Uncomfortably Numb

According to a 1997 survey conducted for the Florida senate by the Committee on Criminal Justice, the Missouri Department of Corrections estimates that it takes an average of fifteen minutes from the time a condemned prisoner's arms and legs are bound to the gurney to the time the inmate is pronounced dead. In Emmitt Foster's case, one leather strap was cinched too tight, impeding his blood flow. It was not until twenty minutes after the chemicals had begun to flow that prison workers loosened the strap. Washington County coroner William "Mal" Gum pronounced Foster dead 29 minutes after the first chemical entered his veins.

"It's not like the guy suffered," Gum told reporters, terming the delay "a little error." But the execution quickly became a cause célèbre among death-penalty opponents. An editorial in the St. Louis Post-Dispatch termed Foster's death "a particularly sordid chapter in Missouri's capital punishment experience," and inmates on death row quickly filed a class-action lawsuit seeking an injunction.

The suit was unsuccessful. From 1989 to 2003, the state executed 61 inmates by lethal injection. (State statutes continue to allow lethal gassing, but the last inmate to die by that means was Lloyd Leo Anderson, in 1965.) Today 56 inmates remain on Missouri's death row, although no execution dates are currently pending.

Michael Gorla, an attorney for Timothy Johnston, has filed papers in federal court requesting that the corrections department divulge its execution protocols. So far, has gotten nowhere. "The only thing I've found is the sequence of sodium pentothal, pancuronium bromide [Pavulon] and potassium chloride," reports Gorla, who is representing Johnston along with co-counsel Christopher McGraugh.

Scott Holste, a spokesman for the Missouri Attorney General's Office, declines to comment about the case beyond offering that "Johnston has gone through the court system. He has had literally dozens of judges who have either looked at his case directly or have determined that there is not a need to look at his case. So this challenge to the constitutionality of the death penalty would seem to be a way for him to try to get a second bite at the apple."

The state's lawyers have filed a motion to dismiss the case, arguing that Johnston's claim should have been brought to the court during his final appeal and that he should not be permitted to file a civil-rights lawsuit. The state's filings make little mention of Pavulon.

Johnston's attorneys say the fact that they are suing before the state sets an execution date is significant. "Once an execution date is set, the perception is that any filing is out of desperation," McGraugh notes. "Obviously we think there's a good-faith basis for this lawsuit. We really want to litigate this issue."

Similar challenges to lethal injection have foundered on technicalities. Courts have judged that inmates brought their cases too early (as part of the appeals process) or too late, after an execution date had been set. "[The timing] makes his case immediately more favorable than any of the others," says David Dow, a professor at the University of Houston Law Center who represents inmates on death row. Dow estimates that a dozen similar cases have been filed this year nationwide. So far none has been successful. "Despite that fact," says Dow, "there hasn't been a single court that's decided -- that has actually decided -- that the execution could go forward because there was no constitutional violation."

U.S. District Judge Donald J. Stohr is expected to rule on the state's motion to dismiss Johnston's case within the next few weeks.

Legal observers doubt the courts will declare Missouri's lethal-injection method unconstitutional. "The courts are in a difficult place," says the Death Penalty Information Center's Richard Dieter. "If they rule that lethal injection is cruel and unusual -- that it is unknown what really happens -- and you have no [more humane] alternative in place, then the courts are essentially throwing out the death penalty. I don't know if there are too many courts that are ready to do that."

It remains unclear why Dr. Stanley Deutsch chose Pavulon for his original formula. (Deutsch could not be reached for comment for this story.) The drug has no anesthetic properties. Advances in medical science have produced drugs that would be more effective in executions. Yet states continue to use Pavulon.

"The science has evolved on this as medical science will," says Richard Dieter. "But corrections officers aren't aware of all that, so they stick with whatever protocol they started with, whereas doctors learn that there are new drugs, there are side effects to old drugs. Things go out of the operating room in twenty years. But they haven't left the execution chambers."

Fordham's Denno sees another phenomenon at work. "It's a pack mentality," she says. "If you're in a minority of states with a method of execution, that can constitute an Eighth Amendment challenge. If only two states have it, you become vulnerable."