Uncomfortably Numb

Lethal injection looks painless and peaceful. On Missouri's death row, appearances can be deceiving.

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."

Susan Sanford
Jennifer Silverberg

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."

Additionally, Denno says, the culture of secrecy that surrounds lethal injection has made it difficult for lawyers to dispute protocols. "These drugs were challenged immediately, but the attorneys at the time didn't know much about the drugs," says Denno. "The more we know about lethal injection, the more we realize how little they know. That's the irony. I think that's why they don't want to give information -- they know it can only mean trouble for them."

In a recent case, a Tennessee judge upheld the state's right to execute an inmate by lethal injection, in part because of the method's widespread use. Nonetheless, Judge Ellen Lyle found that there wasn't "any need whatsoever for the injection of Pavulon" and that, "if anything, Pavulon was included by the state out of ignorance and by just copying what other states do."

Lyle went even further, addressing Pavulon's aesthetic, as opposed to anesthetic, value: "The chemical veil [of Pavulon] taps into every citizen's fear that the government manipulates the setting and gilds the lily, whether it be with reporting on the economy or election results, to orchestrate and manipulate public reaction."

Texas state senator and anesthesiologist Kyle Janek concedes that he doesn't know of any research on the precise effects on the human body of high doses of sodium pentothal and Pavulon. Other than pronouncing death, physicians are ethically barred from participating in executions. Accordingly, anesthesiologists have not studied how best to execute people. "The way you find out all of this is you do a study," Janek says. "But we can't do a study, because we would have to kill people."

Veterinarians, on the other hand, have been studying how to humanely euthanize animals for decades. In a report published in 2001, the American Veterinary Medical Association (AVMA) condemned the chemical combination of sodium pentothal and Pavulon for animal euthanasia. Similarly, Missouri veterinary regulations prohibit the barbiturate/Pavulon sequence.

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