Comunità di Sant'Egidio - No to the Death Penalty

ACLU

CALIFORNIA: ACLU Says California’s Use of Paralytic Drug During Executions is Unconstitutional

ACLU and Death Penalty Focus File Court Brief in Support of Donald Beardslee Days Before Scheduled Execution

The public and the media have the First Amendment right to meaningfull witness and gather accurate information about California’s execution procedure, said the American Civil Liberties Union of Northern California and Death Penalty Focus in a court brief filed today in the civil case challenging the state’s method of lethal injection.

Attorneys for Donald Beardslee, who is scheduled to be executed by lethal injection on January 19, filed a motion last month asking for a temporary restraining order to halt the scheduled execution because one of the drugs used during lethal injection paralyzes the condemned man and would leave him unable to signal if he were in pain. The motion was denied on January 7 and an appeal is now before the Ninth Circuit Court of Appeal.

In their friend-of-the-court brief, Death Penalty Focus and the ACLU of Northern California state that the use of the paralytic drug Pavulon can mask a prisoner’s expression of pain by inhibiting all voluntary muscle movement. Most states have banned Pavulon in the euthanization of animals because it prevents the individual performing the euthanasia from knowing whether the animal was properly anesthetized.

"Our concern is that the drug Pavulon acts as a 'chemical curtain,' to prevent those witnessing the execution from knowing whether the condemned inmate is suffering excruciating pain," Alan Schlosser, Legal Director of the ACLU of Northern California said. "It would interfere with the public’s right to know and could conceal cruel or unusual punishment by the state, which is forbidden by the Constitution."

The use of a drug like Pavulon implicates the First Amendment right recognized by the Ninth Circuit Court of Appeal in an earlier case, California First Amendment Coalition v. Woodford, in which the court held that the media and the public have a First Amendment right to witness an entire execution from the moment the condemned inmate enters the execution chamber until his life is extinguished.

Since 1996, when the 1st lethal injection procedure was used in California, the state has administered 3 chemicals to execute condemned inmates. First, the inmate is administered sodium pentothal, a fast-acting barbiturate; 2nd, pancuronium bromide ("Pavulon"), a chemical paralytic agent; and 3rd, potassium chloride, a compound that causes cardiac arrest.

"The First Amendment precludes the state from sanitizing the execution process by administering a drug that appears to have no purpose other than to prevent the public and the press from seeing whether the use of lethal injection causes pain," Schlosser said.

The case is Beardslee v. Woodford.

Sacramento Bee

Execution drug is challenged in court
Ban paralyzing agent that could mask pain, ACLU and others say.

A week before California plans to execute Donald Beardslee, a federal appeals court on Wednesday weighed a request to bar use of a chemical that would render the condemned man incapable of crying out in pain. Two of three judges sitting in an emergency session of the 9th U.S. Circuit Court of Appeals expressed concern over the state's refusal to explain its use of a paralyzing chemical called Pavulon, the 2nd of 3 drugs administered in the lethal-injection process.

"You're putting us in an awkward position," Judge Sidney Thomas of Billings, Mont., told the state's lawyer, Senior Assistant Attorney General Dane Gillette. "Some other states don't use it."

Gillette said no explanation was necessary, but Judge Wallace Tashima of Pasadena joined Thomas in pressing for one, while the third judge, Richard Paez, also of Pasadena, focused on the state's refusal to divulge how it administers the sedative used at the start of the lethal-injection procedure.

It's supposed to render the prisoner unconscious but, argued lawyers on Beardslee's side of the case, it may not do so. A conscious inmate would experience asphyxiation from the Pavulon and then a searing sensation throughout his veins from the last chemical in the series, potassium chloride.

Defense lawyers, the anti-capital punishment group Death Penalty Focus and the American Civil Liberties Union argued that the purpose of including Pavulon was to keep the public in the dark about whether the state's lethal-injection method is humane.

"What we're dealing with here is an attempt to sanitize the process and an attempt to distort the debate," ACLU lawyer Alan Schlosser argued.

Gillette said no explanation should be required from the state until Beardslee proves that an unconstitutionally painful execution is likely - a possibility that Gillette minimized but his opponents called hard to predict because of the state's secrecy.

They presented evidence suggesting some lethal-injection executions have been botched.

Gillette, however, termed predictions of errors "at best speculative." He said the drug administered before the Pavulon, the sedative, would render "virtually all persons" unconscious within a minute.

"He's going to be unconscious," argued the lawyer. "The Pavulon is not going to do anything" with respect to suffering.

Tashima, who presided, said the court would issue its decision soon, but there was no indication what it would be.

The judges must factor in other considerations, including their own court's rejection of an earlier challenge to the state's lethal-injection process.

Also, although Thomas clearly was bothered by the state's secrecy, he was bothered, too, by a fear of what he called "unintended consequences" if the court tinkers with the mix of chemicals and allows the execution to proceed.

Beardslee, 61, was sentenced to death in San Mateo County in 1983 for the revenge murder of two women suspected of cheating in a drug deal. The same 3 9th Circuit judges have upheld his death sentence, which is being appealed to the U.S. Supreme Court. A separate bid for the governor's clemency will be the subject of a hearing Friday before the state parole board.

9th Circuit Weighs Lethal Injection Challenge in California

Just one week before the scheduled execution of California death row inmate Donald Beardslee, judges from the U.S. Court of Appeals for the Ninth Circuit are considering a suit filed by the ACLU of California, Death Penalty Focus, and Beardslee's defense attorneys concerning the state's use of a paralyzing chemical called Pavulon in lethal injections. Beardslee's attorneys said that Pavulon could prevent an inmate from crying out in pain, and that it could mask suffering caused by asphyxiation and the searing sensation caused by the last administered chemical in the lethal injection process, potassium chloride. Some of the judges expressed concerns about the state's secretiveness and lack of detail regarding the chemical: "You're putting us in an awkward position," said Judge Sidney Thomas to the state's lawyer. "Some other states don't use it." Defense attorneys argued that the purpose of including Pavulon is to keep the public in the dark about whether the state's lethal injection method is inhumane. A ruling is still pending regarding this appeal, and a separate bid for clemency from the governor will be heard soon by the state's parole board. (Sacramento Bee, January 13, 2005). This would be the 11th execution in California since the death penalty was reinstated 30 years ago. There are 638 people on the state's death row.