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THE NATION

Lethal injections upheld in Missouri

A federal appeals court finds `no wanton infliction of cruel and unusual punishment,' clearing the way for executions to resume.

June 05, 2007|Henry Weinstein | Times Staff Writer

In the first review by a federal appeals court of a full-scale challenge to a state's lethal-injection law, a court in St. Louis on Monday found Missouri's procedure constitutional, paving the way for the resumption of executions in the state.

The ruling becomes the guiding legal principle within the U.S. 8th Circuit Court of Appeals, which includes two other states using lethal injection -- Arkansas and South Dakota.

Although the decision has no binding effect in other federal circuits, the decision could be cited in litigation in other parts of the country, including California. In San Jose, U.S. District Judge Jeremy Fogel ruled in December that California's lethal-injection procedure, as administered, did not pass constitutional muster. The state revised its procedure, which Fogel is reviewing.

The 3-0 ruling by the 8th Circuit reversed a decision last year by a federal judge in Kansas City who said the state's execution methods created an unnecessary risk that an inmate could be subjected to "unconstitutional pain and suffering when the lethal injection drugs are administered."

The 8th Circuit panel said it found "no wanton infliction of cruel and unusual punishment."

"We find no evidence to indicate that any of the last six inmates executed suffered any unnecessary pain that would rise to an 8th Amendment violation," wrote Judge David R. Hansen.

Hansen said each of those inmates died within five minutes. He did not provide other details about what happened during those executions.

Missouri is fourth in the nation in executions. It has put 66 people to death since the Supreme Court let states bring back the death penalty in 1976.

Missouri has 51 inmates on death row. It is among 11 states that have delayed executions because of legal challenges to lethal injection.

Like three dozen other states, including California, Missouri uses a three-drug cocktail: sodium thiopental, a fast-acting barbiturate anesthetic; pancuronium bromide, which paralyzes the inmate; and potassium chloride, which causes cardiac arrest.

The Missouri challenge was raised by Michael Taylor, who was sentenced to death for the 1989 murder of a 15-year-old girl. The suit filed on his behalf asserted that the execution procedure masked rather than prevented pain.

In June 2006, U.S. District Judge Fernando J. Gaitan Jr. ruled that Missouri's procedure violated the Constitution. He said he was particularly troubled that the doctor who mixed the state's execution drugs was dyslexic and had difficulty reading numbers.

Missouri revised its execution protocol, but Gaitan rejected it again in July, saying it still subjected a condemned inmate to an unnecessary risk of excessive pain. He ordered the state to make five modifications to its procedures, including barring the use of the dyslexic doctor.

The 8th Circuit panel said most of those changes were unnecessary.

"The evidence reveals that the only inherent risk in Missouri's written procedure arises from the specific chemicals chosen by the state to carry out the sentence," wrote Hansen, joined by judges C. Arlen Beam and William J. Riley.

Noting that lethal injection is commonly thought to be the most humane form of execution, Hansen said, "There is no dispute, however, that the third and last chemical ... will cause excruciating pain if the inmate is not adequately anesthetized and that use of the second chemical in the sequence will simultaneously mask any visible sign of that pain."

The judges ruled that "because of the pain that undoubtedly would be inflicted by the third chemical if administered without adequate anesthetization, it is imperative for the state to employ personnel who are properly trained to competently carry out each medical step of the procedure."

They said that the protocol "adequately requires trained medical personnel to carry out these steps."

There has been considerable debate in recent years over whether it is necessary for states to use a trained anesthesiologist to ensure that the execution is carried out lawfully.

The 8th Circuit said no.

"The protocol is designed to ensure a quick, indeed a painless, death, and thus there is no need for the continuing careful, watchful eye of an anesthesiologist or one trained in anesthesiology, whose responsibility in a hospital's surgery suite (as opposed to an execution chamber) is to ensure that the patient will wake up at the end of the procedure," Hansen wrote.

"We know of no decision holding that the Constitution requires a physician to become the executioner."

Missouri Atty. Gen. Jay Nixon praised the ruling, saying it "affirms our position that Missouri's method of execution is constitutional. This decision reopens the necessary legal avenue for the state of Missouri to move forward on this issue."

Ginger Anders, one of Taylor's attorneys, said the defense would attempt to have the case reheard by a larger panel of 8th Circuit judges and, if necessary, seek review from the U.S. Supreme Court.

The 8th Circuit panel "relied solely on the state's written execution protocol, ignoring the overwhelming evidence that time and again the state's actual performance of executions has deviated from its public representations about the procedures," Anders said.

"The court's exclusive focus on the written protocol is particularly troubling because no written protocol can ensure that executions are performed humanely when the executioners are untrained or incompetent," Anders said. "And that is precisely the issue here -- the state has proven that it cannot be trusted to employ competent executioners."

henry.weinstein@latimes.com

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