Death penalty: Lethal injection on trial

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Executions were put on hold in 2006 in 12 of the 38 states to adopt capital punishment since 1977 – in nine states because of questions over lethal injection.

 

Sparring over lethal injection resumes in courts and legislatures this year as authorities grapple with tough questions about how much pain the condemned feel as they die and what role, if any, medical professionals should play in executions.

 

The battle over lethal injection is the latest strand in a long-running debate over the ultimate punishment. The United States is among a handful of industrialized countries that sanction capital punishment. China, a totalitarian state, remains the leader, executing thousands of prisoners annually.

 

New Jersey could become the first state to voluntarily abolish the death penalty if state lawmakers heed a gubernatorial commission that concluded Jan. 4 that the state's capital punishment system cannot be fixed. In contrast, Wisconsin lawmakers will consider a nonbinding ballot measure approved by voters last November in favor of restoring the death penalty in cases where DNA evidence proves multiple counts of first-degree murder.

Of the more than 3,300 prisoners on death row in the United States, 53 were executed in 2006, the fewest number since 1996, when 45 prisoners were put to death. Texas leads the nation with nearly 380 executions since 1976 and 24 executions in 2006.
 

Since capital punishment was reinstated three decades ago, nearly 900 of the 1,056 U.S. executions carried out through 2006 were by lethal injection. It is the primary or exclusive form of execution in 37 of the 38 states with capital punishment. (Nebraska uses the electric chair.)

But what was seen as a more humane alternative to the gas chamber, electric chair, firing squad or gallows now faces serious challenges in more than a dozen states and led to at least temporary halts to executions in 2006 in Arkansas, California, Delaware, Florida, Kentucky, Louisiana, Maryland, Missouri and South Dakota.

The three-drug lethal injection process works like this: First, a sedative is administered through an IV, rendering the inmate unconscious, then a paralyzing agent stops the breathing muscles and finally a shot of potassium chloride stops the heart.

Those challenging the procedure say that if the first chemical is not properly administered, an inmate may remain conscious and die an excruciating death from the other two chemicals. Critics contend mistakes are likely, because correctional officers, not medical practitioners, administer the fatal dose in most states.

Just two weeks before leaving office on Jan. 2, Florida Gov. Jeb Bush (R) suspended all executions until at least March 1 while a state commission reviews the state’s lethal injection process. Bush formed the commission after the Dec. 13 execution of Angel Diaz, 55, took 34 minutes – twice the normal time – and required a second dose of lethal drugs because the first needle was improperly inserted.

In South Dakota, Gov. Mike Rounds (R) last August gave a temporary reprieve to Elijah Page, 24, so the state could update its lethal injection procedure to include the “most modern and efficient” methods. When rescheduled, Page’s execution would be the state’s first in 59 years.

California's lethal injection process was ruled unconstitutionally cruel and unusual in December. U.S. District Judge Jeremy Fogel suspended executions until the state overhauls its lethal injection procedures. The ruling came in an appeal by Michael Morales, sentenced to die for the 1981 rape and murder of a 17-year-old girl.

Postponing Morales’ execution in February 2006, the judge cited a British medical journal report that 21 inmates executed in Texas and Virginia had such low levels of the anesthetic thiopental in their blood that they probably were awake but unable to move or scream when the fatal potassium chloride was injected. After four days of hearings and a visit to the execution chamber in San Quentin, Fogel concluded it was impossible to determine whether inmates executed in California were unconscious before the fatal shot.

Maryland’s highest court suspended executions in December, ruling the state’s lethal injection procedures were improperly adopted without public comment.
 
Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit group that opposes capital punishment, said nearly every state uses “the same protocol that’s raising so many questions, so it's a very important issue affecting virtually everyone on death row.”
 

The U.S. Supreme Court hasn’t taken any cases that test whether lethal injection is cruel and unusual punishment outlawed by the U.S. Constitution. But it has narrowed use of the death penalty in recent years, banning executions of the severely retarded in 2002 and in 2005 prohibiting the execution of those under age 18 when they committed their crimes.

For reasons other than lethal injection, the death penalty also was on hold in 2006 in New York, Illinois and New Jersey.
 

New York’s capital punishment system was struck down by the state Supreme Court in 2004 on procedural grounds. It could be reinstated if the state Assembly rewrites sentencing rules, but lawmakers failed to do so in 2005 and 2006.

Illinois’ death penalty moratorium followed a probe of police corruption and racial bias that led to the freeing of a dozen men from death row.

In New Jersey, a one-year hiatus imposed by Gov. Jon Corzine (D) ended in December. Then fate of the death penalty in the state was thrown into doubt in January by the New Jersey Death Penalty Study Commission’s recommendation that capital punishment be abolished. New Jersey has spent $250 million to prosecute capital cases but has executed no one since restoring the death penalty in 1982.

David Elliot, communications director for the National Coalition to Abolish the Death Penalty, predicted that debate over capital punishment will see a resurgence in state capitols this year. Lawmakers in Minnesota, New York, North Dakota and Wisconsin served notice of plans to seek restoration of capital punishment.
 

More than 15,000 people have been executed in the United States since colonial days. In 1972, the Supreme Court invalidated all state death penalty statutes as arbitrary and capricious, but four years later it opened the door for states to put their death chambers back into use. Even before recent moves to bar executions of juveniles and the severely retarded, the high court in 1986 ruled out the death penalty for the insane, and in 1977 it held that rape alone was not a crime punishable by death.

The current court’s stance on whether someone can be executed for a crime short of murder could be tested by recent laws in several states, including Florida, Louisiana, Montana, Oklahoma and South Carolina, authorizing the execution of repeat child rapists and molesters. No one yet has been executed under those laws, but one Louisiana man — Patrick O. Kennedy — was sentenced to die in 2003 for raping an 8-yearold girl. His case is being appealed in Louisiana courts.

Legislators in Alabama, Georgia, Mississippi, Texas, and even Minnesota, which doesn't have the death penalty, have said they will push this year for similar laws.

According to the Death Penalty Information Center, 123 men and women in 25 states have been released from death row since 1973. The latest was Florida inmate John Ballard in 2006. Ballard was convicted of bludgeoning two neighbors to death, but the Florida Supreme Court said the case against him had not been proven beyond a reasonable doubt.

Capital punishment supporters say that nearly half of those exonerations were due to prosecutorial misconduct or lack of evidence on retrial. They say that there is no evidence an innocent person has ever been executed and that states should be more concerned with making sure killers don't get off scot-free because of faulty prosecution.

Death penalty critics were pleased when former Virginia Gov. Mark Warner (D), in one of his final acts in 2005, ordered a posthumous review of DNA evidence in the case of Roger K. Coleman, whose controversial execution in May 1992 made headlines around the world. Coleman maintained to the end he had not raped and murdered his teenage sister-in-law. But the DNA tests showed Coleman was guilty as charged.

The declining number of death sentences follows a trend by lawmakers and the judiciary over the past 30 years to narrow the scope of capital punishment by tightening state sentencing statutes and banning the execution of specific groups of people, including the mentally insane, severely retarded, and juvenile defendants younger than 18.

Plummeting murder rates nationwide also account for part of the reduction in death sentences. According to the Department of Justice, the number of murders declined 31 percent from 23,326 in 1995 to 16,137 in 2004. Allowing one year for trial and sentencing, death sentences decreased by 70 percent from 318 in 1995 to an estimated 96 in 2005.

 

Significantly, the nation's murder rate has not changed much since 1999, while executions and death sentences dropped at their fastest rates. 

Experts point to other factors contributing to the waning of the death penalty. Concerns over flaws in the way death sentences are carried out caused Illinois Gov. George Ryan (R) in 2000 to impose a statewide moratorium on executions and then to commute the death sentences of all 167 prisoners on death row before leaving office in 2003. Ryan, later convicted on unrelated corruption charges, cited state investigations that uncovered police corruption and racial bias in the state's capital punishment system that resulted in the exoneration and release of 12 death row inmates. 

The Illinois Legislature has passed several reforms intended to persuade current Democratic Gov. Rod Blagojevich to lift the moratorium, but he has said the system is far from fixed.

 

Modern DNA analysis also may be making it harder rather than easier for prosecutors to secure the death penalty. Prosecutors have commented that popular crime TV shows such as “CSI: Crime Scene Investigation” have made it harder to secure death sentences -- or even lesser convictions -- because juries now expect to see ironclad scientific evidence such as DNA before voting for the ultimate punishment.

 

At the state and local level, many prosecutors, victims' advocates and lawmakers remain staunch supporters of the death penalty, which they view as a necessary and effective deterrent to crime.

 

Although there have been only three executions at the federal level, the Clinton and Bush administrations greatly expanded the potential use of capital punishment for some drug and terrorism crimes. Former U.S. Attorney General John D. Ashcroft directed his prosecutors to seek the death penalty in many cases, sometimes overruling local prosecutors who had decided against it.

Constitutional experts say the current U.S. Supreme Court is unlikely to accept any cases seeking to overturn the death penalty system. However, there are several legal challenges in state and federal courts that could impact the way the death penalty is carried out. The Supreme Court outlawed the execution of juveniles who committed crimes when below age 18 in March 2005, sparing the lives of 72 juvenile offenders waiting on death row nationwide. This was the high court's first major decision on the death penalty since 2002, when it banned the execution of the severely retarded.

• Hill v. McDonough -- The court ruled in June that a death row inmate in Florida could file a last-minute challenge to the state's lethal injection procedures even though he had exhausted his regular appeals. The ruling did not address the constitutionality of lethal injection but set the stage for a test of the constitutionality of the procedure.
• House v. Bell -- The court ruled in June that a Tennessee death row inmate can get a new trial based on new DNA evidence.
• Kansas v. Marsh – The court reinstated Kansas' 1994 death penalty law, which was struck down by the state's high court in 2004. The high court ruled that during the death sentencing phase of a trial the state's practice of imposing the death penalty in cases of a tied jury is not unconstitutional.

 This "Backgrounder" is a work in progress and will be updated as warranted. You can find a great deal of information on the death penalty, including statistics, reports, analysis and commentary, on the following Web sites. Stateline.org will list other helpful resources as we find them.