The California attorney general's office issued a ringing defense of the state's lethal injection procedure Thursday, maintaining in a court brief that "there is no evidence that any prior execution resulted in the unnecessary and wanton infliction of pain."
The state's brief was filed with U.S. District Judge Jeremy Fogel, who conducted a four-day hearing in September examining the contentions of death row inmate Michael Morales that California's lethal injection protocol violates the constitutional bar against cruel and unusual punishment. Fogel is expected to rule this year on the constitutionality of the state's procedure.
California, like three dozen other states that employ lethal injection for executions, uses a three-drug protocol. The first drug, sodium thiopental, is a fast-acting barbiturate that is supposed to anesthetize the inmate. The second, pancuronium bromide, paralyzes the prisoner. And the third, potassium chloride, causes cardiac arrest.
Morales' lawyers allege that evidence from past executions indicates that inmates were not properly anesthetized and may have suffered excruciating pain when the second two chemicals were administered.
But the brief filed by Senior Assistant Atty. Gen. Dane R. Gillette maintains that the current protocol, like those used in past executions, "is a rational and humane procedure."
He also said there was "no reasonable basis" for claims that prisoners were conscious after the delivery of the first drug.
Gillette further asserted that "all reasonable measures are taken to ensure a constitutional execution, including examining the inmate for usable veins and employing qualified medical personnel throughout the procedure."
Also, Gillette said the drugs "are numbered, color-coded, named and organized in the proper order of administration, with backup doses at hand." He said thiopental is continuously administered through a separate IV for further protection.
Although steadfastly maintaining that the procedure has no constitutional deficiencies, Gillette acknowledged that the process, "like any matter of human design, can always undergo continual improvement."
He said the hearing highlighted areas that might be improved, including crowding in the antechamber next to the execution room, along with the positioning and testing of IV bags.
In response to a question from Judge Fogel, the state said it was not precluded by law from using pentobarbital, a longer-lasting barbiturate, but added that no evidence suggests "there would be any overall advantage to switching from thiopental to pentobarbital" or that it would be easier to deliver.
Gillette also rejected using a single drug for executions. He noted that a state medical expert said death by a barbiturate overdose alone would be "ugly" and slow, "not pretty to watch."
The state also said it was prepared to explore modifications to the execution protocol that would "allow for closer examination of the inmate during the execution process." The state said it was unable to obtain a BIS monitor, a machine that was used in a recent North Carolina execution to track brain activity, but added that "use of an EEG to monitor brain activity and thus anesthetic depth may be feasible."
But the state also did not relent on its insistence that pancuronium bromide be used. The drug "facilitates the execution by preventing respiratory effort," the state said. "Blocking the automatic drive to breathe further ensures than an inmate does not regain consciousness."
The court should not order more physician involvement because that would be tantamount to banning executions, the state argued. Leading medical organizations, such as the American Medical Assn. and the American Society of Anesthesiologists, urge their members not to participate in executions.