A federal judge in Missouri on Tuesday rejected that state's lethal injection procedure for the third time, saying it was inadequate to ensure that condemned inmates did not suffer unnecessary pain during executions.
Although Missouri's revised protocol "is an improvement over the previous procedures ... it falls short of providing the critical constitutional protections required," U.S. District Judge Fernando J. Gaitan Jr. said. He gave the state until Oct. 27 to submit a new protocol for carrying out executions.
In June, Gaitan ordered a halt to executions in Missouri until the state changed its lethal injection procedures. The judge said he was particularly troubled that the doctor responsible for mixing the three-drug cocktail used in Missouri executions was dyslexic and had admitted during a hearing that he had difficulty reading numbers.
Gaitan said the Missouri Department of Corrections should require a board-certified anesthesiologist to mix the drugs, institute better monitoring so adequate anesthesia was administered, and form a contingency plan in case a problem developed during an execution.
The effects of the Missouri case probably will be felt elsewhere because similar challenges to lethal injection procedures are pending in several states, including California; a federal judge in San Jose has scheduled a Sept. 26 hearing on the issue.
Fordham University Law School professor Deborah Denno, an expert on methods of punishment, said Tuesday that Gaitan had demonstrated that "judges have to be legally and medically hands-on with the lethal injection process to achieve" the goal of an execution that passes constitutional muster.
Missouri has executed 66 people by lethal injection since the Supreme Court reinstituted capital punishment in 1976 -- the fourth-highest total in the nation. The 37 states that use lethal injection employ a three-drug procedure. The first drug is sodium thiopental, a sedative; the second, pancuronium bromide, paralyzes the prisoner; the third, potassium chloride, stops the heart.
The suit filed on behalf of Michael Taylor, who was sentenced to death for the 1989 murder of a 15-year-old girl, asserts that the procedure masks pain during an execution, rather than preventing it.
Missouri officials submitted a revised procedure in July but said they had contacted 298 anesthesiologists in Missouri and southern Illinois and none was willing to participate in executions. Gaitan ruled that the changes were insufficient to pass constitutional muster. Missouri officials, arguing the judge overstepped his bounds in requiring a board-certified anesthesiologist, asked a federal appeals court in St. Louis to overturn the ruling. The appeals court sent the case back to Gaitan without ruling on that issue.
On Tuesday, Gaitan said that although he still preferred a board-certified anesthesiologist, he would permit the state to use "a physician with training in the application and administration of anesthesia to either mix the chemicals or oversee the mixing of the chemicals for lethal injections." Gaitan also said "the state may have to purchase additional equipment in order to adequately monitor anesthetic depth" to ensure that inmates are sufficiently anesthetized before the second and third drugs are administered. He did not provide specifics.
Neither Missouri officials nor Taylor's attorneys had any immediate comment on the ruling.