News Analysis

NATION

Theres just no safe way of ending somebodys life

Concerns over lethal injections have ethicists questioning whether capital punishment should be administered at all
By Stephen James

hen two anesthesiologists refused to

The condemned and the fetus

Father Frank Pavone, national director of Priests for Life, told Our Sunday Visitor that he sees a connection between the pain inflicted during lethal-injection executions and the pain felt by a fetus whose life is terminated by abortion. The question of pain felt in executions can only assist the effort to ban the death penalty, just as awareness of pain felt by fetuses will certainly discourage abortions and make many people question whether it should be legal at all, he said. Morally speaking, the question of pain felt by both fetuses and those on death row is related. It is wrong to torture anyone, no matter what their age. The morality of abortion and capital punishment, however, do not depend upon the problem of pain, Father Pavone pointed out. Deliberately inflicting pain is wrong, but if abortion did not cause pain, it would still always be wrong, he said. Regarding the death penalty, the infliction of pain is wrong, but even if pain were not inflicted, the practice should still be opposed though not with the exceptionless character with which abortion must be opposed.

participate in a scheduled execution of a California death-row inmate last month, they did so out of concern for the ethics of their profession.
But their actions resurrected broader concerns over the moral implementation of the death penalty and respect even for the life of a condemned criminal. The doctors, who were in the execution chamber under court order, were supposed to ensure that Michael Angelo Morales was rendered fully unconscious before he was put to death by lethal injection on Feb. 21. The order was issued by U.S. District Judge Jeremy Fogel in response to concerns that the injections used pancuronium bromide or potassium chloride could cause the inmate intense pain. After the anesthesiologists walkout forced a postponement of the execution, Fogel immediately issued a second order authorizing the state to execute Morales using a single, massive dose of barbiturates, provided the drug was injected by a person or persons licensed by the State of California to inject medications intravenously. Within hours of the judges second order,however,a spokesman at San Quentin State Prison said the execution would be postponed indefinitely because the state could not find any medical professionals willing to inject medication intravenously, ending the life of a human being. Further court hearings in the case are scheduled for May.

Death penalty protesters dressed as doctors hold a vigil outside San Quentin Prison where Michael Morales' execution was delayed indefinitely Feb. 21 in San Quentin, Calif. Morales won a reprieve when the state decided it could not comply with a federal judge's order to revise its execution procedures because it found no medical professionals willing to go along with them. PHOTO BY DAVID PAUL MORRIS/GETTY IMAGES

New challenges
The chain of events that swiftly flowed from the Morales execution debacle was so sudden and unexpected that even the U.S. Conference of Catholic Bishops (USCCB) was caught off guard. Just four months ago, the USCCB issued an exhaustive statement,A Culture of Life and the Penalty of Death, renewing its opposition to the death penalty.

The statement,however,made no reference to potential problems with the administration of the lethal-injection method. This is a brand-new area and one that we havent really thought of, explained Andrew Rivas, an attorney and policy adviser on criminal justice issues for the U.S.bishops.We worked so hard advocating to get rid of the electric chair and the firing squad and hanging that everything was pushed toward lethal injection as a more painless way of doing it. So we really hadnt thought about it, what sort of pain is involved in this. Theres just no safe way of ending somebodys life, he told Our Sunday Visitor. Under the California lethal injection protocol, known formally as San Quentin Institution

Procedure No. 770, injection of the two chemicals follows an initial injection of sodium thiopental. The state concedes that without the accurate administration of the first compound,a sedative to induce unconsciousness, the second two doses would cause excruciating pain. The effect would be similar to that of boiling oil or branding with a red hot iron, according to a Columbia University anesthesiology professor who testified in a court case in Connecticut. Despite the questions that ensued, Fogel seemed to go out of his way to reassure the government and the pro-death penalty public that the ultimate punishment was secure. Courts in other states,he noted,had previously reviewed and found constitutional lethal-injection protocols similar to Californias. The judge did, however, acknowledge that the Morales case presented new evidence about the lethal-injection process that was not considered in earlier cases. That new evidence included the sworn declarations of medical experts and detailed logs from prior California executions. The expert testimony and execution data revealed problems with the process that have existed,

but remained essentially under the radar for more than 25 years, according to Fordham University law professor and death-penalty researcher Deborah Denno. The first case challenging the lethal-injection process was in 1978, and in that case they didnt even know what drugs were used; the court said that the department of corrections didnt even have to disclose what drugs were being used, Denno told OSV. The good thing about [Fogel] was that he was more involved that any other judge has ever gotten in this country on this issue. Usually judges just turn a blind eye.

Pandoras box
But in crafting a solution to the problem, Fogel may have opened a Pandoras box that may be difficult if not impossible to close. Fogel inadvertently exposed the primary problem with the lethal-injection process, explained Denno.Its actually a sign of a lack of sophistication as well as knowledge on his part that he would even ask doctors to do that, not realizing that they might refuse, she said. Indeed, in response to Fogels order, the American Medical Association issued a terse statement. The American Medical

Association is alarmed that Judge Jeremy Fogel has disregarded physicians ethical obligations when he ordered procedures for physician participation in executions of California inmates by lethal injection. Now the genie is out of the bottle. The public and the courts will have to confront the fact that although the lethal injection process used throughout the country is essentially a medical procedure, licensed medical professionals are rarely involved. Meanwhile, evidence continues to accumulate that without medical professionals performing the procedure,mistakes have been, and will continue to be made. The situation now invites a constitutional challenge to the lethal-injection process itself in essence,the same type of challenge that forced a change from electrocution,lethal gas and other forms of execution to lethal injection, Denno said. There was always another execution method to change to, she said.But this is a unique situation because there is not another method to change to; theyve run into a wall here.
Stephen James writes from California.

OUR SUNDAY VISITOR l MARCH 19, 2006