Supreme Court intervenes in Virginia death sentence

Oct 18, 2007, 20:36 GMT

Washington - A series of cases this week have prompted speculation about a nationwide moratorium on the death penalty amid increasing doubts in the US about lethal injections and the amount of pain suffered by condemned prisoners.

Nevada this week joined more than a dozen US states in putting off executions, and the US Supreme Court granted a stay of execution for a death row inmate in Virginia prompting speculation about a temporary halt to the method.

The Supreme Court on Wednesday agreed to stay the execution of convicted murderer Christopher Emmett pending an appeal to a federal court in Virginia or further action by the Supreme Court, which is to hear arguments this session on whether execution by lethal injection constitutes cruel and usual punishment.

Ruling on complaints by two prisoners in Kentucky recently, the US Supreme Court agreed to hear the arguments on methods of execution - the first such deliberations in more than 125 years.

The court did not provide a reason for its action in Emmett's case or its implications for other cases because it decides stays of execution on a case by case basis.

But legal scholars said the move could cause more states to halt executions pending the court's decision on lethal injection.

'I think this is a de facto moratorium,' Douglas A Berman, a sentencing expert at Ohio State University's law school, told the Washington Post, noting that such an interpretation 'would mean the most profound hiatus in the operation of the death penalty in at least two decades.'

In the Nevada case, the prisoner, William Patrick Castillo, was actually willing to go forward with the execution, but an appeal by the American Civil Liberties Union prompted the state's supreme court late Monday to postpone all executions for another 20 days, media reports said.

Meanwhile, the man who created the formula for lethal injections is expressing doubt about the method as it undergoes a thorough examination in the US legal system.

'It may be time to change it,' said Dr Jay Chapman in a recent interview with CNN. 'There are many problems that can arise.'

Chapman, a forensic pathologist and formerly chief medical examiner in Oklahoma, developed the three drug-combination used in the execution method in the 1970s after being asked to find an alternative to the firing squad.

The three drugs are an anaesthetic to render the inmate unconscious, a paralytic to stop the inmate's breathing and a drug to stop the heart.

The basic criticism of the procedure has been that the first drug may not completely anesthetize all inmates, and if that's the case, then the prisoner, who is not completely unconscious after the first drug, will likely feel the asphyxiation caused by the second drug, which paralyzes all muscles, including those needed to breathe.

Chapman has said over past years that there may be other drugs available that would use faster-working anaesthetics. Chapman, who supports the death penalty, said in the interview that simplest method of execution is the guillotine.

'And I'm not at all opposed to bringing it back. The person's head is cut off and that's the end of it,' he said.

Heads are hardly set to begin rolling in US execution chambers, but the use of lethal injection in its current form could soon end. The US Supreme Court is expected to decide by next summer whether lethal injection is a type of cruel and unusual punishment barred by the constitution.

The court has issued a ruling on the question of methods of execution only once, declaring death by firing squad constitutional in 1878.

About 100 years later, firing squad was still being used - specifically, in 1976, in the death of Gary Gilmore in Utah, the first prisoner to be executed in the US following the reintroduction of the death penalty in 1976.

Having the choice of electric chair or firing squad, Gilmore picked the latter.

Chapman and his colleagues at the Oklahoma state medical examiner's office considered both methods barbarian and developed the lethal injection method, which Chapman says is a sound if not perfect method that works if administered competently.

In the years following Gilmore's execution, lethal injection was adopted by 37 states and used in 928 of the 1,099 executions carried out in the US since 1976.

Doctors warned in 2005 that lethal injection often was linked with extreme pain. In many cases the anaesthesia dosage was too little to ensure the inmate lost consciousness, according to a study published in the British medical magazine Lancet based on autopsies done on the bodies of executed prisoners.

Since then further examinations have confirmed the suspicion that some prisoners remain conscious, but unable to speak, after receiving the anaesthetic. They slowly suffocate, feeling the pain, but unable to cry out.

In 2006, Florida prisoner Angel Nieves, 55, suffered for 34 minutes before expiring. An autopsy report found the lethal injection needle had missed the main blood vessel in Diaz's arm and was instead inserted into arm tissue. Then-Florida Governor Jeb Bush ordered suspension of executions and an investigation into the use of lethal injections.

The same year, it took 90 minutes to execute Joseph Clark in Ohio. Witnesses reported that Clark groaned and struggled, telling prison officials the anaesthetic wasn't taking effect and begging for 'something by mouth' to end it all.

All this has led to a full-blown discussion over the best method of execution. Michael Rushford of the Criminal Justice Legal Foundation, which supports the death penalty, has advocated the use of carbon monoxide. Rushford described it is 'simple, fast and painless.'

Experts expect lethal injection to remain the method most widely used, but with the legal requirement that when it is used, no unnecessary pain is caused.