Uncomfortably Numb

It didn't take long for detectives to find Nancy Johnston's killer. Summoned to her south St. Louis home in the early hours of June 30, 1989, officers stepped into the shattered living room and found Timothy Johnston crouched over his wife's half-naked body.

The murder was particularly gruesome -- large patches of the victim's hair had been wrenched so violently that a portion of scalp had peeled from her skull, and nearly every rib was broken. Two years later a state court sentenced Timothy Johnston to die by lethal injection. Over the next decade both the Missouri Supreme Court and a federal appeals court upheld the conviction. By May 2002 the question no longer was whether Timothy Johnston would be executed, it was when.

But now lawyers for Timothy Johnston are seeking to challenge all of that. In a federal lawsuit filed earlier this year, Johnston's attorneys argue that Missouri's method of lethal injection will inflict "cruel and unusual punishment," in violation of the Eighth Amendment of the U.S. Constitution.

Prompted by a handful of similar lawsuits and a recent nationwide study regarding the chemicals used in lethal injection, Johnston's lawyers contend that the second drug in Missouri's three-chemical sequence may render Johnston completely paralyzed but fully conscious and susceptible to pain. They say that the chemical, which has no anesthetic properties, could enshroud Johnston in a "chemical veil" -- leaving him unable to move, cry out or communicate in any way as he slowly suffocates, "consciously [suffering] an excruciating painful and protracted death."

The chemical, pancuronium bromide -- known commercially as Pavulon -- is a muscle relaxant commonly used to immobilize patients during surgical procedures. In Missouri and most of the 30-odd states that execute criminals by lethal injection, Pavulon is administered after an initial dose of the short-acting barbiturate sodium pentothal. The two drugs are followed by an injection of potassium chloride, which causes cardiac arrest.

"The worst-case scenario is that you wake after a sub-anesthetic dose of sodium pentothal. [You've already received] a paralyzing dose of Pavulon -- and experience the torment of suffocation and conscious paralysis -- and then the agony of the burning potassium chloride," says Mark Heath, an anesthesiologist at Columbia University Medical Center in New York. "There are abundant examples of people who wake up in the middle of surgery feeling everything -- having the full experience of pain and terror, but [because of the Pavulon] are unable to communicate in any way that they're awake."

Inmate challenges to capital punishment are nothing new, and attorneys for the state maintain that judges have consistently upheld the constitutionality of the death penalty and how it is carried out. To them, Johnston's challenge is little more than a clever attempt to elude a sentence multiple judges have affirmed.

But while previous lawsuits relied on eyewitness accounts of "botched" procedures or questioned whether prison workers were competent to serve as humane executioners, Johnston's lawyers are challenging the drugs themselves -- a topic that has received little scrutiny in lethal injection's 27-year history. Johnston's attorneys, backed by a growing cadre of death-penalty experts, maintain that while advances in medical science have yielded an arsenal of more humane drugs, corrections departments continue to rely on an archaic method unchanged since lethal injection was introduced in 1977. The combination of barbiturates and Pavulon has been publicly condemned by the American Veterinary Medical Association for euthanizing animals, and Johnston's attorneys argue that its use on humans "violates contemporary standards of decency."

Unlike many earlier challenges, Johnston's attorneys aren't questioning the state's right to execute their client.

"We're not saying you can't kill him," says Michael Gorla, Johnston's lead attorney. "We're just saying you can't kill him this way."

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With its syringes and serenity, the lethal-injection procedure can appear almost surgical. Many observers have noted condemned prisoners' apparent stillness during life's last moments -- a far cry from the spectacle of the gallows.

"Without question this is, in my opinion, extremely humane in comparison to either electrocution or execution by the inhalation of poisonous gases," wrote University of Oklahoma anesthesiologist Stanley Deutsch in a letter to Oklahoma state senator Bill Dawson dated February 28, 1977.

A year earlier the U.S. Supreme Court had reinstated the death penalty. There was mounting public interest in the possibility of televised executions, and Dawson, intrigued by the possibility of a humane and perhaps less costly method, had asked the anesthesiologist to draw up a formula for the nation's first lethal-injection cocktail. "I can assure you," Deutsch concluded in his response to Dawson, "that this is a rapid, pleasant way of producing unconsciousness."

Oklahoma wasted little time in adopting Deutsch's recommendation: a large dose of sodium pentothal followed by a large dose of Pavulon. When the state enacted the nation's first lethal-injection statute on May 11, 1977, a third drug had been added: potassium chloride. Texas followed suit with its own lethal-injection statute the next day, and by 1981 five states had similar protocols on the books. Missouri adopted its first lethal-injection protocol, signed into law by then-Governor John Ashcroft, in 1988. At present, the method is used by all but one of the 38 states that execute inmates. (Nebraska uses the electric chair.)

The American Medical Association has publicly condemned physician involvement in lethal injection. Deutsch's participation notwithstanding, it is unlikely that physicians have played an active role in crafting lethal-injection protocols. Instead, death-penalty experts say, many states settled on lethal-injection protocols by consulting with other states, or by simply copying. "Correctional officers certainly traveled from one state to another as the issue came up," says Richard Dieter, executive director of the Death Penalty Information Center, a Washington, D.C.-based nonprofit critical of capital punishment. "Prisons invited people down to Texas to watch, and of course Texas was regularly carrying these things out, so you could probably witness one."

Today, according to a study published in the Ohio State Law Journal, 27 of the 37 states that use lethal injection employ Oklahoma's original combination. "Deutsch's recommendations of specific drugs [are] incorporated in all of the latest lethal injection protocols," writes Deborah Denno, a Fordham University law professor who authored the 2002 study of how states adopt and alter execution methods. "It is not clear how or why this chemical combination has persisted."

Denno is quick to add that in many states, the specifics remain a mystery. Many states refuse to disclose their protocols or how they arrived at them. According to her study, nineteen states make their protocols publicly available, twelve states (including Missouri) keep their protocols partially private and another five states keep them completely confidential.

"Most of these protocols provide an enormous amount of detail about how to get the prisoner to the execution room: what time he leaves the cell, things like that. But as soon as he leaves that cell, there's nothing -- there's nothing available," says Denno, a self-described opponent of the death penalty who specializes in the legislative history of capital punishment. "They don't specify what drugs they are going to use."

Citing security concerns, officials from the Missouri Department of Corrections declined interview requests for this story. The department has also declined several requests to make its lethal-injection protocols public. In fact, Missouri's lethal-injection statute doesn't require a protocol at all. But various court documents, as well as interviews conducted for this story, indicate that soon after adopting lethal injection as its means of execution, Missouri became the first of several states to purchase a so-called lethal injection machine manufactured by Massachusetts-based Fred A. Leuchter Associates, Inc.

Leuchter's machine specified Oklahoma's sequence of sodium pentothal, Pavulon and potassium chloride. Leuchter, who had no pharmacological training, says he gauged the chemical quantities he called for by extrapolating from lethal dosages for farm animals. "They did it with pigs and rabbits. I had to increase the body weight to get to a human being," Leuchter says today. "The only thing I didn't do was they wanted me to execute a pig. I refused to execute a pig. I wound up executing a watermelon for them."

Soon after Missouri purchased its machine from Leuchter, the inventor's reputation began to crumble. On July 20, 1990, Alabama assistant attorney general Ed Carnes addressed a letter to all states with capital-punishment statutes on the books. "The purpose of the memo was to suggest that, because he has a degree in history rather than engineering, Fred Leuchter [was] not qualified as an expert in execution technology," writes Stephen Trombley in The Execution Protocol: Inside America's Capital Punishment Industry.

Leuchter, who says he does indeed hold an engineering degree, was also the subject of Mr. Death: The Rise and Fall of Fred A. Leuchter, Jr. , a 1999 feature by documentary filmmaker Errol Morris. The film traces Leuchter's involvement with execution technologies, including his eventual fall from grace when he published the infamous "Leuchter Report," a monograph that denies the existence of gas chambers at Auschwitz.