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Lethal injection takes the stand
In Ohio, a botched execution has led some to ask if lethal injection is cruel and unusual punishment
By Daniel Sturm, The Youngstown Walrus
Oct. 11, 2006
When Jonathan Groner put his dog to sleep last August, he knew the procedure would be quick and painless. He said he trusted the veterinarian because she euthanized dogs every day, and thought the procedure would be humane since dogs lacked a perception of time. On the other hand, he thought there was no humane way to kill a human.
Since the botched execution of Joseph Clark, critics of Ohio's lethal injection protocol have been pointing toward the immanent risk of torture in the execution chamber if a licensed anesthesiologist is not present.
"A humane executions is the ultimate paradox," said Groner at his Columbus Children's Hospital office. The doctor of pediatric surgery and an associate professor at the Ohio State University College of Medicine and Public Health said he was troubled to see how the rise in Ohio executions was accompanied by the belief that lethal injection procedures were painless and humane. He drew a parallel between lethal injection and concentration camp euthanasia programs in Nazi Germany (see sidebar interview).
The dilemma is this: In order for Ohio to execute people without "inflicting torture" the state would have to employ licensed doctors to administer the chemical cocktail. But since medical professionals are bound to an oath to do no harm, they are ethically unable to participate in executions. It's a vicious circle that Groner refers to as the "executioners' paradox." Ultimately, he believes Ohio may have no choice but to halt executions and review its stance on the death penalty.
The American Medical Association objects to physician participation in executions, stating that doctors shall not "assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned." The AMA also prohibits monitoring vital signs at an execution, including electrocardiograms.
Last June the U.S. Supreme Court opened the door for challenges by thousands of death-row inmates who are now allowed to contest the deadly cocktail of chemicals used in executions. Four Ohio inmates (Richard Cooey, Jeffrey Hill, Arthur Tyler and Johnnie Baston) joined a lawsuit in the 6th U.S. Circuit Court of Appeals, arguing that the state's lethal-injection protocol constituted cruel and unusual punishment. Their claim was fueled by the problem-plagued execution of Joseph Lewis Clark on May 2, when the state's execution team had to close the public curtain after there were obvious problems. Roughly four minutes into execution, Clark said he felt pain in his arm as the lethal drugs collected under his skin rather than flowing into his vein. He raised his head from the gurney five times to say, "It don't work." The execution took nearly 90 minutes, rather than the typical 10.
This is why Groner thinks the state should call off executions altogether. "Do Ohioans really want to choose between torturing inmates to death or putting executions in the hands of doctors?" Groner wrote in an op-ed piece for The Toledo Blade. "This dilemma is inherent in lethal injection, because it puts killing in the hands of healers. The only way for Ohioans to avoid this untenable choice is to call for a moratorium on executions until capital punishment can be re-examined."
The story of an anesthesiologist, who testified at a federal court hearing in California on Sept. 28, is a case in point. Dr. Robert Singler said he initially volunteered to accompany inmate Michael Morales as he died, because he was confident that California's three-drug protocol was humane. But he stood down on this offer after learning that he might have to direct prison staff to ensure Morales was unconscious before the second and third drugs were administered. "I just didn't feel like getting painted as an executioner," Singler said.Medical Doctor Says Ohio is Torturing Prisoners
Dorian Hall, the supervisor of investigators for the Ohio public defender's office, said she heard "loud, intense, guttural moans and groans, like someone was in agony" during Clark's execution. She testified at a Sept. 22 hearing to challenge Maryland's execution protocol, saying that the noises were audible through the walls and window after the staff had closed the curtain.
"Even one who strongly supports the death penalty, I'm sure, does not believe that the actual carrying out of the death penalty should result in a slow and torturous death," said Alan Konop, the Toledo attorney retained by Clark's family. When asked whether the Clark family planned to launch a lawsuit against the state of Ohio, Konop said the family was currently considering its legal options, but not yet offer any details.
The three-step protocol for executing an Ohio prisoner includes:
* Strapping the prisoner to a wheeled stretcher and injecting him/her with anesthetic sodium pentothal. Without anesthesia the inmate would experience asphyxiation, a severe burning sensation, massive muscle cramping and cardiac arrest. The drug's purpose is to alleviate the pain and preserve the impression that lethal injection is a near-painless death.
* The prisoner, now unconscious, is injected with pancuronium bromide (Pavulon), which paralyses muscles including the lungs and diaphragm. Pavulon is commonly used to immobilize patients during surgical procedures.
* The two drugs are followed by an injection of potassium chloride, which causes cardiac arrest. This would also produce tremendous pain if given to a conscious inmate.
In 2005, a study published in the British medical journal, Lancet, gave credence to the claim that lethal injection was in fact inflicting pain. The authors found that on the basis of the toxicology reports from six states, 43% of prisoners may have remained conscious after their dose of sedatives. That means the prisoner would have slowly suffocated under the muscle-paralyzing drug, perhaps suffering intense pain as the potassium chloride worked its way through the body.
"It would be a cruel way to die: awake, paralyzed, unable to move, to breathe, while potassium burned through your veins," concluded Lancet in an editorial that accompanied the study. The study's authors compared lethal injection protocols with ethical standards of the American Veterinary Medical Association, finding that in 19 states, including Ohio, these same neuromuscular blocking agents were prohibited when killing animals.
U.S. Justice John Paul Stevens asked the state's attorney why Florida's legislature regulated how pets were euthanized but did not have a lethal injection protocol for humans. "Your procedure would be prohibited if applied to dogs and cats," he stated.
Twenty-three death-row prisoners have died by injection since Ohio resumed executions in 1999. And since 2004 Ohio has executed 15 prisoners, which is more than any other state but Texas. In Youngstown, capital punishment is close to home. Most of the state's 195 death-row inmates are now housed at the Ohio State Penitentiary, a few miles East of downtown, and off of state Route 616. One day before the execution the prisoner is transported from Youngstown to the death house at Southern Ohio Correctional Facility, in Lucasville.
Donald K. Allen, who runs a veterinary clinic on 4501 Market St., said he euthanises ill and elderly animals almost daily as part of his job. He said he usually administers twice the required dosage of anesthesia to ensure that the dogs are really dead. When asked if the animal felt any pain, he was speculative. "I think they taste it," he said. "Because almost always, their tongues lick."
The Youngstown veterinarian, who supports the death penalty, said he didn't care much about whether death-row prisoners suffered during executions. "These people feel a sting and then they're gone," he said. The lethal injection controversy wasn't a legitimate reason to end the death penalty. "As far as people's characters go, I don't have a whole lot of faith that you're going to change them," he said.
When California held hearings on the lethal injection protocol last month, Columbia University Medical School anesthesiology professor, Mark Heath, testified that prisoners were still breathing several minutes after personnel had administered pancuronium bromide, the muscle-paralyzing drug. At that point the prisoners were supposed to be deeply sedated by the first drug to protect them from the pain of the third drug.
"If someone is breathing like that, they may not be in a deep plane of anesthesia. They may not even be unconscious," Heath said. Coincidentally, Ohio's public defender asked Heath to give his expert opinion for use in the lawsuit, Cooey v. Taft. In it, Heath pointed out that Ohio uses only 2 grams of the barbiturate pentothal, a dose that's considerably lower than what is prescribed in many other lethal injection states.
Heath argued that Ohio's lethal injection protocol creates an "unacceptable risk that the inmate will not be anesthetized to the point of being unconscious and unaware of pain for the duration of the procedure."
Carol Weihrer of Reston, Virginia, believes she knows exactly what the experience is like. "I was fully awake and aware, for between forty minutes and two hours, while my right eye was surgically removed," she asserted in a written statement to the Pennsylvania House of Representatives in 2004. Weihrer testified that although anesthesiologists had given her a dose of sodium pentothal before the operation, they neglected to give her a longer-acting barbiturate. So she awoke on the operating table, paralyzed.
"I remember the intense pulling on my eye, the spine-chilling instructions of the surgeon to the resident to 'cut deeper here, pull harder; no pull harder, you really have to pull.' I remember fighting with every ounce of energy and thought process I had to let the surgical team know I was awake," Weihrer testified. "I remember wondering if I were following the heat of the proverbial light to Heaven (since they had removed my eye) or whether I were lying on the coals of Hell - and the most haunting to me, a person of great faith, to this day was the willingness to sell my soul just to get off that table."More Than One Way To Skin A Cat
In Ohio, lawyers representing both sides are expecting a federal appeals court ruling any day, regarding whether the state's lethal injection protocol will go to trial. When asked whether the state had done everything it could to improve the protocol, Heather Gosselin, a Senior Deputy Attorney General in the AG's Capital Crimes Division, acknowledged that there was certainly "more than one way to skin a cat."
Gosselin said that Ohio was closely following the hearings in California and elsewhere and would consult experts to improve the process if necessary. However, Gosselin called Ohio's execution protocol "sound," based on the state's own medical expert opinion solicited for Cooey v. Taft.
Gosselin said that the medical doctors who reviewed the state's execution protocol disagree with Dr. Heath's assessment. "Our experts say that the 2 grams of sodium pentothal would render most individuals unconscious for a period of about two hours," she said. "All of these drugs are administered in a lethal dose. So if Ohio were to give the first drug and the first drug only, eventually the inmate would die." The state official general acknowledged that administering 2 grams of barbiturates places Ohio at the lowest end of the scale - California administers 5 grams, for example - but that even this amount was sufficient.
Does Ohio have medically trained staff on hand to prevent an execution from being botched? Gosselin said that licensed emergency medical technicians, paramedics and nurses are present. "We have a doctor who does not participate in the actual execution. His participation is limited to pronouncing the death at the conclusion of the three drugs being administered."
When asked about the selection criteria for the execution team, Gosselin said she wasn't at liberty to disclose further details. "The Cooey litigation is stalled right now on an interlocutory appeal. And as a result we haven't gone through the formal discovery. I am not at liberty to give facts that haven't made part of that affidavit."
In his analysis of Ohio's protocol, Mark Dershwitz, an anesthesiologist at the University of Massachusetts Memorial Medical Center, found no significant risk of the pain and suffering alleged by Richard Cooey's attorneys. The professor noted that there was a "0.003% probability that a condemned inmate given this dose would be conscious, and able to experience pain, after a period of ten minutes." Thus, the risk that a prisoner would experience any pain associated with the infusion of lethal doses of pancuronium bromide and potassium chloride was "exceedingly small."
Gregory W. Meyers, chief counsel for the Ohio public defender, whose lethal injection lawsuit on behalf Cooey dates back to 2004, said that Dershwitz' opinion was only theoretical. "Who knows whether in practice it works out the exact way Dershwitz says?" Myers pointed out that recent lethal injection trials in Missouri and Maryland had demonstrated that the devil was in the detail. "Low and behold, they discovered in the Missouri case that the actual doctor involved there was dyslexic, and was altering how much of the pentothal to give according to his fancy. In Maryland, you learn that the actual execution team members were basically buffoons. They were made to look like a fool when it came down to whether or not they were even familiar with the protocol."
In a letter from death row, Richard Cooey, who has met the members of the Ohio execution team first-hand, stated that the process didn't seem to involve much medical expertise. "In July of 2003, I spent approximately 36 hours in the death house and am alive today only because of an eleventh hour stay of execution," Cooey wrote in a letter dated Sept. 28. The inmate noted that there were correctional officers, the vast majority of whom had at most a high school education, as well as medical staff who were EMT qualified at best and, of course, the warden. "But none are qualified as doctors, cardiologists or neurologists. They are just average people who work the blocks and hallways at Southern Ohio Correctional Facility, nothing special."A Murder Victim's Brother Weighs In
For Rodney Bowser the question of whether lethal injection could amount to torture wasn't the point. The soft-spoken man said he hadn't thought much about that question at all. "It's supposed to be like going to sleep. But how much of that's really true we don't really know."
What mattered more was the question of why the man who raped and killed his 21-year-old sister, Trina, had to be killed at all. The convicted killer, Glenn Benner, was executed by lethal injection on Feb. 7. Bowser thinks that Benner's life would not have ended strapped to a gurney had there been more support for the idea of bringing the prisoner together with the victim's family.
Trina's brother hadn't always thought in this way. He spent two decades cursing the former childhood friend who killed his sister in 1986. But as the execution date approached, he decided he wanted to talk with Benner and repeatedly tried to set up a meeting with him at the Ohio State Penitentiary in Youngstown.
This endeavor was more complicated than he'd expected. He described how the state's prosecutor, the victim's advocate and family members all advised him strongly against meeting the man who had murdered his relative. "I was told that, normally, the person that committed the crime would go off on you. They would yell nasty things at you that you didn't want to hear. That's why I was really scared to death to meet with him."
When they finally met, on the day of the execution, and after two longer conversations on the phone, Bowser said he was ready to forgive his former childhood friend. "He was upfront and honest with me," Bowser recalled. "He didn't do what everyone said he would do. He didn't go off and yell and scream and all that kind of stuff. He answered all the questions that we wanted to know for more than 20 years. He told me the truth."
In retrospect Bowser said he wished this meeting had happened earlier. He recalls trying to meet Benner four months before the execution date. "But it kept getting overlooked, it kept getting put on the backburner." After his meeting with Benner, minutes before his death, Bowser said he felt terrible. "When they took me back into the holding area with the rest of the family and the other victim's family, I was shocked by the party atmosphere. I couldn't be there."
Bowser, who at this point would have liked to call his parents to see if anything should be done differently, was brought into an area of the Southern Ohio Correctional Facility in Lucasville where he had no access to a telephone. The Tallmadge resident said he wished there would have been a way to stop the execution, and that Benner would have considered his legal options more wisely. "He knew he could have stopped the execution at any time. All he had to do is file an amendment to the lethal injection lawsuit. That would have bought him enough time to make it through the 2006 election. And then, when you get a Democratic Governor you're just not going to be executed. He knew he could have stopped this."
Also, had there been an alternative sentence, his family would have supported the idea of life without parole. "Glenn Benner did not need to die. But, just like he said, a fair punishment would have been to spend the rest of his life in prison."Another Victim's Family Weighs In
The mother and son of Dawn McCreery, another murdered Ohio resident, said that this type of forgiveness was not possible. Both said they hoped Richard Cooey (one of the four death-row prisoners who filed the lethal injection lawsuit) would suffer as their loved one had the day she was raped and murdered in 1986.
Cooey, 39, is on death row in Youngstown for kidnapping, raping, assaulting, and murdering 20-year-old Dawn McCreery and Wendy Offredo, 21. He has admitted to raping Offredo, but denies killing the two women, blaming his friend Clint Dickens, who at 17 couldn't get the death penalty and is serving two life sentences at Warren Correctional Institution.
Dawn McCreery's brother, Robert, said he hopes Cooey is conscious during the execution process, so that he suffers. "This punishment would be fitting the crime, wouldn't it?" he said. "It is much less cruel and unusual punishment than strangulation, rape, and beating someone to death."
The father of three acknowledged that killing Cooey wouldn't bring his sister back, a young woman who was a student at the University of Akron at the time of her death. "But it's going to make me feel that justice has finally been served," he said. "They set a verdict for punishment 20 years ago that still has yet to be carried out."
Mary Ann Hackenberg, Dawn Marie's mother, said she has waited for Cooey to be executed for nearly two decades. There had already been too many delays due to the appeals process. "I'm just to the point where I want it done."
Has Cooey ever apologized and admitted guilt? "No," said Hackenberg, pointing to an interview conducted by The Toledo Blade in 2003, when Cooey was first scheduled for execution. Hackenberg recalls that the prisoner showed no remorse. "For twenty years he has made no effort to say, 'I am sorry, I was wrong.' He has no feelings."
Turning to this Toledo Blade interview, I did find the following the passage:(Reporter) Did you ever consider yourself to be evil?
(Cooey) Did I do evil things at that time? Yes. Do I consider myself now? No. Was it an evil thing that happened in 86? Without a doubt. I feel that evil, as you put it, evil denotes a religious aspect to things. I don't believe in good or evil or that type of thing religiously. As for whether or not what I did was wrong? Without a doubt.In the Cooey v. Taft lawsuit, Cooey challenges the method of execution, but not the death sentence itself.
Hackenberg said that opponents of the death penalty don't understand how hard it is for a family to live with the loss. "I have for 20 years felt that it's very difficult to want another human being dead," Having been raised Catholic she understood where the opponents of executions were coming from. "But you need to also understand what they put the girls through that night," said Hackenberg, who is a nurse. "Had all this not happened, I probably would have said, 'Yes, it is cruel and unusual punishment.'"Questioning the Eye for an Eye Society
What would you do if someone murdered your wife or daughter?
This is absolutely the hardest question to answer, said James Tobin, a board officer for Ohioans To Stop Executions. Tobin, who is Catholic, said that if he had lost a family member he hopes he would be able to come to a state of mind where he was able to control his anger. "I would tell people, 'You know I really don't want that person out in society. But I don't want him dead either.'"
For Tobin, who is also an associate director at the Catholic Conference of Ohio, the legal battle against lethal injection is important in that it allows prisoners to buy time. "I think in the long run more people will see the absurdity of executing someone," Tobin said. "We support all those efforts that make people rethink the death penalty. There is nothing humane about death."
OTSE, which has fought to end the use of capital punishment in Ohio since 1987, has lobbied more than 100 Ohio organizations to call for a moratorium on executions. So far, dozens of local churches have signed up, as well as the American Civil Liberties Union, the League of Women Voters, and the cities of Cincinnati, Dayton and Oberlin.
Tobin said the fight over the lethal injections protocol was important, but perhaps not the most important initiative. He said he was afraid that Ohio would come up with just another drug cocktail. After all, hadn't governments always argued that one execution method was more humane than the other, regardless of whether they used electric chairs, lethal gas, hangings, firing squads or the guillotine?
Tobin said he considered the arbitrariness of the death penalty to be the most important argument against it. In Ohio less than 2% of murders result in death sentences for convicted killers. From 1983-2000 there were 10,585 murders in the Buckeye state, but only 201 individuals were sentenced to death. "It seems that executions in Ohio are symbolic political rituals that single out a few offenders to die," Tobin said.
Back in Dr. Groner's Columbus Children's Hospital office, I noticed a large photo depicting the Western Wall in Jerusalem. I couldn't help but reflect on a plethora of tragic ironies. The name of the embattled city meant "Heritage of Peace." Yet, the people living there hadn't seen much peace. Now, here was another sad irony, the idea of "humane executions." I asked the professor what he would say to people who supported lethal injection.
"All of Europe does not execute people," Groner said. "Our founding fathers' conscious decision was that we wouldn't be an 'eye for an eye' society. I would also say that you can judge a society by its prisons. How we take care of society's ill off reflects on a society at large. And there is nobody worse off than a death-row inmate."
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Daniel Sturm is German journalist who covers under-reported social and political topics in Europe and in the United States. Some of his work can be seen on the Internet, at http://www.sturmstories.com
