Execution ruling problematic

The Missouri Department of Corrections may have trouble following new guidelines spelled out in an appellate judge’s opinion on lethal injection in Missouri, the executive director of the Death Penalty Information Center said Wednesday.

The judgment by the 8th U.S. District Judge, Fernando Gaitan Jr., issued Monday, creates strict guidelines for execution by lethal injection in Missouri. The guidelines are so strict that the Department of Corrections may have trouble complying with them, said Richard Dieter, executive director of the Death Penalty Information Center.

“It may be constitutional, but it may not be feasible,” he said.

The Death Penalty Information Center is a nonprofit, nonpartisan organization that aims to provide the public with information on the death penalty.

Gaitan’s opinion amended an earlier one in the case of Michael Anthony Taylor, who was sentenced to death in 1989 for the rape and murder of a 15-year-old girl in Kansas City, Mo. In his appeal, Taylor’s attorneys argued that death by lethal injection can cause undue pain.

Gaitan said that Missouri’s current system can create “unconstitutional pain and suffering.”

He cited the state’s lack of a written protocol governing the amounts of chemicals used during executions and the fact that the sole doctor who administers the drugs is dyslexic as potentially problematic.

Under Gaitan’s guidelines, a certified anesthesiologist would be required to mix the drugs and either administer them or observe those who do. His ruling also requires that thiopental levels not be less than 5 grams, and that the final two drugs that cause death cannot be administered until patients are fully unconscious and it is certain they can’t feel pain.

In testimony during Taylor’s appeal, Department of Corrections Director Larry Crawford said that the state had been using a 2.5 gram dose of thiopental sodium — the drug that causes loss of consciousness and prevents pain — a lower dose than what is commonly used in lethal injections. The ruling also requires the purchase of adequate equipment to monitor the patient’s anaesthetic depth, a contingency plan should something go wrong, and an auditing process.

The state has until July 15 to meet the guidelines. Until the state’s new guidelines are approved by the judge, no executions can be carried out in Missouri.

The ruling applies only to Missouri.

Dieter said that the ruling’s emphasis on the participation of medical personnel presents a problem for the state.

“The American Medical Association has made it clear that doctors are not to participate in executions” he said.

Dieter said the department will have a difficult time finding anesthesiologists to perform executions.

“Some presence at an execution — usually to confirm death — has been allowed in most states,” he said. “The protocol Judge Gaitan has laid out is a lot more. The state may say, ‘we’re not able to do this, but we’re required to carry out executions.’”

Judge Charles B. Blackmar, a former chief justice of the Missouri Supreme Court who has lobbied for a moratorium on executions in Missouri, said that Gaitan’s ruling was right for the situation but may also reflect a general feeling about executions.

“Although many seem to favor capital punishment, there is a sort of revulsion when it comes time to execute somebody,” he said. “It really is a confusing situation and maybe people will conclude it’s not worth the trouble it causes the state.”

Still, Eric Berger, one of Taylor’s attorneys, said he saw the ruling as a victory for his client and as the beginning of a process of change for Missouri’s execution procedure.

“It is certainly a positive development that Missouri will for the first time be required to write down its lethal injection procedure and to remedy some of the problems that have created a significant risk of unnecessary pain in executions,” he said.