-------------------- Pain of execution debated -------------------- Drug used on humans deemed unfit for dogs By Howard Witt Tribune senior correspondent January 21, 2004HOUSTON -- If Kevin Lee Zimmerman were a stray dog, the state of Texas would not be permitted to execute him by lethal injection as scheduled on Wednesday night.
That's because one of the drugs Texas uses in its lethal injection "cocktail," a muscle-paralyzing agent called pancuronium bromide, is prohibited by state law for use in putting down animals because of the pain and suffering it can cause.
There is no such prohibition, however, against the use of the drug on condemned prisoners, and Texas and the 35 other states that administer the death penalty with lethal injections routinely use it to induce paralysis, according to the Death Penalty Information Center in Washington. Two other drugs anesthetize the inmates and stop their hearts.
A recent series of legal challenges in a half-dozen states, however, has raised stark new questions about the execution process and whether the use of pancuronium bromide may cause or mask torturous pain experienced by condemned inmates as they suffocate to death.
In Texas, Oklahoma, Tennessee, Virginia, North Carolina and Ohio, lawyers have argued that the drug, which does nothing to prevent the experience of pain, renders condemned inmates unable to speak, twitch or cry out in response to it.
"We're not saying that lethal injection is inherently unconstitutional," said David Dow, a death penalty defense expert at the University of Houston Law School and one of Zimmerman's attorneys. "But we are saying that the state shouldn't be allowed to use this particular chemical that causes torture."
The Texas attorney general's office has strongly denied that there is any problem with the state's administration of lethal injections. Zimmerman and other prisoners have failed "to demonstrate a substantial risk of wanton and unnecessary infliction of pain," the state has argued in legal briefs.
Federal appeals courts have been split on the question, granting stays of execution in some cases and refusing them in others. The Supreme Court has been divided as well, voting 5-4 in most of the cases to allow executions to proceed. In March the high court is scheduled to hear oral arguments in another death penalty case that challenges the use of a so-called cut-down surgical incision to locate a vein when an inmate's prior drug use makes normal intravenous insertion impossible. The court is to decide whether prisoners can challenge such painful procedures on grounds they are "cruel and unusual"--a decision that defense attorneys hope will offer guidance on the pancuronium bromide question.
But with scheduled executions proceeding across the country in the meantime, the fate of prisoners such as Zimmerman has been left to frenzied, 11th-hour appeals.
A 1987 murder
Zimmerman, 42, was sentenced to die for the 1987 robbery and stabbing death of a drinking companion in a motel in Beaumont. Just 20 minutes before his scheduled execution Dec. 10, Zimmerman won a brief stay from Justice Antonin Scalia so the Supreme Court could study his case. But the court then voted 5-4, over objections of the court's more liberal wing, to vacate the stay and allow a new execution date to be set.
With the clock ticking down once again toward Zimmerman's scheduled execution at 6 p.m. Wednesday, his defense attorneys filed another last-ditch appeal with the Supreme Court on Tuesday. But they were not optimistic about the outcome.
"One of the things I tell all of my clients is that every victory I win for them is probably just going to be an intermediate victory," Dow said. "Most everybody on Death Row is at the end of the day going to get executed, unless something dramatic in the country happens."
What particularly troubles defense attorneys is that the protocol for executing prisoners by lethal injection has not changed, or even been closely scrutinized, since it was first used by Texas in 1982 and copied by other states. Under the standard procedure, a condemned prisoner is strapped to a gurney and an intravenous tube is inserted into each arm. Following the administration of normal saline solution, a lethal dose of the first drug, sodium thiopental, a fast-acting anesthetic, is administered. Pancuronium bromide is injected next, which in addition to paralyzing the entire muscle system also stops the diaphragm and interrupts breathing. Finally, a dose of potassium chloride stops the heart.
Texas prison authorities insist that the procedure causes no undue suffering.
"Our medical staff has assured us that the combination of drugs we use makes the person incapable of feeling pain while the execution is carried out," said Mike Viesca, a spokesman for the Texas Department of Criminal Justice.
In the case of Texas pets, however, the state Legislature reached a different conclusion. Last fall the state passed a law halting the use of pancuronium bromide to euthanize animals.
"The basic impetus was, if we've got to kill animals, let's do it humanely," said Dr. Jane Mahlow, Texas' chief veterinarian. Pancuronium bromide "is not used because what it does is paralyze the diaphragm so the animal suffocates."
Other medical experts question the use of pancuronium bromide in executions because surgical patients injected with the drug have been known to awaken during operations but were unable to signal they were enduring excruciating pain.
Potential for `inhumane death'
"When somebody has been given pancuronium, it's really impossible to ascertain whether they are awake or not, and if they are awake, whether they are suffering or not," said Dr. Mark Heath, a professor of clinical anesthesiology at Columbia University who testified last year on behalf of a Tennessee inmate who was challenging the drug's use.
"It's hard to see what the role of pancuronium is in an execution," Heath said. "If you add in the fact that there's an inherent risk of the prisoner being awake, and experiencing paralysis and suffocation and the pain of the potassium injection, then you are giving a drug that has the potential of causing a very inhumane death."
One reason for the continued use of pancuronium bromide in executions was suggested by the judge in the Tennessee case: The state's interest in demonstrating to witnesses that the death procedure is painless.
"The subject gives all the appearances of a serene expiration when actually the subject is feeling and perceiving the excruciating painful ordeal of death by lethal injection," wrote Judge Ellen Hobbs Lyle, describing a potential worst-case scenario. The pancuronium bromide "gives a false impression of serenity to viewers, making punishment by death more palatable."
Nevertheless, the judge went on to rule against the inmate who was challenging the use of the drug. She determined that "there is less than a remote chance" of excessive pain and suffering because the administration of the first lethal dose of sodium thiopental will likely kill a prisoner before the pancuronium bromide takes effect.
Copyright (c) 2004, Chicago Tribune