On Death Row, a
Battle Over the Fatal Cocktail
New York Times
By ADAM LIPTAK
September 16, 2004
FRANKFORT, Ky. - Edward L. Harper, the
last man to be executed in this state, took 12 minutes to die.
Observers on that spring evening in 1999 said he looked tranquil
as an executioner pumped a series of three chemicals into him
- a barbiturate to make him unconscious, then a paralyzing agent,
and then a chemical used in road salt, to stop his heart.
The next morning, a state medical examiner
performed an autopsy. She noted, among many other things, that
Mr. Harper's heart weighed 420 grams and that he was wearing a
cloth scapular when he died. It said, "Whosoever has this
shall not suffer eternal fire."
The examiner's report also determined the
levels of the lethal-injection chemicals in Mr. Harper's blood,
drawn from three places in his corpse.
Now, as two other Kentucky inmates face
execution, their lawyers say those numbers prove that Mr. Harper
was tortured to death. They say that the drug meant to make him
unconscious did not work, meaning the other two drugs subjected
him to suffocation and searing pain while he was wide awake but
unable to move or speak. In a suit filed in Circuit Court here
in August, they have asked a judge to halt their clients' executions
as cruel and unusual punishment.
Opponents of the death penalty have filed
challenges to the three-chemical combination used in Kentucky
and about 30 other states in recent years. But those cases were
based on speculation about the drugs' effects, and judges have
dismissed many of them on procedural grounds or because medical
experts assured them that the first drug was certain to produce
unconsciousness and perhaps be lethal itself.
The information in the Harper autopsy and
in similar data from two other states radically changes the debate
over the humanity of the standard lethal injection chemicals,
lawyers for the inmates here say. What had before been only a
theoretical concern, they contend, turns out to be provable fact.
David Smith, an assistant attorney general,
declined to comment on the suit. The state has not yet filed a
response in court.
There is no serious dispute that the first
drug, if administered properly, should be adequate to render inmates
unconscious for hours.
"If we have a working I.V. and the
right drugs are given in the right order, I can absolutely guarantee
that there is no suffering," said Dr. Mark Dershwitz, a professor
of anesthesiology at the University of Massachusetts and an expert
in the effects of drugs. "The recipe itself is medically
But doctors are forbidden to participate
in executions in Kentucky and many other states, and prison personnel
are generally untrained in preparing and injecting drugs.
In an affidavit supporting the Kentucky
inmates, Dr. Mark J. S. Heath, an anesthesiologist who teaches
at Columbia University, wrote that there were countless ways for
prison personnel to fail to deliver the first drug properly. Among
them, Dr. Heath wrote, are mistakes in mixing the drug, which
is stored as a powder; problems with intravenous tubes; and the
possibility that "the drug may be diluted or diverted by
personnel intending to use it for purposes of substance abuse."
Earlier challenges have focused on the
second drug in the typical sequence, pancuronium bromide. It paralyzes
the skeletal muscles but does not affect the brain or nerves.
A person injected only with it remains conscious but cannot move
or speak as he suffocates.
Nineteen states prohibit the chemical in
the euthanasia of animals.
"They couldn't kill my dog Hunter
this way in Kentucky," said Ted Shouse, a lawyer for the
two inmates, Ralph Baze and Thomas C. Bowling. Mr. Baze killed
a sheriff and a deputy in 1992. Mr. Bowling killed a couple and
hurt their infant son in 1990.
Some judges have said they are troubled
by the use of pancuronium bromide, which makes the inmate appear
serene but could in theory mask intense pain. Last year, a Tennessee
judge wrote that the chemical "serves no legitimate purpose"
in executions and is used only to make them "more palatable
and acceptable to society" by masking the sounds and seizures
that often accompany even painless death.
But the judge, Ellen Hobbs Lyle of Chancery
Court in Nashville, said objections to the chemical were "hypothetical
and metaphysical," because the first drug, a short-acting
barbiturate called sodium thiopental, makes inmates unconscious
while the paralyzing agent does its work. An autopsy conducted
on Robert G. Coe, executed in Tennessee in 2000, the judge wrote,
proved that the five grams of sodium thiopental he received first
had rendered him unconscious and probably killed him before the
other chemicals did their work.
But the level of sodium thiopental found
in Mr. Harper's body tells a different story, lawyers for the
Kentucky inmates say. Using standards submitted by a prosecution
expert in other cases, lawyers for the death row inmates here
say there is a 67 percent to 100 percent chance that Mr. Harper
was conscious while he suffocated and felt the pain caused by
the third drug, potassium chloride, which stopped his heart. The
varying numbers are based on the three different blood samples.
Dr. Dershwitz, the prosecution expert who
developed the standards that the Kentucky inmates now rely on,
said the levels of barbiturate found in Mr. Harper's body, which
varied from 3 to 6.5 milligrams per liter, were potentially troubling.
"The blood level should be a lot higher
than seven," Dr. Dershwitz said. That is the level, he said,
at which about 50 percent of people are conscious and 50 percent
He said he needed more information about
how the autopsies were conducted. "The level of 6.5 for heart
blood may or may not have been obtained and processed in a state-of-the-art
way," he said. "Until we know, that number is just uninterpretable."
Executions in two other states have also
raised concerns. Autopsies were conducted by state medical examiners
after 23 executions in South Carolina and 11 in North Carolina.
Under Dr. Dershwitz's standards, the Kentucky inmates' lawyers
say, there was a 50 percent or greater chance that eight of the
condemned men were conscious throughout their executions. In one
of those cases, the likelihood was 90 percent. In four, it was
Dr. Dershwitz noted that the drug is typically
put into 500 milligram syringes, with four needed for the required
"One of the possibilities is that
instead of injecting four of these syringes they injected one,"
he said. Some legal experts say the debate over lethal injections
misses a crucial point - that some punishment is meant to be painful.
"Is there something short of torture
- a painful death - that can be acceptable morally and constitutional?"
asked Robert Blecker, a professor at New York Law School. "My
answer is yes. Where the condemned has intentionally inflicted
pain, the condemned deserves a quick but painful death."
Whatever the reason for the low barbiturate
levels in Mr. Harper's blood, opponents of the death penalty say
the three-chemical combination is needlessly complicated and risky.
Veterinarians, by contrast, typically euthanize
animals with a single large dose of a longer-acting barbiturate
called sodium pentobarbital.
Susan Balliet, who also represents Mr.
Baze and Mr. Bowling, along with a third lawyer, David M. Barron,
refused to say whether the veterinary method was more humane.
"It's not our job to try to figure
out how to kill our clients," Ms. Balliet said. "If
they come up with something that is not cruel and unusual punishment
under the Eighth Amendment, we will settle this lawsuit."