Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

August 13, 2007

THE LETHAL INJECTION PROTOCAL

Philip Ray Workman was executed in the Tennessee death chamber on May 9, 2007.

Twenty-six years before, on August 5, 1981, Workman robbed a Wendy’s restaurant in Memphis. He forced all the employees and a customer into the manager’s office where he collected the day’s receipts into a bag. See, Workman v. Bredesen, ____ F.3d _____, 2007 WL 1311330 (6th Cir. Tenn.) [May 7, 2007].

Workman was not aware that one of the employees had set off a silent alarm. As the robber walked out of the fast food establishment, he was confronted by a police lieutenant. In the ensuing moments, Workman broke free from the police and killed the lieutenant with a .45 caliber bullet in the chest. He managed to wound another officer before briefly escaping. An extensive search captured him a short time later. Id.

He was tried, convicted of capital murder, and sentenced to death in 1982. He survived five previous execution dates before he was put to death by lethal injection on May 9.

Workman’s “last meal” request that a vegetarian pizza be given to a homeless person was denied by prison officials. But Workman supporters and scores of death penalty opponents donated thousands of pizzas to homeless shelters to honor the condemned man’s final request.

Under Tennessee’s new lethal injection procedures, the death protocol of Phillip Ray Workman took seventeen minutes to complete.

“I’ve prayed to the Lord Jesus Christ not to lay charge of my death to any man,” he said in his final statement.

Two minutes after the lethal injection of drugs commenced, the condemned inmate said: “I commend my spirit unto your hands, Lord Jesus Christ.”

Workman’s case drew national attention in the final week of his life after a U.S. District Court issued a temporary restraining barring prison officials from carrying out the condemned man’s execution after he argued to the court that he feared that he would suffer physical pain during the execution process.

A month earlier the British medical journal, The Lancet, published a “research letter” that said inmates previously executed in the United States may have experienced awareness and physical suffering because they were not properly sedated.

A “lethal injection” in the United States generally consists of three drugs: sodium thiopental, pancuronium bromide, and potassium chloride.
Sodium thiopental is administered first. It serves as an anesthesia, depriving the brain of oxygen and producing unconsciousness. Pancuronium bromide is the second chemical administered. It paralyzes the skeletal muscles which effectively immobilizes the condemned inmate and prevents him from being able to move or speak. Potassium chloride stops the heart, depriving it of oxygen and literally suffocates it to death.

One authors of The Lancet research paper was Leonidas Koniaris, University of Miami’s Miller School of Medicine. Koniaris, and his colleagues, studied lethal injection protocols in Texas and Virginia where nearly half of the more than 1,000 U.S. executions since 1976 were carried out. They discovered that medical technicians carrying out the executions in these two states had no training in anesthesia; that the executions were not monitored for anesthesia; and that there was no post-execution review. The researchers also analyzed autopsy toxicology reports on 49 condemned inmates executed in Arizona, Georgia, North Carolina and South Carolina. These reports revealed that the amount of sodium thiopental was lower in the blood of 43 of these condemned inmates than is required for surgery; and, more disturbingly, that 21 of them had such low concentrations of the drug it indicated an “awareness” of pain during the execution process. In other words, the condemned inmates probably suffered an excruciating death, experiencing the horrendous pain of their hearts being suffocated.

The Tennessee three-drug protocol is used in thirty states to carry out lethal injections. These protocols have come under increasing scrutiny by the courts as reports like The Lancet “research paper” continue to question the efficacy of this method of carrying out the death penalty.

Three months before Workman’s execution the Governor of Tennessee issued an executive order suspending the state’s existing lethal injection protocol and ordered the Department of Corrections to issue a revised protocol by May 2, 2007. The Governor was determined to satisfy not only the intense political pressure being brought to bear to have the “cop-killer” put to death but to have the execution carried out in a manner that would not offend capital punishment opponents and produce the sensational media headlines the State of Florida has experienced for its repeated “botched” executions.

Tennessee abandoned the electric chair as its official mode of execution in 1998 and adopted what has been called the more “humane approach” of lethal injection. The Department of Corrections on April 30, 2007 report adopted the same three-drug protocol originally implemented in 1998. This drug/chemical protocol involves the following dosages: 5 grams of sodium thiopental, followed by 100 milligrams of pancuronium bromide, and, finally, 200 mill equivalents of potassium chloride.

The April 30 DOC report said that the 5-gram dose of sodium thiopental “reduces oxygen flow to the brain and causes respiratory depression.” The level of barbiturate, according to the DOC report, quickly anesthetizes the condemned inmate’s brain and is a sufficient dosage by itself to produce death.

The report said that pancuronium bromide is a “muscle paralytic” that assists “in the suppression of breathing and ensure[s] death.” The report noted that the 100 milligrams of this chemical is also sufficient by itself to inflict death. This paralytic chemical is used not only because it reportedly hastens death but it also “prevents involuntary muscular movement that may interfere with the proper functioning of the IV equipment” and create an indelible impression of physical suffering.

Finally, the DOC report said that potassium chloride, a salt, interferes with heart function, resulting in “cardiac arrest and rapid death.”

The DOC report concluded with the finding that sodium thiopental, when administered properly, anesthetizes the condemned inmate before the other two chemicals are administered ensuring that he does not feel any physical pain or suffering.

The “three-drug protocol” utilized by the State of Tennessee to put Phillip Ray Workman to death was created more than thirty years ago by an Oklahoma medical examiner named Dr. A. Jay Chapman. He was instrumental in Oklahoma becoming the first state to abandon the electric chair in favor of lethal injection as the official method for executing condemned inmates.

Over the last three decades 36 other states (six of which do not employ the three-drug protocol), the Federal government, and the U.S. Military have adopted lethal injection as the way to “put down” condemned inmates. More than 900 such inmates have been executed by lethal injection in the United States.

In addition to the toxicology reports which showed that some condemned inmates were not adequately anesthetized with sodium thiopental, studies have criticized the three-drug protocol because veterinarians no longer use pancuronium bromide to euthanize animals, feeling that it is inhumane and produces a painful death. There have also been reports of people who underwent surgery, effectively immobilized by a paralytic drug but not adequately sedated with sodium thiopental, who suffered extreme pain during the surgical procedure.

Opponents of pancuronium bromide argue that there is no need for the chemical to be used in the execution process. They charge its use conceals valuable information from the public and media about the execution itself. In other words, it prevents an inmate from crying out in pain, just as those who underwent surgery without proper sedation could not cry out in pain to alert doctors that they were not properly anesthetized. State officials counter that they need the chemical to prevent involuntary muscular movement which, alone, would signal some kind of pain and suffering.

Once Oklahoma adopted lethal injection, other death penalty states quickly joined the “humane execution” bandwagon. Their legislative decisions followed a series of terribly botched executions in the electric chair and gas chamber: John Spenkelink in Florida in 1979 (electric chair), John Louis Evans in Alabama in 1983 (electric chair), and Jimmy Lee Gray in Mississippi in 1983 (gas chamber).

Nebraska is the only state that maintains the electric chair as an official method of execution – and its refusal to adopt lethal injection currently appears to be the wisest, most humane decision.

In the electrocution protocol, a 500-volt charge of electricity was administered to the condemned inmate. It was held in place for 30 seconds before being reduced. A second 2500-volt charge of electricity was administered for one minute before being reduced. A final 500-volt charge of electricity was administered for 30 seconds before being reduced. A two-minute procedure to complete the execution.

The first charge of electricity directly into the brain immediately rendered the condemned inmate unconscious and he was almost certainly dead before the second 2500-volt charge was administered. Common experience, and medical expertise, instructs that high voltage electricity knocks people unconscious and produces an almost instaneous death.

An electrocution protocol was much simpler than a lethal injection protocol. Condemned inmates were escorted from a nearby holding cell, allowed to make a final statement to witnesses, and strapped in the chair. The strapping-in-the-chair procedure took less than a minute. Altogether, the walk from the holding cell, final statement, placement in their chair, and administering three high voltages of electricity took from 5 to 7 minutes.

The lethal injection protocol is much longer, involving more physical and emotional distress – for both condemned inmate and staff. Condemned inmates are strapped to the gurney at least a hour before the actual execution begins. Medical technicians must probe and puncture for a good vein in which to insert the needle. And even after the drugs/chemicals are administered, it takes anywhere from 10 to 30 minutes before the inmate is pronounced dead.

Phillip Ray Workman, for example, was lucid two minutes after the sodium thiopental was administered. The Tennessee April 30 DOC report said that 5 grams of sodium thiopental would induce immediate unconsciousness. It didn’t produce unconsciousness in Workman until after the two-minute mark. Had Workman been put to death in the electric chair, he would have been dead moments after the first high voltage charge of electricity hit his brain.

There is no nice, humane way to kill a human being. Some conservative radio talk show hosts have said the issue of how condemned inmates die should not even be an issue for social discussion. Nazi Germany, who believed that Jews were as criminal as those individuals currently on death row in this country, shared the same philosophy as these hard-bitten radio talk heads.

The doctor who invented the guillotine did so in an effort to devise a humane way to put people to death. He was horror-stricken when he saw how his invention was ultimately used in French society. Lethal injection will one day stand alongside the guillotine as a failed experiment in how to humanely kill people.

How a society chooses to kill the worst in its midst reflects its conscience. Killing without remorse, whether by an individual psychopath or a state, is equally horrific. Capital punishment is not about “just desserts.” It’s about revenge, pure and simple. Make no mistake about that. And when a society can put human beings to death with drugs and chemicals that inflict indescribable pain and suffering without remorse, revenge has paralyzed its soul.
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