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Questioning the myth of a painless execution

Austin American-Statesman, December 2003

Questioning the myth of a painless execution It was execution 33 that sent death row chaplain Carroll Pickett to a therapist in 1989.

He sought help not because Carlos DeLuna, 27, behaved more like a frightened, withdrawn teenager than a hardened killer. Nor was it that the 9th-grade dropout had taken to calling him "Daddy." It was Carlos' pulse. It didn't stop.

In the 32 executions Pickett had witnessed before that one, the condemneds' pulses had stopped before the second lethal chemical was injected into their veins. Carlos' pulse continued after the first drug and anesthesia sodium thiopental flowed through one of the young man's veins. Pickett could feel Carlos' pulse as he clutched his ankle and stared into his big brown eyes, which never blinked. Carlos' ankle jerked after the 2nd lethal drug, pancuronium bromide, dripped into another vein. His eyes remained open. The pulse kept throbbing until a 3rd drug kicked in.

Pickett sought out a Dallas therapist because he believed Carlos endured an agonizing death due to the use of pancuronium bromide, which is outlawed in Texas for euthanizing animals in shelters. If he is right, Carlos was awake as the pancuronium bromide collapsed his diaphragm and lungs; conscious as a 3rd drug -- potassium chloride -- shut down his heart.

As prison chaplain from 1980 to 1995, Pickett led dozens of inmates through the death routine, always assuring them it would be quick and painless. Of the 95 men Pickett prepared for execution, he is most haunted by one: Carlos DeLuna.

Pickett believes Carlos was conscious, though he didn't call out. Fourteen year later he knows why: Medical experts now say pancuronium bromide, a neuromuscular blocking agent, can veil the suffering it unleashes. Carlos was sentenced to death for robbing and killing 24-year-old Wanda Jean Lopez, a clerk at a Corpus Christi service station.

Dr. Mark Heath, a professor of clinical anesthesia at Columbia University, likened the drug to a "chemical veil" that masks suffering of people who aren't fully sedated during surgery or executions. Here's how he described the drug's effects in an affidavit for a Texas inmate who is challenging the state's use of the drug in lethal injections:

"Pancuronium bromide makes the patient look serene because of its paralytic effect on the muscles. The face muscles cannot move or contract to show pain and suffering. It therefore provides a chemical veil over the proceedings.

"There are significant risks that the inmate in Texas' lethal injection procedure will not be rendered unconscious by the sodium thiopental (anesthesia) and will therefore experience the psychologically horrific effects of pancuronium bromide."

The drug was controversial before Texas death row inmate Tomas Gallo filed his challenge to it in November. The American Veterinary Medical Association several years ago condemned use of pancuronium bromide to euthanize animals, saying it was inhumane. The Texas Legislature this year came to a similar conclusion. It passed a bill that makes it illegal for animal shelters to use pancuronium bromide to put down a dog or cat. Even reptiles must be spared a death by pancuronium bromide under a bill that Gov. Rick Perry signed in May.

Even so, Texas prison officials say they will continue using the drug in the lethal cocktail the state uses to execute people.

"Our medical staff has assured us that the combination of drugs that we use makes the person incapable of feeling pain while the execution is carried out," said Mike Viesca, a spokesman for the Texas Department of Criminal Justice.

The Rev. Pickett, the author of "Within These Walls," a memoir of his years as chaplain on death row, believes otherwise. Last week, he described Carlos' last minutes prior to execution.

"Carlos was basically very scared," Pickett said. "I said, `It will take about 7 to 12 seconds and you will be asleep. Don't worry. You've already done the hard part with the needles.'

"He said, 'OK' and thanked me for being there and being his last friend . .. He never took his eyes off me. I moved back to my position at the foot of the gurney.

"He asked if I could hold his hand, but I said I couldn't do that because 'You will be strapped down, so I'll hold your right leg and squeeze it so you know I will be right here, right here.'"

That night things didn't go as usual. The pulse didn't fade quickly and the leg jerked.

Pickett still sees the frightened, questioning eyes of Carlos DeLuna and wrestles with his conscience about whether he misled the young man about his execution being swift and painless -- like falling asleep.

"He gave me a look in his face, which I interpreted to mean, 'Did you tell me the truth? Because this is taking longer than 7 seconds.'"

Are lethal injections humane? Effectiveness of drugs debated

Houston Chronicle, December 2003

On this much experts agree: Properly administered, the 3 drugs used for lethal injections in Texas cause a humane, pain-free death.

"If you were going to kill me, that's the way I would want it," said Dr. Janet Stringer, an associate professor of pharmacology and neuroscience at Baylor College of Medicine.

The problem comes if the initial drug given to put the inmate to sleep, sodium thiopental, is administered improperly or in too low a dose. If so, the 2 next drugs could lead to a painful death.

The second drug, a muscle relaxant called pancuronium bromide, paralyzes the body's muscle system but does not affect the senses. The final drug, potassium chloride, stops the heart. If improperly sedated, the inmate could be in terrible pain for seconds, even minutes, and unable to move -- what's been called a "chemical tomb."

On Wednesday, U.S. Supreme Court Justice Antonin Scalia granted a stay of execution for a Texas killer whose lawyers argued that pancuronium bromide could mask severe pain as an inmate dies and thus constituted cruel and unusual punishment.

A growing number of health officials are asking why the muscle relaxant is needed at all. Health officials say it's included to prevent violent spasms that are a typical byproduct of the third drug and the cardiac arrest it induces.

The inmate, if properly sedated by the first drug, does not feel any such spasms, though they can be quite disturbing for witnesses.

"There's no need to use any sort of drug that paralyzes muscles," said Dr. Sherwin Nuland, a clinical professor of surgery at the Yale University School of Medicine and author of the book How We Die.

"It is only something that is given for the comfort of the witnesses. That's not a valid justification, and I've never been able to understand why they gave it."

The Texas Department of Criminal Justice, which handles executions for the state, has no plans to change the practice.

"Our medical staff assures us that the order and dosage of the drugs we use prevents any undue suffering to the condemned inmate while the execution is carried out," said spokesman Mike Viesca.

But an impetus for change, critics say, might come from a 2001 decision by the American Veterinary Medical Association. It decided the combination of a sodium thiopental-like barbiturate and pancuronium bromide "is not acceptable" to euthanize pets because it can mask pain and suffering.

That recommendation has led several states to adopt laws against the use of pancuronium bromide for euthanasia, including Texas.

If a method isn't suitable for killing a dog, they say, why should it be used on people?

Other options could include doing away with the muscle relaxant and subjecting witnesses to watching any muscle spasms. Another possibility is switching to the method commonly used in animal euthanasia, a single dose of a barbiturate more powerful than the sodium thiopental.

Even at its 3-gram dosage, sodium thiopental would likely be fatal for all but the largest of people. Just one-tenth of that amount of a very similar drug is used to subdue a 130-pound victim of an epileptic seizure, Stringer said.

But using a barbiturate alone would prolong death because it would take longer for the heart to stop. Most executions are over in about seven minutes.

Volunteers with some medical training deliver lethal injections during Texas executions, not medical staff, Viesca said.

Several times, executioners in Texas have had difficulty finding a vein to insert the needle, according to the Death Penalty Information Center, an anti-death penalty advocacy group.

Michael Graczyk, an Associated Press reporter who has witnessed many of the 313 executions since Texas began using lethal injection in 1982, has reported that prisoners have remarked about tingling, a cool sensation or tasting rubber just before the normal reaction to the drugs: a gasp, wheeze, sputter or cough. Once, an inmate vomited, but to witnesses there had been no apparent indication of pain.

Public deserves to know whether standards exist for Texas executions

Editorial, Austin American-Statesman, January 11 2004

The Texas Department of Criminal Justice has taken the incredible position that the public is not entitled to know basic facts regarding capital punishment, specifically if the state has standards for executing humans -- as it does for putting down animals.

If the prison agency is going to put people to death in the name of Texas citizens, then it should not conceal those facts from the public that finances executions. Executing offenders is one of the most controversial and sensitive tasks performed by the state, and Attorney General Greg Abbott should not allow the criminal justice agency to draw a veil over the execution process by hiding behind "security" exemptions to open records laws.

Last month, we asked the criminal justice agency whether those who are performing lethal injections are required to have medical training or certification; if lethal injections were measured according to an inmate's weight; and what procedures were being used on inmates whose veins had collapsed from prior drug use and couldn't receive lethal injections in the normal way.

Those questions don't in any way compromise security measures of executions, and the department didn't bother to explain how disclosing such information would breach security.

We asked those and other questions to assess whether Texas is doing all that it can to humanely execute offenders. We are opposed to the death penalty, which hasn't proved an effective deterrent to violent crime. But even those who support the death penalty should be alarmed by the state's insistence on using a drug deemed unfit to put down dogs, and an execution process that has not been upgraded to reflect recent advancements in medicine.

In recent months, the state's choice of pancuronium bromide as one of three drugs used to execute offenders has come under legal attack by Texas inmates who claim it violates their constitutional rights against cruel and unusual punishment. Given that the state bans animal shelters from using the muscle relaxant to euthanize dogs and cats because of its potential to cause or shield pain and suffering, it offends common sense and human dignity to continue using it to put down people.

It seems clear from the state agency's response that its intent is not to protect the security of executions, but to avoid public accountability as it carries them out.

"Information about execution procedures is held in the strictest of confidence, is generally not reduced to writing, and is known to only a few people with the Department. That confidentiality is maintained to assure that security procedures established for executions are not compromised," said the agency's chief lawyer, James Hall, in a Jan. 2 letter to the American-Statesman.

Hall seems to be saying that the policies governing executions are encompassed in the recollections of a few old-timers at the agency. If so, that certainly should be changed. In any case, the questions put to the criminal justice department do not compromise security. We simply have asked that prison officials disclose basic information that allows the people of Texas to determine whether executions are humanely performed.

Inhumane Drug Used in Many Executions

By Christopher Brauchli

The Boulder Daily Camera, November 2003

The death penalty has once again made news. On Oct. 10, the European Union marked the 1st World Day Against the Death Penalty by calling for the worldwide abolition of capital punishment. The United States is in the company of, among others, Iran and Nigeria in using the death penalty to modify people's behavior. It is, of course, more civilized in its use than Nigeria, so some may dislike lumping the 2 together.

On the other hand, dead is dead.

The difference between the 2 countries was highlighted by Nigeria's Amina Lawal, a single mother sentenced to death for having had a baby out of wedlock. She was to be executed in a far less humane method than that employed in places such as Tennessee. She was to be buried up to her neck in sand and pelted with stones until dead. (Nigeria's highest court overturned her sentence not because it was inhumane, but because she had not been observed when conceiving the child and was not given adequate time to understand the charges against her.)

Although stoning is not favored in the United States, a report in The New York Times on Oct. 1 discloses that contrary to popular belief, people who are executed by lethal injection are not as happy as the drugs they are
given cause them to appear.

Lethal injection was introduced because death by gassing was considered unpleasant and resulted in occasional misbehavior by those being executed.
The most notable case occurred in Arizona, when the recipient of the gas made obscene gestures at the onlookers while dying, thus spoiling the event. Shortly thereafter, Arizona switched to lethal injection. What we learned on Oct. 7 is that lethal injection is not as pleasant as all - except perhaps those having firsthand acquaintance with it - had thought.

People who have watched someone being killed by lethal injection have observed that those being sent on their way appear as tranquil as those in a hospital room whose lives are being preserved by the most modern techniques known to civilized people. That is in part because one part of the cocktail that is administered to the soon to be departed is a chemical, pancuronium bromide, known by the trade name, Pavulon.

Pavulon paralyzes the skeletal muscles but not the brain or nerves. Thus, people receiving it cannot move or speak, nor can they let onlookers know that contrary to appearances, what is happening is no fun at all. A
Tennessee judge, Ellen Hobbs Lyle, commenting on the use of the drug in an appeal brought by someone on death row in that state, said Pavulon has no "legitimate purposes."

She wrote about the drug's use: "The subject gives all the appearances of a serene expiration when actually the subject is feeling and perceiving the excruciatingly painful ordeal of death by lethal injection. The Pavulon gives a false impression of serenity to viewers, making punishment by death more palatable and acceptable to society."

Sherwin B. Nuland, a professor in the Yale School of Medicine, when told of use of the drug, expressed surprise. He said: "It strikes me that it makes no sense to use a muscle relaxant in executing people. Complete muscle paralysis does not mean loss of pain sensation." He said, in effect, that there were other ways of humanely killing people. I'm sure he's right, but there are 28 states that use the same cocktail in the execution chamber as Tennessee. The first drug administered is sodium thiopental, used to induce anesthesia for a short period. It is followed by pancuronium bromide, which paralyzes the patient, and finally potassium chloride, which stops the heart and is said to cause excruciating pain if the victim is conscious.

It would be easy to simply condemn Tennessee for being a state that lacks respect for life. That would be a mistake. Tennessee has a law that is known as the "Nonlivestock Animal Humane Death Act." Nonlivestock is defined to include pets, captured wildlife, exotic and domesticated animals, rabbits, chicks, ducks and potbellied pigs. Tennessee law says: "A nonlivestock animal may be tranquilized with an approved and humane substance before euthanasia is performed." The law then provides that "any substance which acts as a neuromuscular blocking agent, or any chamber which causes a change in body oxygen may not be used on any nonlivestock animal for the purpose of euthanasia."

The unfortunate thing, as far as those facing the executioner's needle in Tennessee is concerned, is that humans are excluded from the definition of "nonlivestock animals." Thus, the requirement for a humane execution that is imposed on those killing animals is not imposed on those killing humans. Tennessee is not alone in being more concerned about kind executions of nonlivestock animals than humans. The American Veterinary Medical Association has come out against using Pavulon when euthanizing animals when it is used alone or in combination with sodium pentobarbital.
According to a 2000 report from the association, "the animal may perceive pain and distress after it is immobilized." That might almost be enough to convince some people that what's good for the potbellied pig should be good for a human. On the other hand the potbellied pig is killed for what it is, rather than what it did. That probably explains its more humane treatment.

Christopher Brauchli is a Boulder lawyer and and writes a weekly column for the Knight Ridder news service in The Boulder Daily Camera

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