[I hoped that Arcturus, with his knowledge and considerable thought about the issues, would write about this flurry of events. I take it that the federal judge can’t force the state to stop until the withdrawal of the court-ordered assignment of anesthesiologists is assessed properly in a court of law? It’s just like Bush: “Damn the torpedos, full steam ahead.”]
Update [2006-2-21 22:36:56 by susanhu]: As he dashed out, Arcturus sent me this good news by e-mail: “I’m running out the house, but KPFA just reported that the state declined the judge’s conditions and that the execution will be indefinitely postponed as they review their options. That means a new date will have to be set.” Alright!
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In a grotesque display of mass confusion at California’s San Quentin prison last night, the execution of Michael Morales was temporarily put off until Tuesday night, Feb. 21.
The execution of Michael Morales for the 1981 rape and murder of a teenage Lodi girl was postponed early today when two anesthesiologists balked at their court-ordered assignment to make sure Morales remained unconscious during the lethal injection. Quentin State Prison’s warden quickly rescheduled the execution for 7:30 tonight by eliminating the anesthesiologists’ role and ordering that Morales be put to death with one drug, the powerful barbiturate sodium pentothal, instead of the three that the state has used since 1996. A federal judge had given the state that option but officials had previously rejected it, because it would take an estimated 30 to 45 minutes to kill the inmate instead of the usual eight to 10 minutes. link
Having an anesthesiologist present during the execution would have been a novelty. Doctors’ roles in executions are normally reserved to proclaiming death. Their participation in Morales’ execution was ordered by U.S. District Judge Jeremy Fogel in response to a late appeal challenging whether or not execution by lethal injection constitutes “cruel & unusual punishment” prohibited by the Constitution, raising uncertainty about the ethics of the doctors’ new role.
The US Supreme Court has yet to rule on the constitutionality of lethal injection. A case from Florida is pending, others are making their way through the courts throughout the country. Justice Alito recently garnered some attention when he voted to remand a Missouri case for further hearing. While some have speculated that his vote might represent a “principled” pro-life stand, most likely he simply wants the constitutional issue decided once & for all so that the states can get on with the killings. During his confirmation hearing, Alito was unwilling to affirm that it would be unconstitutional to execute an innocent man whose trial & appeals exhibited no procedural flaws.
Fogel had allowed executions to proceed in two previous death penalty cases when the lethal injection issue was raised. While considering Morales’ motion, Fogel had suggested that “this may be the ideal time to decide, once and for all, whether the state’s three-drug lethal injection protocol has been subjecting inmates to torturous and unconstitutional pain, as defense lawyers contend” (Sacramento Bee) and that a stay might be issued in order to hold an evidentiary hearing into the matter.
Fogel cited evidence of movement that may indicate several California inmates were conscious during administration of the final drug, potassium chloride, which is believed to produce searing pain unless a recipient is properly sedated.
The main question, he said, “is whether the inmates are actually getting what they’re supposed to be getting” – that is, the full dose of the sedative administered at the start of the procedure.
Rather than put a stay in place until he could hold an evidentiary hearing into what he acknowledged to be a “substantial question,” Fogel punted last week and gave the state the option to either have an anesthesiologist present to insure that Morales remained unconscious during the administration of the lethal drug, or to use a lethal dose of the sedative.
Lethal Injection Cocktail
The actual lethal drug, Potassium chloride, is the third to be administered. It eventually causes the heart to stop, but can also cause an excruciatingly painful death with the victim feeling as if they are burning up from the inside whale also slowly suffocating. Thiopental sodium, a barbiturate that acts as both anesthetic & sedative, is administered first so that the inmate doesn’t suffer needlessly. However, no one can know if it is still working properly when the lethal Potassium chloride is given, because the second administered drug, Pancuronium bromide, is a paralyzing agent that incapacitates the ability to express pain. Veterinarian associations have banned its use in euthanasia on humanitarian grounds. In other words, the sedative, which is “ultrashort-acting” could have worn off, could have never been administered in a dose appropriate to the prisoner’s weight, or could even have been diluted by the second drug, and the victim would consciously suffer an excruciating death while paralyzed so as to not be able to make a sound or move a muscle. There is a very good review of the issues involved at Wikipedia.
A judge hearing another case noted:
”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 judge, Ellen Hobbs Lyle, wrote, describing the worst-case scenario. ”The Pavulon gives a false impression of serenity to viewers, making punishment by death more palatable and acceptable to society. . . . Judge Lyle wrote that the use of the chemical ”taps into every citizen’s fear that the government manipulates the setting and gilds the lily.”
An expert weighs in:
Dr. Sherwin B. Nuland, who teaches medicine at Yale and wrote ”How We Die” (Knopf, 1994) said he was baffled to hear that pancuronium bromide was used in executions.
”It strikes me that it makes no sense to use a muscle relaxant in executing people,” he said. ”Complete muscle paralysis does not mean loss of pain sensation.” {snip}
The state’s legal papers also argued that the ban on pancuronium bromide in pet euthanasia does not apply to Mr. Abdur’Rahman because he is not a ”nonlivestock animal,” which the law says includes pets, captured wildlife, exotic and domesticated animals, rabbits, chicks, ducks and potbellied pigs.
Carol Weihrer, who underwent eye surgery in 1998, testified for Mr. Abdur’Rahman at the hearing in May. Anesthesia was administered before the surgery, as was pancuronium bromide to immobilize the eye. But the anesthesia was ineffective. Ms. Weihrer testified that the experience was terrifying and torturous. She could not, she said, communicate that she was awake.
”I remember using every ounce of my strength to try to move,” she said.
The surgery went on for hours. She did not suffocate because she was on a respirator.
Ms. Weihrer called the experience ”worse than death.”
The only reason for the use of pancuronium bromide can be ease of viewing; i.e. to ensure that witnesses to an execution are not disturbed by the procedure. That’s why the DoC opted for the anesthesiologist, rather than the longer, more uncertain method that will be used tonight. Critics of lethal injection have long pointed to the sterilized, pseudo-medical setting whereby the executed appear to simply ‘go to sleep.’
Last Minute Confusion
At first glance, Judge Fogel’s order would appear to be a humanitarian effort. But after it was issued, confusion arose as to the actual role & authority of the anesthesiologist. Would he intervene if he determined Morales to be conscious suffering? Or would he merely observe what would amount to a live experiment? Half an hour before the execution was scheduled to begin, prison authorities & the doctors involved realized that they were not on the same page:
But shortly before 11:30 p.m., warden Steven Ornoski announced a one-hour delay, saying prison staff and the anesthesiologists needed more time to work out their assigned roles.
Morales’ lawyers then hurried to court seeking to block the execution, saying the prison procedures failed to guarantee that the anesthesiologists could intervene if something went wrong. Fogel and the Ninth U.S. Circuit Court of Appeals denied stays of execution within an hour, but by then the anesthesiologists had determined that their roles were unacceptable.
The apparent sticking point was the physicians’ obligation, under procedures specified by a federal appeals court in a ruling Sunday, to intervene if Morales appeared to regain consciousness or displayed signs of pain. The court said the anesthesiologists would then have to take steps to render the inmate unconscious or “otherwise alleviate the painful effects” of the drugs.
“Any such intervention would clearly be medically unethical,” the doctors said in a written statement today. “As a result, we have withdrawn from participation in this current process.” link
The judge’s order reads:
So as to avoid the situation wherein Mr. Morales begins to manifest signs of consciousness upon the administration of the pancuronium bromide but cannot be re-sedated quickly enough, a back-up syringe or syringes of at least 5 grams of sodium thiopental that a licensed anaesthesiologist in the chamber will administer as necessary and immediately upon determining that Mr. Morales is manifesting signs of consciousness after administration of the initial dose of sodium thiopental.
In other words, Fogel expected the anesthesiologist to administer a lethal dose on the spot if problems were to arise. As a NY Times article notes:
The American Medical Association, the American Society of Anesthesiologists and the California Medical Association all opposed the anesthesiologists’ participation as unethical and unprofessional.
The Ninth Circuit & Supreme Court apparently have no such qualms.
The second appeal challenged the adequacy of Fogel’s order last week that required the state to put a medical professional in the death chamber. The appeals court said Sunday that the two anesthesiologists whom the state retained had all the authority they needed to stop the execution if Morales was conscious and in pain. link
As if to emphasize the revenge rationale behind support for the death penalty, several news accounts note the crux of the state’s concern, including this from the NY Times:
”There was a great deal of concern on their faces under the circumstances of some people that Michael Morales would not suffer,” Crittendon said. ”They [the victim’s family] find that to be very disturbing.”
and the Sacramento Bee notes that:
The past few weeks have drained them. They’ve seen Morales’ photo on the evening news, resurrecting memories of Terri Wichell’s slaying.
The paper fails to note that prosecutors often pump up the victims’ families, especially if they act lukewarm about seeking the death penalty, by telling them that until the murderer is executed — the Old Testament ‘eye-for-an-eye’ rationale — they will feel no relief. Nor does the paper note that if Morales had been sentenced to life without parole, his name would not be plastered all over the headlines and the families would not be suffering through this delay today.
Mr. Morales is scheduled to receive a lethal dose of sodium pentothal tonight at 7:30 pm, PST.