."
The state's highest court has so far agreed that there has not been evidence to show lethal injection is cruel or unusual punishment.
That's how the court ruled in the Williams case, as well when similar arguments were raised for convicted murderer Gregory Walker Jr., a Brunswick man found guilty of shooting a woman he said stole from him.
However, judges and elected officials in a handful of other states have either ordered an official moratorium to executions or are issuing stays in death sentences to allow for closer study of lethal-injection programs.
Florida is set in October to hold its first execution since putting its program on hold after a botched execution last year that raised questions. The process took longer than usual and required two rounds of drugs to execute Angel Diaz, who was found guilty in the shooting death of a bar manager during a robbery.
Advocates said the improper procedures in Diaz's death, in which a needle went past his vein and prevented sedatives from getting into his bloodstream, highlight the need to look at better ways to administer lethal injection.
"It may be more humane than electrocutions," Tofte said. "But that's not what the test is."
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