How Does It Feel?

Recent lawsuits puncture the veil of secrecy surrounding lethal injection

Condemned to die for the 1983 shooting death of Travis Walker, today Emmitt Foster is known as much for his punishment as for his crime. At 12:03 on the morning of May 3, 1995, executioners for the Missouri Department of Corrections gave Foster a large dose of the short-acting anesthetic commonly known as sodium pentothal — the first of three chemicals the state uses to perform lethal injections.

Witnesses to the execution would later report that seven minutes after receiving the anesthetic, Foster was conscious and gasping for breath. At that point the blinds were lowered, concealing the execution chamber. It wasn't until nearly half an hour later, at 12:36 a.m., that prison officials opened the blinds, announcing that Foster had died three minutes earlier.

Foster's death is receiving fresh scrutiny thanks to its inclusion in a lawsuit filed in a St. Louis federal court last month. Brought on behalf of four Missouri death-row inmates, all of whom were convicted of murder, the suit alleges that the state's method of lethal injection is unconstitutional and that there is a "substantial risk that [condemned prisoners] will suffer excruciating pain during their executions."

joshua hagler

Lawyers representing inmates Reginald Clemons, Richard Clay, Jeffrey Ferguson and Roderick Nunley are quick to point out that the suit does not seek to challenge the constitutionality of the death penalty. They question the means, not the end.

"We've seen time and time again that these executions aren't happening the way the state or their experts say they are," explains Jill O'Toole, an attorney with the New York-based law firm Simpson, Thacher & Bartlett, which represents Clemons. "We're basically advocating that they come up with a very deliberate execution process that reflects some kind of consideration by medical professionals."

Officials in Missouri and most of the other 36 states that execute inmates via lethal injection have long attempted to keep their protocols secret, but recent cases have begun to pull back the veil.

In Missouri as in most states, lethal injection is a three-step process: The anesthetic sodium thiopental (sodium pentothal) is administered, followed by pancuronium bromide (commercially known as Pavulon), which induces paralysis; last comes potassium chloride, a salt that triggers cardiac arrest. Each chemical is injected in a theoretically lethal quantity — i.e., any one of them, used by itself, is sufficient to kill a person. The doses of pancuronium bromide and sodium pentothal would cause death by suffocation after a period of time; potassium chloride instantly stops the heart.

Rarely used in today's operating rooms, sodium pentothal is known to induce unconsciousness quickly, but only for a short duration. Inmates' lawyers have argued that if it isn't administered correctly, a prisoner might awaken later in the process, fully conscious but paralyzed by the Pavulon and unable to communicate.

"The worst-case scenario is that you get a subanesthetic dose of thiopental and a paralyzing dose of pancuronium," explains Mark Heath, an anesthesiologist at Columbia University who has testified as an expert witness at many trials. "You would experience the torment of suffocation and conscious paralysis, and then the agony of the burning potassium chloride."

Once thought to be the legal equivalent of a Hail Mary pass, the strategy of challenging lethal-injection protocols has been employed more than forty times nationwide over the past two years. This is the fifth such challenge in Missouri, where inmate Timothy Johnston first raised the issue in 2004. (Johnston's unsuccessful suit was the basis for "Uncomfortably Numb," a December 15, 2004, Riverfront Times feature story that traced the origins of the three-drug sequence and how it became widely accepted. A follow-up story, "Numb and Number," appeared in this paper's October 12, 2005, edition.)

"Of the five executions in 2005, four of those inmates raised this same issue. Each time in those instances the courts ruled in our favor," says John Fougere, press secretary for Missouri Attorney General Jay Nixon and former spokesman for the state's corrections department. "Our position is that we've successfully defended in the past, and will continue to do so, that Missouri's method of execution and lethal-injection system is constitutional."

Recently, however, the legal tide appears to have shifted. Last week the U.S. Supreme Court heard oral arguments in a related case. Hill v. McDonough is a Florida case that involves a seemingly narrow question: whether a legal challenge of lethal-injection protocols is a civil rights matter or an issue that must constitute part of a prisoner's appeals process. If the state of Florida prevails, Hill and others who challenge execution protocols will be constrained by congressionally mandated limitations on so-called habeas corpus appeals. The case prompted Florida Governor Jeb Bush to announce that he would sign no more death warrants until the issue is resolved.

Nationwide, courts have stayed eight executions after inmates challenged the three-chemical sequence as cruel and unusual punishment, according to Richard Dieter, executive director of the Death Penalty Information Center, a Washington, D.C.-based nonprofit critical of capital punishment. Among those is the case of Missouri inmate Michael Taylor, whose stay of execution was upheld by the U.S. Supreme Court. Last week a panel of federal judges sent Taylor's case back to federal court in Kansas City for a new hearing.

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