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."
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.
Missouri corrections spokesman John Fougere says the state stopped using Leuchter's machine "in the early '90s" and now employs prison workers to manually administer the chemicals. The mix, Fougere confirms, consists of sodium pentothal, Pavulon and potassium chloride, injected in that order.
"It's a surprising and bizarre choice of drugs," says Columbia University Medical Center anesthesiologist Mark Heath. "The goals of the procedure are to render the inmate dead and to do so in a humane fashion. These drugs are poorly selected to achieve these goals -- particular the latter goal."
Heath, who has testified in court and before the Pennsylvania legislature about the chemicals' effects, says it's the combination of Pavulon with the first drug, sodium pentothal, that particularly troubles him. "If you were using a long-acting barbiturate, it wouldn't matter as much," says Heath, who declines to divulge his stance on the death penalty. "But with an ultrashort-acting barbiturate, you can give them enough to fall asleep and they can wake up right away."
Doctors use sodium pentothal to quickly induce anesthesia. The drug affects the body in a matter of seconds, and anesthesiologists estimate that a normal dose wears off in fewer than ten minutes. That way, if something goes wrong early in a surgical process, the patient can quickly be revived. To maintain anesthesia for longer periods of time, physicians subsequently administer a long-acting barbiturate. During sensitive operations in which patients must be kept immobile, Pavulon is also used.
In some instances, patients have awakened during surgery. "There are reports of patients who will tell you after an operation what was said during surgery," notes Walter Boyle, a professor of anesthesiology at Washington University's School of Medicine. And woe to the patient in such circumstances who has been given Pavulon. "You can just imagine how horrible it would be, because once they inject you [with Pavulon], you can't move or breathe without a respirator," says Boyle. "Who knows what that's like -- what your body does with that information?"
Carol Weihrer of Reston, Virginia, knows exactly what it's like. "I was fully awake and aware for between forty minutes and two hours while my right eye was surgically removed," Weihrer asserted in a written statement to the Pennsylvania House of Representatives on August 25 of this year. Weihrer testified that though anesthesiologists gave her an induction dose of sodium pentothal, they neglected to give her a longer-acting barbiturate. She awoke on the operating table, paralyzed.
"I remember the intense pulling on my eye, the spine-chilling instructions of the surgeon to the resident to 'cut deeper here, pull harder; no pull harder, you really have to pull.' I remember fighting with every ounce of energy and thought process I had to let the surgical team know I was awake," Weihrer testified. "I remember wondering if I were following the heat of the proverbial light to Heaven (since they had removed my eye) or whether I were lying on the coals of Hell -- and the most haunting to me, a person of great faith, to this day the willingness to sell my soul just to get off that table."
But while patients have awakened during surgery, anesthesiologists say it's an exceedingly rare occurrence -- and one that becomes less likely with higher doses of sodium pentothal. "Those are typically ill patients who you have to give a very low level of anesthetic," says Kyle Janek, an anesthesiologist who's also a Texas state senator. "You're going to hear that testimony. But it is never in the context of someone who's had [a much larger] dose of [sodium] pentothal."
Of the nine states that specified dosages in Deborah Denno's 2002 study, Montana administers the smallest dose of sodium pentothal: 500 milligrams -- or roughly twice the typical surgical dose for a 180-pound person. California and North Carolina administer the most: five grams -- or twenty times the typical surgical dose.
"The idea that someone's awake after receiving that dose just makes no sense whatsoever," says Janek, who supports the death penalty. "The simple, irrefutable hard fact is that combination of barbiturates and neuromuscular blocking agents have been the staple of anesthesiology in this country for decades. If what they're saying is that what we're doing is cruel and unusual to the 80 to 90 patients in our operating room a day, well, then that would be a real story: We've got a litigation problem on our hands."
After a meal of shrimp, catfish, French fries, a strawberry milk shake and lemon meringue pie, Emmitt Foster was strapped to a gurney and became the twelfth person to die by lethal injection in Missouri. The year was 1995 and Foster had been condemned for murdering his softball teammate, Travis Walker, during a 1983 robbery.
The night before his execution, everything went as planned. Foster had no visitors. He invited no witnesses.
But seven minutes after technicians began the lethal-injection process, the death chamber went black.
"I could see that he was still breathing," recalled Brad Farrell, a reporter for the Missourinet radio network, in a subsequent newspaper article. "Foster was gasping, slightly convulsing when the blinds were drawn."
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.
Three minutes later the blinds were reopened.
"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."
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.
The AVMA recommends euthanizing animals with a massive overdose of a long-acting barbiturate. Anesthesiologist Mark Heath says the same logic should apply to humans. "As long as you give them enough of the barbiturate to fall asleep, they're going to stay asleep," says Heath. "When you're unconscious, nothing can be cruel.
"Veterinarians favor [euthanasia] protocols that have relatively error-resistant choices of drugs," Heath goes on. "So that even if you don't give enough, the animal is not going to wake up. Veterinarians have been thinking about this for a long, long time, and they've come up with sophisticated, reasonable and error-resistant ways of doing it. Lethal injection on humans has not been afforded that same level of scrutiny and consideration, and that's what it suffers from."
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