Opinion
No. M199901334SCDPEPD
May 8, 2007.
This manual contains a summary of the most significant events and departmental procedures which will occur during the final days leading to the execution of a condemned inmate. It contains a detailed listing of some of the duties and responsibilities of certain key departmental personnel. In addition, the manual covers institutional perimeter security prior to, during and subsequent to an execution.
It will be used as a guideline for the Warden to assure that operational functions are properly planned with the staff who have designated responsibilities in performing a legally ordered execution by lethal injection.
SECTION 8 (PERIMETER SECURITY) IS CONFIDENTIAL AND IS NOT FOR PUBLIC RELEASE.
TABLE OF CONTENTS — LETHAL INJECTION
I. Introduction II. Definitions III. Duties of Management and Administrative Personnel IV. Staff Selection and Training V. Procurement, Preparation, Introduction of the Chemicals, and Procedures of Accountability VI. Death Watch Procedures Day 4 — Execution Day VII. Victim Services VIII. Perimeter Security — Confidential — Not for Public Release IX. Forms X. TDOC Policies
Commissioner's Statement 5 Definitions 7 Diagram of Capital Punishment Unit 9 Riverbend Maximum Security Institution Personnel 11 Warden 12 Deputy Warden 14 Lethal injection Recorder 15 Death Watch Supervisor 16 Institutional Chaplain 18 MIS Security Systems Technicians 19 Physician 20 IV Team 21 Facility Maintenance Supervisor 22 Extraction Team 23 Escort Officer(s) 24 Central Office Personnel 25 Commissioner 26 Deputy Commissioner 27 Assistant Commissioner of Operations 28 TDOC Communications Officer 29 Director of Victim Services 30 Execution Team Member Selection Criteria 32 Training of Execution Team Members 33 Brief Explanation of the Chemicals Used in Lethal Injection 35 Procurement, Storage, Accountability, and Transfer of the Chemicals 36 Lethal Injection Chemical Set-up and Preparation 38 IV Preparation 39 Insertion of a Catheter and Connection of IV Lines 41 Chemical Administration and IV Monitoring 43 Staff Responsibilities and Special Procedures 46 Execution Team 50 Death Watch Supervisor 52 Control Monitor 55 Floor Officer Monitor 59 Day 1 61 Day 2 62 Day 3 62 63 Post Execution 66 Contingency Issues 67 Victim Services 69 Perimeter Security Assignments 71 Perimeter Diagram 75 Notification Letter to Sheriff's Office to Witness Execution of Inmate 77 Notification Letter to Inmate's Family to Witness Execution 78 Physician's Inventory Checklist 79 IV Team Inventory Checklist 80 Chemical Preparation Time Sheet 81 Day of Execution — Lethal Injection Execution Recorder Checklist 82 Lethal Injection Chemical Administration Record (Red) 85 Lethal Injection Chemical Administration Record (Blue) 86 News Release 87 Affidavit Concerning Method of Execution 88 Application for News Media Representative 89 Affidavit to Select Defense Counsel Witness to Execution 94 Lethal Injection Chemical Bin Card Form 95 506.16.1 — Executions: Facility Control and Access 506.16.2 — Executions: Death Watch 506.16.3 — Executions: Changes to Execution Protocols 507.01 — Visitation 507.01 PCN 06-12 507.01 PCN 05-16 507.01 PCN 04-56 507.01.1 — Non-Contact VisitationINTRODUCTION RIVERBEND MAXIMUM SECURITY INSTIUTION
The Tennessee Department of Correction is responsible for the incarceration of convicted felons serving sentences ranging from one year to death. Individuals sentenced to death are housed and executed at Riverbend Maximum Security Institution. Upon the exhaustion of an individual's appeals, the execution process shall begin.
In the capacity as commissioner, it is my duty by law to oversee the humane and constitutional execution of individuals sentenced to death by judicial authority in Tennessee. This manual explains the procedures for lethal injection. It will be reviewed annually, or as needed, by a designated panel.
________________________ __________________________ Commissioner Date
DEFINITIONS
RIVERBEND MAXIMUM SECURITY INSTITUTION DEFINITIONS
The definitions listed below only pertain to the Lethal Injection Process within this manual.
Bin Card A card used to inventory and account for lethal injection chemicals.
Catheter A thin flexible tube that is inserted into a part of the body to inject fluid.
CERT Correctional Emergency Response Team Death Watch A period of time immediately prior to an execution during which special procedures are implemented in order to ensure that the execution is carried out in a safe and orderly manner.
Death Watch Area An area that includes the inmate's cell(s) contact and non-contact visitation areas, the control room, and the secured monitoring area.
Drip Chamber A hollow device that provides a visual of the drip/flow.
EMT Emergency Medical Technician
Lethal Injection Room A room where the Executioner administers the lethal injection chemicals at the direction of the Warden.
Execution Team The Execution Team shall consist of: the Warden, Deputy Warden, Executioner, Extraction Team, Death Watch Team, IV Team, Lethal injection Recorder, Facility Maintenance Supervisor, MIS Security Systems Technician(s), and Escort Officer(s).
Extraction Team Execution Team members who are responsible for the removal, restraint, and movement of the inmate during the time of execution.
Gurney A wheeled stretcher for transporting.
Flash Chamber A device that precludes blood leakage as a needle is removed from the catheter and an IV unit is coupled to the catheter.
IV Intravenous
Extension Line The clear tubing used to administer fluids.
DEFINITIONS — CON'T
LICs Lethal Injection Chemicals
Pan Tilt Zoom Camera (PTZ) The camera used by the Execution Team in the Lethal Injection Room. The camera monitors the condemned inmate's IV site(s).
Solution Set Equipment designed to administer an IV.
Syringe A medical instrument used to inject fluids into the body or draw them from it.
Tourniquet A compression device used to cut off the flow of blood to a part of the body, most often an arm or leg. It may be a special surgical instrument, a rubber tube, a strip of cloth, or any flexible material that can be tightened to exert pressure.
Note: The masculine pronoun is used throughout the manual
DUTIES OF MANAGEMENT AND ADMINISTRATIVE PERSONNEL
RIVERBEND MAXIMUM SECURITY INSTITUTION RIVERBEND MAXIMUM SECURITY INSTITUTION PERSONNEL WARDEN
Primary Role
To assure that the procedures prescribed by law and as outlined in this operating procedure are performed, either by personal performance or by delegation.
Duties:
1. To assure that the security of the institution is maintained.
2. To assure condemned inmates sentenced prior to January 1, 1999 are given the opportunity to select electrocution or lethal injection as a legal means of execution at least 30 days before the execution.
3. To explain to the inmate the procedures and activities which will take place during Death Watch.
4. To control any contact between the condemned inmate and other persons.
5. To coordinate the notification of official witnesses of the date and time to be at the institution to witness the scheduled execution.
6. To coordinate the appointment of execution staff member(s).
7. To select a person to serve as Executioner.
8. To set the precise hour and minute of execution.
9. To assure that the chemicals used for lethal injection have been properly acquired, stored, and accounted for.
10. Will arrange for presence of physician to carry out functions set forth on p. 20.
11. To coordinate with the Medical Examiner for disposition of the body.
12. To keep the Commissioner and Assistant Commissioner of Operations informed of the progress towards and implementation of the execution.
13. To coordinate with the Metropolitan Nashville Police Department and Tennessee Highway Patrol and any additional security forces required.
14. To control activation of closed circuit TV to the victim family witness room.
WARDEN'S DUTIES CON'T
15. To order the Executioner either verbally or by gesture to proceed with execution.
16. To cause the announcement to significant parties and the public of the fact that the sentence of execution has been carried out.
DEPUTY WARDEN
Primary Role
Assist the Warden in performing execution procedures and substitute for the Warden if he is unable to perform his duties.
Duties:
1. To assure the security of the condemned inmate.
2. To supervise preparation of the Death Watch cell area, Execution Chamber, and the condemned inmate for execution.
3. To coordinate and/or approve, with assistance by assigned security staff, visits and phone calls permitted to the condemned inmate.
4. To provide the final inspection of restraint devices to ensure condemned inmate is secure on the gurney prior to IV catheters being placed in each arm.
5. To ensure that any blinds between the witness room and the Execution Chamber are closed prior to the witnesses entering and opened after the witnesses are seated.
6. To supervise the removal of the body from the Execution Chamber.
7. To coordinate the release of the condemned inmate's body to the authorized recipient or coordinate burial at State expense in the event of an unclaimed body.
LETHAL INJECTION RECORDER
Primary Role
Assist the Warden in carrying out his duties.
Duties:
1. To coordinate and supervise the movement of the Execution Team to and from the Execution Chamber, and aid in maintaining the team's anonymity.
2. To process applications for the selection of news media representatives to attend executions.
3. To complete the Lethal Injection and Execution Recorder Checklist.
DEATH WATCH SUPERVISOR
Primary Role
To coordinate all security requirements for the inmate during the Death Watch and to supervise all correctional officers assigned any responsibilities for direct supervision of the inmate during Death Watch, including preparation of the condemned inmate.
Duties:
1. To prepare a duty schedule for officers assigned this detail.
2. To review post orders for correctional officers and to become familiar with all functions of subordinates.
3. To ensure that the condemned inmate personally inventories his personal property and packs away all items he is not permitted to retain. The Death Watch Supervisor, inmate and one witness will sign property inventory. The sealed property will be retained in storage in the Property Room until removed by the inmate's designee.
4. To maintain a bound ledger of information related to Death Watch associated activities which concern the death watch. This log will contain a record of all visitors, meals served, shaving, handling of mail, inmate behavior,
5. To only permit authorized persons to enter the Death Watch area. A list of authorized personnel will be provided by the Warden.
6. To maintain a sufficient amount of clothing in the inmate's size retained by Death Watch officers in order to provide a change of clothing each time the inmate leaves the cell.
7. To ensure that cellular phones, cameras, audio, and video equipment are not taken into the Death Watch area or the Execution Chamber at any time during Death Watch or at the time of execution, unless authorized by the Warden.
8. To coordinate movement of witnesses entering and exiting witness rooms during the execution process.
DEATH WATCH SUPERVISOR CON'T
9. To ensure that the closed circuit TV and audio speaker systems are activated and deactivated at the prescribed times during the execution process.
10. To ensure the events pertaining to the execution are documented by the Lethal Injection Recorder on the Lethal Injection Execution Recorder Checklist.
INSTITUTIONAL CHAPLAIN
Primary Role
To offer and deliver chaplaincy services to the condemned inmate and the inmate's family as needed.
Duties:
1. To ask the inmate to specify in writing the preferred funeral arrangements and the preferred recipients of personal property. If a legal will is requested, the Chaplain will coordinate with the TDOC Staff Attorney.
2. To say a brief prayer of intercession immediately prior to execution.
3. To assist in the release of the executed inmate's body to the authorized next-of-kin recipient or mortician through the State Medical Examiner.
MIS SECURITY SYSTEMS TECHNICIANS
Primary Role
To assure that the closed circuit television and the audio systems between the Execution Chamber and witnesses room(s) are functioning properly at the scheduled time of execution.
PHYSICIAN
Physician's Primary Role
To pronounce death
Duties:
1. To be present at the precise time of execution in the capital punishment garage.
2. As an ultimate and last option, the physician may perform the cut-down procedure should the IV Team be unable to find a vein adequate to insert the catheter.
3. To examine the body for vital signs five minutes after the chemicals for lethal injection have been injected.
4. To notify the Warden if the inmate is not legally dead.
5. To pronounce death if no vital signs are detected.
IV TEAM
IV Team's Primary Role
To establish properly functioning IV lines for administration of the lethal injection chemicals.
Duties:
1. To prepare the IV equipment.
2. To ensure the equipment used is in working order.
3. To locate sites for intravenous use.
4. To ensure vascular access is properly established.
5. To ensure the IV lines are flowing properly.
6. To document the injection of the chemicals on the Lethal Injection Chemical Administration Record sheet.
FACILITY MAINTENANCE SUPERVISOR
Primary Role
To assist with the witnesses
EXTRACTION TEAM
Primary Role
To escort and secure the condemned inmate during the execution process.
ESCORT OFFICER(S)
Primary Role
To accompany and guide witnesses during the execution process.
CENTRAL OFFICE PERSONNEL COMMISSIONER
Primary Role
To oversee the administration of judicial executions in Tennessee.
Duties:
1 Ten minutes prior to the precise hour and minute scheduled for the execution, the Commissioner will establish telephone contact with the Highway Patrol Trooper on duty at the Executive Residence.
2 To communicate to the Warden any changes that could alter or delay the execution.
3 To arrange for or mandate an Employee Assistance Program (EAP) debriefing as needed.
DEPUTY COMMISSIONER
Primary Role
To work directly with the Commissioner and perform any assigned duties.
ASSISTANT COMMISSIONER OF OPERATIONS
Primary Role
To be stationed at the Command Post or location designated by the Commissioner and assume operational control of the institution during the time the Warden is directing the execution.
Duties:
1. To serve as liaison to all support units and to conduct an operational debriefing of all security and procedural personnel after the execution.
2. To maintain telephone and/or radio contact with the Warden and other personnel.
TDOC COMMUNICATIONS OFFICER
Primary Role
To coordinate all media operations associated with the execution.
Duties:
1. To provide assistance to the Warden in obtaining phone communications needed by media representatives.
2. To coordinate all visits by media representatives both prior to and subsequent to an execution.
3. To notify the media of the witness lottery by faxing an advisory to the Associated Press.
4. To attend the media drawing held at RMSI and send out a notification to the Associated Press regarding who was selected.
5. To compile a press kit including guidelines, specifics of the case for which the inmate is being executed, and other related policies and statutes needed for the execution.
6. To communicate with the Governor's communication staff about who will be available to address media inquiries.
7. To establish a contact sheet with names, assignments and contact numbers of each Public Information Officer involved. The Warden will be issued a copy.
8. To coordinate with the Facility Maintenance Supervisor to create a staging area with a podium for news briefings.
9. To establish a schedule for news briefings.
DIRECTOR OF VICTIM SERVICES
Primary Role
To work with victims, family members, and other interested parties involved in the execution process.
Duties:
1. To confirm the list of individuals registered for notification.
2. To mail execution notification letters and packets.
3. To work closely with the victim liaison from the Attorney General's office.
4. To work with the Escort Officer(s) in accompanying witnesses.
SELECTION AND TRAINING OF STAFF
RIVERBEND MAXIMUM SECURITY INSTITUTION EXECUTION TEAM MEMBER SELECTION CRITERIA LETHAL INJECTION
Certain persons are members of the Execution Team by virtue of their official position (i.e. Warden, Deputy Warden). The Warden selects the remaining team and considers at a minimum the following general criteria for other members:
1. Length of service.
2. Ability to maintain confidentiality.
3. Maturity.
4. Willingness to participate.
5. Satisfactory work performance.
6. Professionalism.
7. Staff recommendations to the Warden.
8. Review of personnel files by the Warden prior to selection.
The following positions on the Execution Team are specialized and have specific requirements:
1. Two (2) EMTs — Paramedic — Certified Emergency Medical Technician
2. Three (3) Correctional Officers — Received IV training through the Tennessee Correction Academy by qualified medical professionals.
3. Facility Maintenance Supervisor — A person knowledgeable of the institution's physical plant and equipment.
4. MIS Security Systems Technician(s) — Must be an Information Resource Support Specialist 3 or above with audio/visual experience.
TRAINING OF EXECUTION TEAM MEMBERS
Execution Team
The Execution Team shall consist of: the Warden, Deputy Warden, Executioner, IV Team, Extraction Team, Death Watch Team, Lethal Injection Recorder, Facility Maintenance Supervisor, MIS Security Systems Technician(s), and Escort(s) Officers.
Training
1. All Execution Team members read the Lethal Injection Execution Manual when they become members of the Execution Team. Additionally, the Warden or designee holds a class during which the manual is reviewed and clearly understood by all participants. At least annually, the Warden or designee holds an Execution Manual review class for all members of the Execution Team.
2. The Execution Team simulates Day 4 (Execution Day) of the Death Watch Procedures and the steps outlined in Section 4 for at least one (1) hour each month. A training record is maintained to document all staff members who participate in the training. The simulation includes all steps of the execution process with the following exceptions:
1. Volunteers play the roles of the condemned inmate and physician.
2. A body is not placed in the body bag.
3. Saline solution is substituted for the lethal chemicals.
3. All training that occurs is documented. The documentation includes the times and dates of the training, the participants, and what the training consisted of.
Executioner
The Executioner receives initial and periodic instruction from a qualified medical professional.
PROCUREMENT, PREPARATION, INTRODUCTION OF THE CHEMICALS, AND PROCEDURES OF ACCOUNTABILITY
RIVERBEND MAXIMUM SECURITY INSTITUTION BRIEF EXPLANATION OF THE CHEMICALS USED IN LETHAL INJECTION
Sodium Thiopental A rapid-onset barbiturate used in general anesthesia. It works by depressing the central nervous system, causing sedation or sleep, depending on the dose. It reduces oxygen flow to the brain and causes respiratory depression. It will be administered in one lethal 5 gram dose during the injection process.
Pancuronium Bromide (Pavulon) A muscle paralytic. It will assist in the suppression of breathing and ensure death. A lethal dose of 100mg/100mL is administered during the injection process.
Potassium Chloride A salt that in high doses interrupts the electrical signaling essential to normal heart function. A high dose of potassium chloride administered intravenously causes cardiac arrest and rapid death. A lethal dose of 100 mg/mL of a 2 mEq/mL concentrate is administered during the injection process.
PROCUREMENT, STORAGE, ACCOUNTABILITY, AND TRANSFER OF THE CHEMICALS
Procurement
1. Upon direction from the Warden or his designee, a member of the Execution Team checks the supply of chemicals and expiration dates. If he determines that additional chemicals are needed, he contacts the Procurement Officer at RMSI. The RMSI Procurement Officer contacts the Procurement Officer at DeBerry Special Needs Facility (DSNF) to order the needed chemicals. When the chemicals are delivered, the Procurement Officer at DSNF contacts the Procurement Officer at RMSI. One of the members of the Execution Team picks up the chemicals at either the DSNF or the RMSI warehouse. The Warden ensures that there are enough lethal injection chemicals kept in inventory at RMSI to carry out three executions.
Storage of Chemicals
1. The member of the Execution Team and the Warden take the chemicals to the armory area of Building 7 at RMSI. The lethal injection chemicals (LICs) are not stored in the weapon area of the armory due to the occasional employee traffic but rather in the key control section of the armory where there is the least employee need for access. The chemicals are placed in unmovable heavy gauge steel containers with security grade locks or in a small refrigerator that has been equipped with heavy gauge steel bar(s) to prevent mobility and access to the refrigerator without the removal of the locked/secured bars. The refrigerator is plugged into an emergency power outlet with back-up power to the generator in the event of a power outage. Pancuronium Bromide must be refrigerated at approximately 40 degrees to extend shelf life past six months.
2. All locking devices and storage containers are designed to prevent access to anyone without the proper keys or result in such destruction that entry into the container is unmistakable. There is only one key to access each storage container or refrigerator. That key is issued permanently to the Warden of RMSI. The Warden also has the pattern key to the container or refrigerator in his possession. There are no other duplicates produced. The Warden surrenders the key to no one other than the one member of the Execution Team designated for inventorying the LICs and only for the duration of the count and expiration checking of the LICs. Only the Warden or designee is allowed to access the storage containers or refrigerator.
3 The chemicals on hand are monitored for expiration dates. All of the chemical boxes and bottles have an expiration date, and all chemicals are in tamper-proof bottles or containers. As the chemicals reach their expiration dates, they are disposed of by hazardous waste pick-up.
NOTE: The chemical manufacturer may change the concentration of the chemical solution without notification. The label should be carefully checked before mixing.
Accountability of Chemicals
1. A permanently bound ledger is maintained in the armory/key control area where all employees, including the armory/key control officer(s), signs each time they enter the area. The armory/key control officer performs a visual inspection of each container upon arrival at his workstation to ensure the proper band is in place and that the container or refrigerator has not been compromised in any way.
2. A permanently bound ledger is maintained in the storage area that contains a record of each LIC. An inventory of each chemical is maintained on a Bin Card form. Any LICs removed for use, disposal due to expiration, or for any other reason are deducted from the inventory. Any LICs received into the storage container or refrigerator are added to the inventory.
3. Each storage container has a numbered security band that is broken prior to opening the container. The number of each band is recorded in the ledger. When the container or refrigerator is opened for any reason, the band is broken and the justification for entry is recorded in the ledger adjacent to the band number. When the container is secured and a new band is placed on the container or refrigerator, a new number is recorded in the ledger.
4. Upon receipt of the LICs, the Warden or designee proceeds to the armory storage area, secures the LICs, and adjusts the inventory appropriately. Prior to the LICs being placed in storage, the expiration date and lot number or other identifying marking is recorded to ensure that the LIC is properly disposed of at the time of expiration.
5. The Warden and the designee jointly verify all inventories of LICs on a semi-annual basis (January/July), at a minimum, and subsequent to each execution. The Warden and the designee make appropriate entries in the ledger with their full signatures that verify the correctness of the LIC count.
Transfer of Location
1. After the LICs are signed out on the appropriate ledger in the armory for execution purposes, the LICs are placed in an inconspicuous container for transport to the Execution Chamber. The Warden's designee is responsible for the delivery of the LICs to the appropriate individuals in the Execution Chamber.
2. In the event the LICs are not used and not compromised in any way, the LICs are returned to the armory, re-entered on the perpetual inventory ledger, and secured in the appropriate container or refrigerator.
LETHAL INJECTION CHEMICAL SET-UP AND PREPARATION
1. A minimum of two members of the Execution Team bring the LICs from the armory area directly to the Lethal Injection Room approximately three hours before an execution. The amount of chemicals and saline is sufficient to make two complete sets of eleven (11) syringes each. One set is color coded red and the back-up set is color coded blue. Each syringe is numbered in the order it is to be administered and labeled with the name of its contents. Only the Warden and one member of the Execution Team has a key to the Lethal Injection Room.
2. Each chemical is prepared for being drawn into syringes by one member of the Execution Team. Another member of the Execution Team observes and verifies that the procedure has been carried out correctly.
3. Only one chemical and one syringe is prepared at a time. The two sets of syringes are positioned in specific holding places in two separate trays color coded red and blue. The syringes are numbered, labeled, and placed in the order they will be administered. One member of the Execution Team will perform this procedure while another member of the Execution Team observes and verifies that the procedure has been carried out correctly. The Chemical Preparation Time Sheet will document the preparation of each chemical.
4. Instructions for preparation of one set of syringes:
Sodium Thiopental: The Sodium Thiopental is in powder form and is mixed with sterile water. A box of Thiopental contains 500 mg of powder and a bottle of sterile water. 10 boxes of 500 mg of Thiopental are required to produce 5 grams of the chemical. The member of the Execution Team draws 20 cc of sterile water and injects it into the powder. The powder is dissolved into the water. Next, he repeats the process nine (9) more times, using the remaining 9 boxes for a total of 5 grams of the chemical. He then draws the solution into four syringes. The syringes are labeled Sodium Thiopental with consecutive numbers one (1) through four (4).
Saline: The member of the Execution Team draws 50 cc of saline solution from the IV bag into a syringe which is labeled Saline with the number five (5). Saline is administered between the drugs to prevent any mixing of the LICs and flushes the IV line.
Pancuronium Bromide (Pavulon) The member of the Execution Team draws 50 cc of Pancuronium Bromide (100mg/mL) in each of two syringes. These syringes are labeled Pancuronium Bromide with numbers six (6) and seven (7), respectively.
Saline: The member of the Execution Team draws 50 cc of saline solution from the IV bag into a syringe which is labeled Saline with the number eight (8).
Potassium Chloride: The member of the Execution Team draws 50 cc of Potassium Chloride (100 mL of 2 mEq/mL) into each of two syringes. The syringes are labeled Potassium Chloride with the numbers nine (9) and ten (10), respectively.
Saline: The member of the Execution Team draws 50 cc of saline solution from the IV bag into a syringe which is labeled Saline with the number eleven (11).
5. The tray is placed on the workstation in the Lethal Injection Room.
6. THIS PROCESS WILL BE REPEATED FOR THE SECOND SET OF SYRINGES
7. When the execution is complete, all syringes and any of the unused LICs are sent to the Medical Examiner's office with the body.
IV PREPARATION
IV LINE SETUP
REQUIRED ITEMS: 2 BAGS OF 0.9% SODIUM CHLORIDE
2 SOLUTION SETS 2 HEMOSTATS EXTENSION SETS TAPE
1. Two (2) bags of 0.9% Sodium Chloride Injection USP are hung in the injection room. The expiration dates should be checked.
2. A Solution Set spike is inserted into each bag with the clamp turned to the off position. The drip chamber is compressed until it is approximately 1/3 filled. The Solution Sets are 85 inches long. The length of the Solution Set may be purchased longer or shorter just as long as there is a port near the spiked end.
3. The port nearest the spiked end is opened. This is done by tearing the plastic and rubber off leaving an open hole.
4. Once the port is opened, an extension is inserted. Extensions can be purchased in different lengths. The extension into the first port should be 18 to 24 inches in length. Extensions are added to each end of the Solution Set until it reaches the desired length. The ends should reach from head to toe of the condemned inmate.
5. Once the desired length is obtained, the lines should be filled with Sodium Chloride. The clamp is opened, allowing the port to fill. When it is filled it is clamped and capped off. The line that goes to the body continues to fill. The clamp is turned off and the line is capped.
6. The line is taped to the port (where the syringe is inserted) in place. The remainder of the line is placed out of the ports in the window. It should be taped in place to keep it from being pinched closed.
7. The Sodium Chloride bag and line on the left goes to the left side of the condemned inmate. The left side of the condemned inmate is nearest the wall / window and requires fewer extensions. Repeat #5 and #6. IV lines are ready.
INSERTION OF A CATHETER AND CONNECTION OF IV LINES
Strap Down and Location of the Vein
1. The Extraction Team straps the condemned to the gurney in the Death Watch Area.
2. The Extraction Team moves the gurney into place in the Execution Chamber and straps it to the floor. Members of the team place arm supports on the gurney and restrain the condemned inmate's arms securely to the gurney. The restraints are secure but not tight enough to slow or stop blood circulation.
3. The Extraction Team exits the Execution Chamber after the condemned inmate is in place and secure.
4. The IV Team enters the Execution Chamber with an instrument cart. One member of the IV team remains in the Lethal Injection Room.
5. The member of the IV Team in the Lethal Injection Room activates the phone light in the Execution Chamber.
6. Size, location, and resilience of veins affect their desirability for infusion purposes. The EMT inserts the first catheter into a vein on the right side of the condemned in the anticubital fossa area. If a catheter cannot be successfully inserted into the anticubital area, the EMT examines other locations for insertion in the following order:
a. Forearm b. Wrist c. Back of the hand d. Top of the foot e. Ankle, lower leg, or other appropriate locations as determined by the EMTs
7. In the unlikely event that none of these veins are usable, the physician is called into the Execution Chamber to perform a cut-down procedure.
Venipuncture and IV Lines
1. The EMT(s):
a. Place a tissue towel under the limb or body part to be used to start an IV.
b. Place a tourniquet around the limb or body part 6-8 inches above the vein to be used.
c. Find the best vein to use according to the succession outlined.
d. Swab the area with an alcohol pad.
e. Determine the size of the catheter to be used which is determined by the size of the vein, 18 gauge being the largest.
f. Insert a catheter into the vein bevel side up at a shallow angle, feeding the plastic catheter sleeve into the vein.The flash chamber of the catheter fills with blood, which is the first indicator the catheter is inside a vein.
2. An IV Team member attaches the Solution Set line from the right Sodium Chloride bag to the catheter. This is a friction coupling and requires the line to be pushed into the catheter and twisted to secure the connection.
3. An IV Team member in the Execution Chamber signals the IV Team member in the Lethal Injection Room to open the clamp on the right bag of Sodium Chloride, near the spike, to allow a flow of Sodium Chloride into the vein.
4. Members of the IV Team observe the IV for indication of a well functioning line. The first indicator is that when the clamp is opened, there is a steady flow/drip inside the drip chamber. The second indicator is that the flash chamber becomes clear of blood as the Sodium Chloride begins to flow. When the IV Team is confident that there is a well-functioning line, the IV Team member in the Lethal Injection Room deactivates the telephone indicator light, signaling that there is a successful IV line.
5. A member of the IV Team places the Tegaderm transparent dressing over the catheter and secures the line in place with tape.
6. The second IV is then started on the left side of the condemned inmate and Steps 1-5 are repeated, using the left bag of Sodium Chloride.
CHEMICAL ADMINISTRATION AND IV MONITORING
1. All members of the IV Team monitor both catheters to ensure that there is no swelling around the catheter that could indicate that the catheter is not sufficiently inside the vein. The IV Team member in the Lethal Injection Room monitors the catheters by watching the monitor in his room which displays the exact location of the catheter(s) by means of a pan-tilt zoom camera. The IV Team Members observe the drip chambers in both lines to ensure a steady flow/drip into each Solution Set line.
2. Next, an IV Team member tapes both hands, palms up, to the arm support to prevent movement. The palms will be down should the back of the hand be used for the catheter.
3. When the hands are taped in place, the members of the IV Team leave the Execution Chamber.
4. Designated members of the IV Team enter the Lethal Injection Room and assume their pre-assigned stations.
a. One IV Team member observes the process, monitoring the catheter sites for swelling or discoloration, and enters the times of the LIC and Saline administration on the Chemical Administration Record sheet.
b. One IV Team member observes the process and hands the labeled/numbered/colored syringes to the Executioner in the prescribed order.
5. The Executioner selects either the left or right Solution Set line based on the flow/drip inside the drip chamber. If both lines are equal, the left line nearest the Executioner is used.
6. When the Warden gives the signal to proceed with the execution, the Executioner clamps the line near the spike. The Executioner receives the first syringe from the member of the IV Team and inserts and twists it into the extension line.
DRUG SEQUENCE INDENTIFIER LABEL VOLUME
1. SODIUM THIOPENTAL (DRUG NAME, RED # 1) 50 cc 2. SODIUM THIOPENTAL (DRUG NAME, RED # 2) 50 cc 3. SODIUM THIOPENTAL (DRUG NAME, RED # 3) 50 cc 4. SODIUM THIOPENTAL (DRUG NAME, RED # 4) 50 cc 5. SALINE FLUSH (DRUG NAME, RED # 5) 50 cc 6. PANCURONIUM BROMIDE (DRUG NAME, RED # 6) 50 cc 7. PANCURONIUM BROMIDE (DRUG NAME, RED # 7) 50 cc 8. SALINE FLUSH (DRUG NAME, RED # 8) 50 cc 9. POTASSIUM CHLORIDE (DRUG NAME, RED # 9) 50 cc 10. POTASSIUM CHLORIDE (DRUG NAME, RED # 10) 50 cc 11. SALINE FLUSH (DRUG NAME, RED # 11) 50 cc 7. The Executioner pushes on the plunger of the #1 syringe (red) with a slow, steady pressure. Should there be or appear to be swelling around the catheter or if there is resistance to the pressure being applied to the plunger, the Executioner pulls the plunger back. If the extension line starts to fill with blood, the execution may proceed. If there is no blood, the Executioner discontinues with this line. He starts the process on the other line with the back-up set of syringes starting with syringe # 1 (blue) and following all of Step 6.8. An IV Team Member hands the syringes to the Executioner and both IV Team Members observe the correct order of the syringes as the Executioner injects the LICs and saline solution.
9. After the #11 syringe has been injected, the Executioner closes the extension line with a clamp and opens the line below the spike to allow a drop of 1-2 drops per second in the drip chamber.
10. The Executioner signals the Warden that all of the LICs and saline solution have been administered.
DEATH WATCH PROCEDURES LETHAL INJECTION
RIVERBEND MAXIMUM SECURITY INSTITUTION STAFF RESPONSIBILITIES AND SPECIAL PROCEDURES FOR INMATES ON DEATH WATCH
Purpose: The purpose of this operating procedure is to designate staff responsibilities and establish uniform property, privileges and institutional guidelines for condemned inmates with signed court orders for execution.
Application: All inmates who have exhausted all appeals available to them and have an execution date within next four days.
1. Housing and Security Assignments
A. The inmate is transferred to Building 8 (Capital Punishment) three (3) days prior to the scheduled execution.
B. Correctional officers are assigned to the housing area in a manner consistent with TDOC Policy 506.16.2, which sets forth the guidelines for the Death Watch Supervisor.
2. Middle Tennessee Institutional Notification and Advisement of Law Enforcement Agencies
A. Upon determination of the execution date and time, the Commissioner, TDOC Communications Officer, Assistant Commissioner of Operations, Wardens of Tennessee Prison for Women, Deberry Special Needs Facility, Charles Bass Correctional Complex and Turney Center may be advised by Riverbend's Warden or his designee. Should circumstances develop which necessitate it, CERT TEAM activities are coordinated by the Assistant Commissioner of Operations. Formulation of security personnel is at the discretion of the Assistant Commissioner of Operations.
3. State-Issued Property and Possession Limit
The inmate is allowed only the items listed below. Any other item is considered contraband and confiscated in accordance with institutional policy.
A. Standard issue of outer clothing
B. One bed
C. One mattress, pillow and standard issue of linens
D. One toothbrush
E. One tube of toothpaste
F. One bar of soap
G. One disposable razor (to be issued and used under direct supervision only)
H. Two towels, one washcloth
I. Two pairs of shorts and t-shirts (Underwear is exchanged daily)
J. Toilet tissue as needed
K. Stationery — 12 sheets, 3 stamped envelopes, 3 pencils. Pencils will be in possession of officer when not in use.
L. Religious materials as issued by institutional chaplain
M. Legal documents, books and papers as requested
N. Medication prescribed by institutional doctor (to be issued and used under direct supervision only)
O. One walkman type radio (state owned)
P. One television outside door in front of cell (state owned)
Q. Newspapers as requested and available (No more than two in cell at a time)
R. Feminine hygiene items as necessary and appropriate
4. Commissary Privileges
The inmate has commissary privileges with purchasing and possession limits specified in post orders. Glass, aerosol, and metal containers are not allowed during the final days of pre-execution monitoring.
5. Disposition of Unauthorized or Contraband Items
Contraband items found in the possession of condemned inmates are confiscated and disposed of in accordance with institutional policy # 506.15.1.
6. Package Permits
Package permit privileges are suspended for inmates on Death Watch. Any package already mailed is received and stored with the inmate's other property.
7. Library, Legal Library Services, Periodical Subscriptions
A. The condemned inmate may request legal materials from the law library in writing. Such materials are carefully inspected by the Death Watch Supervisor. There are no exchanges of communication with inmate legal clerks and the condemned inmate.
B. The inmate may continue to receive periodical subscriptions, but may not order new subscriptions. Periodicals, newspapers, etc., are allowed to accumulate during the final week. Only two periodicals and two newspapers may be retained by the inmate.
8. Diet
Three (3) meals per day are fed to all condemned inmates, except holidays and weekends which will be two meals just as general population. Special dietary instructions for medical reasons are followed.
9. Recreation
Recreational activities for inmates on Death Watch are suspended.
10. Television and Radio Privileges
Television and radio privileges are the same as routinely provided, except that during the Death Watch period, the television is located outside the inmate's cell.
11. Personal and Legal Phone Calls
The inmate may make unlimited calls to anyone on his pre-approved telephone list. He may make and receive phone calls to legal counsel without restriction.
12. Visitation Privileges
A. Social
1. Only those individuals on the inmate's approved visiting list are allowed visits during the Death Watch.
2. All visits are held in the Death Watch area, and physical contact between the visitor(s) and inmate is not permitted. Visits are between the hours of 9:00 am and 4:00 pm, and limited to two hours duration.
3. The number of visitors allowed to visit at any one time is as flexible as circumstances permit, and is at the discretion of the Deputy Warden.
4. A final visit, during which physical contact between the inmate and immediate family is permitted, may be authorized by the Warden. The Warden's decision is based on the individual circumstances of each case.
a. Security procedures, including searches, are of the minimum deemed necessary by the Deputy Warden.
b. Contact visits are supervised by no fewer than two correctional officers chosen by the Death Watch Supervisor with the concurrence of the Deputy Warden.
B. Religious
1. Priest(s), or ministers, of recognized religious faiths who are of the inmate's recorded preference, may visit the inmate in the same manner as provided for social visits in 12 (A).
2. A final visit by the inmate's priest, minister, or spiritual advisor may be permitted by the Warden 9:00 pm — 11:00 pm, prior to the execution. This visit takes place at the front of the inmate's cell.
a. The priest, minister, or spiritual advisor may not accompany the inmate into the Execution Chamber.
b. At the inmate's request, a staff chaplain may visit on request and/or accompany the inmate into the execution chamber.
C. Legal Services
1. The attorney of record or other Tennessee licensed attorney representing by the inmate may visit up to one (I) hour before the time of execution.
2. The attorney is permitted telephone contact with the condemned inmate during the last hour prior to execution.
3. Visits with attorneys are non-contact and are conducted with provision for the privacy of verbal exchange but under full and continuous observation by at least two correctional officers.
D. Media
1. No media interviews are held with the condemned after placement on Death Watch.
2. Telephone interviews with media representatives are not permitted.
3. Representatives of the news media are not allowed inside the secure perimeter of the institution during the time of active Death Watch or during an execution for any purpose whatsoever, unless selected as a witness to the execution.
EXECUTION TEAM
1. The purpose of this operating procedure is to outline the duties and responsibilities of the Execution Team members in carrying out the death sentence by lethal injection.
2. The Execution Team shall consist of: the Warden, Deputy Warden, Executioner, IV Team, Extraction Team, Death Watch Team, Lethal injection Recorder, Facility Maintenance Supervisor, MIS Security Systems Technician(s), and Escort Officer(s). The identity of the Execution Team is confidential.
3. Readily available to the Execution Team are radios with holster, keys, and restraints.
4. The following procedures shall apply:
A. The Execution Team's Officer in Charge and/or the Assistant Officer in Charge conducts a training session at least once each month at which time all equipment will be tested. The training includes a simulated execution (i.e. IV lines, IV Drip).
B. A week before a scheduled execution, the Officer in Charge and assistant assembles the Execution Team in the Execution Chamber area to prepare and test all appliances and equipment for the scheduled execution.
C. The Warden ensures that the Execution Team carries out the following instructions:
1. Assemble all other members of the Execution Team in the Execution Chamber before the scheduled execution and review their specific assignments and duties.
2. Ensure that all equipment is properly placed.
3. The inmate is removed from the holding cell and placed in the Execution Chamber by the Extraction Team members previously assigned those duties, under the direction of the Assistant Officer in Charge.
4. When the condemned inmate is secured in place in the Execution Chamber, all members of the Extraction Team will retire to the holding cell area.
5. When the lethal injection process has been completed, the Warden/designee is advised.
6. After the physician pronounces the inmate deceased, the designee informs the Commissioner that the sentence has been carried out.
7. The body is removed and placed in a body bag by the Execution Team and Medical Examiner's staff. The drugs and syringes used are placed in the body bag and closed.
8. The body is placed in the Medical Examiner's vehicle.
9. The Execution Team, under the direction of the Officer in Charge, cleans the equipment and Death Watch area. The holding cell is cleaned thoroughly with the mattress and pillow sanitized. Equipment shall be stored in its proper location. An entry is made in the post log documenting the completion of these procedures.
10. The Execution Chamber and Death Watch area are secured. The Execution Team reports to the Warden's Office for additional instructions.
DEATH WATCH SUPERVISOR
1. The duties and responsibilities of this post are that of observation and supervision of all activities concerning a condemned inmate(s) during pre-execution (Death Watch) monitoring. The post is the entrance area leading into the Death Watch area. The Death Watch Supervisor assumes authority of all personnel assigned to pre-execution monitoring (Death Watch). The duties are the general supervision and control of other security personnel assigned to monitor the condemned inmate during the time under Death Watch to include preparation of the condemned inmate(s) prior to execution. There may be one Floor Officer per shift assigned.
2. This officer must be a Correctional Lieutenant or higher. The officer reports directly to the Warden or Deputy Warden. During off-duty hours, he will remain on standby status unless relieved by the Administrative Lieutenant.
3. Equipment needed: radio with holster, keys, and restraints.
4. Specific duties and responsibilities
A. Immediate Action
1. Upon notification of the assignment (normally when a death watch reaches active stage), the Death Watch Supervisor prepares to assume the duty schedule reflected above.
2. He reviews the post orders for the Control Officer and Floor Officer and become familiar with all functions of subordinates.
3. He ensures that the condemned inmate, upon reaching active Death Watch status, personally inventories and packs away all items he is not permitted to retain. The inmate is permitted to retain a copy of the inventory. The sealed property is retained in storage in Building 8 until ordered removed or surrendered to the inmate's designee.
4. He is responsible for escorting condemned inmate to Building 8 and placing him in a cell after strip searching and exchanging his clothing.
5. He ensures that all significant information is entered on the Supervisor's Log. ALL PERSONS ENTERING THIS AREA FOR ANY PURPOSE WILL SIGN IN AND OUT, and a record of activity must be logged accurately.
6. He ensures that sufficient clothing in the inmate's size is retained in the preparation area to accommodate an exchange each time the condemned inmate leaves his cell.
B. Subordinate Personnel
1. He supervises all subordinate personnel.
2. He ascertains the phone numbers and addresses of all subordinate personnel in order that they may be contacted after hours.
3. He ensures that all orders and instructions are read and understood by all subordinate personnel.
C. Routine Security Measures, Checks, Logs
1. He maintains or causes to be maintained (by the Control Officer) a "Supervisor's Log" of activities.
2. He personally supervises the feeding of all meals during his shift. He ensures that no inmates are utilized in the feeding of any meal during an active Death Watch, including preparing the trays.
3. He keeps all unauthorized personnel out of the area.
4. He ensures that the security of the area is reported to the Control Room each half-hour during an active Death Watch.
5. He does not permit anyone to enter the condemned inmate's cell except by order of the Warden, Deputy Warden or Shift Captain. The only exception is a life-threatening emergency.
6. He ensures that the condemned inmate is handcuffed behind his back at any time he leaves his cell. The inmate remains handcuffed until he is returned to his cell. (The inmate may be handcuffed in the front if a restraint belt is used. Restraints may be removed if the inmate is secured in a non-contact visiting room.)
7. Any time the inmate is moved, he will receive a double escort.
8. At least one (1) officer remains in the area, even if it is temporarily vacant.
9. He ensures that the area is kept clean and orderly. The inmate's holding cell is cleaned daily by assigned staff. The inmate is moved to an adjoining cell while the cleaning process is being accomplished.
D. Normally the inmate receives telephone calls from a special extension plugged in at his cell location. When not in use, ensure its security.
E. Emergencies and Other Contingencies
1. In the event of self-inflicted or other injury, the Death Watch Supervisor takes immediate and decisive action. He contacts the medical clinic immediately to send assistance.
2. He personally supervises the dispensing of any medication on a single unit dosage basis.
3. He immediately notifies the Shift Supervisor, Deputy Warden or Warden in the event of an emergency.
CONTROL MONITOR
1. The duties and responsibilities of this post are in effect immediately upon notice of a court order for execution and remain in effect until the order is stayed or the execution is carried out.
At the beginning of the Death Watch, the officer assigned this post will assume his duties.
2. This officer must be a Correctional Corporal or higher. The officer reports directly to the Death Watch Supervisor, Deputy Warden or Warden at the beginning of pre-execution monitoring until relieved or until the execution is stayed or carried out.
A. Immediate Action
1. Upon notification, the officer assumes the duties and responsibilities as described herein and the shift supervisor is alerted concerning the delegated assignment.
2. The Control Monitor begins maintenance of the Death Watch Supervisor's log ensuring the recording of significant detailed information.
3. During pre-execution monitoring, the Control Monitor ensures that only the following persons are authorized to enter the area:
a. Warden
b. Deputy Warden
c. Captain/Lieutenant
d. Officers to assist in routine functions (i.e., showers, escort, shakedown) as authorized by Death Watch Supervisor
e. Any medical or security personnel you deem appropriate in an emergency situation
f. Prison Chaplain
4. He ensures the cleanliness of the area as well as the cell area during pre-execution monitoring.
B. Routine Security Measures, Security Checks and Logs
1. He keeps an accurate chronological log of post activities.
2. Keep a sign-in and sign-out log for every person who enters or leaves the Death Watch area.
3. He maintains close surveillance of subordinate personnel.
4. He keeps all unauthorized personnel out of the area to include inmates, other employees and visitors.
5. He reports the security of the post to the Control Room every thirty minutes.
6. He personally ensures that the condemned inmate is handcuffed (behind his back) anytime he leaves his cell. A restraint belt may be used. The handcuffs may be removed when the inmate is receiving non-contact visits.
7. He ensures that when a condemned inmate is moved, he is escorted by two officers designated by the Death Watch Supervisor.
8. He ensures that when the condemned inmate is moved from his cell, he is searched and placed in different clothing. The same clothing may be reused until soiled, so long as it is thoroughly inspected before reissuing.
C. Visiting
1. He ensures that all visiting is non-contact and is held in the visiting area next to the Control Room, unless otherwise directed.
2. He ensures escorts for visiting during pre-execution monitoring are provided by two experienced correctional officers assigned by the Death Watch Supervisor.
3. He ensures that supervision of visiting for condemned inmates in pre-execution monitoring is designated by the Death Watch Supervisor.
4. He ensures that an accurate log of pertinent information to include names of each visitor, time of arrival and departure of each visitor, and inmate is maintained by the officer assigned to a supervised visitation.
a. The number of persons authorized and the visiting hours are in accordance with specific instructions issued by the Warden or Deputy Warden.
b. Allowable commissary items are listed in Section E.
D. He ensures that the inmate is allowed only the items listed below. Any other item is considered contraband and confiscated in accordance with institutional policy.
1. Standard issue of outer clothing
2. One bed
3. One mattress, pillow and standard issue of linens
4. One toothbrush
5. One tube of toothpaste
6. One bar of soap
7. One disposable razor (to be issued and used under direct supervision only)
8. Two towels, one washcloth
9. Two pair of shorts and t-shirts (Underwear will be exchanged daily)
10. Toilet tissue as needed
11. Stationery — 12 sheets, 3 stamped envelopes, 3 pencils (Pencils will be in possession of officer when not in use.)
12. Religious tracts as issued by Institutional Chaplain
13. Legal documents, books and papers as requested
14. Medication prescribed by institutional doctor (to be issued and used under direct supervision only)
15. One walkman type radio (state owned)
16. One television outside door in front of cell (state owned)
17. Newspapers as requested and available (no more than two in cell at a time)
18. Feminine hygiene items as necessary and appropriate
E. The inmate may order and purchase the following items on the first day of Death Watch status:
1. Colas (opened by officer and served in a paper cup)
2. Candy bars
3. Cookies, crackers, potato chips
Note: All orders and deliveries are inspected and delivered by the officer. This includes removal of non-transparent candy wrappers. He avoids handling of contents except with a napkin, tissue, or sanitary disposable gloves.
F. Telephone Calls
1. The condemned inmate may receive authorized telephone calls while in pre-execution monitoring status.
2. Specific instructions for each phone call are given by the Warden, Deputy Warden or Death Watch Supervisor, and are logged (no exceptions). Each phone call is supervised.
3. The inmate receives telephone calls from a special extension plugged in at his cell location. When the telephone is not in use, the Control Monitor personally ensures its security.
G. Emergencies and Other Contingencies
1. If any employee is taken hostage, he is without authority regardless of rank.
2. In the event of self-inflicted or other injury, he takes immediate and decisive action. He contacts the medical clinic immediately to send a physician or ranking medical person if he is not available.
3. He immediately notifies the Warden, Deputy Warden, Death Watch Supervisor and Shift Supervisor.
FLOOR OFFICER MONITOR
1. The duties and responsibilities of this post are in the direct supervision and monitoring of a condemned inmate's activities during the final days of pre-execution monitoring.
2. This officer may be a correctional officer or higher. The officer reports directly to the Control Monitor. The officer is posted in the area directly in front of the cells. He must remain alert on his post at all times, maintaining direct observation of the condemned inmate.
3. Equipment required: radio with holster and restraints
4. Specific Duties and Responsibilities
A. Immediate Action
Upon notification, the officer assumes the duties and responsibilities as described herein, and the shift supervisor is alerted of the delegated assignment.
B. Routine Security Measures, Security Checks and Logs
1. The Floor Officer monitor closely observes the condemned inmate's activities and immediately reports any unusual circumstances or activities to the Death Watch Supervisor or Control Monitor.
2. He ensures that all eating utensils and trays are removed from the cell when not in use.
3. He remains posted at the cell front, but may enter the condemned inmate's cell if circumstances warrant it.
4. The cell door key(s) remains in the possession of the Control Monitor except as needed.
5. He converses freely with the inmate, but avoid opinionated or inflammatory statements. He does not discuss personal feelings regarding the death penalty. He does not make promises to the inmate. All requests by the inmate not covered herein are referred to the Death Watch Supervisor.
6. He does not leave his post unless properly relieved.
7. He visually inspects and thoroughly examines all items permitted into or out of the inmate's cell. He carefully examines all clothing sent from the clothing room.
8. He performs a very thorough strip search of the condemned inmate any time he enters or exits his cell.
9. He exchanges the inmate's clothing any time he enters or exits the cell. The same clothing may be reused until it becomes soiled.
10. He ensures that the condemned inmate is handcuffed behind his back any time he leaves his cell. The inmate remains handcuffed until he is returned to his cell. The inmate may be handcuffed in front if a restraint belt is used. Restraints may be removed if placed in a secure, non-contact visiting room.
11. He ensures that all post orders are being followed. It is expected that all floor officer monitors conduct themselves in a professional manner. A calm, mature atmosphere should be maintained.
12. The officer is responsible for the daily cleanliness of his area and the cell areas. Normally, the day shift is responsible for sweeping and mopping the entire area. However, the officer ensures that the area remains in a state of cleanliness and trash containers are emptied during his tour. All trash is to be personally removed by staff and deposited in the appropriate containers located outside the secure confines of the institution.
13. He maintains or causes to be maintained (by the Control Officer) a Supervisor's Log of Activities.
14. He personally supervises the feeding of all meals during the shift. He ensures that no inmates are utilized in the feeding of any meal during an active Death Watch, including preparing the trays.
15. He keeps all unauthorized personnel out of the area.
DEATH WATCH PROCEDURES — LETHAL INJECTION DAY 1
1. Security staff are assigned to posts in the Death Watch area. The supervisor is a Correctional Lieutenant or higher.
2. Death Watch logs are activated during the entire Death Watch period. All activity unique to the Death Watch and execution must be documented. Areas addressed include, but are not limited to: inmate's behavior, actions, movements, communications initiated and received concerning Death Watch activities.
3. The condemned inmate is moved to Death Watch status in Building 8.
4. The inmate's property is inventoried and stored as specified in TDOC Policy # 504.02.
5. The institutional chaplain begins daily visits with the inmate.
6. The visiting status of the inmate changes to non-contact.
7. Designated personnel test execution-related equipment to include the closed circuit TV, telephones, intercoms, etc.
8. Inmate clothing is obtained and issued as needed.
9. The Chaplain requests instructions for release of the inmate's body in writing. If no recipient is designated, the Warden arranges for a pauper's burial.
DAY 2
1. The Food Service Manager is advised of meal needs for TDOC and other agency support staff.
2. The inmate orders his last meal.
3. The Chaplain confirms funeral arrangements with the family, if available.
DAY 3
1. MIS personnel test the closed circuit TV system and the audio system.
2. The Food Service Manager prepares and serves the last meal. The inmate may request a special meal. The meal is provided within reason as determined by the Warden. Cost must not exceed $20.00.
3. The TDOC Communications Officer arrives to handle media inquiries.
4. The lethal injection chemicals are removed from secured storage and delivered to the Lethal Injection Room.
DAY 4 — EXECUTION DAY
12:00 am
1. By prior planning, the Execution Team arrives and reports directly to the Executioner waiting area in Building 8. Their identities are known by the fewest number of staff necessary.
2. Beginning at 12:00 am, the only staff authorized in the capital punishment complex are:
a. Commissioner or designee
b. Warden
c. Deputy Warden
d. Lethal injection recorder
e. Death Watch Supervisor and assigned officers
f. Chaplain
g. Physician and associate
h. Executioner (Executioner waiting area)
i. IV Team
j. Extraction TeamAny exceptions to the above must be approved by the Warden or Commissioner.
3. The inmate is dressed in cotton trousers, shirt, cotton socks, or cloth house shoes.
4. Official witnesses report to the Administration Building conference room no later than 12:00 am. They are greeted by Escort Officers, processed through checkpoint, and moved to the Parole Board Room in Building 8, where they remain until final movement to the witness room.
5. Immediate family members of the victim report to the Administration Building no later than 12:30 am and are greeted by Escort Officers. These witnesses are security cleared and escorted to the conference room in Building 8, where they remain until final movement to the victim family members witness room.
6. The Lethal injection Recorder or designee, designated EMTs, and the physician report to the Execution Chamber for preparation. The Lethal Injection Recorder or designee checks the phones in the Execution Chamber.
7. The Medical Examiner's staff is stationed in the capital punishment garage.
12:30 am
1. Victim family member witnesses are secured in the Building 8 conference room by the Escort Officers no later than 12:45 am.
2. Official witnesses are secured in the Building 8 Parole Board Room by the Escort Officers no later than 12:45 am. They are moved to the capital punishment waiting area at 1:00 am or as directed by the Death Watch Supervisor.
1:00 am
1. Beginning at 1:00 am, the only staff authorized in the Execution Chamber are the Warden, those TDOC employees designated by him to carry out the execution, the Attorney General / designee, and the Defense Counsel witness.
2. At the command of the Warden or Deputy Warden, the Extraction Team approaches the holding cell and asks the condemned inmate to approach the cell door and be handcuffed. After being handcuffed, he is asked by the Extraction Team Leader to step back and place his hands above his head on the wall at the rear of the holding cell. (If the condemned inmate refuses to cooperate, the Extraction Team enters the holding cell and removes the inmate).
3. The Extraction Team places the condemned inmate on the gurney and secures him in restraints.
4. The condemned inmate is moved to the Execution Chamber.
5. The Lethal injection Recorder or designee records the time the condemned inmate enters the Execution Chamber.
6. The IV Team establishes IV lines into both arms as instructed in Section 5 of this manual.
7. Official witnesses, victim family members, the Attorney General/designee and the Defense Counsel witness, are secured in the appropriate witness rooms.
8. The closed circuit television camera and audio system are activated.
1:10am
1. Blinds to the witness room(s) are opened by the Warden and Deputy Warden.
2. The Warden contacts the Commissioner to ensure that no last minute stay or reprieve has been granted.
3. The Warden permits the condemned inmate to make a last statement.
4. The Warden gives the signal to proceed and the Executioner begins to administer the first chemical. The Lethal Injection Recorder documents the time the process begins.
5. Following the completion of the lethal injection process, and a five-minute waiting period, the blinds to the official witness room are closed, the closed-circuit TV camera is disengaged, and the privacy curtain is closed. The Warden then asks the physician to enter the room to conduct an examination. The physician reports his findings to the Warden or designee.
6. The inmate is pronounced deceased by the physician. The Administrative Assistant or designee records the time that death is pronounced.
7. The Warden or designee announces that the sentence has been carried out and invites the witnesses to exit. The Warden announces the following: "The sentence of ___________________________ has been carried out. Please exit."
8. The witnesses are then escorted from the witness rooms by Escort Officers.
9. The Commissioner or designee notifies all appropriate State officials that the sentence has been carried out. Media representatives are notified by the TDOC Communications Officer or designee.
10. The Extraction Team removes restraints.
11. The Medical Examiner staff assists in removal of the body and placement in the Medical Examiner's vehicle, which is in the capital punishment garage.
12. The Medical Examiner's vehicle is cleared to exit the facility.
13. The Lethal injection Recorder completes the Lethal Injection Execution Recorder Checklist.
POST EXECUTION
1. The body is transported to the State Medical Examiner for examination and release.
2. The Assistant Commissioner of Operations conducts an operational debriefing at the appropriate time.
3. The Commissioner arranges for or mandates an EAP debriefing as needed.
CONTINGENCY ISSUES
IV Line Alternatives
The cut-down procedure is used unless the physician chooses a different method to find an IV site.
Any interruption of the delivery of the lethal injection drugs in the primary IV line
The Executioner switches to the secondary IV line and, starting with syringe #1 (blue), begins the administration of the second set of syringes using the reserve tray.
Repeating the Lethal Injection Process
If the inmate is not deceased after the initial set of syringes has been injected, the physician returns to the designated waiting area. The curtain is opened, blinds raised, camera activated, and the Warden gives the command to repeat the lethal injection procedure with the second set of syringes (blue). After this procedure is completed, the blinds will once again be closed, closed-circuit TV camera disengaged, and the privacy curtain closed. The Warden will once again ask the physician to enter the room and check for signs of life.
VICTIM SERVICES
RIVERBEND MAXIMUM SECURITY INSTITUTION VICTIM SERVICES
Notification
The TDOC Victim Service Director works closely with the victim liaison from the Attorney General's office, to confirm the list of victims/family members/interested parties registered for notification. Letters and packets are sent to each. The letter is specific to the registrant's permission to view the execution, as mandated by law:
• Victim family members: Those who are permitted to witness the execution. These persons receive a letter, requesting their choice to witness or attend the execution.
• Other victim family members: Extended family members who may wish to attend the execution to provide support to those who are permitted to the view the execution, but by law, are not personally allowed to view the execution.
• Other interested party/support persons: Persons identified by victim family members who would attend the execution to provide support to those who are permitted to view the execution, with permission granted on a case-by-case basis by the Warden.
Packets include:
• Cover letter
• Official letter
• Official response forms
• Copy of the TN law 40-23-116 Manner of executing sentence of death — Witnesses
• DVD "The Other Side of Death Row"
• Booklet "What to Expect at an Execution"
• Map
• Media guidelines
• Critical Incident Stress Management flier
These notifications are sent out to correspond in time to the announcement of the media lottery.
The Victim Services Director prepares a list of persons who plan to witness the execution, and of those who plan to attend the execution. The Victim Services Director will communicate any desire to speak to the media to the TDOC Communications Officer.
Accompaniment
The facility provides a private room in the Administration Building for persons viewing and attending the execution to use. Those witnessing or attending the execution are brought to the facility by the Attorney General's Office at a time agreed upon by TDOC Central Office and the Warden. The Victim Services Director meets them at the facility and escorts them to the private room. This room provides a place for witnesses to leave belongings and for attendees to wait for the return of the witnesses. The Victim Services Director will accompany witnesses through the execution process. A designee will be assigned to remain and wait with any persons who accompany and wait in the Administration Building for witnesses to return.
At the time determined by the warden/designee, the witnesses are processed through the check-point and taken into the prison facility room(s) next to the visitor galley, where they will remain until escorted into the victim's viewing room for the execution.
After the execution is completed, the witnesses are escorted back to the Administration Building where they are reunited with any persons who were there waiting for them. The TDOC Communications Officer will arrange for witnesses to speak to the media should they desire to do so. Afterward, the entire group will be escorted out of the prison to their awaiting vehicle.
CONFIDENTIAL NOT FOR PUBLIC RELEASE PERIMETER SECURITY PRIOR TO, DURING AND SUBSEQUENT TO AN EXECUTION
RIVERBEND MAXIMUM SECURITY INSTITUTION CONFIDENTIAL FORMS
RIVERBEND MAXIMUM SECURITY INSTITUTION NOTIFICATION LETTER TO SHERIFF'S OFFICE TO WITNESS EXECUTION OF INMATE
Date
John Doe, Sheriff Tennessee County Sheriff's Department PO Box 000 City, TN 37209
Dear Sheriff Doe:
Records of the Tennessee Department of Correction reflect that on __________________, inmate ______________________ was convicted of First Degree Murder and sentenced to Death regarding _________________ County case # _____________. An order has been received scheduling inmate ____________________ 's execution for ________________. The execution is scheduled for 1:00 am on that date.
Pursuant to TCA 40-23-116, the sheriff of the county in which the crime was committed is entitled to be present at the carrying out of such death sentences.
The Tennessee Department of Correction needs to know if you are interested in viewing the legal execution of inmate ___________________. In order to expedite this process, please sign and date on the respective line below indicating your intentions. Afterwards, fax the letter with your signature to my office at the Riverbend Maximum Security Institution at 615-350-3400. If you plan to attend, provide a telephone number where you may be contacted day or night. Further, you should be at the Riverbend Institution by 12:00 midnight on _________________ and bring your notification letter with you, along with a picture ID. Upon arrival at the facility, please present the letter to the Checkpoint Officer. If you have any questions regarding this matter, please feel free to contact me by calling 615-350-3100, extension 3103, for further information.
_________________
Warden
ABC:aa
I will attend. _____ Signature _____________________ Date ____________
Telephone No. __________________
I will not attend. _____ Signature _____________________ Date ____________
Telephone No. __________________
NOTIFICATION LETTER TO INMATE'S FAMILY TO WITNESS EXECUTION
Date
Ms. Mary Jane Smith PO Box 000 City, TN 37209
Dear Ms. Smith:
Records of the Tennessee Department of Correction reflect that on __________________, inmate _______________________ was convicted of First Degree Murder and sentenced to Death regarding ________________ County case # _____________. An order has been received scheduling inmate ____________________ 's execution for ________________. The execution is scheduled for 1:00 am on that date.
Pursuant to TCA 40-23-116, members of the condemned inmate's immediate family may be present at the carrying out of such death sentence. Records indicate that you are the __________________ of inmate _____________________; therefore, you are eligible to be present.
The Tennessee Department of Correction needs to know if you are interested in viewing the legal execution of inmate ___________________. In order to expedite this process, please sign and date on the respective line below indicating your intentions. Afterwards, fax the letter with your signature to my office at the Riverbend Maximum Security Institution at 615-350-3400. If you plan to attend, provide a telephone number where you may be contacted day or night. Further, you should be at the Riverbend Institution by 12:00 midnight on _________________ and bring your notification letter with you, along with a picture ID. Upon arrival at the facility, please present the letter to the Checkpoint Officer. If you have any questions regarding this matter, please feel free to contact me by calling 615-350-3100, extension 3103, for further information.
____________
Warden
ABC: aa
I will attend. _____ Signature _____________________ Date ____________
Telephone No. __________________
I will not attend. _____ Signature _____________________ Date ____________
Telephone No. __________________
PHYSICIAN'S INVENTORY CHECKLIST
______ (4) 5cc syringes
______ (4) Small tubes Betadine ointment
______ (12) Pair gloves (sterile), size 7 ½
______ (12) Pair gloves (sterile), size 8
______ (2) Prep kits
______ (2) BP cuffs
______ (2) Stethoscope(s)
______ (1) Flashlight with batteries
______ (8) Chux
______ (4) Cut-down trays
______ (2) Lidocaine 2%
______ (2) Lidocaine 2% with Epinephrine
______ (2) 4-0 vicryl
______ (2) 4-0 ethilon sutures
______ (1) 5-0 vicryl
______ (2) 5-0 ethilon sutures
______ (2) PPE size XL
______ (1) PPE size XXL
______ (2) Faceshields
______ (1) Scissors
______ (2) Scalpel # 11 # 15
IV TEAM INVENTORY CHECKLIST
______ Normal saline 1000 cc or more
______ Solution set
______ Extension tubing sufficient to reach condemned inmate
______ Tourniquets — various styles
______ Assortment of IV catheters (range 18 gauge to 21 gauge)
______ Assortment of surgical tape
______ Arm boards
______ Tegaderm transparent dressing
______ Alcohol pads
______ Sharps container
______ 4x4 Gauge pads
______ Red biohazard bag
______ Chux
______ Latex-free gloves
CHEMICAL PREPARATION TIME SHEET
Date _____________ 5 grams Sodium Thiopental Mixed Time
4-Syringes prepared by _______________________ at ___________
Witnessed by ______________________
100 mg/mL Pancuronium Bromide
2-Syringes prepared by _______________________ at ____________
Witnessed by ______________________
100 mg/mL Potassium Chloride
2-Syringes prepared by _______________________ at ____________
Witnessed by ______________________
Saline
3-Syringes prepared by _______________________ at ____________
Witnessed by ______________________
DAY OF EXECUTION — LETHAL INJECTION EXECUTION RECORDER CHECKLIST
Inmate Name _______________________ Inmate # ___________ Date _______________ TIME
________ Report to designated area for final briefing
________ Extraction Team and IV Team report to Administrative Lieutenants office. IV Team sets up IV system.
________ Physician in place
________ IV Team in place (EMTs and Officers)
________ Medical Examiner in place
________ Team Leader in place
________ Check blinds and curtains
________ Advise Escort Officer to transport Official Witnesses to Parole Room
________ Advised by Escort Officer that Official Witnesses are in Parole Room
________ Advise Escort Officers (2) to escort Victim's Witnesses to Viewing Room
________ Advised by Escort Officers (2) that Victim's Witnesses are in place
________ Warden or designee checks to ensure execution is to proceed
________ Gurney positioned in Death Watch Area
________ Extraction Team enters and secures offender to gurney
________ Advise Escort Officer to transport Official Witnesses to Death Watch vestibule
________ Advised by Escort Officer that Official Witnesses are in the vestibule
________ IV' Team enters the Execution Chamber
________ IV Team exits the Execution Chamber
________ Advise Escort Officer to "Transport Official Witnesses in place"
________ Advised by Escort Officer that "Witnesses are in place"
________ Warden checks with Command Center to proceed
________ Warden orders blinds opened, closed circuit TV activated and audio activated for viewing rooms.
________ Warden asks offender for any last comments
________ Warden orders Execution Team to proceed
________ Lethal Injection process completed
________ Blinds and curtains closed and closed circuit TV deactivated
________ Physician enters the Execution Chamber
________ Physician pronounces death — exact time
________ Audio deactivated to witness rooms
________ Advise Escort Officers (2) to remove Victims Witnesses
________ Advise Commissioner or designee in Command Center that execution is completed
________ Physician and EMTs depart
________ Medical Examiner escorted to chamber to take possession of body. Pictures will be taken of body and Execution Chamber prior to removal of body
________ Advised by Escort Officer (2) Victims Witnesses are at Checkpoint
________ Advise Escort Officer to remove Official Witnesses
________ Advised by Escort Officer that Official Witnesses are at Checkpoint
________ The body removed from the institution
Recorder's Initial _______ Offender's Comments if any:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
______________________________________
Lethal Injection Recorder
__________________
Date
______________________________________
Warden
__________________
Date
LETHAL INJECTION CHEMICAL ADMINISTRATION RECORD
Inmate Name ____________________ Inmate # ________ Date _____________ SET 1 (Red) Drug Time Begin
Syringe 1 Sodium Thiopental ________ Syringe 2 Sodium Thiopental ________ Syringe 3 Sodium Thiopental ________ Syringe 4 Sodium Thiopental ________ Syringe 5 Saline ________ Syringe 6 Pancuronium Bromide ________ Syringe 7 Pancuronium Bromide ________ Syringe 8 Saline ________ Syringe 9 Potassium Chloride ________ Syringe 10 Potassium Chloride ________ Syringe 11 Saline ________ End Time ________Recorder Signature _________________________
Warden__________________________________
LETHAL INJECTION CHEMICAL ADMINISTRATION RECORD
Inmate Name ____________________ Inmate # ________ Date _____________ SET 2 (Blue) Drug Time Begin
Syringe 1 Sodium Thiopental _________ Syringe 2 Sodium Thiopental _________ Syringe 3 Sodium Thiopental _________ Syringe 4 Sodium Thiopental _________ Syringe 5 Saline _________ Syringe 6 Pancuronium Bromide _________ Syringe 7 Pancuronium Bromide _________ Syringe 8 Saline _________ Syringe 9 Potassium Chloride _________ Syringe 10 Potassium Chloride _________ Syringe 11 Saline _________ End Time _________Recorder Signature ________________________
Warden__________________________________
State of Tennessee DEPARTMENT OF CORRECTION News Release
The Department of Correction reports that pursuant to the order of the Tennessee Supreme Court and in accordance with state law, the capital punishment sentence of __________________ has been carried out.
Time of execution was ______________ am/pm on ________________________(date). ___________________________________ (Inmate's name) was pronounced dead by attending physician at ______________________ am/pm.
Affidavit Concerning Method of Execution
Under Tennessee law, you have the right to have your execution carried out by lethal injection. You also have the option of waiving this right and choosing electrocution as the method of your execution. The purpose of this affidavit is to allow you an opportunity to either waive your right to have your execution carried out by lethal injection or to decline to waive that right. Failure to complete this form will result in the execution being carried out by lethal injection. You will not be given another opportunity to waive your right to have your execution carried out by lethal injection. If you waive your right to have your execution carried out by lethal injection, you may rescind that waiver by contacting the Warden no later than 14 days prior to the date of the execution and signing a new affidavit to that effect.
I, ___________________________, TDOC.# _______, make the following choice concerning the method of my execution:
_____ I waive the right to have my execution carried out by lethal injection and choose to be executed by electrocution.
__________________
Signature of Inmate
_____ I have been given the opportunity to waive my right to have my execution carried out by lethal injection and I decline to waive that right.
__________________
Signature of Inmate
I certify that I presented this Affidavit Concerning Execution to inmate __________________________, TDOC No. _________________, and
_____ The inmate refused to sign.
_____ I witnessed the inmate sign this affidavit.
_______________________________
Signature of Warden/Designee
Sworn to and subscribed before me this _____ day of ________________, 20____.
_________________
Notary Public
My Commission expires ___________________.
Name of Inmate under Sentence of Death ________________________________
Name of News Media Outlet _____________________________________________
Name of News Media Representative _____________________________________
Mailing Address _______________________________________________________
Phone __________________________ Fax __________________________________
E-Mail Address ________________________________________________________
Indicate the news media pool to which the applicant news media agency is to be assigned.
______ News Media Agency (print, radio or television) in the county where the offense occurred (if print, also designate Metro or Community below)
______ Associated Press
______ Metro Print Media Agency
______ Community Print News Media Agency
______ Other Television News Media Agency
______ Other Radio News Media Agency PLEASE NOTE : The department will accept only one (1) application from each news media agency. A person may be named as a News Media Agency Representative on only one (1) application. No news media agency representative selected to witness the execution of a sentence of death shall have exclusive rights to the story. Immediately after the execution of the death sentence is complete, all media representative witness shall make themselves available for a news conference for other news media representatives not selected to attend the execution. Submission of an application constitutes acceptance of this condition.
RULES OF DEPARTMENT OF CORRECTION ADULT SERVICES DIVISION CHAPTER 0420-3-4 SELECTION OF NEWS MEDIA AGENCY REPRESENTATIVES TO ATTEND AN EXECUTION OF A DEATH SENTENCE TABLE OF CONTENTS0420-3-4-.01 Preface
0420-3-4-.02 Applicability
0420-3-4-.03 Definitions
0420-3-4-.04 Application and Selection Process
0420-3-4-.05 Witness Guidelines
0420-3-4-.01 PREFACE
Under the authority of T.C.A. sect; 40-23-116, the Department of Correction is authorized to promulgate rules that establish criteria for the selection of news media representatives to attend an execution of a sentence of death.
Authority: T.C.A. sect; 40-23-116. Administrative History: Original rule filed July 28, 1999; November 29, 1999. Repeal and new rule filed November 22, 2000; effective February 6, 2001.
0420-3-4-.02 APPLICABILITY
Pursuant to the authority of T.C.A. sect; 40-23-116, these rules shall apply to all news media agencies and their representatives.
Authority: T.C.A. sect; 40-23-116. Administrative History: Original rule filed July 28, 1999; November 29, 1999. Repeal and new rule filed November 22, 2000; effective February 6, 2001.
0420-3-4-.03 DEFINITIONS
(1) Community Print News Media Agency: A Print News Media Agency other than a Metro Print News Media Agency.
(2) General Interest and Coverage: The handling of a broad range of spot news such as traffic accidents, fires, disasters, governmental events, as well as economic, business, social, sports, and human interest news.
(3) Metro Print News Media Agency: A Print News Media Agency which maintains a full-time presence at the state Capitol, covering day-to-day operations of state government.
(4) News Media Agency: A Print. Radio or Television News Media Agency or The Associated Press.
(5) News Media Agency Representative: A person Regularly Employed by a News Media Agency and designated by such News Media Agency to attend and witness an execution of a death sentence on behalf of the New Media Agency.
(6) Print News Media Agency: A newspaper of general circulation, bearing a title or name, regularly issued at least as frequently as once a week for a definite price, having second class mailing privilege, being not less than four (4) pages, published continuously during the immediately preceding one-year period, which is published for the dissemination of news of general interest, coverage and circulation in an area within Tennessee.
(7) Radio News Media Agency: The Tennessee Radio Network or a radio broadcast station which regularly disseminates news of general interest and coverage and has either its city of license (as determined by the federal government) or broadcast transmitter located in Tennessee.
(8) Regularly Employed: Employed on a consistent, continuing basis and not solely for the purpose of witnessing an execution of a sentence of death or otherwise on a temporary or short-term basis.
(9) Television News Media Agency: A television broadcast station which regularly disseminates news of general interest and coverage and has either its city of license (as determined by the federal government) or broadcast transmitter located in Tennessee.
(10) Warden: Warden of the Riverbend Maximum Security Institution.
Authority: T.C.A. sect; 40-23-115; sect; 40-23-116. Administrative History: Original rule filed November 22, 2000; effective February 6, 2001.
0420-3-4-.04 APPLICATION AND SELECTION PROCESS
(1) The selection of News Media Agency Representatives shall be by drawing to be held at Riverbend Maximum Security Institution. 7475 Cockrill Bend Industrial Road, Nashville, Tennessee.
(2) The Public Information Office of the Department of Correction shall notify all News Media Agencies of a scheduled drawing through issuance of an advisory to the Associated Press. An announcement will also be published in the Tennessee Administrative Register; provided, however, in the event the Department has insufficient advance notice of an execution date to meet publication deadlines for the Tennessee Administrative Register, the announcement shall be issued as soon as practicable after the Department receives notice of the execution date.
(3) The advisory and announcement shall include the following:
(a) Deadline date, time and location for receiving applications from a News Media Agency desiring to be included in the open drawing to witness the execution of the death sentence.
(b) Date, time, and location where the open drawing will take place.
(4) To be eligible for the drawing, a News Media Agency shall submit an application on a form provided by the Department of Correction on or before the deadline specified in the advisory and/or notice. The applicant agency shall designate its News Media Agency Representative and the news media pool for which it qualifies under these rules. The Department will accept only one (1) application from each News Media Agency. A person may be named as a News Media Agency Representative on only one (1) application.
(5) The Warden or designee shall assign an identifying number to each application received. Prior to the commencement of the drawing the Warden or designee shall post a list containing the News Media Agency name, News Media Agency Representative name, number and assigned category of each application which meets the requirements set forth in this rule.
(6) Procedure for Drawing:
(a) From those applications received which meet the requirements set forth in this rule, a total of seven (7) News Media Agencies shall be selected. The agencies shall be selected from the following categories in the following order:
1. The Associated Press (one application);
2. One News Media Agency in the county where the offense occurred;
3. One Metro Print News Media Agency;
4. One Community Print News Media Agency;
5. Two Television News Media Agencies; and
6. One Radio News Media Agency.
(b) In the event more than one qualifying application is received for category (a)(ii), the applications not selected in that category shall be reassigned to appropriate categories.
(c) If one or more categories cannot be filled due to an insufficient number of qualifying applications in the category, qualifying applications remaining after all other selections have been made shall be combined into one selection pool from which an application shall be drawn to fill each unfilled position.
(d) After seven (7) News Media Agency Representatives have been selected through the process set out in (a) through (c), all remaining applications shall be combined into one selection pool from which a first alternate and a second alternate shall be drawn. Alternates shall be allowed, in order of selection, to substitute for a News Media Agency Representative selected as a witness who is unable to attend and witness the execution of a death sentence.
(7) After the drawing the Department of Correction shall promptly issue an advisory to the Associated Press identifying the News Media Agency Representatives selected.
(8) News Media Agency Representatives shall be subject to the approval of the Warden. The Warden may, in the Warden's discretion, disapprove or exclude a witness for reasons of safety or security. No News Media Agency Representative shall be related to the condemned prisoner or the condemned prisoner's victim or victims or have any personal interest in the case. News Media Agency Representatives must be eighteen (18) years of age or older.
(9) The Department of Correction will allow no substitution of News Media Agencies or News Media Agency Representatives.
(10) In the event the execution does not take place within one (1) year of the date of the drawing, the Commissioner, in the Commissioner's sole discretion, may cancel the result of a drawing and, if necessary, direct that a new drawing be held.
Authority: T.C.A. sect; 40-23-116. Administrative History: Original rule filed November 22, 2000; effective February 6, 2001.
0420-3-4.-05 WITNESS GUIDELINES
(1) No News Media Agency Representative allowed to witness the execution of a death sentence shall have exclusive rights to the story. Immediately after the execution of the death sentence is complete, all News Media Agency Representatives shall make themselves available for a news conference of other news media representatives and shall remain at the news conference until it is completed.
(2) The news conference shall be held at a location designated by the warden immediately following the execution.
(3) Photographic or recording equipment are prohibited at the execution site during the execution.
(4) News Media Agency Representatives shall abide by all departmental and institutional rules and policies, and the directives of authorized staff. Failure of a witness to do so may result in the witness being excluded and / or removed from the premises. The News Media Agency Representative and the News Media Agency being represented shall be ineligible to attend future executions without the specific approval of the Commissioner.
Authority: T.C.A. sect; 40-23-116. Administrative History: Original rule filed November 22, 2000; effective February 6, 2001.
Affidavit to Select Defense Counsel Witness To Execution
Under Tennessee law, TCA 40-23-116, you may select one (1) defense counsel to witness your scheduled upcoming execution. The Department of Correction needs to know who you are selecting to be your witness.
I, ______________________________, TDOC# ______________, select the following defense counsel witness: _______________________________________
_____________________
Signature of Inmate
______
Date
I certify that I presented this Affidavit to Select Defense Counsel Witness to Execution to inmate
_________________________________, TDOC# ________________, and
______ The inmate refused to sign.
______ I witnessed the inmate sign this affidavit.
______________________________
Signature of Warden/Designee
______
Date
Sworn to and subscribed before me this ______ day of ________________, 20_______
___________________________ My Commission expires _________________
Notary PublicTENNESSEE DEPARTMENT OF CORRECTION
RIVERBEND MAXIMUM SECURITY INSTITUTION
LETHAL INJECTION CHEMICAL BIN CARD
CHEMICAL NAME: ______________________________ REFERENCE NUMBER ________________________
UNIT OF ISSUE: ______________________________ LOCATION: ___________________________
RECEIVED ISSUED EXPIRATION BALANCE ON DATE (+) (-) DATE HAND SIGNATURE
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
TENNESSEE DEPARTMENT OF CORRECTION POLICIES PERTAINING TO EXECUTIONS
RIVERBEND MAXIMUM SECURITY INSTITUTION
ADMINISTRATIVE POLICIES Index #: 506.16.1 Page 1 of 3 AND PROCEDURES Effective Date: November 15, 2005 State of Tennessee Distribution: LD Department of Correction Supersedes: 506.16.1 (3/1/03)
Approved by:
Subject: EXECUTIONS: FACILITY CONTROL AND ACCESS
I. AUTHORITY: TCA 4-3-603, TCA 4-3-606, and TCA 40-23-114 through TCA 40-23-117.
II. PURPOSE: To establish guidelines for the safe and orderly control of and access to the facility in which the death watch housing area and the death chamber are located prior to, during, and subsequent to an execution.
III. APPLICATION: All security personnel and staff of the facility in which the death watch housing area and the death chamber are located, and any other assigned staff of the Tennessee Department of Correction (TDOC).
IV. DEFINITIONS:
A. Command Post: The location from which all direct orders for performance or behavior are issued during a specified time.
B. Victim's Immediate Family: Family members of the victim who are eighteen (18) years of age or older. This shall include the spouse, children (by birth or adoption), step-children, parents, step-parents, grandparents, or siblings of the victim.
V. POLICY: Prior to, during, and after an execution, control of and access to the institution in which the death watch housing area and the death chamber are located shall be maintained in accordance with the following security procedures.
VI. PROCEDURES:
A. Command Post
1. A command post shall be established in the administration building. It shall be established prior to or during the days of a death watch, but no later than 24 hours before an execution. It shall remain operational until the execution is over and the debriefing is concluded. During the time of a death watch and execution, the command post will be under the direct authority of the Assistant Commissioner of Operations, Warden, or designee.
2 The Assistant Commissioner of Operations shall assume charge of the institution during the immediate time of an execution while the Warden is directing the execution.
B. Screening Access
1. All checkpoints shall be staffed as ordered by the Warden and staff shall screen all vehicular and pedestrian traffic attempting to enter prison property.
a. Vehicles occupied by demonstrators or other members of the public will not be permitted on institution property.
b. Those desiring to enter prison property for purposes of demonstration or observation will be escorted by institutional staff or law enforcement personnel to a marked observation area to be specified by the Warden.
2. Visitors permitted to enter the prison property will be issued individual color-coded identification cards. The cards shall have clips and be displayed by affixing to outer clothing. Different colored cards shall be issued to the following categories of individuals:
a. Official visitors, TDOC personnel, Tennessee Highway Patrol, and Metropolitan Davidson County police officials
b. Members of the news media.
3. Only official visitors and TDOC personnel displaying proper identification cards shall be permitted to proceed beyond the normal checkpoint area into the institution.
4. The Tennessee Highway Patrol and the Metropolitan Davidson County police shall have the responsibility for controlling demonstrators, members of the news media, and other members of the public as outlined in Policy #506.16.2.
5. Meals and other accommodations for any law enforcement personnel assisting shall be provided by the institution.
C. Observation Areas
1. Areas to be specified by the Warden shall be marked and used for the location and containment of demonstrators, representatives of the news media, and observers.
2. If adequate space is not available to provide the victim's immediate family members with a direct view of the execution from an area separate from that to which other witnesses are admitted, the Warden shall install equipment that will broadcast the execution to a room in which the immediate family may observe the execution by use of a closed circuit television system.
3. The Warden will verify and document that individuals who request permission to observe the execution are bona fide members of the victim's immediate family.
4. Audio or video broadcasts of the execution shall not be recorded.
VII. ACA STANDARDS: None.
VIII. EXPIRATION DATE: November 15, 2008.
II. PURPOSE: To establish guidelines for maintaining the security and control of a condemned inmate and for maintaining safe and orderly facility operations during the period of time immediately prior to an inmate's scheduled execution.
III. APPLICATION: The employees of the institution in which the death chamber and death watch housing area are located.
IV. DEFINITIONS:
A. Death Watch: Period of time immediately prior to an execution during which special procedures are implemented in order to ensure that the execution is carried out in a safe and orderly manner.
B. Death Watch Supervisor: A correctional officer of sergeant rank or higher appointed by the Warden who is responsible for the welfare of the inmate on death watch status.
C. Privileged Mail: Correspondence clearly addressed to or from attorneys, law students on behalf of attorneys, courts, court clerks, legal aid clinics or law schools operating such clinics, recognized legal defense funds, and governmental officials or agencies, including the Tennessee Claims Commission, provided such correspondence bears the appropriate name and title of the sender/receiver.
V. POLICY: It shall be the policy of the Tennessee Department of Correction (TDOC) to implement death watch procedures three (3) days prior to the execution date for any inmate who has completed the automatic appeal to the Tennessee Supreme Court of his/her conviction and sentence of death and has no stay of execution while an appeal is being considered by a court of jurisdiction.
VI. PROCEDURES:
A. Notification:
1. When an inmate is placed on death watch, the Warden or designee shall immediately notify the following of the current death watch and scheduled execution date:
a. Tennessee Highway Patrol
b. Metropolitan Davidson County Police
c. Tennessee Department of Correction (TDOC) Communications Officer
2. When the inmate is placed on death watch, the Warden and the TDOC Victim Notification Director shall immediately notify all individuals whose presence is required or permissible in the witness room during the execution.
B. Conditions of Death Watch Confinement:
1. The condemned inmate shall be informed of his/her placement on death watch status.
2. The inmate shall be allowed to have in his/her cell only the items listed below. Any other item will be considered contraband and confiscated in accordance with institutional policy.
a. Standard issue of outer clothing
b. One bed
c. One fire retardant mattress, pillow, and standard issue of linens
d. One toothbrush
e. One tube of toothpaste
f. One bar of soap
g. One rechargeable electric razor (to be issued and used under direct supervision only)
h. One washcloth
i. One pair of shorts and one t-shirt
j. Toilet tissue as needed
k. Stationery — 12 sheets, 3 stamped envelopes, 1 pencil which will be in the possession of officer when not in use.
l. Religious tracts, Bible, Koran, etc., as issued by institutional chaplain
m. Legal documents, books, and papers as requested
n. Medication prescribed by institutional doctor (to be issued and used under direct supervision only)
o. One television outside door in front of cell
p. Newspapers as requested and available (no more than one (1) in cell at a time)
q. Feminine hygiene items as necessary and appropriate
r. Cigarettes — When an inmate is moved to death watch, all cigarettes and matches he/she has will be confiscated. If the inmate requests a cigarette, he/she can be issued one cigarette at a time to be issued and lighted under direct supervision. At no time will smokeless tobacco products be issued. The Warden may deny the issuance of cigarettes if he/she feels that the security or safety of the inmate or institution could be threatened.
3. Clean laundry shall be provided as needed.
4. The inmate shall retain all mail privileges except receipt of packages. Any packages received shall be stored with the inmate's personal property after the inmate has been advised of the package contents. All outgoing, non-privileged mail will be read by staff.
5. Regular meal provision shall occur, with adherence to any special dietary instructions. On the final day, the inmate may request a special meal. This meal shall be provided within reason as determined by the Warden. The cost of the meal may not exceed twenty dollars ($20.00).
6. Recreational activities other than television viewing shall be suspended.
7. The Warden or Deputy Warden shall make a portable telephone accessible should the inmate request access to a telephone to make a legal assistance calls. The Warden or Deputy Warden may approve requests for personal calls.
8. The inmate may request in writing, and receive, legal and other materials from the institutional library. These materials shall be carefully inspected by the staff librarian and death watch supervisor prior to being delivered to the inmate.
9. The clothing room supervisor shall issue clothing and shoes of appropriate size and appearance for use by the mortician. The inmate's family may, if they choose, provide substitutions for any or all of these items.
C. Visitation Privileges
1. Social:
a. Only those individuals on the inmate's approved visiting list shall be allowed visits during the death watch.
b. All visits shall be held in a maximum-security area, and physical contact between the visitor(s) and inmate shall not be permitted. Visits will be between the hours of 9:00 a.m. and 4:00 p.m., and limited to two (2) hours duration.
c. The number of visitors allowed to visit at any one time and number of times a visitor can visit shall be at the discretion of the Warden or Deputy Warden.
d. A final visit during which physical contact between the inmate and spouse/ immediate family member is permitted may be authorized by the Warden. The Warden's decision shall be based on the individual circumstances in each case. Contact visits shall be supervised by no fewer than two (2) correctional officers chosen by the death watch supervisor with the concurrence of the Deputy Warden.
2. Religious:
a. Priest(s) or ministers of recognized religious faiths who are of the inmate's recorded religious preference may visit the inmate in the same manner as provided for social visits in Section VI. (C)(1).
b. A final visit by the inmate's personal priest or minister may be permitted by the Warden immediately prior to the execution. This visit shall take place at the front of the inmate's cell. This visit shall be limited to two (2) hours duration. The Warden shall decide the hours the visit will occur.
(1) The personal priest or minister will not be permitted to accompany the inmate into the execution chamber.
(2) At the inmate's request, a staff chaplain may visit and/or accompany the inmate into the execution chamber.
3. Legal Services:
a. The attorney of record or other Tennessee licensed attorney retained by the inmate may visit the inmate up to one (1) hour before the time of execution. One (1) defense counsel chosen by the condemned person, and the State Attorney General and Reporter or his/her designee, may view the execution from the execution chamber witness room.
b. Visits with attorneys shall be non-contact and will be conducted with provisions for the privacy of verbal exchange but under full and continuous observation by at least two (2) correctional officers.
4. Media Interviews:
a. Inmate interviews with the news media may not be conducted during the period.
b. During death watch, television station "live shots" shall not be permitted inside the secure perimeter of the institution at any time or within other buildings of the institution.
c. During death watch, representatives of the news media shall not be allowed inside the secure perimeter of the institution for interviews with any TDOC inmate, or for any other purpose other than those selected to witness the execution, as specified in TCA 40-23-116.
VII. ACA STANDARDS: None.
VIII. EXPIRATION DATE: August 15, 2009.
II. PURPOSE: To establish guidelines for changing execution protocols.
III. APPLICATION: The Warden of Riverbend Maximum Security Institution (RMSI) and the Commissioner of the Tennessee Department of Correction.
IV. DEFINITIONS: Execution Manuals: Manuals containing the detailed description of policies and procedures that describe the carrying out of executions in Tennessee by lethal injection and electrocution.
V. POLICY: Any changes to the execution protocols as outlined within the Execution Manuals shall be documented and approved by the Commissioner of Correction.
VI. PROCEDURES:
1. Any changes to the execution protocols shall be recommended by the Warden of RMSI and approved by the Commissioner of Correction.
2. The pages of the Execution Manuals shall be numbered and dated. Any change shall be numbered with the new date and inserted into the manual. The old page shall be removed and maintained by the Warden as an historical record.
VII. ACA STANDARDS: None.
VIII. EXPIRATION DATE: April 20, 2010.
II. PURPOSE: To establish departmental guidelines governing the visiting of inmates.
III. APPLICATION: To the Assistant Commissioner of Operations, institutional employees, employees of privately managed facilities, TRICOR employees, and inmates, excluding any offender assigned to and actively participating in a Special Alternative Incarceration Unit (S.A.I.U.) program or the parole/probation violators program.
IV. DEFINITIONS:
A. Child; Anyone under the age of eighteen (18) years.
B. Contraband: Any item that is not permitted by law or is expressly prohibited by Tennessee Department of Correction (TDOC) or institutional policy.
C. Guardian: A person authorized by a child's custodial parent or legal guardian to be responsible for a child while visiting a correctional institution. This authorization shall be evidenced by a notarized statement from the custodial parent or legal guardian submitted to the institution for file.
D. Immediate Family: Mother, father, husband, wife, children, grandchildren, brother, sister, grandmother, grandfather, half-siblings, son-in-law, daughter-in-law, sister-in-law, brother-in-law, mother-in-law, father-in-law. Stepparents in loco parentis may be considered within this definition when it has been verified that the inmate was reared by this individual as a result of death, divorce, desertion, or other absences of a parent. Stepchildren may also be considered immediate family if the offender and his/her spouse were married prior to the current incarceration and the spouse's children were minors who resided in the home, shared by the inmate and spouse, on a regular basis at the time of incarceration.
E. Legal Guardian: A person appointed by the court to provide partial or full supervision, protection, and assistance of the person of a minor, as evidenced by a certified copy of a court order.
F. Official Visitor: Employees of the TDOC, other governmental agencies, or private sector who are conducting business at the institution.
G. Visitor: Person who has completed application/approval process for permission to visit an offender.
V. POLICY: The TDOC shall allow inmates visitation privileges within the following guidelines with the exception of the Technical Violators and the S.A.I.U. programs. Inmates in these programs are permitted visitation privileges under more restrictive arrangements as specified in the institutional policy as sanctioned by TDOC.
VI. PROCEDURES:
A. Guidelines
1. Local rules pertaining to visiting shall be available to all staff, inmates, and visitors.
a. In addition to continual posting in an area accessed by visitors, a visitor's handbook shall be produced and made available for new applicants who provide a self-addressed stamped envelope with their application. Additional copies will be available at checkpoint.
(1) The visitor's handbook shall include the following statement: "Title VI of the Civil Rights Act of 1964 requires federally assisted programs be free of discrimination and the TDOC also requires that all its services be offered equally to eligible persons regardless of race, color or national origin."
(2) The visitors' handbook shall contain information detailing available avenues of complaint regarding alleged Title VI violations, including methods for contacting the local Title VI coordinator, the Tennessee Title VI Compliance Commission, and the U.S. Department of Justice.
(3) A poster regarding Title VI compliance and complaint information shall be posted on bulletin boards in visitor areas at each institution.
b. Whenever possible, visitation policies or procedural changes should be posted on bulletin boards, announced to inmate council, and published in inmate newspapers thirty (30) days in advance.
2. Visitation areas should have facilities accessible to handicapped visitors, including restrooms and entrance ramps to the visitation area.
3. Each institution shall be responsible for providing information to visitors about possible transportation to the institution and directions on how to reach the facility.
B. Approval and List
1. A list of approved visitors shall be recorded during each inmate's initial classification.
2. Blank copies of Visitation Application Form CR-2152 shall be furnished to all inmates, with written instructions that prospective visitors shall complete and return the forms with a current photograph to the deputy/associate warden in charge of visitation within 30 days. Applications should be approved or denied within thirty (30) days of receipt.
3. No visitor shall be admitted for visitation until the application is approved, except for immediate family visitors of newly committed inmates. In such instances, the warden shall have the names of the inmate's immediate family members added to the approved visitor's list, until receipt and approval of the visitation application. (No more than 60 days from inmate intake date shall be allowed for this purpose.)
4. Inmates housed at the reception centers awaiting classification and/or transfer to their assigned institution shall only receive visits from their immediate family members.
5. If the warden's designee approves the applicant visitor, the name shall be entered into Family Contacts (LCDN) and approved on Visitor Status (LCD2). The warden shall make the final decision when an applicant is initially disapproved by a designated reviewer. The inmate shall receive notification within thirty (30) days of receipt of the application as to whether or not his/her visitor is approved. If disapproved, a reason(s) shall be noted. It shall then be the inmate's responsibility to advise the visitation applicant of the approval or denial. The inmate may appeal disapproval through the grievance procedure. (See Policy #501.01 or #9501.01 for privately managed facilities until this policy is incorporated into #501.01.)
6. Approval of visitors shall be at the warden's discretion, in accordance with the following guidelines:
a. All immediate family members who apply and eight (8) additional adults may be approved to visit an inmate upon receipt of CR-2152.
b. Children under 12 years of age may visit without being on the inmate's approved visitor list, provided they are accompanied by their parent, legal guardian, or guardian who is on the inmate's approved visiting list. Identification is not required for children under the age of 16 years: however, a CR-2152 with a recent picture must be on file.
c. All visitors under 18 years of age must be accompanied by an approved visitor who is either the child's parent, legal guardian, or guardian. The custodial parent or legal guardian must provide a completed and notarized Parental Consent /Release for Minor's Visitation Form (CR-2152, page 2), which designates permission for the assigned visitors (as guardians) to accompany the child to visit and consent for the child to be searched.
d. The requirements of (c) above do not apply if a visitor is under the age of 18 and legally married to the inmate they are visiting. Proof of marriage must be provided.
e. Members of the clergy, as recognized by the chaplain or warden, need not be placed on the Approved Visitors List.
f. Attorneys of record need not be placed on the Approved Visitors List.
g. Persons the warden determines could have a harmful influence on the inmate and/or may constitute a threat to the security of the institution shall not be approved for visitation.
h. The following will apply for persons with past criminal felony convictions:
(1) Inmate family members with active felony conviction records may not be considered for visitation approval for six (6) months following release from incarceration or placement on probation/community corrections or parole supervision (written consent of supervising officer/counselor is required).
(2) Other visitor applicants with felony convictions who are not immediate family members may apply for visitation one (1) year after placement on probation/parole or one (1) year after release from confinement. If the person is still on parole/probation, the probation/parole officer must give written approval.
(3) The warden may disapprove visitation applications of anyone with felony convictions if it is believed that the security of the institution or safety of individuals could be jeopardized.
i. The following will apply to former employees:
(1) Current or former employees of TDOC, TRICOR, or contract agencies (in Tennessee), interns, and practicum students shall not be approved unless they are immediate family members of inmate.
(2) Former TDOC employees, on visitation list as of October 1, 1998, shall be allowed to remain on the list.
(3) Persons in the categories listed under (1) above who are granted permission to and marry an inmate in accordance with TDOC Policy #503.07 may be considered for visitation privileges as follows:
(a) If the person's separation from TDOC service was due to a violation of state law, e.g., trafficking in contraband whether or not prosecution occurred, visitation requests will not be considered from at least a minimal period of 24 months up to 48 months, pending on the severity of the violation.
(b) If a person's separation from TDOC service was completely voluntary with no policy violation, visitation requests may not be considered for a period of six (6) months from the date of the marriage.
(c) If the person's separation from TDOC service was the result of a violation of TDOC Policy #305.03, Employee/Offender Relationships, visitation requests will not be considered for 24 months from the date of the marriage.
(d) In all such cases, the inmate shall not remain at the facility where the relationship occurred.
j. Any falsification of the CR-2152 by a visitor may be cause to deny approval or to withdraw approval of the visitors.
k. Persons participating, or those who have participated, as volunteers may be considered for visitation approval following a period of 18 months from the conclusion of the volunteer effort.
l. Visitors may not be placed on more than one (1) inmate's visiting list unless the inmates are immediate family members of the visitor and the relationship can be substantiated.
m. Additions or substitutions to the approved list shall be made no more than every three (3) months throughout the inmate's incarceration by the same application and approval system cited above (i.e., if an inmate makes a change in his/her visitation list on March 1, he/she may not apply for another change until June 1.) Applications received seeking approval to visit an inmate, who is not yet eligible for a change to his/her list, shall be returned to the applicant with an explanation/note regarding the eligibility date for resubmission.
n. When a visitor is removed from a non-immediate family inmate's visiting list, there shall be a one (1) year waiting period before that visitor may be placed on another non-immediate family inmate's visiting list.
C. Guidelines for inmates under conviction for sex-related offenses against children:
1. An offender with a current or previous conviction for a crime involving a sexual offense against a minor is restricted from having contact visits with children under the age of eighteen (18,) except under the guidelines set forth in a duly signed and witnessed CR-3619, Contact Visitation with Minors Agreement. The warden/designee will ensure that this form is executed for all inmates with these types of convictions, regardless of the date they entered TDOC custody. The form will be completed as a part of the classification process.
2. Inmates who refuse to sign CR-3619 shall be restricted to non-contact visits with children.
3. Any observed or reported contact of a sexual nature with a child by an inmate shall be immediately reported by the warden/designee to the local Department of Children's Services, and Child Protective Services Division.
4. A victim of an inmate convicted of a sex offense will not be permitted to visit the inmate unless specifically approved by the warden, and then only non-contact visits shall be allowed.
D. File
1. All copies of CR-2152 received from visitor applicants shall be maintained in the visitation file, clearly marked approved or disapproved with the signatures of the warden/designee.
2. All CR-2152s shall subsequently be transferred as a part of the inmate's institutional record whenever the inmate is assigned to a different institution. (See Policy #403.01.1.)
3. Each institution shall maintain a record of the names of all visitors admitted to the institution to visit inmates. This record will be maintained in a bound logbook separate from the inmate's visitation file and shall remain at the institution where visit occurred. The logbook will be maintained for a period of three (3) years. Visitor arrivals and departures shall be entered into Visitor History (LIMM).
E. Schedule
1. The warden shall establish a routine schedule of visiting which shall include Saturdays, Sundays, and the following holidays that are recognized as being state holidays:
a. New Year's Day
b. Martin Luther King Jr. Day
c. President's Day
d. Good Friday
e. Memorial Day
f. Independence Day
g. Labor Day
h. Thanksgiving Day
Visitation on additional days accompanying Thanksgiving/Christmas Day will be determined by the commissioner.
i. Christmas Dayfn_
2. A schedule of state holidays shall be posted on a bulletin board that is accessible to visitors.
3. The visitation schedule shall also include one (1) evening per week to allow visiting privileges for those inmates unable to visit on weekends. This should not be construed as allowing a visitor to visit both on the regularly scheduled weekend/holiday schedule and the evening visitation. Institutional space and personnel resources and schedule should be the only reasons to limit the number of visitors or length of visits. The warden, or designee, may approve other times for visitation due to unusual circumstances. Hours of visits should not interfere with the inmate's work, education, or vocational training schedules.
4. The warden or designee may approve the following types of special visits for persons on or not on the inmate's approved list. If absolutely necessary, they may be approved for hours other than those regularly scheduled for visitation. Approved/disapproved special visiting requests will be placed in the inmate's visitation file.
a. Visitors who have traveled 200 miles or more and/or do not visit on a regular basis (at the warden's discretion)
b. Children, as part of a special program to promote family bonding
c. Attorneys (See Policy #105.09.) (Privately managed facilities refer to their corporate policy.)
d. Prospective employers, sponsors, or parole advisors
e. Physicians, psychiatrists, or other health professionals (See Policy #113.30.)
f. Persons significant to the inmate for purposes of crisis intervention
g. Official visitors
h. Immediate family members who are under visitation suspension when the inmate is terminally/critically ill
5. The visitation schedule for segregated inmates should accommodate the number of visitors, length, and frequency of visits mandated by Policy #506.16 (#9506.16 for privately managed facilities until this policy is incorporated into #506.16).
6. Inmates assigned to punitive segregation may be allowed visits at the discretion of the warden. The inmates may visit in an area within the segregation unit or may visit as scheduled with the general population.
7. During an institutional emergency, visitation may be canceled as deemed appropriate by the warden.
F. Security
1. Visitors shall not enter any areas of the institution except for approved visitation areas and approved routes to and from those areas.
2. All visitors shall be searched as specified in Policy #506.06.
3. If contraband is found in the possession of a visitor, the contraband shall be confiscated and the visitor may be detained for law enforcement officials. These visitors shall be subject to possible felony prosecution as per T.C.A. 39-16-201. If the visitor refuses to be detained, force should not be used to accomplish this. Vital information such as name, address, phone number, automobile make and model, description, license plate number and state of issue should be documented and provided to law enforcement officials. An incident report shall be submitted. (See Policy #103.02.)
G. Denial, Termination, and Suspension of Visits
1. Any visitor may be denied entrance to the visiting area for any reason including, but not limited to:
a. Refusing to show proper identification
b. Refusing to submit to a search
c. Appearing to be under the influence of drugs or alcohol
d. Insufficient space for visiting
e. Possession of contraband
f. Inappropriate dress
g. Displaying of security threat group (STG) symbols or affiliation.
2. Visits may only be terminated by the shift supervisor upon recommendation by the officer in charge of the visiting area; however, less restrictive measures are encouraged, such as warning the inmate and/or the visitor(s). Examples of reasons for warnings or termination include, but are not limited to:
a. Inmates or visitors who violate visitation conduct rules
b. Failure by visitors to control their children.
3. Whenever a visit is denied or terminated, a detailed written report, including the name of the employee who witnessed the violation, shall be prepared by the official taking the action. A copy of the report shall be forwarded to the warden, who will determine whether the action is warranted.
4. Other than as specified in Policy #502.01 (#9502.01 for privately managed facilities until this policy is incorporated into #502.01), only the warden can suspend visitation privileges. In addition to suspending a visitor involved in misconduct, the warden may have cause to suspend all visitors from an inmate's list if it is believed there may be risk to the institution's security or to the safety of individuals. When such action is taken, the warden shall provide written justification for the record and provide notice to the individuals suspended. Such notice may be limited to protect the security of the institution or safety of individuals. An action of total suspension shall be reviewed within six (6) months to determine when and who among the visitors may be reinstated. Visiting privileges may be suspended for up to six (6) months for any reason, including, but not limited to, the following:
a. Visitor(s) and/or inmate have become intoxicated during the visit
b. Visitor repeatedly violated visiting rules
c. Visitor continually failed to control children
d. Visitor(s) exhibits behaviors and actions, which, in the warden's opinion, could jeopardize the security of the instiution.
e. Inappropriate sexual contact
5. In the following cases, a visitor may be suspended for a period from six (6) months up to and including permanent restriction:
a. Attempting to introduce controlled substances or firearms into the institution, including concealment of weapons or controlled substances, in such a manner in the visitor's vehicle that gives an indication of a possible attempt to introduce the contraband into the facility. Mitigating circumstances, such as traces of a controlled substance found in a vehicle in such manner not appearing to be concealed, may warrant a lesser visitation suspension penalty.
b. A visitor, who is arrested, shall be suspended pending disposition of the case which may include any conviction, disposition, e.g., incarceration, probation, or parole. Reinstatement of privileges will require submission of a new application.
6. In all instances where inmates test positive for and/or are in possession of illegal drugs, or refuse to comply with a request for a drug screen, in addition to appropriate disciplinary actions, the warden shall modify the inmate's visits, with the exception of ministers and attorneys, according to the following:
a. First Offense — Visits shall be suspended for six (6) months.
b. Subsequent Offenses — Visits shall be suspended for additional six-month periods.VISITATION APPLICATION
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.
JAMES H. ROANE, JR., et al.,
Plaintiffs,
v. 05-CV-2337 (RWR)
ALBERTO GONZALES, et al., Defendants.
ORDER
IT IS ORDERED that Plaintiff Bruce Webster's Unopposed Motion for a Preliminary Injunction Barring His Execution it is hereby GRANTED. The Defendants herein are enjoined from executing Plaintiff Bruce Webster, pending further order of this Court.
Date: 2/16/07 _______________ Richard W. Roberts United States District Judge
PLAINTIFF'S UNOPPOSED MOTION FOR A PRELIMINARY INJUNCTION BARRING HIS EXECUTION
The lethal injection protocol employed by the defendants violates the United States Constitution and other statutory provisions including but not limited to the Fifth and Eighth Amendments of the United States Constitution, and the Administrative Procedures Act, 5 U.S.C. §§ 551 et seq. Plaintiff Bruce Webster, a death row inmate, requests that this Court enjoin defendants from executing him until the Court has reviewed the legality and constitutionality of the Defendants' lethal injection protocol. The grounds for this Motion are fully set forth in the accompanying Memorandum of Points and Authorities. Counsel for Webster has conferred with counsel for the defendants, and counsel for the defendants have represented that they do not oppose this motion for a preliminary injunction.
January 29, 2007
Respectfully submitted,
/s/ William E. Lawler III William E. Lawler III D.C. Bar No. 398951 VINSON ELKINS LLP 1455 Pennsylvania Avenue, NW Suite 600 Washington, D.C. 20004-1008 Telephone: 202.639.6500 Facsimile: 202.639.6604
Attorney for Plaintiff
TENNESSEE DEPARTMENT OF CORRECTION INMATE GRIEVANCE EMERGENCY
Philip Workman 95920 KMSI — Unit 2 __________ _______ ______________________ NAME NUMBER INSTITUTION UNITDESCRIPTION OF PROBLEM: See attached ______________________
REQUESTED SOLUTION: See attached __________________________________
Signature of Grievant Date 5-2-07 3:18 p.m.
TO BE COMPLETED BY GRIEVANCE CLERK
Grievance Number Date Received Signature Of Grievance Clerk
INMATE GRIEVANCE COMMITTEE'S RESPONSE DUE DATE: ______________________________________________________
AUTHORIZED EXTENSION: ____________ ______________ New Due Date Signature of Grievant
INMATE GRIEVANCE RESPONSE
Summary of Supervisor's Response/Evidence: ___________________________________________________________________
Chairperson's Response and Reason(s): _______________________________________________________________________
DATE: _______________ CHAIRPERSON: _________________________________________
Do you wish to appeal this response? _______ YES _______ NO
If yes: Sign, date, and return to chairman for processing within five (5) days of receipt of first-level response.
GRIEVANT DATE WITNESS
Distribution Upon Final Resolution:
White — Inmate Grievant Canary — Warden Pink — Grievance Committee Goldenrod — Commissioner (if applicable)
Philip Ray Workman #95920 Riverbend Maximum Security Institution, Unit 2
Description of Problem:
On January 17, 2007, the Tennessee Supreme Court scheduled Mr. Workman's execution for May 9, 2007.
On February 1, 2007, Tennessee's Governor Phil Bredesen issued an Executive Order directing the Department of Corrections to "complete a comprehensive review of the manner in which the death penalty is administered in Tennessee" by May 2, 2007. The Order further directed that by May 2, 2007 the Commissioner of Corrections should "establish and provide to me new protocols and related written procedures for administering death sentences in Tennessee, both by lethal injection and electrocution." To that end, the Governor issued a Reprieve to four individuals who had death sentences "scheduled to be carried out within the next ninety (90) days" and ordered that the Reprieve remain in place until May 2, 2007. Mr. Workman's execution date was not included in the Reprieve, although it was scheduled for just one week (7 days) after the May 2, 2007 deadline. On April 30, 2007, Mr. Workman's attorneys received a copy of the New Execution Protocols promulgated by the Tennessee Department of Corrections. See New April 30, 2007 Protocol, Exhibit 1. Mr. Workman initially objects to the time frame created by the Tennessee Department of Corrections and the Governor he has to review the New April 30, 2007 Protocol (just one week prior to his scheduled execution) as unfair, biased against him, and violating his rights to due process and to be free from cruel and unusual punishment.
Further, Mr. Workman objects to the New April 30, 2007 Protocol and the use of the New April 30, 2007 for his proposed May 9, 2007 execution for the following reasons:
1. Mr. Workman objects to the failure of the Warden to properly give him "the opportunity to select electrocution or lethal injection as a legal means of execution at least 30 days before the execution."See Exhibit 1, p. 12. Indeed, Mr. Workman's proposed execution is only 7 days away and he has not yet been presented with that opportunity. Mr. Workman specifically reserves the right to amend his grievance as other pertinent information is made known to him.
2. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the use of the three-drug cocktail ("Lethal Injection Chemicals") outlined in the New April 30, 2007 Protocol. See Exhibit 1, p. 35. The New April 30, 2007 Protocol instructs that an inmate will be injected with 5 grams of sodium thiopental, 100 cc of pancuronium bromide (Pavulon), and 100 mg/mL of 2 mEq/mL concentrate of potassium chloride.See Exhibit 1, p. 35. The use of this New April 30, 2007 Protocol is unconstitutional as it is cruel and unusual punishment. The sodium thiopental does not sufficiently anesthetize any individual and is contraindicated for use on individuals such as Mr. Workman. The use of pancuronium bromide is arbitrary, serves no legitimate interest, unreasonably risks the infliction of torture, and, at bottom, offends the dignity of humanity: Indeed, it cannot be used in Tennessee to kill a dog. Its use violates equal protection. The potassium chloride, as used, does not stop the heart. The use of this mixture of chemicals causes an unnecessarily painful and prolonged death experienced without total unconsciousness.
3. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the use of 5 grams of sodium thiopental in the New April 30, 2007 Protocol for the purpose of "general anesthesia." See Exhibit 1, p. 35. Sodium thiopental is an ultra-short acting barbiturate wherein the induction of anesthesia occurs quickly, but its effect wears off in a matter of minutes. The New April 30, 2007 fails to educate its readers (the execution team) that thiopental not only has a rapid onset, but also has a rapid withdrawal and that is may cause pain if the drug is infiltrated. See Exhibit 1, p. 35. Mr. Workman objects to the use of sodium thiopental in the New April 30, 2007 Protocol for the following reasons:
a. Sodium thiopental reacts differently based on a person's weight. The New April 30, 2007 Protocol fails to address an individual prisoner's weight as related to the dosage of sodium thiopental necessary to effectively anesthetize him, but instead just indicates that a 5 gram dose will be given. See Exhibit 1, p. 35. In a study published just last week, Leonardis Koniaris found that body weight must be taken into account when using sodium thiopental as the sodium thiopental reacts differently in the body depending on weight.See Leonardis Koniaris et al, Lethal Injection For Execution: Chemical Asphyxiation?, PLOS Medicine, Vol. 4, Issue 4, April 2007 (Attached as Exhibit 2).
b. The New April 30, 2007 Protocol also fails to address the individual prisoner's medical condition and history as related to the effectiveness of sodium thiopental. See Exhibit 1, p. 35. Several regularly prescribed drugs at Riverbend Maximum Security Institution interfere with the ability of sodium thiopental to act properly as an anesthetic.
c. The New April 30, 2007 Protocol uses sodium thiopental despite the fact that findings made as a result of the autopsy of Robert Coe, who was executed in Tennessee in 2000, show that his serum thiopental levels were 10 mg/l, which as recent research establishes, is inadequate to establish unconsciousness. See Leonidas Koniaris et al, Inadequate Anaesthesia In Lethal Injection For Execution, 365 Lancet 1412-1414 (2005) (Attached as Exhibit 3). The New April 30, 2007 Protocol ignores this medical evidence and instead calls for the same dosage of sodium thiopental (5 grams) that was purportedly given to Robert Coe in 2000.See Exhibit 1, p. 35.
d. The New April 30, 2007 Protocol fails to take into account a new study by Leonard Koniaris examining toxicology reports from prisoners executed by California and North Carolina, along with reports from witnesses to executions in other states, that confirms that some prisoners remained conscious during the administration of lethal drugs due to the ineffectiveness of sodium thiopental. See Leonardis Koniaris et al, Lethal Injection For Execution: Chemical Asphyxiation?, PLOS Medicine, Vol. 4, Issue 4, April 2007 (Attached as Exhibit 2).
e. The New April 30, 2007 Protocol fails to provide for any monitoring of anesthetic depth as is necessary when using sodium thiopental.See Exhibit 1, p. 43. The only monitoring provided for by the New April 30, 2007 Protocol is monitoring of the IV site via close-circuit camera, which is inadequate. See Exhibit 1, p. 43. There is no monitoring of the inmate for anesthetic depth or of the IV lines and tubing during the administration of the drugs. This lack of monitoring coupled with the ineffectiveness of sodium thiopental has caused numerous botched executions in the United States.
i. The two most well-known botched executions in the United States related to the failure of sodium thiopental. In Florida in December 2006, Mr. Angel Diaz did not get an effective amount of sodium thiopental because the IV lines were improperly seated in his veins with through and through punctures. As a result, none of the materials injected went to the right place. Instead, the drugs entered his bloodstream first through his flesh and muscle tissue. This process caused foot-long chemical burns on both arms from the sodium thiopental. During execution, observers reported that Mr. Diaz moved and tried to mouth words. It took 34 minutes and 14 syringes of chemicals for Mr. Diaz to die, during which he was clearly in pain, struggling for breath and grimacing. Following the Diaz execution, Governor Bush ordered that all executions be stayed while a committee undertook a review of the Diaz execution and of lethal injection protocols in Florida in general, which were exactly the same as the New April 30, 2007 Protocol here. Executions remain stayed in Florida under the Governor's order. See Florida Commission Report (Attached as Exhibit 4).
ii. During the May 2006 lethal injection of Joseph Lewis Clark, execution team members took over twenty minutes to insert one IV catheter into Mr. Clark's arm. According to protocol two catheters were necessary, but the team proceeded with only one. After the single IV was inserted and the chemicals began to flow, Mr. Clark remained breathing, legs moving, arms strapped down. After minutes, he sat up several times and told executioners, "It's not working, it's not working." Minutes later, Mr. Clark raised up again and said, "can't you just give me something by mouth to end this?" At that point, the team closed the curtain, and witnesses heard groans and moans from Mr. Clark as if he was in agony. Witnesses reported that the cries of pain lasted for about five or ten minutes and were followed by snores from Mr. Clark. Obviously if the sodium thiopental had worked properly then Mr. Clark would not have been able to cry out in pain, feel pain, or sit up during the execution. Ohio uses a lethal injection protocol that is similar to the New April 30, 2007 Protocol here.
f. Thus, Mr. Workman objects to the use of sodium thiopental in the New April 30, 2007 Protocol. As is clear from both medical studies and from experiences of other states, sodium thiopental, as used in the New April 30, 2007 Protocol (without the assistance of an anesthesiologist or certified nurse anesthetist and at such a low dosage that fails to take into account either body weight or drug interaction), does not adequately anesthetize a person prior to the introduction of pancuronium bromide and potassium chloride, resulting in an excruciatingly painful and horrifying death as a result of the conscious asphyxiation by pancuronium bromide followed by the painful intense burn and cardiac arrest of potassium chloride.
4. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the use of pancuronium bromide in the New April 30, 2007 Protocol as a "muscle paralytic" that will "assist in the suppression of breathing and ensure death." See Exhibit 1, p. 35. Pancuronium Bromide, marketed under the name Pavulon, is a neuromuscular blocking agent which causes paralysis of the skeletal muscles but does not affect the brain or nervous system. Thus, Pancuronium Bromide does not affect consciousness or the sensation of pain or suffering. An individual under the influence of pancuronium bromide, though paralyzed, still has the ability to think, to be oriented to where he is, to experience fear or terror, to feel pain, and to hear. While pancuronium bromide paralyzes the diaphragm to prevent breathing, it does not affect the heart muscle. Thus pancuronium bromide would ultimately cause someone to asphyxiate or suffocate to death while still conscious. And if an individual is not properly anesthetized when injected with pancuronium bromide, he will consciously experience extreme pain of suffocation while being completely paralyzed and unable to cry out. Thus, the paralyzing effect of pancuronium bromide also prevents any expression of the pain, horror, or suffering from any other source, such as potassium chloride which will activate the nerves of the venous system causing an extreme burning pain. The New April 30, 2007 Protocol fails to educate it readers (the execution team) regarding the true nature of pancuronium — that its paralytic nature blocks the ability to determine if someone is in pain. See Exhibit 1, p. 35. Moreover, because there is no legitimate penological purpose articulated in the New April 30, 2007 Protocol for the use of pancuronium bromide, Mr. Workman objects to its use. See Exhibit 1, p. 35.
5. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the use of pancuronium bromide as it is arbitrary, unreasonable, degrading to human dignity, and serves no legitimate interest. Because pancuronium bromide causes paralysis, suffocation, and the suffering attendant to such paralysis and suffocation, in 2001, Tennessee declared in the "Nonlivestock Humane Death Act" (Tenn. Code Ann. 44-17-301 et seq.) that pancuronium bromide cannot be used to euthanize animals, because its use is not humane. Where the use of pancuronium bromide is not "humane" to use on non-humans, it is arbitrary to claim that its use is "humane" on humans, and its use on humans to cause death violates basic precepts of human dignity.
6. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the use of pancuronium bromide where its use serves no legitimate state interest and is not narrowly tailored to any compelling state interest. As Chancellor Ellen Hobbs Lyle has explained:
[T]he use of Pavulon is . . . unnecessary. . . [T]he State [has] failed to demonstrate any reason for its use. The record is devoid of proof that the Pavulon is needed. Thus, the Court concludes that . . . the State's use of Pavulon is . . . in legal terms 'arbitrary.'
Abdur'Rahman v. Sundquist, No. 02-2236-III, In The Chancery Court For The State Of Tennessee, Twentieth Judicial District, p. 13 (June 2, 2003).
7. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the use of potassium chloride in the New Protocol as the means for "cardiac arrest and rapid death." See Exhibit 1, p. 35. See Leonardis Koniaris et al, Lethal Injection For Execution: Chemical Asphyxiation?, PLOS Medicine, Vol. 4, Issue 4, April 2007 (Exhibit 2). Moreover, the New April 30, 2007 Protocol fails to educate its reader (the execution team) about the true nature of potassium chloride — that it would cause extreme pain in someone who is not properly anesthetized.See Exhibit 1, p. 35.
8. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate how persons on the Execution Team are qualified to participate in an execution, or what screening, if any, has been done to insure that these persons do not have a criminal background, mental health issues, personnel and disciplinary issues, drug or alcohol issues. See Exhibit 1, p. 32.
9. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate how specialized members of the execution team identified as "two (2) EMTs — Paramedic — Certified Emergency Medical Technician"are qualified to participate, how they were chosen to participate, by whom they were chosen, or what screening, if any, has been done to insure that these members do not have a criminal background, mental health issues, personnel and disciplinary issues, drug or alcohol issues. See Exhibit 1, p. 32. Moreover, the New April 30, 2007 Protocol fails to indicate what role these EMTs-Paramedic — Certified Emergency Medical Technician" play on the execution team. See Exhibit 1, p. 32.
10. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate how the "three correctional officers" who "received IV training through the Tennessee Correction Academy by qualified medical professionals" are qualified to participate as part of the IV team, how they were chosen to participate on the IV team, by whom were they chosen to participate, what screening, if any has been done to insure that these specific members do not have a criminal background, mental health issues, personnel and disciplinary issues, drug or alcohol issues, and what screening has been done, if any, to insure that they can competently perform their duties as part of the IV team. See Exhibit 1, p. 32. Moreover, the New April 30, 2007 Protocol fails to specifically indicate that these "three correctional officers" actually make up the IV team. See Exhibit 1, p. 21, 32. In addition, the New April 30, 2007 Protocol fails to explain or elaborate on the alleged "IV training through the Tennessee Correction Academy by qualified medical professionals." See Exhibit 1, p. 32.
11. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate what training is required for members of the execution team. See Exhibit 1, p. 33. The New April 30, 2007 Protocol only indicates that execution team members are required to read the manual and that "the Warden or his designee holds a class during which the manual is reviewed and clearly understood by all participants." See Exhibit 1, p. 33. The New April 30, 2007 Protocol does not explain how the Warden insures that the manual is clearly understood by all participants nor does it explain who teaches the science and medical technique to be utilized in the manual.See Exhibit 1, p. 33.
12. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate what instruction the Executioner receives, by whom that instruction is given, and what qualifications, education, training, and licensing that individual has to provide any such instruction. The New April 30, 2007 Protocol only says that "The Executioner receives initial and periodic instruction from a qualified medical professional." See New Protocol, p. 33. Moreover the New April 30, 2007 Protocol fails to define the role of Executioner, fails to identify the Executioner, how he or she is chosen, by whom he or she is chosen, what qualifications or training he or she has, or what screening, if any, has been done to insure that the Executioner does not have a criminal background, mental health issues, personnel and disciplinary issues, drug or alcohol issues.
13. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate what training, education, or licensing the IV Team and the medical doctor has, if any, and if any training, education, or licensing is required for their selection for those positions. See Exhibit 1, pp. 20, 21, 32. Moreover, the New April 30, 2007 Protocol fails to indicate how the medical doctor is qualified to participate, how he or she is chosen, by whom he or she is chosen, or what screening, if any, has been done to insure that the medical doctor does not have a criminal background, mental health issues, personnel and disciplinary issues, drug or alcohol issues.
14. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate how "the Warden or his designee" chooses one member from the execution team who has access to the Lethal Injection Chemicals during their procurement and storage. See Exhibit 1, p. 36. The protocol indicates that "the Warden or his designee" (the designee is not identified) instructs one member of the execution team to "check the supply of chemicals and expiration dates," to order additional chemicals, to pick up the additional chemicals and deliver them to RMSI, and to "inventory" the chemicals prior to an execution date. See Exhibit 1, p. 36. The New April 30, 2007 Protocol fails to indicate what qualifications, training, and screening is done to insure that the execution team member who is given this access to the lethal injection chemicals does not have a criminal background, mental health issues, personnel and disciplinary issues, or drug or alcohol issues.
15. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate who prepares and mixes the "Lethal Injection Chemicals" (other than "one member of the execution team") and what training, education, or licensing any member of the execution team has in the preparation and mixing of chemicals. See Exhibit 1, p. 38. Based on the vague descriptions of the execution team, there is no one who has pharmaceutical training or knowledge of drug compounding to mix the drugs. Moreover, the New April 30, 2007 Protocol provides only that "another member of the execution team observes and verifies that the procedure has been carried out correctly." See Exhibit 1, p. 38. Again, the New April 30, 2007 Protocol fails to indicate what training, education, or licensing, or any other qualifications any execution team member has for observing the mixing of the "Lethal Injection Chemicals" to make sure it is done correctly. There is no quality control to assure that the chemicals have actually been mixed correctly and at the proper dosage.
16. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to include the proper instructions for mixing sodium thiopental by failing to identify what the sodium thiopental should be mixed in, whether it is to be mixed all together (10 boxes in one mixing container) or one box at a time, what instrument is to be used to actually mix the solution, how many syringes should be filled per box of powder, or what precautions are taken to avoid settling or contamination of the sodium thiopental. See Exhibit 1, p. 38.
17. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because, having been an IV drug user prior to his incarceration, there is a greater risk that the veins in his arms will be inaccessible and that surgical measures, like the cutdown proposed by the New April 30, 2007 Protocol, will be necessary to insert the IV catheters. See Exhibit 1, pp. 41, 67.
a. The New Protocol indicates that a cut-down may be used but does not indicate at what point in the procedure the IV technicians would resort to this option or who would make the determination that a cutdown is necessary.
b. The New April 30, 2007 Protocol is silent as to the physician's qualifications to perform a cutdown. Only 15% of physicians in the United States are qualified to perform a cutdown.
c. Any cutdown procedure is a dangerous and antiquated medical procedure that is rarely performed in the practice of medicine.
d. A cutdown procedure involves making a series of sharp incisions through the skin and through several layers of connective tissue, fat, and muscle — all with only local anesthetic — to expose a suitable vein for IV catheterization.
e. A cutdown is a complicated medical procedure requiring equipment and skill that has a very high probability of not proceeding properly in the absence of adequately trained and experienced personnel, and without the necessary equipment. If done improperly, the cut-down process can result in very serious complications including severe hemorrhage (bleeding), pneumothorax (collapse of a lung which may cause suffocation), and severe pain.
f. Thus, cutdowns are out-dated and are only used in clinical situations that are not pertinent to executions by lethal injection, including emergency scenarios where there has been extensive blood loss, and in situations involving very small pediatric patients and premature infants.
g. Cutdowns have been replaced by the percutaneous technique which is less invasive, less painful, less mutilating, faster, safer, and less expensive than the cut-down technique.
h. The use of a cutdown as a back-up before trying to find percutaneous access is a profound departure from standard medical methods and from the standard of care used in executions in other jurisdictions.
i. To use a cut-down as the backup method of achieving IV access would defy contemporary medical standards and would be a violation of any modern standard of decency.
j. The New April 30, 2007 Protocol is completely silent on the procedures that will be followed by the physician should a cutdown become necessary. See Exhibit 1, pp. 41, 67.
18. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate whose responsibility it is to watch the IV lines for leaks in the tubing, junctions, and valves during the administration of the Lethal Injection Chemicals and what any member of the execution team would do should a leak be found. See Exhibit 1, p. 43. A leak in the tubing, junctions, or valves can result in the failure to properly administer a full dosage of anesthetic to the inmate, resulting in an excruciatingly painful and horrifying death. The only monitoring prescribed by the New April 30, 2007 Protocol during the administration of the Lethal Injection Chemicals is "by watching the monitor in his room which displays the exact location of the catheter(s) by means of a pan-tilt zoom camera" and allows for the "monitoring the catheter sites for swelling or discoloration." See Exhibit 1, p. 43. Thus, there is no monitoring of the IV tubing or the drip chamber during the administration of Lethal Injection Chemicals. Moreover, the monitoring of an IV site from a remote camera is not medically proper — in order to insure that an IV does not migrate, infiltrate, move, and is working properly, the IV site must be monitored from the bedside. The New April 30, 2007 Protocol does not provide for anyone to monitor the IV site from the bedside, nor is there any qualified medical personnel in the room to do any personal, medical monitoring of the process. See Exhibit 1, p. 43.
19. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate what Defendants will do if the inmate has small veins or general venous incompetence and which member of the execution team will make a decision surrounding those issues. Small veins or venous incompetence can result in an inability to properly administer a full dosage of anesthetic to the inmate, resulting in an excruciatingly painful and horrifying death.See Exhibit 1, p. 41. Moreover, the New April 30, 2007 Protocol fails to identify any execution team member who has medical training in general venous incompetence.
20. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate what any member of the execution team will do if the catheter migrates during the lethal injection. See Exhibit 1, p. 67. The migration of an IV catheter can result in an inability to properly administer a full dosage of anesthetic to the inmate, resulting in an excruciatingly painful and horrifying death.
21. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate what any member of the execution team will do if the inmate has a collapsed vein, perforation or leakage of the vein, or a blown vein from the pressure of the syringe plunger. See Exhibit 1, pp. 41-42, 67. A collapsed, torn, or blown vein can result in an inability to properly administer a full dosage of anesthetic to the inmate, resulting in an excruciatingly painful and horrifying death.
22. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New Protocol because it fails to indicate which member of the execution team, if any, is responsible for loosening the tourniquets or restraining straps. See Exhibit 1, pp. 41-42. The failure to properly loosen the tourniquets or restraining straps on an inmate can result in an inability to properly administer a full dosage of anesthetic to the inmate, resulting in an excruciatingly painful and horrifying death.
23. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate the length of time between the administration of each drug. See Exhibit 1, pp. 43-44. This is important to ensure that an inmate is adequately anesthetized by the sodium thiopental prior to the introduction of the pancuronium bromide and potassium chloride.
24. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate who, if anyone, is monitoring the inmate during the administration of the drugs to assure that the sodium thiopental (anesthesia) is working.See Exhibit 1, pp. 43-44.
25. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it fails to indicate the presence of an anesthesiologist or a certified nurse anesthetist who could properly monitor consciousness. See Exhibit 1, pp. 43-44. Indeed, there is no one present on the execution team who is qualified to monitor the anesthetic depth of the inmate. Moreover, the New April 30, 2007 Protocol fails to indicate the presence of any medical technology that might be used to monitor consciousness. See Exhibit 1, pp. 43-44.
26. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because it does not indicate what plan is in place if the execution must be stopped because the Governor or the courts have entered a stay or reprieve. See Exhibit 1, p. 67. The New May 2, 2007 Protocol does not indicate if anyone on the execution team is qualified to resuscitate the inmate or if any of the necessary equipment is present for resuscitation.
27. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because the Governor and the TDOC were aware of the risks inherent in the New April 30, 2007 Protocol, based on prior lethal injection litigation in this state and ongoing lethal injection litigation in 14 other states (all of which have almost identical protocols to the New Protocol), but persisted with deliberate indifference in promulgating a protocol that has been declared unconstitutional by other federal courts and unusable by Governors of other states, and that will cause an excruciatingly painful and horrifying death from the use of these three drugs by untrained personnel. See Report on Administration of Death Sentences in Tennessee (Attached as Exhibit 5).
28. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because the Governor and the TDOC failed to consult with and request documents from correctional officials, state officials, or medical experts with experience in lethal injection and lethal injection litigation from any of the listed states or jurisdictions as a part of its review and development of the New Protocol despite their knowledge of the ongoing lethal injection litigation in multiple states and jurisdictions. See Exhibit 5.
29. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because the TDOC's analysis and promulgation of the New April 30, 2007 Protocol, approved by the Governor, was one-sided, unscientific and failed to take into account the serious known and demonstrated risks of the use of the chemicals and procedures selected for the New Protocol. See Exhibit 5.
30. Under the Eighth and Fourteenth Amendments, Mr. Workman objects to the New April 30, 2007 Protocol because TDOC's failure to properly consult, review, and research in promulgating its New April 30, 2007 Protocol (a failure which was approved by the Governor), despite the ready availability of experienced state officials and medical experts, demonstrates a deliberate indifference to the excruciatingly painful and horrifying death that will result from the use of these three drugs by untrained personnel under the new execution protocol. See Exhibit 5. In conclusion, the New April 30, 2007 Protocol, including the combination of chemicals (sodium thiopental, pancuronium bromide, and potassium chloride); the lack of proper training, qualifications, screening and review of the persons involved in the process; the absence of standardized procedures for administration of the chemicals; the absence of a sufficient anesthetic and any monitoring of anesthetic depth; and the absence of a back-up plan should problems arise during the protocol, creates a grave and substantial risk that Mr. Workman will be conscious throughout the execution process and, as a result, will experience an excruciatingly painful and protracted death in violation of his constitutional rights and substantive due process under the Eighth, Ninth, and Fourteenth Amendments. In addition, the New April 30, 2007 Protocol, devised and promulgated by the TDOC and approved by the Governor violates evolving standards of decency. See Trop v. Dulles, 356 U.S. 86 (1958). Finally, the New April 30, 2007 Protocol, devised and promulgated by TDOC and approved by the Governor, demonstrates a deliberate indifference to the excruciatingly painful and horrifying death that will result from its use in violation of the Fourteenth Amendment.
Requested Solution:
Mr. Workman respectfully requests that the Department of Corrections refrain from carrying out his execution as scheduled until the TDOC addresses each of these concerns and provides a new protocol that comports with the United States Constitution and evolving standards of decency.
II. PURPOSE: To establish a standard procedure for the expression and resolution of inmate complaints.
III. APPLICATION: To TRICOR employees, employees and inmates of TDOC and privately managed facilities, except those offenders assigned to and actively participating in a Special Alternative Incarceration Unit (SAIU) program.
IV. DEFINITIONS:
A. Advocate: An inmate chosen by a grievant from his/her peers or from those appointed by the warden to assist in the filing and/or appeal of a grievance.
B. Calendar Days: A time limit that begins to run at 12:01 a.m. on the day following the date of the triggering event. Example: if an inmate files a grievance and the alleged triggering event occurred on April 1st, the seven (7) calendar day's time limit for filing grievances set by Section VI. (C) (1) below would begin to run at 12:01 a.m. April 2nd, and end at 11:59 p.m. on April 8th.
C. Emergency Grievance: The resolution of a grievance subject to the normal time limits which could cause the grievant substantial risk of personal injury or irreparable harm.
D. Grievance: A written complaint concerning the substance or application of a written or unwritten policy or practice, any single behavior or action toward an inmate by staff or other inmates, or any condition or incident within the department or institution which personally affects the inmate complainant.
E. Grievance Committee: A committee composed of a staff chairperson appointed by the warden and members consisting of elected staff and inmates. This committee provides a forum for which an inmate may resolve a grievance at Level II of the inmate grievance process.
F. Reprisal: Any action or threat of action against anyone for the good faith use of or good faith participation in the grievance procedure.
V. POLICY: The Tennessee Department of Correction (TDOC) ensures that every inmate shall have the right to utilize the grievance procedure without fear of reprisal. All grievances shall be considered in a fair and impartial manner and resolved at the lowest possible level in the grievance procedure.
VI. PROCEDURES:
A. A handbook entitled TDOC Inmate Grievance Procedures shall provide detailed instructions for the filing and processing of inmate grievances and appeals, and for the election/appointment/removal of grievance committee members. Copies of the handbook, and any current departmental and institutional policies concerning inmate grievances, will be available to inmates in the institutional legal library. Access to copies of the handbook shall be provided to all grievance committee members and alternates. All living units for housing segregated inmates shall also be provided with a copy of the handbook and policies regarding inmate grievances.
B. Access to the grievance procedure: Inmate Grievance, CR-1394, and locked grievance depositories shall be made available for use by all inmates. Inmates shall have unimpeded access to grievance forms (CR-1394). If required to ask staff for the form (i.e., an inmate in segregation), the inmate shall be given the form without question or discussion. All inmates will be informed of grievance procedures during orientation.
C. Levels of Review
1. First Level: Grievances must be filed utilizing CR-1394 within seven (7) calendar days of the occurrence or most recent occurrences giving rise to the grievance, with the exception of Title VI complaints. All such complaints must be filed within one hundred eighty (180) days of the occurrence of an alleged discriminatory act. (See TDOC Policy #103.10.) Only one (1) subject or incident shall be addressed in a grievance. All copies of the form must be legible and intact.
Grievance forms which are improperly completed or contain insufficient information for processing shall be returned to the inmate with instructions as to proper completion. It should not be logged as received (which starts the deadline times running) until the corrected version is submitted.
If more than one (1) inmate files a grievance on the same incident, the hearing and responses may be consolidated. This shall be noted on the grievance response forms and on Grievance (LIBG) on the Description Detail Screen.
The chairperson shall review all grievances, enter them on Grievance (LIBG) (with a flag indicating Title VI if the grievant alleges discrimination on the basis of race, color or national origin) and then forward them to the supervisor of the employee or department involved for a signed, written response on CR-3148.
Grievances allegedly involving Title VI complaints shall be simultaneously forwarded to the Title VI Site Coordinator (deputy warden/assistant warden at privately managed facilities) for review and final determination as to Title VI designation. Those deemed to be actual Title VI complaints (regardless of validity or issue) shall remain flagged as Title VI and investigated as such in accordance with policy. The Title VI Site Coordinator shall notify the grievance board chairperson to remove the Title VI flags for those complaints which he/she determines do not fall within the parameters of a Title VI issue. (See TDOC Policy #103.10.) The flag shall be removed in such cases within one (1) workday of receipt of notification by the grievance board chairperson.
The chairperson's response shall be written on CR-1394 following the chairperson's receipt and review of the supervisor's response. There will be a seven (7) working day time limit at Level I, starting the day the grievance begins to be processed. If grievant accepts the supervisor's response, the grievance chairperson shall enter approval on Grievance (LIBG).
2. Second Level: Within five (5) calendar days of being notified of the Level I response, the grievant may appeal the response to the grievance committee and warden. A hearing shall be held within five (5) working days of an appeal's filing. Within five (5) working days of the hearing, the committee's proposed response shall be forwarded to the warden. Within seven (7) working days of receipt, the warden shall forward his/her decision to the chairperson. Within five (5) working days of receiving the warden's response, the chairperson will allow the grievant to review the grievance materials and responses. If the grievant accepts the Level II response, the grievance chairperson shall enter approval on Grievance (LIBG). Failure of staff to comply with a directive by the warden as a result of the warden's review of the grievance may result in disciplinary action.
If the warden agrees to the grievant's requested solution, the grievant shall not have the right to appeal to Level III.
Grievances concerning Tennessee Rehabilitative Initiative in Correction (TRICOR), over which the warden has no line authority, shall be forwarded from the committee to the warden for comments (if any) and then to Level III. The Assistant Commissioner of Operations/designee shall review and, if necessary, may forward for review/response of the Executive Director of TRICOR.
3. Third Level: A grievant may appeal the Level II response within five (5) calendar days of receipt of that response. The chairperson shall forward one (1) legible copy of the grievance and all documentation to the Assistant Commissioner of Operations/designee. The Level III response shall be sent to the grievance chairperson for distribution within twenty-five (25) working days of the date the appeal was received. The chairperson shall enter the final decision on Grievance (LIBG). This response is final and is not subject to appeal. Failure of staff at TDOC managed facilities to comply with a directive by the Assistant Commissioner of Operations as a result of the Level III review may result in disciplinary action. (At privately managed facilities, the Deputy Commissioner will make a determination as to appropriate action to be initiated.)
D. If a time limit expires at any stage of the process without the required response, the grievant may move the grievance to the next stage of the process, unless the inmate agrees in writing to a fixed extension of the time limit for response.
E. Committee election and hearing procedures shall be developed at each institution, and shall be forwarded to the Assistant Commissioner of Operations for review. Any subsequent revisions to said procedures shall also be forwarded to the Assistant Commissioner of Operations for approval. The warden/designee shall enter elected committee members' names on Board/Committee Members (LIBM).
F. The good faith use of, or good faith participation in, the grievance process will not result in formal or informal reprisals against an inmate. An inmate shall be entitled to pursue, through the grievance procedure, a complaint that a reprisal occurred as the result of the filing of a prior grievance.
G. Matters Inappropriate to the Grievance Procedure: If the chairperson determines a matter to be non-grievable, the grievant may appeal that decision as outlined in the handbook TDOC Inmate Grievance Procedures. The grievance process is inappropriate for:
1. Appealing or seeking review of procedures or punishment imposed under established disciplinary procedures of the TDOC. These issues may be appealed pursuant to Policy #502.01 (Privately managed facilities will use Policy #9502.01 until it is incorporated into #502.01.) When this determination is made, the chairperson shall cite the incident number associated with the disciplinary report.
2. Appealing decisions or actions of the Board of Probation and Parole or any other agency outside the TDOC.
3. Addressing classification matters such as institutional placement and custody level, which may be appealed through other avenues outlined in the TDOC #400 policy series, except where policy violations are alleged. Cell assignments not due to a classification or reclassification are grievable.
4. Appealing or seeking review of any decision regarding the awarding of sentence credits. Sentence credit procedures shall be as provided in Policy #505.01.
5. Seeking monetary compensation for injuries or property loss. Monetary claims against the TDOC or its employees based upon negligent care of persons or personal property should be filed with the Tennessee Claims Commission pursuant to T.C.A. 9-8-101 et seq. Monetary claims by inmates against employees of privately managed facilities shall be filed with the managing company in accordance with CCA Policy #14-6.
6. Addressing questions regarding sentence structures. Such problems should be addressed to the counselor, institutional records office and Sentence Information Services (SIS) through established inmate inquiry procedures.
7. Visitors' behavior which results in disciplinary action is not grievable by an inmate.
8. Diagnoses by medical professionals, medical co-payments when TDOC Policy #113.15, Section VI. (G) has been adhered to, and requirements of substance abuse therapeutic programs.
9. Security Threat Group (STG) program placement which may be appealed as described in Policy #506.26.
10. Mail rejection, which may be appealed as described in Policy #507.02.
H. Abuse of the Grievance Procedure
1. Inmates shall not be permitted to submit more than one (1) grievance arising out of the same or similar incident.
2. Inmates shall not be permitted to have more than one (1) grievance pending at the first level of review.
3. Profanity, insults, and racial slurs, unless an alleged direct quote of another party, shall not be permitted in grievances. Threats may result in disciplinary action.
I. Emergency Grievances
1. Grievances deemed to be emergencies shall be expedited. The grievance chairperson or designee shall immediately bring emergency grievances to the attention of the appropriate person by whom corrective action may be taken. The action taken on any emergency grievance may be appealed through expedited emergency grievance procedures, as outlined in the handbook.
2. The determination that a grievance is not an emergency may be appealed through normal grievance procedures.
J. Records
1. Records concerning inmate grievances shall be kept confidential. Only the chairperson shall process grievances after they have been answered by the warden. Grievance (LIBG) should be available only to employees who have a need for access because of their assigned duties.
2. Records shall be kept regarding inmate grievances as detailed in the handbook, TDOC Inmate Grievance Procedures.
3. Upon resolution, grievances shall be distributed as indicated on CR-1393 and entered on Grievance (LIBG). An extra copy of health-related grievances shall be supplied to the institutional health administrator by the chairperson.
K. Each institution will submit an annual evaluation of the grievance procedures as outlined in the handbook, TDOC Inmate Grievance Procedures. Staff preparing these reports may review actual grievances.
L. Documentary Evidence: Any TDOC policy referred to in any description of problem or response shall be cited by number, paragraph and section. Copies of any institutional policies, post orders, or documents referred to, will accompany all grievances to the third level. The grievant shall be furnished with a copy of all documentation unless deemed inappropriate by the chairperson for security reasons.
VII. ACA STANDARDS: 4-4016, 4-4180, 4-4284, and 4-4344.
VIII. EXPIRATION DATE: May 1,2007.
TENNESSEE DEPARTMENT OF CORRECTION
INMATE GRIEVANCE
_____________ _________ ________________________ NAME NUMBER INSTITUTION UNIT
DESCRIPTION OF PROBLEM: __________________________________________________________________
REQUESTED SOLUTION: __________________________________________________________________
Signature of Grievant Date
TO BE COMPLETED BY GRIEVANCE CLERK
Grievance Number Date Received Signature Of Grievance Clerk
INMATE GRIEVANCE COMMITTEE'S RESPONSE DUE DATE: ______________________________________________________
AUTHORIZED EXTENSION: ____________ ______________ New Due Date Signature of Grievant
INMATE GRIEVANCE RESPONSE
Summary of Supervisor's Response/Evidence: ___________________________________________________________________
Chairperson's Response and Reason(s): _______________________________________________________________________
DATE: _______________ CHAIRPERSON: _________________________________________
Do you wish to appeal this response? _______ YES _______ NO
If yes: Sign, date, and return to chairman for processing within five (5) days of receipt of first-level response.
GRIEVANT DATE WITNESS
Distribution Upon Final Resolution:
White — Inmate Grievant Canary — Warden Pink — Grievance Committee Goldenrod — Commissioner (if applicable)
TENNESSEE DEPARTMENT OF CORRECTION
DESCRIPTION OF PROBLEM: _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________ _______________________________________________________
Distribution Upon Final Resolution:
White-Inmate Grievant Canary-Warden Pink — Grievance Committee Goldenrod- Commissioner (if applicable)
CR-1394 (Rev. 3-00) RDA 2244 Page 2 of 2
INMATE GRIEVANCE LOG
INMATE GRIEVANCE RESPONSE
RESPONSE OF SUPERVISOR OF GRIEVED EMPLOYEE OR DEPARTMENT
TDOC INMATE GRIEVANCE PROCEDURES
This handbook, as revised, has been compiled in conjunction with TDOC Policy #501.01, Inmate Grievance Procedures, and in compliance with federal standards for inmate grievance procedures. The policy and handbook have been developed with the input of both TDOC and CCA staff and inmates.
The procedures provide a forum where inmates may formally raise concerns over incidents or conditions that personally affect them and allows complaints to be considered and addressed at both the institutional and departmental level.
This procedure is most beneficial when used as a means of resolving problems through joint cooperation of staff and inmates in considering complaints rather than as an adversarial system.
The continued good faith efforts of all persons involved in the inmate grievance procedure is appreciated.
Quenton I. White, Commissioner
GRIEVANCE PROCEDURE
COMPOSITION OF COMMITTEE
The grievance committee at each hearing shall be made up of five people. They shall include a chairperson who is a full-time staff member, two other full-time staff members, and two inmates who shall serve as members.
The grievance committee at the annex may consist of three people, one chairperson who is a full-time staff member, one other staff member, and one inmate who shall serve as members of the committee.
The actual number of members and alternates elected and their scheduling shall be determined by each institution and approved by the Assistant Commissioner of Operations as part of the election procedures.
STAFF CHAIRPERSON(S)
The warden shall appoint a chairperson(s) from among the institutional staff to serve a 12-month term subject to reappointment for a period not to exceed three (3) consecutive years. The chairperson shall be a non-voting member, unless there is a tie vote, whose function is to facilitate consensus among the members. The chairperson shall have the full authority of the warden to conduct investigations/hearings, and all inmates/employees shall appear at the appropriate time for hearings and investigative questioning at the chairperson's request. The chairperson shall have the authority to ensure grievants that there will be no retaliation or other reprisals as a result of a grievance. If the chairperson knows of such retaliation, he/she shall report this to the warden immediately, and shall process any grievance filed by an inmate alleging reprisal resulting from grievances.
ALTERNATE STAFF CHAIRPERSON
The warden shall appoint (an) alternate chairperson(s) from among the institutional staff to serve as chairperson in the absence of the regular chairperson, as needed.
STAFF MEMBERS
These individuals shall be voting members of the committee. They shall be elected by the inmate population from a list of employees nominated by the institutional staff. TRICOR and contract employees are excluded from serving on the committee. Institutional staff includes all personnel on the institutional payroll. This list should represent a cross section of the institutional staff, i.e., security, treatment, and administration. Each staff member shall serve a 12-month term. Staff members shall not be elected to consecutive terms. An alternate/alternates shall serve when a scheduled staff member/members of the committee is directly involved in the grievance or is absent or unable to attend the committee meeting.
INMATE MEMBERS
These individuals shall be voting members of the committee. They shall be elected by popular vote of the institutional staff from a list of inmates nominated by the inmate population. Each inmate member shall serve for 12 months. In case a regular inmate member becomes unable to serve, the alternate who received the highest number of votes shall replace that regular member. If attrition for any reason reduces the number of inmate members available for hearings below the required number, an election will be held to fill vacancies.
The alternates shall not serve unless a regular inmate member is directly or indirectly involved in a grievance or is unable to attend the meeting. No inmate shall participate in the resolution of any other inmate's grievance over the objection of the grievant. Such objection shall be made, in writing, to the chairperson at least 24 hours prior to the scheduled meeting. In such case, the remaining board members seated for that hearing shall decide the grievance.
The grievant does not have the right to request the participation of members or alternates who were not duly elected. Any inmate on administrative segregation, or who does not have reasonable movement inside the prison, shall be ineligible to serve as a member. Any inmate elected to be on the committee shall possess the below listed qualifications and shall be screened by the chairperson prior to being elected to committee membership:
1. Desire to serve and ability to receive release from the present job assignment on hearing days.
2. Has been permanently assigned to the particular institution for at least one year.
3. Has not been convicted of a Class A or Class B or two Class C disciplinary infractions during the 12 months prior to election. Conviction of one Class A or Class B, or two Class C disciplinary infractions during an inmate member's tenure may be grounds for removal from the committee.
ELECTION PROCEDURE
Every inmate in the assigned count of an institution who is at the institution at the time of the election shall receive a ballot and shall have the opportunity to vote. Inmates who do not wish to vote shall return their ballot marked "no vote".
The warden/designee shall establish election procedures for his/her institution and forward them to the Assistant Commissioner of Operations for approval. Any subsequent revisions to said procedures shall also be forwarded to the Assistant Commissioner of Operations for approval. The chairperson shall enter elected committee members' names on Board/Committee Members (LIBM). The procedure shall ensure that each inmate and each employee has the opportunity to vote. The election procedures shall be reviewed annually as shown on page 10, "Review of Procedures".
Votes shall be counted and certified by current grievance committee members (inmate and staff) and totals shall be posted for review by the population.
REMOVAL FROM THE GRIEVANCE COMMITTEE
A staff committee member may be permanently removed for cause, but only on the recommendation of the warden with approval of the Assistant Commissioner of Operations. The alternate who received the most votes in the election shall serve the unexpired term of any removed member.
MATTERS INAPPROPRIATE TO THE GRIEVANCE PROCEDURE
An inmate may not use the department grievance procedure to:
1. Appeal or seek review of the processing of, or punishment imposed under, established disciplinary procedures of the Tennessee Department of Correction (TDOC). These issues may be appealed pursuant to Policy #502.01, Uniform Disciplinary Procedures. (Privately managed facilities will use #9502.01 until this policy is incorporated into #502.01.) When this determination is made, the chairperson shall cite the incident number associated with the disciplinary report.
2. Appeal decisions or actions of the Board of Probation and Parole or any other agency outside the TDOC.
3. Address classification matters such as institutional placement and custody level, which may be appealed through other avenues outlined in the TDOC #400 policy series. Alleged violations of classification policies which may not be addressed in classification appeals may be addressed in the grievance process. Cell assignments or reassignments not due to a classification or reclassification are grievable.
4. Appeal or seek review of any decision regarding the awarding of sentence credits. Sentence credit procedures shall be as provided in Policy #505.01.
5. Seek monetary compensation for injuries or property loss. Monetary claims against the department or its employees based upon negligent care of persons or personal property should be filed with the Tennessee Claims Commission pursuant to T.C.A. 9-8-101 et seq. Monetary claims by inmates against employees of privately managed facilities shall be filed with the managing company in accordance with CCA Policy #14-6.
6. Address questions regarding sentence structures. Such problems should be raised with an inmate's counselor, institutional records office, or Sentence Information Services (SIS)) through established inmate inquiry procedures.
7. Visitors' behavior which results in disciplinary action is not grievable by an inmate.
8. Diagnosis by medical professionals, medical co-payments when TDOC Policy #113.15, Section VI. (G) has been adhered to, and requirements of substance abuse therapeutic programs.
9. Security Threat Group (STG) program placement, which may be appealed as described in Policy #506.26.
10. Mail rejection, which may appealed as described in Policy 507.02.
ACCESS TO THE GRIEVANCE PROCEDURE
The institution shall make available grievance forms in each housing unit and at the operations office which shall be given to any inmate, upon request, by the officer in charge. The institution may also designate additional locations at which grievance forms are available. Inmates shall have unimpeded access to grievance forms (CR-1394). If required to ask staff for the form (i.e., an inmate in segregation), the inmate shall be given the form without question or discussion.
Locked depositories shall be made available to the population at locations to be specified by the institutions. Forms shall be collected daily by a responsible staff member. Inmates who do not have access to the grievance depository, i.e., in segregation, medically detained, etc., shall give their completed grievance forms to any staff member. That staff member is personally obligated to deposit that grievance in the depository before the end of shift and/or working day. Inmates shall be informed of the grievance procedure during the orientation period. Copies of Policy #501.01, Inmate Grievance Procedures, and this handbook shall be placed in the inmate law library, as well as institutional policies concerning inmate grievance procedures.
Appropriate provisions shall be made to communicate these procedures to non-English speaking, handicapped, or impaired inmates by staff members. The staff person in charge of orientation shall ensure that this is accomplished and documented.
INMATE CLERK DUTIES
An inmate clerk may be appointed by the warden to serve a term of one year, subject to reappointment. This may be a full-time or part-time position. The duties of this clerk, a non-voting grievance committee member, may include the following:
1. Log all grievances on CR-3516 "Inmate Grievance Log" and maintain in a binder.
2. Forward new grievances to the chairperson.
3. Deliver or mail grievances to which the chairperson has responded to the inmate or inform the grievant that the chairperson's response is available for review by the grievant.
4. Deliver all appealed grievances to the next level of hearing within the institution.
5. Take detailed minutes of each hearing, to be submitted with appeals to the warden and/or Assistant Commissioner of Operations. The grievant and respondent may review the minutes prior to submission to the Assistant Commissioner of Operations.
6. Perform other related duties as requested by the chairperson.
7. If the grievant or respondent objects to participation by the inmate clerk, this shall be noted at the top of the grievance and these duties will be performed by the chairperson or another committee member.
8. The clerk shall not participate in any discussion of grievances with the committee, and shall keep all grievance information confidential.
9. Conviction of a Class A, Class B, or 2 Class C disciplinary infractions in a 12-month period may be grounds for removal of a grievance clerk.
RECORDS
A written record of all grievances filed shall be maintained by the chairperson in a binder entitled "Inmate Grievances." This record shall include the following information: inmate name and number, institution grievance number (if utilized by the institution), TOMIS grievance number, date received, response due date, brief description of the problem, brief description of disposition, dates of all responses, level obtained, and action taken, if any, to resolve the problems. The final disposition column of CR-3516 will reflect one of three resolutions: withdrawn/settled (WI), resolved in favor of the inmate (RI), or resolved not in favor of the inmate (RN).
For all grievances appealed to Level III, the Assistant Commissioner of Operations shall maintain the following information in a binder: inmate name and number, institution involved, institution grievance number (if utilized by the institution), TOMIS grievance number, date received, date of disposition, brief description of the problem, and response. The final disposition column of CR-3516 will reflect one of three resolutions: withdrawn/settled (WI), resolved in favor of the inmate (RI), or resolved not in favor of the inmate (RN).
All grievances, records concerning the participation of an individual in the grievance proceedings, the above binders, and documentation returned to the chairperson pursuant to Policy #501.01, Section VI.(C) shall be confidential. They shall be maintained for at least three years from the date of final disposition and shall be available only to the commissioner, Assistant Commissioner of Operations, Assistant Commissioner of Operations, warden, their designees, and official inspectors/auditors. No persons other than the grievant, chairperson, the employee whose actions or department are the subject of the grievance, and official inspectors/auditors shall have access to the grievance after it has been delivered to the warden for response. At this point, only the grievance chairperson may handle the grievance as it is processed.
WITHDRAWAL OF GRIEVANCE
Informal resolutions of grievances shall be encouraged. An inmate may make written withdrawal of a grievance at any level of the procedure. Grievances withdrawn by inmates will be considered settled to the satisfaction of all parties. The grievance and the notice of withdrawal shall remain on file for review by the warden, chairperson, and commissioner, or his/her designee.
ADVOCATES
The inmate shall be entitled to assistance from an advocate representative in preparing grievances and appeals. Participation of an advocate is voluntary or may be a paid job at an institution at the warden's discretion.
The advocate must be an inmate with reasonable movement within the perimeter; inmates on administrative segregation will not be eligible. Death row inmates in program participation Level A may serve as advocates for other death row inmates.
HEARING PROCEDURES
The committee shall adopt procedures for the conduct of its hearings. The warden shall forward a copy of the procedures to the Assistant Commissioner of Operations for review and approval. These procedures shall be available to inmates in the institutional law library. These procedures shall be reviewed annually and submitted with the grievance review report as shown on page 10 "Review of Procedures". If the procedures have been revised, an approval signature line will be included for use by the Assistant Commissioner of Operations. Otherwise, only the cover memo under which these documents are forwarded will contain a signature line for the Assistant Commissioner of Operations' use in indicating his/her annual review has been completed.
EXTENSION OF GRIEVANCES
Each level of review must be conducted within the time limits specified herein. Extensions of such time limits may be granted only upon an inmate's written request. Unless an extension is granted in writing, for a fixed period, a grievance which has not been processed within the time guidelines at any level shall be forwarded to the next level by the chairperson, with the reason(s) for that action noted on the grievance form.
FIRST LEVEL OF REVIEW
All grievances, with the exception of those alleging Title VI violations, must be submitted on form CR-1394, Inmate Grievances, with all copies intact and legible within seven (7) calendar days of the occurrence that gave rise to the complaint. Complaints regarding continuing practices or policy must be submitted within seven (7) calendar days of the most recent time the inmate was affected. The grievant shall describe the problem in detail, including times, dates, names, etc., when appropriate. Policies, etc., mentioned in the description of problems shall be cited by number, section, and paragraph. Grievances shall be signed and dated by the grievant at all levels.
The chairperson shall review all grievances or complaints and forward them for action to the first line supervisor of the employee or department involved in the grievance for the supervisors signed written response on form CR-3148. The supervisor shall return his/her signed response to the chairperson within three (3) working days of receipt. The chairperson shall report to the warden any supervisor who fails to respond within three (3) working days. Resolution will be attempted at that level within seven (7) working days after the complaint was filed. The supervisor's response and the chairperson's actions and/or findings shall be kept on file and logged on Grievance (LIBG). The chairperson will submit his/her response, which shall include a summary of the supervisor's attached response, any evidence the investigation has revealed, the chairperson's findings, and the reasons for those findings.
If the grievant disagrees with the response of the chairperson and wishes to appeal, he/she may do so by checking "yes" and signing and dating the grievance in the space provided. Procedures for allowing grievants to review Level I responses shall be developed by the institution as part of the institutional hearing procedure. If he grievant wishes to appeal the Level I response, he/she must notify the chairperson within five (5) calendar days of being notified of that response.
If more than one inmate files a grievance on the same incident, the hearing and response shall be consolidated. This shall be noted on the grievance response form.
Matters deemed to be inappropriate to the grievance process, an abuse of procedure, or non-grievable at Level I may be appealed by the inmate. Such grievances being forwarded to Level III should include legible copies of the signed response of the supervisor of the employee or area that is the subject of the grievance, if applicable, and should cite the number and date of the previous grievance, if it has been appealed to Level III, or a copy of the previous grievance if it was not appealed to Level III. The Assistant Commissioner of Operations' office shall then make a final response, and return the grievance to the chairperson for normal processing, if grievable, or for logging and return to the grievant if non-grievable. Copies of all grievances deemed inappropriate shall be kept on file at the institution.
Expiration of the time limit for this level shall require the grievance to move to the next level of the process, unless the grievant has agreed in writing to an extension of the time for a response.
SECOND LEVEL OF REVIEW
Within five (5) working days after the filing of an appeal to Level II, the grievance committee shall conduct a hearing. The hearing and results shall be logged on Grievance (LIBG). The chairperson shall notify the inmate grievant and the staff respondent involved of the time, place, and members of the committee scheduled to participate at least 48 hours prior to the meeting. The hearing shall be scheduled so as to permit the inmate to be present. If the grievant fails to appear at the grievance hearing after proper notification and without just cause for not appearing, the grievance shall be considered as dismissed because of an unwillingness of the grievant to participate in the grievance process. The committee will hear verbal presentation from the grievant, respondents, and their witnesses and review any pertinent written material. If a hearing is not held within five (5) days, and the grievant refuses to grant an extension, the grievance shall be forwarded to the warden.
Within five (5) working days of the hearing, the chairperson shall send to the warden the original complaint of the inmate and the proposed response using form CR-1393, Inmate Grievance Response. The response shall summarize the investigation conducted, information gathered, testimony to the committee, the committee's recommendation, and supporting reasons.
If the warden is the subject of the grievance or is directly involved, he/she shall review the grievance, following the committee hearing and response, and add his/her comments. The warden shall return the grievance to the chairperson within ten (10) working days of receiving it. The chairperson will then forward the grievance to the Assistant Commissioner of Operations for response.
If the warden is not directly involved in the grievance, he/she shall review the original complaint of the inmate and proposed response of the grievance committee. He/she may conduct further investigation and hearings if such appears useful. Within seven (7) working days of receiving the grievance material, the warden or designee shall provide written response to the inmate via the chairperson summarizing any investigation conducted, information gathered, the warden's/designee's decision, and supporting reasons. The warden/designee shall use form CR-1393. The chairperson shall notify the grievant and respondent of the response within five (5) working days of receipt of the warden's response, and allow the grievant to appeal that response. Failure of staff to comply with a directive by the warden as a result of the warden's review of the grievance may result in disciplinary action.
Expiration of the time limit for this level shall entitle the grievant to move to the next level of the process. If the grievant wishes to appeal, he/she shall indicate this in the space provided, sign, and date the grievance in the appropriate spaces. The grievant and/or respondent may attach a clarification of the issues and/or any reaction/rebuttal to the warden's/designee's response. Grievances concerning TRICOR issues over which the warden has no line authority shall be forwarded from the committee to the warden for his/her comments (if any) and then to Level III. The Assistant Commissioner of Operations shall review, and if necessary, may forward for review/response of the Executive Director of TRICOR.
THIRD LEVEL OF REVIEW
Appeals to the Assistant Commissioner of Operations must be filed within five (5) calendar days of receipt of the warden's/designee's decision by the grievant. The chairperson shall ensure that the Assistant Commissioner of Operations receives one (1) legible copy of all pertinent written materials and information, including committee hearing minutes. When the description of problem, or any response, refers to a departmental policy, it shall be cited by number, section, and paragraph. When an institutional policy, post order, memorandum, or supporting documentation is referred to, copies shall be attached to the grievance for review at Level III. All materials sent to Level III on appeal shall be retained at that level. Only a copy of the Level III response shall be returned to the chairperson and then logged on Grievance (LIBG). If the institution does not receive a response from a Level III appeal within the time limits mandated, the Grievance Chairperson shall contact the Assistant Commissioner of Operations via e-mail advising that the Level III response has not been received.
A grievance received at Level III that concerns health services, food service, or inmate jobs shall be reviewed by the appropriate director/inmate jobs specialist for a Level III response and returned to the Assistant Commissioner of Operations/designee.
The Assistant Commissioner of Operations may either hear the case or review the grievance and make recommendations. Within twenty-five (25) working days of the date the appeal or referral to Level III is received, a written response summarizing any investigation conducted and the decision, with supporting reasons if that decision differs from the warden's response, shall be returned to the chairperson for distribution. The Level III response is the final step in the grievance process, and is not appealable.
Failure of institutional staff to comply with a directive of the Assistant Commissioner of Operations as a result of Level III review may result in disciplinary action. (At privately managed facilities, the Assistant Commissioner of Operations will make a determination as to appropriate action to be initiated.) The warden shall be responsible for implementing the final response of all grievances, the resolution of which call for action to be taken at the institutional level. The action taken shall be noted on form CR-1393, Inmate Grievance Response, and shall be kept on file in grievance committee records.
EMERGENCY GRIEVANCES
Each institution shall develop procedures for delivering grievances marked "emergency" to the chairperson or a designee before the end of any shift during which an inmate makes it known that he/she wishes to file one.
The grievance chairperson or designee shall immediately review any grievance marked "Emergency" to determine its status. If emergency status is determined, the chairperson/designee will immediately forward the grievance to the person/level at which corrective action can be taken for immediate action/response.
If the grievance is determined not to be an emergency, it shall be logged and processed in the normal manner. The chairperson must ensure that a grievance is known to be an emergency by the person to whom it is forwarded for response. Emergency grievances may be handled verbally if the situation requires. Appropriate documents shall be completed showing actions taken.
If the grievant wishes to appeal the response to a grievance determined to be an emergency, it shall be forwarded to the warden or designee within 24 hours of that decision. Response shall be made to the grievant within 24 hours of receipt. Appeals of the warden's/designee's response shall be communicated within five (5) days to the Level III reviewer for response. That response shall be forwarded to the chairperson for communication to the grievant within five (5) working days of receipt.
NOTIFICATION
The grievant shall be notified, either verbally or in writing, when a grievance has been sent to another level of review, or when a grievance is determined not to be an emergency grievance and is to be processed normally.
GRIEVANCE REGARDING TITLE I (FORMERLY CHAPTER 1) PROGRAM
Federal law requires that every local or state educational agency receiving Title I funds develop and implement a procedure for the resolution of complaints made by students, parents, teachers, advisory councils, or other concerned organizations. The TDOC Director of Education shall be provided a copy of all grievances involving educational issues.
TDOC grievance procedures may be followed to resolve such a grievance or the complaint may be forwarded directly by the aggrieved to the Tennessee Department of Education Office of Compensatory Education or to the United States Office of Education under certain circumstances.
GRIEVANCE REGARDING TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
Federal law requires that no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.
TDOC grievance procedures shall be utilized to resolve such a grievance filed by an inmate. The complainant shall have one hundred and eighty (180) days from the alleged triggering event to file a grievance regarding Title VI. All Title VI complaints shall be indicated on Grievance (LIBG) Option (1), and should be flagged as such whenever discrimination on the basis of race, color, or national origin is alleged, regardless of whether the grievant uses the term "Title VI". All such grievances are to be forwarded to the Title VI Site Coordinator for review as to appropriateness of Title VI designation at the same time they are forwarded to the supervisor for Level I response. In cases where the Title VI Site Coordinator determines that the grievance does not involve Title VI issues, he/she will notify the grievance board chairperson to remove the Title VI flag from LIBG. This shall be done within one (1) working day of receipt of such notification by the grievance board chairperson.
DISTRIBUTION
When a grievance is finalized, copies of CR-1393, CR-1394, and CR-3148 are to be returned to the grievant, the chairperson, and warden with copies of all related documentation, including committee hearing minutes. Committee copies of all resolved grievances shall be kept in chronological order according to the date the grievance was originally filed. An additional copy of all grievances of matters pertaining to health care will be retained by the health administrator in a separate file. The chairperson shall be responsible for ensuring that the health administrator receives a copy of all such grievances. The chairperson shall also notify the respondent, through his/her first-line supervisor, of all final responses.
REVIEW OF PROCEDURES
The warden shall be responsible for ensuring that an evaluation of the credibility and effectiveness of the grievance procedure is performed annually. Members of the evaluation committee shall include the grievance committee chairperson and members (staff and inmate), grievance clerk, two inmate council members chosen by the council, and two staff members chosen by the warden. This committee will review the implementation of final responses to grievances, and will submit their evaluation and proposals for changes in the procedure to the Assistant Commissioner of Operations for review (and approval, when changes in hearing or election procedures are recommended) annually with the second quarterly report of the fiscal year. A copy shall also be sent to the commissioner's designee at privately managed facilities.
INSTITUTIONAL TRANSFERS
An inmate who has filed a grievance and who has a hearing date set should not be transferred, if at all possible, until the Level II hearing is complete. If the grievant must be transferred, the chairperson at the institution where the grievance was filed will conduct an investigation and hearing in the routine manner in the absence of the grievant. The written responses of the supervisor, chairperson, and committee will be forwarded to the warden for response. The grievance shall then be forwarded to the chairperson at the grievant's new location to determine if the grievant wishes to appeal to Level III.
The following procedures will be adhered to if an inmate files a grievance against the sending institution after he/she is transferred:
1. The chairperson at the grievant's new (receiving) institution will log the grievance and forward it to the chairperson at the original (sending) institution.
2. The chairperson at the original institution will obtain the supervisory/Level I response, will hold an in absentia committee hearing, and will obtain the response of the warden of the original institution.
3. The chairperson of the original institution will return the grievance to the chairperson at the new institution, who will determine if the grievant wishes to appeal to Level III. The grievant, in this way, will be able to attach additional information or rebuttal for consideration at Level III at the original (sending) institution.
WAIVER OF LEVEL I FILING TIME LIMIT
In instances in which the gievant has had a 1983 court action continued by a Federal District Court in order to exhaust administrative remedies, the seven (7) day time guideline for filing a grievance shall be waived. The grievant must provide documentation to invoke this provision.
ABUSE OF PROCEDURE
Inmates shall not be permitted to submit more than one (1) grievance arising out of the same or similar incident. Inmates shall not be permitted to have more than one (1) grievance pending at Level I review. A grievance improperly submitted under this provision will be logged and held by the grievance clerk until any grievance previously submitted has been forwarded to the warden for review of the chairperson's ruling. Time guidelines for grievances held under this provision begin running the day the prior grievance leaves Level I.
Profanity, racial slurs, or insults shall not be used by the grievant unless necessary, in context, to describe the complaint. Threats against staff or other inmates may result in disciplinary action.
FORMS
Please refer to Policy #501.01, Inmate Grievance Procedures, for copies of forms to be used in processing inmate grievances.
David A. Senior (# 108759) McBreen Senior 1880 Century Park East, Suite 1450 Los Angeles, CA. Phone: (310) 552-5300 Fax: (310) 552-1205 dsenior@mcbreensenior.com
John R. Grele (# 167080) Law Offices of John R. Grele 703 Market Street, Suite 550 San Francisco, CA 94103 Phone: (415) 348-9300 Fax: (415) 348-0364 jgrele@earthlink.net
Richard P. Steinken Jenner Block LLP One IBM Plaza Chicago, IL 60611-7603 Phone: (312) 923-2938 Fax: (312) 840-7338 rsteinken@jenner.com
Attorneys For Plaintiff MICHAEL ANGELO MORALES
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
MICHAEL ANGELO MORALES, Case No.
Plaintiff, DECLARATION OF DR. MARK HEATH
v.
RODERICK Q. HICKMAN, Secretary of the California Department of Corrections; STEVEN ORNOSKI, Warden, San Quentin State Prison, San Quentin, CA; and DOES 1-50,
Defendants.
DECLARATION OF DR. MARK HEATH
Dr. Mark Heath, under penalty of perjury, both deposes and states as follows:
1. I am an Assistant Professor of Clinical Anesthesiology at Columbia University in New York City. I received my Medical Doctorate degree from the University of North Carolina at Chapel Hill in 1986 and completed residency and fellowship training in Anesthesiology in 1992 at Columbia University Medical Center. I am Board Certified in Anesthesiology, and am licensed to practice Medicine in New York State. My work consists of approximately equal parts of performing clinical anesthesiology, teaching residents, fellows and medical students, and managing a neuroscience laboratory. As a result of my training and research I am familiar and proficient with the use and pharmacology of the chemicals used to perform lethal injection. I am qualified to do animal research at Columbia University and am familiar with the American Veterinary Medical Association's guidelines.
2. Over the past several years, as a result of concerns about the mechanics of lethal injection as practiced in the United States, I have performed many hundreds of hours of research into the techniques that are used during this procedure. I have testified as an expert medical witness in courts in Maryland, Georgia, Tennessee, Kentucky, Virginia, and Louisiana in the following actions: Baker v. Saar, No. WDQ-05-3207 (D. Md.); Reid v. Johnson, No. 3:03cv1039 (E.D. Va.); Abdur 'Rahman v. Bredesen, No. 02-2236-III (Davidson County Chancery Ct., Tenn.); State v. Michael Wayne Nance, 95-B-2461-4 (Ga. Superior Ct.); Ralph Baze Thomas Bowling v. Rees, 04-CI-01094 (Franklin County Circuit Ct., Ky.), and before state district court judge Ramona Emanuel in Shreveport, Louisiana in February 2003. I have filed affidavits that have been reviewed by courts in the above states and also in California, Pennsylvania, New York, Alabama, North Carolina, South Carolina, Ohio, Oklahoma, Texas, Missouri, and by the United States Supreme Court.
3. During court proceedings, I have heard testimony from prison wardens who are responsible for conducting executions by lethal injection. I have testified before the Nebraska Senate Judiciary Committee regarding proposed legislation to adopt lethal injection. I have testified before the Pennsylvania Senate Judiciary Committee regarding proposed legislation to prohibit the use of pancuronium and the other neuromuscular blockers in Pennsylvania's lethal injection protocol. My research regarding lethal injection has involved both extensive conversations with recognized experts in the field of lethal injection, toxicology, and forensic pathology and the exchange of personal correspondence with the individuals responsible for introducing lethal injection as a method of execution in Oklahoma (the first state to formulate the procedure) and in the United States. I have also appeared as an expert before this Court, by way of declaration, in the case of Kevin Cooper, which was first heard in this Court approximately two years ago, and in the case of Donald J. Beardslee which was first heard approximately one year ago.
4. My qualifications are further detailed in my curriculum vitae, a copy of which is attached hereto as Exhibit 1 and incorporated by reference as if fully rewritten herein.
5. I have been asked by counsel for Michael Angelo Morales to review the procedures concerning lethal injection currently in place in California to determine the likelihood that those lethal injection procedures create medically unacceptable risks of inflicting excruciating pain and suffering on inmates while the lethal injection is administered. I hold all opinions expressed in this Declaration to a reasonable degree of medical certainty, except as specifically noted at the end of paragraph 35, where I make a speculative comment.
6. I have reviewed what the California Attorney General has identified as "a complete copy of the redacted version of San Quentin Operational Procedure No. 770," bearing a revised date of June 13, 2003 ("Procedure No. 770"), which is attached as Exhibit A to Mr. Morales's Motion for Temporary Restraining Order.
7. In addition, I have reviewed the execution logs for Donald Beardslee, Keith Daniel Williams, William Bonin, Jaturun Siripongs, and Manuel Babbit (attached hereto as Exhibit 2). I have also reviewed the Declaration of Margo Rocconi, Esq., who witnessed the execution at San Quentin of Stephen Anderson. That Declaration is attached hereto as Exhibit 3. I have reviewed the exhibits contained in the case of Kevin Cooper v. Woodford, No. C 04 436 JF, including the February 3, 2004 Declaration of Dr. Mark Dershwitz, attached hereto as Exhibit 4. I have also reviewed the materials that were submitted in connection with Beardslee v. Woodford, No. 5:04-cv-5381 (JF). I have also reviewed 16 Cal. Code Regs. § 2039, which pertains to the training for those performing euthanasia on animals, as well as statutes pertaining to euthanasia of animals from the states of: Florida, Georgia, Maine, Maryland, Massachusetts, New Jersey, New York, Oklahoma, Tennessee, Texas, Connecticut, Delaware, Illinois, Kansas, Kentucky, Louisiana, Missouri, Rhode Island and South Carolina. I have also reviewed the 2000 Report of the Panel on Euthanasia of the American Veterinary Medical Association, attached hereto as Exhibit 5, the American Society of Anesthesiologist's Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, attached hereto as Exhibit 6.
8. Based upon my review of this material and my knowledge of and experience in the field of anesthesiology, I have formed several conclusions with respect to the protocol of the California Department of Corrections ("CDC") for carrying out lethal injections. These conclusions arise both from the details disclosed in the materials I have reviewed and from medically relevant, logical inferences drawn from the omission of details in those materials (e.g., details regarding the training of the personnel involved; details of all of the medical equipment used; and details of the precise methods by which the personnel involved use the equipment to carry out an execution by lethal injection).
A. CDC's Lethal Injection Protocol
9. CDC's lethal injection protocol calls for the administration of 5 grams of sodium thiopental, 100 milligrams of pancuronium bromide and 100 milligrams of potassium chloride. Broadly speaking, the sodium thiopental is intended to serve as an anesthetic, rendering the inmate unconscious for the duration of the execution. Five grams of sodium thiopental is a massive, and potentially lethal, dose. The pancuronium bromide paralyzes the inmate's voluntary muscles, including those of his chest and diaphragm. Pancuronium is not an anesthetic or sedative drug, and it does not affect consciousness. Potassium chloride is a salt solution that, when administered in high concentrations, induces cardiac arrest.
10. Although the successful delivery into the circulation of 5 grams of sodium thiopental and 100 milligrams of pancuronium into the circulation would be lethal, it is important to understand that the lethality of sodium thiopental and pancuronium is due to respiratory arrest, which takes several minutes to ensue and does not typically occur prior to the administration of potassium. In the execution sequence, before death is caused by respiratory arrest from sodium thiopental and pancuronium, death is caused by cardiac arrest caused by potassium. I base this opinion, that the potassium and not the pancuronium or sodium thiopental is responsible for the death of prisoners during lethal injection, on the following:
A) Review of records from EKGs from lethal injection procedures conducted in other states, including California. During lethal injection, cardiac activity consistent with generating perfusion persists through the administration of sodium thiopental and pancuronium and only stops after potassium has been administered. The relatively sudden cessation of organized EKG activity is not consistent with a cessation of circulation due to administration of sodium thiopental and/or pancuronium and is consistent with cessation of circulation after the administration of a large dose of potassium chloride.
B) Statements by Dr. Mark Dershwitz. Dr. Mark Dershwitz, who has often served as an expert for various States in lethal injection challenges, has in his affidavits made statements such as, ". . . during an execution by lethal injection, circulation is slowed immediately by the administration of sodium thiopental, and circulation is stopped completely by the administration of potassium chloride. . ." See Affidavit of Mark Dershwitz dated September 27, 2004, at p. 9, Perkins v. Polk, et. al, No. 5:04-CT-643-BO, attached hereto as Exhibit 7. While I agree with Dr. Dershwitz that the successful delivery into the circulation of large doses of sodium thiopental will slow the circulation, slowing of the circulation is a common consequence of the induction of general anesthesia and does not cause death. I also agree with Dr. Dershwitz that EKG and execution log evidence from executions by lethal injection suggests that circulation is completely stopped by the administration of potassium. For circulation to be completely stopped by potassium, some circulation must be present prior to the administration of potassium. Therefore it is logical and necessary to infer that some or possibly all prisoners are alive until the potassium has been administered and has traveled via the circulation to the heart.
C) Properties of Sodium Thiopental and Pancuronium. Sodium thiopental and pancuronium exert their effects by interacting with molecular targets in the nervous system and on muscle cells in a manner that induces unconsciousness and stops breathing. Sodium thiopental and pancuronium, unlike other chemicals such as cyanide, do not kill cells or tissues, and are useful to clinicians precisely because they do not kill or harm cells or tissues. The reason that sodium thiopental and pancuronium can cause death is that they cause the prisoner to stop breathing. Failure to breathe will result in brain damage, brain death, and cardiac arrest as the level of oxygen in the blood declines over time. These processes take a varying amount of time, depending on many factors. Physicians generally use four minutes of not breathing as the approximate benchmark time after which irreversible brain damage from lack of oxygen occurs, and death typically occurs some number of minutes after the onset of brain damage. It is worth noting, however, that this general figure of four minutes is often used in the context of cardiac arrest, in which there is no circulation of blood through the brain. If some level of blood circulation persists, it is very likely that brain damage and brain death would take longer than four minutes.
In the context of lethal injection, sodium thiopental and pancuronium, if successfully delivered into the circulation in large doses, would indeed each be lethal, because they would stop the inmate's breathing. However, as described above, in execution by lethal injection as practiced by California and other states the administration of potassium and death precede any cardiac arrest that would be caused by sodium thiopental and pancuronium.
11. Intravenous injection of concentrated potassium chloride solution causes excruciating pain. The vessel walls of veins are richly supplied with sensory nerve fibers that are highly sensitive to potassium ions. The intravenous administration of concentrated potassium in doses intended to cause death therefore would be extraordinarily painful. Defendants' selection of potassium chloride to cause cardiac arrest needlessly increases the risk that a prisoner will experience excruciating pain prior to execution. There exist, however, alternative chemicals that do not activate the nerves in the vessel walls of the veins in the way that potassium chloride does. Despite the fact that the statute authorizing lethal injection in California does not specify or require the use of potassium, see Cal. Penal Code § 3604(a), defendants have failed to choose a chemical that would cause death in a painless manner.
12. Thus, the CDC has exercised its statutory discretion to select the means of causing death by choosing a medication (potassium chloride) that causes extreme pain upon administration, instead of selecting available, equally effective yet essentially painless medications for stopping the heart. In so doing, the CDC has taken on the responsibility of ensuring, through all reasonable and feasible steps, that the prisoner is sufficiently anesthetized and cannot experience the pain of potassium chloride injection.
13. The provision of anesthesia has become a mandatory standard of care whenever a patient is to be subjected to a painful procedure. Throughout the civilized world, the United States, and California, whenever a patient is required to undergo a painful procedure, it is the standard of care to provide some form of anesthesia. Circumstances arise in which prisoners in California require surgery, and in many instances the surgery requires the provision of general anesthesia. In these circumstances general anesthesia is provided, and it is provided by an individual with specific training and qualifications in the field of anesthesiology. It is critical to understand that the great majority of physicians and nurses and other health care professionals do not possess the requisite training, skills, experience, and credentials to provide general anesthesia. It would be unconscionable to forcibly subject any person, including a prisoner in California, to a planned and anticipated highly painful procedure without first providing an appropriate anesthetic, and it would be unconscionable to allow personnel who are not properly trained in the field of anesthesiology to attempt to provide or supervise this anesthetic care.
14. As a living person who is about to be subjected to the excruciating pain of potassium injection, it is imperative that all prisoners undergoing lethal injection be provided with adequate anesthesia. This imperative is of the same order as the imperative to provide adequate anesthesia for any California prisoner requiring general anesthesia (or any type of anesthesia) before undergoing painful surgery. Given that the injection of potassium is a scheduled and premeditated event that is known without any doubt to be extraordinarily painful, it would be unconscionable and barbaric for potassium injection to take place without the provision of sufficient general anesthesia to ensure that the prisoner is rendered and maintained unconscious throughout the procedure, and it would be unconscionable to allow personnel who are not properly trained in the field of anesthesiology to attempt to provide or supervise this anesthetic care.
B. Failure to Adhere to a Medical Standard of Care in Administering Anesthesia
15. It is my opinion to a reasonable degree of medical certainty that the lethal injection procedures selected for use in California and used elsewhere subject the prisoner to an increased and unnecessary risk of experiencing excruciating pain in the course of execution. Because of the potential for an excruciating death created by the use of potassium chloride, it is necessary to induce and maintain an appropriate and deep plane of anesthesia. The circumstances and environment under which anesthesia is to be induced and maintained according to Procedure No. 770 create, needlessly, a significant risk that inmates will suffer the pain that accompanies the injection of potassium chloride.
16. Presumably because of the excruciating pain evoked by potassium, lethal injection protocols like Procedure No. 770 plan for the provision of general anesthesia by the inclusion of sodium thiopental. When successfully delivered into the circulation in sufficient quantities, sodium thiopental causes sufficient depression of the nervous system to permit excruciatingly painful procedures to be performed without causing discomfort or distress. Failure to successfully deliver into the circulation a sufficient dose of sodium thiopental would result in a failure to achieve adequate anesthetic depth and thus failure to block the excruciating pain of potassium administration.
16. Defendants' procedures do not comply with the medical standard of care for inducing and maintaining anesthesia prior to and during a painful procedure. Likewise, Defendants' procedures are not compliant with the guidelines set forth by the American Veterinary Medical Association for the euthanasia of animals. Further, Defendants have made insufficient preparation for the real possibility, encountered in many other jurisdictions, and planned for in those jurisdictions, that peripheral IV access cannot be successfully established.
1. The Dangers of Using Sodium Thiopental as an Anesthetic
17. A major concern I have based on what I know about CDC's lethal injection protocol relates to the use of sodium thiopental. Sodium thiopental is an ultrashort-acting barbiturate with a relatively short shelf life in liquid form. Sodium thiopental is distributed in powder form to increase its shelf life; it must be mixed into a liquid solution by trained personnel before it can be injected.
18. When anesthesiologists use sodium thiopental, we do so for the purposes of temporarily anesthetizing patients for sufficient time to intubate the trachea and institute mechanical support of ventilation and respiration. Once this has been achieved, additional drugs are administered to maintain a "surgical depth" or "surgical plane" of anesthesia (i.e., a level of anesthesia deep enough to ensure that a surgical patient feels no pain and is unconscious). The medical utility of sodium thiopental derives from its ultrashort-acting properties: if unanticipated obstacles hinder or prevent successful intubation, patients will likely quickly regain consciousness and resume ventilation and respiration on their own.
19. The benefits of sodium thiopental in the operating room engender serious risks in the execution chamber. Based on the information I have available to me concerning CDC's execution protocol, the five gram dose of sodium thiopental is apparently administered in a single injection from a single syringe. Although the full five grams of sodium thiopental, if properly administered into the prisoner's bloodstream, would be more than sufficient to cause unconsciousness and, eventually, death, if no resuscitation efforts were made, my research into executions by lethal injection strongly indicates that executions have occurred where the full dose of sodium thiopental was not fully and properly administered. If an inmate does not receive the full dose of sodium thiopental because of errors or problems in administering the drug, the inmate might not be rendered unconscious and unable to feel pain, or alternatively might, because of the short-acting nature of sodium thiopental, regain consciousness during the execution.
20. Thus, the concerns raised in this affidavit apply regardless of the size of the dose of sodium thiopental that is prescribed under the protocol. The level of anesthesia, if any, achieved in each individual inmate depends on the amount that is successfully administered, although other factors such as the inmate's weight and sensitivity/resistance to barbiturates are also important. Many foreseeable situations exist in which human or technical errors could result in the failure to successfully administer the intended dose. Procedure No. 770 both fosters these potential problems and fails to provide adequate instruction for preventing or rectifying these situations, and it does these things needlessly and without legitimate reason. Examples of problems that could prevent proper administration of sodium thiopental include, but are not limited to, the following:
a) Errors in Preparation. Sodium thiopental is delivered in powdered form and must be mixed into an aqueous solution prior to administration. This preparation requires the correct application of pharmaceutical knowledge and familiarity with terminology and abbreviations. Calculations are also required, particularly if the protocol requires the use of a concentration of drug that differs from that which is normally used.
b) Error in Labeling of Syringes. Procedure No. 770 requires that the syringes of chemicals be prepared in reverse order, so that the potassium chloride syringe are loaded first and are labeled "3." Then the pancuronium bromide syringes are created and labeled "2," and finally the sodium thiopental syringes are prepared and are labeled "1." Confusion in creating the syringes could lead to mislabeling, and because the syringes are labeled only with numbers, such a mistake could not be detected and corrected later in the process. Use of numbers or other codes instead of drug names is unacceptable medical practice, and the inclusion of such coding in CDC's lethal injection protocol bespeaks a lack of regard for basic tenets of medical practice and safety.
c) Error in Selecting the Correct Syringe during the sequence of administration.
d) Error in Correctly Injecting the Drug into the Intravenous Line. The "three-way stopcock" used in the California execution protocol as one of the two alternate methods for delivering the drugs may be turned in the wrong direction, resulting in a retrograde injection of the drug into the IV fluid bag rather than into the inmate. The design of three-way stopcocks is counterintuitive to many individuals, and the error of retrograde injection is widespread in clinical practice. Even seasoned professionals are known to make this error, and the probability of this error occurring is greatly increased in the hands of inexperienced practitioners.
e) The IV Tubing May Leak. An "IV setup" consists of multiple components that are assembled by hand prior to use. If, as dictated by Procedure No. 770, the personnel who are injecting the drugs are not at the bedside but are instead in a different room or part of the room, multiple IV extension sets need to be inserted between the inmate and the administration site. Any of these connections may loosen and leak. In clinical practice, it is important to maintain visual surveillance of the full extent of IV tubing so that such leaks may be detected. The configuration of the death chamber and the relative positions of the executioners and the inmate may hinder or preclude such surveillance, thereby causing a failure to detect a leak.
f) Incorrect Insertion of the Catheter. If the catheter is not properly placed in a vein, the sodium thiopental will enter the tissue surrounding the vein but will not be delivered to the central nervous system and will not render the inmate unconscious. This condition, known as infiltration, occurs with regularity in the clinical setting. Recognition of infiltration requires continued surveillance of the IV site during the injection, and that surveillance should be performed by the individual who is performing the injection so as to permit correlation between visual observation and tactile feedback from the plunger of the syringe.
g) Migration of the Catheter. Even if properly inserted, the catheter tip may move or migrate, so that at the time of injection it is not within the vein. This would result in infiltration, and therefore a failure to deliver the drug to the inmate's circulation and failure to render the inmate unconscious.
h) Perforation or Rupture or Leakage of the Vein. During the insertion of the catheter, the wall of the vein can be perforated or weakened, so that during the injection some or all of the drug leaves the vein and enters the surrounding tissue. The likelihood of rupture occurring is increased if too much pressure is applied to the plunger of the syringe during injection, because a high pressure injection results in a high velocity jet of drug in the vein that can penetrate or tear the vessel wall.
i) Excessive Pressure on the Syringe Plunger. Even without damage or perforation of the vein during insertion of the catheter, excessive pressure on the syringe plunger during injection can result in tearing, rupture, and leakage of the vein due to the high velocity jet that exits the tip of the catheter. Should this occur, the drug would not enter the circulation and would therefore fail to render the inmate unconscious.
j) Securing the Catheter. After insertion, catheters must be properly secured by the use of tape, adhesive material, or suture. Movement by the inmate, even if restrained by straps, or traction on the IV tubing may result in the dislodging of the catheter. If this were to occur under a sheet, it would not be detected, and the drug would not enter the inmate's circulation and would not render the inmate unconscious.
k) Failure to Properly Administer Flush Solutions Between Injections of Drugs. Solutions of paralytic agents such as pancuronium cause sodium thiopental to precipitate out of solution on contact, thereby interfering with the delivery of the drug to the inmate and to the central nervous system.
1) Failure to Properly Loosen or Remove the Tourniquet from the Arm or Leg after placement of the IV catheter will delay or inhibit the delivery of the drugs by the circulation to the central nervous system. This may cause a failure of the sodium thiopental to render and maintain the inmate in a state of unconsciousness.
m) Impaired Delivery Due to Restraining Straps. Restraining straps may act as tourniquets and thereby impede or inhibit the delivery of drugs by the circulation to the central nervous system. This may cause a failure of the sodium thiopental to render and maintain the inmate in a state of unconsciousness. Even if the IV is checked for "free flow" of the intravenous fluid prior to commencing injection, a small movement within the restraints on the part of the inmate could compress the vein and result in impaired delivery of the drug.2. The Need for Adequate Training in Administering Anesthesia
21. Because of these foreseeable problems in administering anesthesia, in California and elsewhere in the United States, the provision of anesthetic care is performed only by personnel with advanced training in the medical subspecialty of Anesthesiology. This is because the administration of anesthetic care is complex and risky, and can only be safely performed by individuals who have completed the extensive requisite training to permit them to provide anesthesia services. Failure to properly administer a general anesthetic not only creates a high risk of medical complications including death and brain damage, but also is recognized to engender the risk of inadequate anesthesia, resulting in the awakening of patients during surgery, a dreaded complication known as "intraoperative awareness." The risks of intraoperative awareness are so grave that, in October 2005, the American Society of Anesthesiologists published a new practice advisory on the subject of intraoperative awareness. If the individual providing anesthesia care is inadequately trained or experienced, the risk of these complications is enormously increased. In California and elsewhere in the United States general anesthesia is administered by physicians who have completed residency training in the specialty of Anesthesiology, and by nurses who have undergone the requisite training to become Certified Registered Nurse Anesthetists (CRNAs). Physicians and nurses who have not completed the requisite training to become anesthesiologists or CRNAs are not permitted to provide general anesthesia.
22. In my opinion, individuals providing general anesthesia in the San Quentin State Prison should not be held to a different or lower standard than is set forth for individuals providing general anesthesia in any other setting in California. Specifically, the individuals providing general anesthesia within San Quentin prison should possess the experience and proficiency of anesthesiologists and/or CRNAs. Conversely, a physician who is not an anesthesiologist or a nurse who is not a CRNA should not be permitted to provide general anesthesia within San Quentin prison (or anywhere else in California).
23. CDC's execution protocol fails to specify whether the injection team has any training in administering anesthesia, or, if personnel are given training, what that training might be. See Procedure No. 770 at 39 ("The angiocath shall be inserted into a usable vein by a person qualified, trained, or otherwise authorized by law to initiate such a procedure."). The absence of any details as to the training, certification, or qualifications of injection personnel raises critical questions about the degree to which condemned inmates risk suffering excruciating pain during the lethal injection procedure. The great majority of nurses are not trained in the use of ultrashort-acting barbiturates; indeed, this class of drugs is essentially only used by a very select group of nurses who have obtained significant experience in intensive care units and as nurse anesthetists. Very few paramedics are trained or experienced in the use of ultrashort-acting barbiturates. Based on my medical training and experience, and based upon my research of lethal injection procedures and practices, inadequacies in these areas elevate the risk that the lethal injection procedure will cause the condemned to suffer excruciating pain during the execution process. Failure to require that the injection team have training equivalent to that of an anesthesiologist or a CRNA compounds the risk that inmates will suffer excruciating pain during their executions.
3. Procedure No. 770's Failure to Account for Foreseeable Problems in Anesthesia Administration
24. In addition to lacking any policy on the training necessary to perform a lethal injection, Procedure No. 770 imposes conditions that exacerbate the foreseeable risks of improper anesthesia administration described above, and fails to provide any procedures for dealing with these risks. Perhaps most disturbingly, Procedure No. 770 prevents any type of effective monitoring of the inmate's condition or whether he is anesthetized and unconscious. After the IV lines are inserted into the inmate but before the administration of the sodium thiopental, the execution chamber is closed and the prisoner is left alone in the chamber for the duration of the execution. Procedure No. 770 dictates that all prison personnel will be in a separate room, separated from the execution chamber by a window. Accepted medical practice, however, would dictate that trained personnel monitor the IV lines and the flow of anesthesia into the veins through visual and tactile observation and examination. The lack of any qualified personnel present in the chamber during the execution thwarts the execution personnel from taking the standard and necessary measures to reasonably ensure that the sodium thiopental is properly flowing into the inmate and that he is properly anesthetized prior to the administration of the pancuronium and potassium.
25. In my opinion, having a properly trained and credentialed individual examine the inmate after the administration of the sodium thiopental (but prior to the administration of pancuronium) to verify that the inmate is completely unconscious would substantially mitigate the danger that the inmate will suffer excruciating pain during his execution. As discussed later in this affidavit, this is the standard of care, and in many states the law, that is set forth for dogs and cats and other household pets when they subjected to euthanasia by potassium injection. Yet Procedure No. 770 does not provide for such verification, and indeed actively prevents the injection team from determining whether or not the inmate remains conscious by requiring that all of the drugs must be administered remotely, from another room.
26. By requiring that the drugs be administered remotely, Procedure No. 770 necessitates the use of multiple 72-inch extension sets of IV tubing. This unnecessarily increases the risk of leakage and/or pinching of the tubes, and therefore creates a greater risk that the inmate will not be properly sedated. Any reasonable standard of care would require a system to be in place to ensure that the prisoner is properly anesthetized.
27. Procedure No. 770 provides no specifications regarding the timing of the administration of the drugs, thereby compounding the risks described in this Declaration. This concern is greatly amplified by the use of an ultrashort-acting barbiturate and is borne out by a review of the execution records from San Quentin. In each of the executions, the time between administrations of the three drugs varied for no apparent reason. The lack of a defined schedule for the administration of the three drugs increases the risk that the sedative effect of the sodium thiopental will wear off, should the inmate not receive the full dose.
28. California's lethal injection protocol does not account for procedures designed to ensure the proper preparation of the drugs used. I have not seen details regarding the credentials, certification, experience, or proficiency of the personnel who will be responsible for the mixing of the sodium thiopental from powder form, or for the drawing up of the drugs into the syringes. Preparation of drugs, particularly for intravenous use, is a technical task requiring significant training in pharmaceutical concepts and calculations. It is my opinion based on my review of lethal execution procedures in states that have disclosed more detailed information than what I have seen about California's procedures, that there exist many risks associated with drug preparation that, if not properly accounted for, further elevate the risk that the drug will not be properly administered and the inmate will consciously experience excruciating pain during the lethal injection procedures.
29. One of the two alternative methods of injection allowed by Procedure No. 770 dictates that "the lip of the neoprene diaphragm on the "Y" injection site shall be rolled back so that it can easily be removed for insertion of syringe tips instead of a needle." Although Procedure No. 770 does not articulate what type of "Y" site equipment is being used so I am unable to specify if this procedure is likely to cause a disruption in the intravenous flow of drugs, I am unaware of any such medically approved use of this equipment, and would not alter the site myself in such a fashion. Normal medical practice is to insert the needle or needle-less injection device through the diaphragm, thereby assuring a tight and adequate connection. This departure from standard practice is not explained, nor is it clear how this deviation was developed, or why.
30. The altering of established medical procedures without adequate medical review and research, by untrained personnel, causes great concern about the structure of the lethal injection protocol and its medical legitimacy. There is no indication of how Procedure No. 770 was developed, who was consulted, what procedures were considered and why. The protocol may be something the Warden developed alone, or in consultation with other corrections personnel, some of whom may or may not have any medical training, or any specialized knowledge of anesthetic literature and practice. Appropriate mechanisms for medical review, and standardization of the implementation and amendment process, are critical features in any medical protocol so that the medical professionals and the public can be assured that proper and humane procedures are in place and being followed. Indeed, in other states, physicians and other medical personnel play a role in ensuring that any protocol is consistent with basic medical standards of care and humaneness. Otherwise, the process is subject and prone to ad hoc administration and error, if not gross negligence, or worse, an alteration of the process so as to inflict as much agony as possible. With lethal injection, such concerns are highly elevated.
31. Procedure No. 770 unnecessarily calls for a saline solution to be administered between the pancuronium bromide and the potassium chloride. I do not see a medical purpose for this to be included in the procedure, and question whether it is necessary to achieve the goal of a humane execution. Moreover, it can create a risk of critical errors including medication errors caused by syringe "mix-ups."
32. There are no procedures contained within Procedure No. 770 for the resuscitation of the inmate once the sodium thiopental is administered. This would foreclose the possibility of altering the course of an execution in the event of legal relief. Any time up until the potassium chloride is administered, the prisoner could be readily resuscitated given the appropriately trained personnel and routine resuscitation medication and equipment. If this were to occur after the potassium chloride was administered, resuscitation would be more challenging but still possible. Resuscitation would therefore require equipment close-by, and properly credentialed personnel, neither of which are specified in Procedure No. 770.
33. The information available to me about CDC's lethal injection execution protocol contains no reference to plans for dealing with the foreseeable circumstance wherein peripheral intravenous access cannot be obtained in the arm or leg. Based on my medical training and experience, and based on my research into lethal injection procedures and practices, it is my opinion to a reasonable degree of medical certainty that any reliable, humane lethal injection procedure must account for the foreseeable circumstance of a condemned inmate having physical characteristics that prevent intravenous access from being obtained by a needle piercing the skin and entering a superficial vein suitable for the reliable delivery of drugs. There have been multiple lethal injections in which this problem has arisen from a variety of circumstances. Some of these circumstances could be due to conditions including obesity, corticosteroid treatment, history of intravenous drug use, history of undergoing chemotherapy. Additionally, some people happen to have veins that are too small or deep to permit peripheral access. It is often not possible to anticipate difficult intravenous access situations, and there are multiple examples of executions in which the "IV team" struggled to obtain peripheral IV access and eventually abandoned the effort. Procedure No. 770 is deficient in its failure to plan for the foreseeable possibility that peripheral IV access can not be obtained.
34. In this setting, state lethal injection protocols typically specify the use of a "cut-down" procedure to access a vein adequate for the reliable infusion of the lethal drugs. No equipment or supplies for performing a cut-down procedure are listed in the California lethal injection protocol, nor is there information regarding the training, experience, expertise, credentials, certification, or proficiency of the personnel who would perform such a "cut down" procedure. In this regard, CDC's lethal injection protocol is deficient in comparison to those of other states that I have reviewed. This complicated medical procedure requires equipment and skill that are not accounted for in Procedure No. 770. It has a very high probability of not proceeding properly in the absence of adequately trained and experienced personnel, and without the necessary equipment. If done improperly, the "cut-down" process can result in very serious complications including severe hemorrhage (bleeding), pneumothorax (collapse of a lung which may cause suffocation), and severe pain. It is well documented that lethal injection procedures in other states have at times required the use of a central intravenous line. The defendants have not, to my knowledge, released information about the need for central intravenous access during prior executions, and therefore it is not possible to make any assessment about whether the necessary safeguards have been set in place to ensure that the procedure is reasonably humane.
35. This concern over medically deficient IV placement was demonstrated in three of the California executions for which records and other information are available. Most recently, during the execution of Stanley "Tookie" Williams, the injection team took 12 minutes to insert the IV lines. The first line was placed quickly but spurted blood, and the staff struggled for 11 minutes to insert the second line, having so much difficulty that Williams asked whether they were "doing that right." See The Execution of Stanley Tookie Williams, SFGate.com (Dec. 14, 2005), attached hereto as Exhibit 8. The difficulty of the challenge presented to the IV team is evidenced by the comment that "By 12:10 a.m., the medical tech's lips were tight and white and sweat was pooling on her forehead as she probed Williams' arm." Similarly, the execution log of Donald Beardslee's execution indicates that the second IV line was inserted with "difficulty," and the time entries indicate that it took 12 minutes to insert the second line, which is consistent with encountering problems in inserting the IV. When it proceeds smoothly, placement of a peripheral IV should, in my experience, take on the order of two minutes or less. In the execution of William Bonin, it took the staff assigned anywhere between 18 and 27 minutes to fashion the IV lines (the records are unclear as to this point). This is an unusually long period of time for an experienced and properly trained professional. In the execution of Stephen Anderson on January 29, 2002, one of the persons who attempted to secure an IV was unable to do so without causing significant bleeding and the need to remove his gloves. Again, this indicates that the process is a difficult one and that it is necessary that the persons doing it are properly trained and experienced. As is widely recognized in the medical community, administration of intravenous medications and the management of intravenous systems are complex endeavors. While speculative and not evidence-based, it is my opinion that it is likely that IV placement is rendered more difficult in the context of executions because the inmates are often in a very anxious status, which causes the release of epinephrine (adrenalin) and norepinephrine, thereby causing constriction (narrowing) of blood vessels (including veins). When veins are constricted/narrowed it can be difficult or impossible to insert an IV catheter. This is the best explanation I can provide for the otherwise unexplained extremely high incidence of difficult or failed peripheral IV placement, in individuals lacking known risk factors for difficult IV access, in Californian and other states during lethal injection.
36. It is my further opinion that to ensure a lethal injection without substantial risks of inflicting severe pain and suffering, there must be proper procedures that are clear and consistent: there must be qualified personnel to ensure that anesthesia has been achieved prior to the administration of pancuronium bromide and potassium chloride, there must be qualified personnel to select chemicals and dosages, set up and load the syringes, administer "pre-injections," insert the IV catheter, and perform the other tasks required by such procedures; and there must be adequate inspection and testing of the equipment and apparatus by qualified personnel. The California Department of Correction's written procedures for implementing lethal injection, to the extent that they have been made available, provide for none of the above.
C. The Use of Pancuronium Bromide
37. Procedure No. 770's use of the drug pancuronium bromide serves no rational or legitimate purpose and compounds the risk that an inmate may suffer excruciating pain during his execution. Pancuronium paralyzes all voluntary muscles, but does not affect sensation, consciousness, cognition, or the ability to feel pain and suffocation. Because the sodium thiopental and potassium chloride would in themselves be sufficient to cause death, and the potassium is administered well before death would result from the pancuronium alone, it is my opinion held to a reasonable degree of medical certainty that there would be no rational place in the protocol for pancuronium as the lethal amount of potassium chloride is administered.
38. Pancuronium bromide is a neuromuscular blocking agent. Its effect is to render the muscles unable to contract but it does not affect the brain or the nerves. It is used in surgery to ensure that there is no movement and that the patient is securely paralyzed so that surgery can be performed without contraction of the muscles. In surgery, pancuronium bromide is not administered until the patient is adequately anesthetized. The anesthetic drugs must first be administered so that the patient is unconscious and does not feel, see, or perceive the procedure. This can be determined by a trained medical professional, either a physician anesthesiologist or a nurse anesthetist, who provides close and vigilant monitoring of the patient, their vital signs, and various diagnostic indicators of anesthetic depth. Procedure No. 770, to the extent disclosed, fails to provide an assurance that anesthetic depth will be properly assessed prior to the administration of pancuronium bromide.
39. If sodium thiopental is not properly administered in a dose sufficient to cause death or at least the loss of consciousness for the duration of the execution procedure, then it is my opinion held to a reasonable degree of medical certainty that the use of pancuronium places the condemned inmate at risk for consciously experiencing paralysis, suffocation and the excruciating pain of the intravenous injection of high dose potassium chloride.
40. If administered alone, a lethal dose of pancuronium would not immediately cause a condemned inmate to lose consciousness. It would totally immobilize the inmate by paralyzing all voluntary muscles and the diaphragm, causing the inmate to suffocate to death while experiencing an intense, conscious desire to inhale. Ultimately, consciousness would be lost, but it would not be lost as an immediate and direct result of the pancuronium. Rather, the loss of consciousness would be due to suffocation, and would be preceded by the torment and agony caused by suffocation. This period of torturous suffocation would be expected to last at least several minutes and would only be relieved by the onset of suffocation-induced unconsciousness.
41. Because the administration of a paralyzing dose of pancuronium bromide to a conscious person would necessarily cause excruciating suffering, it would be unconscionable to administer pancuronium without first anesthetizing the inmate.
42. Based on the information available to me, it is my opinion held to a reasonable degree of medical certainty that California's lethal injection protocol creates an unacceptable risk that the inmate will not be anesthetized to the point of being unconscious and unaware of pain for the duration of the execution procedure. If the inmate is not first successfully anesthetized, then it is my opinion to a reasonable degree of medical certainty that the pancuronium will paralyze all voluntary muscles and mask external, physical indications of the excruciating pain being experienced by the inmate during the process of suffocating (caused by the pancuronium) and having a cardiac arrest (caused by the potassium chloride).
43. It is my understanding that CDC's execution protocol requires the presence of media witnesses to the execution, and permits the presence of witnesses chosen by the inmate and chosen by the victim's surviving family members. It is my opinion based on a reasonable degree of medical certainty that pancuronium, when properly and successfully administered, effectively nullifies the ability of witnesses to discern whether or not the condemned prisoner is experiencing a peaceful or agonizing death. Regardless of the experience of the condemned prisoner, whether he or she is deeply unconscious or experiencing the excruciation of suffocation, paralysis, and potassium injection, he or she will appear to witnesses to be serene and peaceful due to the relaxation and immobilization of the facial and other skeletal muscles. The use of pancuronium, in my opinion, therefore prevents the press from fulfilling its essential function of informing the citizens, officials, and courts of California about whether execution by lethal injection is conducted in San Quentin Prisons in a manner that is constitutionally compliant and humane.
44. I agree with the statement of the CDC that the doses of sodium thiopental and potassium chloride are lethal doses. Therefore, it is unnecessary to administer pancuronium bromide in the course of an execution when it is quickly followed by a lethal dose of potassium chloride. It serves no legitimate purpose and only places a chemical veil on the process that prevents an adequate assessment of whether or not the condemned is suffering in agony, and greatly increases the risks that such agony will ensue. Removal of pancuronium from the protocol would eliminate the risk of conscious paralysis from occurring. It would also eliminate the risk that an inhumane execution would appear humane to witnesses. Finally, removal of pancuronium would vastly reduce the possibility that the citizens, officials, and courts of California could be inadvertently misled by media reports describing a peaceful-appearing execution when in fact the prisoner could be experiencing excruciating suffering.
D. Consequences of Improper Anesthesia Administration
45. The risk of improper anesthesia administration has been realized in at least one, and possibly three California executions. The description of the execution of Stephen Anderson set forth in the Rocconi Declaration suggests that the administration in the bloodstream of five grams of sodium thiopental did not have the desired effect of sedating Mr. Anderson sufficiently, for reasons that cannot be identified without further information. The "normal" or "typical" reaction to sodium thiopental administration, as commonly seen in the operating room setting, is that the patient's eyelids will drop and close, they may yawn or draw one or two deep breaths, they may exhale visibly so that the cheeks puff out, and then they become motionless. The Rocconi Declaration describes Mr. Anderson's chest and stomach as heaving for more than 30 seconds, which does not comport with a successful administration of a large dose of sodium thiopental. The intermittent and irregular heaving of the chest is not compatible with the profound depression of the central nervous system that is the intent of the sodium thiopental administration. The apparent labored respiratory activity strongly suggests that significant central nervous system activity persisted, and indeed is consistent with (although does not prove with certainty) the appearance of a person who was struggling against the development of paralysis induced by pancuronium.
46. The administration of a second dose of pancuronium, as indicated in the execution log of the Bonin execution of February 23, 1996, is a source of great concern. The initial dose of pancuronium would be expected to paralyze an inmate for several hours. Administration of additional pancuronium was presumably performed because of some perceived problem or failure of the first round of drugs, perhaps a concern that the inmate was not anesthetized. If so, it is difficult to understand why additional pancuronium was administered, because pancuronium is not an anesthetic drug and it would not address this concern. I am aware that the protocols of other states such as Arizona and Georgia provide for a backup dose of sodium thiopental, which is not part of Procedure No. 770. The administration of redundant and inappropriate doses of pancuronium raises enormous concerns about the discipline, logic, medical judgment, and rigor that was applied to the conduct of this execution.
47. The execution of Manuel Babbit also raises grave concerns about whether he was properly sedated. Although I have not seen any witness accounts of the execution, a review of his execution log shows that his heart rate maintained a steady rate of between 95 and 96 beats per minute a full seven minutes after the sodium thiopental was administered to him. If the full five gram dose of sodium thiopental was properly administered, it is my expectation that there would be significant hemodynamic consequences including a change of heart rate during this time period. Such changes in heart rate occurred with the executions of Keith Daniel Williams, Jaturun Siripongs, and William Bonin in California, according to the logs that I have reviewed. Moreover, the log indicates that Mr. Babbit had spasmodic movements of the upper chest after the pancuronium bromide was administered, similar to what was noted during the Stephen Anderson execution, again raising the concern that Mr. Babbit did not properly receive the full five grams of sodium thiopental and raises the possibility that he was conscious during the administration of the pancuronium bromide.
E. Procedure No. 770 Falls Below the Minimum Standards Mandated for Veterinary Euthanasia
48. The injection protocol employed by CDC is strongly discouraged by the American Veterinary Medical Association (AVMA) and prohibited by law from being used on animals in 19 states. Specifically, the 2000 Report of the Panel on Euthanasia of the American Veterinary Medical Association, at p. 680, states: "A combination of pentobarbital [such as sodium thiopental] with a neuromuscular blocking agent [such as pancuronium bromide] is not an acceptable euthanasia agent."
49. The AVMA Report also states that when potassium chloride is to be used as a euthanasia agent, the animals must be under a surgical plane of anesthesia and the personnel performing the euthanasia must be properly trained to assess the depth of anesthesia. The AVMA panel specifically states that the animal must be in a surgical plane of anesthesia characterized not simply by loss of consciousness, but also by "loss of reflex muscle response and loss of response to noxious stimuli." Additionally, the AVMA recommends that sodium pentobarbital be used as an anesthetic, which is much longer lasting and more stable than sodium thiopental. It is difficult to understand why the CDC would chose, at its discretion, to use potassium to execute prisoners and would then fail to adhere to the basic requirements set forth by the AVMA to ensure that animals do not experience the excruciating pain of potassium injection during euthanasia.
50. The AVMA Report also prohibits any use of neuromuscular blocking agents as euthanizing agents, for precisely the reasons outlined above. Veterinary standards forbid creating the risk that household pets would die while pancuronium masks the type of excruciating pain risked by CDC's execution protocol. The use of pancuronium fails to comport with even the minimum "standard of decency" regarding the euthanasia of household pets. In my medical opinion, based on a reasonable degree of medical certainty, the use of pancuronium in the lethal injection protocol for executing human beings violates standards of decency designed to prevent the infliction of excruciating pain and suffering on human beings.
51. Nineteen states have enacted statutes that, like the AVMA Report, "mandate the exclusive use of a sedative or expressly prohibit the use of a neuromuscular blocking agent in the euthanasia of animals." See Beardslee v. Woodford, 395 F.3d 1064, 1070 n. 9 (9th Cir. 2005) (citing state laws). Although California has not yet enacted such a statute, the California Code of Regulations require that personnel who perform euthanasia of animals must be properly trained by veterinarians or registered veterinary nurses in the procedure. No such requirement exists in Procedure No. 770.
F. Deficiencies in Dr. Dershwitz's Opinions
52. In Beardslee v. Woodford, 395 F.3d at 1075, the Ninth Circuit relied in part on the statements of the defendants' expert, Mark Dershwitz, M.D., Ph.D., in characterizing the key issue in that case as whether a 5-gram dose of sodium thiopental would be sufficient to render an inmate unconscious. That characterization misses the point, which is not that the specified quantity of sodium thiopental is inadequate, but rather that there has been a failure to take all reasonable and easily taken steps to ensure that the full intended dose of sodium thiopental will in fact be delivered into the prisoner's circulation. Further, in view of the failure to take all such steps, the particular selection of an ultra-short acting barbiturate and a paralytic agent needlessly exposes the prisoner to an increased risk of being inadequately anesthetized.
53. I have reviewed the affidavits that Dr. Dershwitz has filed in other lethal injection challenges, including Kevin Cooper v. Woodford, No. C 04 436 JF, Perkins v. Polk, et. al, No. 5:04-CT-643-BO. Those affidavits are attached as Exhibits 4 and 7, respectively. He states that approximately 99.999999999% of the population would be anesthetized by the full dose of sodium thiopental, and that successful delivery into the circulation this dose of sodium thiopental would rapidly render an inmate unconscious, and that unconsciousness would persist well beyond the time that death would occur. Dr. Dershwitz, however, does not provide any calculations for what would occur if an error occurred and an insufficient dose of sodium thiopental were to be delivered. None of his affidavits address the probability of error in the administration of sodium thiopental during the execution process, or the reality that such errors are more likely to occur in the hands of personnel who are not trained anesthesiologists or CRNAs.
Conclusion
54. Based on my research into methods of lethal injection used by various states and the federal government, and based on my training and experience as a medical doctor specializing in anesthesiology, it is my opinion based on a reasonable degree of medical certainty that, given the apparent absence of a central role for a properly trained medical or veterinary professional in CDC's execution procedure, the chemicals used, the lack of adequately defined roles and procedures, and the failure to properly account for foreseeable risks, the lethal injection procedure California employs creates medically unacceptable risks of inflicting excruciating pain and suffering on inmates during the lethal injection procedure. All of these problems could easily be addressed, and indeed have been addressed for the euthanasia of dogs and cats. It is difficult to understand why the CDC has failed to address these problems and has failed to meet the minimum standards set forth for veterinary euthanasia.
55. In addition, in order to more fully and fairly assess the impact of Procedure No. 770's failings, it is necessary to obtain all the records and logs used, and all official witness statements from prior executions, as well as the full rules and regulations devised by CDC for lethal injection. This would include identifying the qualifications, experience and training of those persons who apply the IVs and who administer and monitor the injection.
I declare under penalty of perjury under the laws of the state of California and the United States of America that the foregoing is true and correct. Executed this 12th day of January, 2006 in New York City, New York.
2006 U.S. Dist. LEXIS 42949, * MICHAEL ANTHONY TAYLOR, Plaintiff, v. LARRY CRAWFORD, et al., Defendants. No. 05-4173-CV-C-FJG United States District Court for the Western District of Missouri, Central Division. 2006 U.S. Dist. LEXIS 2949 Decided June 26, 2006, Decided June 26, 2006, FiledSUBSEQUENT HISTORY: Later proceeding at Taylor v. Crawford, 2006 U.S. Dist. LEXIS 51008 (W.D. Mo., July 25, 2006).
PRIOR HISTORY: Taylor v. Crawford, 2006 U.S. Dist. LEXIS 36336 (W.D. Mo., June 2, 2006).
CORE TERMS: inmate, protocol, administered, grams, anesthesiologist, lethal injection, injection, thiopental, anesthetic, monitor, depth, administer, lethal, potassium chloride, written down, syringe, corrections, administering, chemical, femoral, vein, sodium pentothal, board certified, interrogatory, deposition, responded, mixing, log, pain, facial expression.
COUNSEL: [*1] For Michael Taylor, Plaintiff: Donald B Verrilli, Washington, DC US; Eric Berger, Ginger Anders, Jenner Block LLP, Washington, DC US; John William Simon, John William Simon, J.D., Ph.D., St. Louis, MO; Matthew S. Hellman, Jenner Block, LLC, Washington, DC US.
For Richard D Clay, Intervenor Plaintiff: Jennifer Herndon, Florissant, Mo; Elizabeth Unger Carlyle, Lee's Summit, MO.
For Reginald Clemons, Intervenor Plaintiff: Mark G. Arnold, Husch Eppenberger, St. Louis, MO.
For Larry Crawford, Director, MO Dept. of Corrections, James D Purkett, Superintendent, Eastern Reception Diagnostic Correctional Center, Defendants: Michael Pritchett, Missouri Attorney General, Jefferson City, MO.
JUDGES: Fernando J. Gaitan, Jr., United States District Judge.
OPINION BY: FERNANDO J. GAITAN, Jr.
OPINION: ORDER I. BACKGROUND
Plaintiff filed his Complaint on June 3, 2005, and an amended complaint on September 12, 2005 (Doc. # 36). In his First Amended Complaint plaintiff sought a declaratory judgment that Missouri's method of execution by lethal injection violates the Eighth, Thirteenth and Fourteenth Amendments because it would inflict on him cruel and unusual punishment, would [*2] deprive him of life, liberty or property without due process of law and would inflict upon him a badge of slavery, in that the three drug sequence using a procedure whereby the drugs are administered through the femoral artery creates a foreseeable risk of the infliction of gratuitous pain. Plaintiff also argued that the physician's role in the execution violated medical ethics. On December 28, 2005, the Court issued an Order denying defendant's Motion to Dismiss and ruling that the case presented factual issues which would likely be resolved by either a motion for summary judgment or through a hearing (Doc. # 54). On January 3, 2006, the defendants notified the Court that the Supreme Court of Missouri had set plaintiff's execution date for February 1, 2006. On January 18, 2006, plaintiff filed an Application for a Court Order requesting that the Court issue an Order directing that Taylor not be executed until further order of the Court to be issued within a reasonable time after a hearing on the merits which was scheduled for February 21, 2006. On January 19, 2006, Judge Scott Wright issued an Order staying the execution until the Court could conduct the hearing (Doc. # 62). The same [*3] day, defendants appealed Judge Wright's ruling to the Eighth Circuit. On January 29, 2006, the Eighth Circuit entered an Order reversing and vacating Judge Wright's January 19, 2006 Order. The Eighth Circuit remanded the case to the Western District and directed that the Court reassign the case to another judge for an immediate hearing. The Eighth Circuit directed that an Order be issued no later than 12:00 Noon on Wednesday, February 1, 2006. This case was assigned to this Court on Monday, January 30, 2006.
Richard Clay was previously granted leave to intervene in this action. On January 30, 2006, the Court orally granted Mr. Clay's Motion to Dismiss this action as to him without prejudice. Reginald Clemons also had a pending Motion for Leave to Intervene in this action. He has now also moved to withdraw from this action.
On January 30-31, 2006, this Court conducted a telephonic hearing regarding plaintiff's Complaint. During the telephonic hearing, the Court heard the testimony of the following individuals: [*4] Dr. Mark Dershwitz, Dr. Jonathan I. Groner, Dr. Mark Heath and Terry W. Moore, the Director of Adult Institutions for the Missouri Department of Corrections. Plaintiff requested that the State produce John Doe Numbers One and Two (the doctor and the nurse who participated in the most recent execution), but this request was denied. Plaintiff also sought to present the testimony of Dr. Sri Melethil, a pharmacokineticist, but he was out of town and unable to appear until the morning of February 1, 2006. After considering the evidence and the testimony of these individuals, the Court determined that neither the chemicals used by the State for lethal injection nor the procedure employed to administer these injections constituted cruel or unusual punishment. The Court noted that while the plaintiff suggested a different approach to lethal injection, he had not shown that the current method used by Missouri violated the Eighth Amendment. Further the Court was not persuaded that the use of the femoral vein for the administration of the lethal injection violated applicable standards of the Eighth Amendment. The Court also did not find that Missouri physicians who are involved in administering [*5] lethal injections were violating their ethical obligations or that the procedure was violative of the Thirteenth Amendment.
Plaintiff appealed this Court's January 31, 2006 Order, arguing that he did not have sufficient time to present his arguments to the Court during the two day telephonic hearing. Plaintiff argued that this Court had abused its discretion in not allowing him to call John Doe I and II or Dr. Melethil and also erred in denying his claims. On April 27, 2006, the Eighth Circuit remanded the case to this Court to reconvene the hearing. The Eighth Circuit gave the parties thirty days to engage in some limited additional discovery and then an additional thirty days within which the hearing was to be held and for this Court to issue its Order, amending, modifying or restating the previous judgment and certifying the same to the Eighth Circuit.
The Court allowed plaintiff to conduct the following discovery: a Rule 34 inspection and videotaped tour of Missouri's execution chamber, a deposition of Larry Crawford, Director of the Missouri Department of Corrections and document requests which pertained to the last six executions carried out by the State of Missouri. The document [*6] requests included any execution logs, records, autopsy reports, test results and analyses of post-mortem/toxicology reports. The State also provided information regarding what specialized training the physicians and nurses undergo who participate in administration of the drugs and all documents pertaining to any fall back procedures regarding vein access and the three drug sequence. The Court also allowed plaintiff to submit interrogatories to John Doe Defendants I — V. After John Doe I submitted his interrogatory responses, plaintiff again asked the Court for permission to depose him. The Court allowed plaintiff to conduct a limited anonymous deposition of John Doe I. This deposition was conducted at the Courthouse, with only the Court and counsel present. On June 12 — 13, 2006 this Court continued the hearing which was begun in January 2006. During the hearing, plaintiff presented the testimony of Dr. Mark Heath, an anesthesiologist, Dr. Stephen Johnson, an expert in central line placement and femoral line placement and Dr. Thomas Henthorn, an expert in pharmokinetics. The State presented the testimony of Dr. Mark Dershwitz, an anesthesiologist, Terry Moore, Director of Adult Institutions [*7] for Department of Corrections and Larry Crawford, Director of the Department of Corrections.
II. DISCUSSION A. Standard
The Eighth Amendment provides that "cruel and unusual punishment" shall not be inflicted. It prohibits punishments that are "incompatible with the 'evolving standards of decency that mark the progress of a maturing society.'" Estelle v. Gamble 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)). As to executions, it prohibits "the unnecessary and wanton infliction of pain" as well as methods involving torture or a lingering death. See Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976). "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely."Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed . 422 (1947)(emphasis added). Additionally, as the Court noted in Campbell v. Wood, 18 F.3d 662 , 687 (9th Cir. 1994), [*8] "[t]he risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review."
B. Missouri's Execution Procedure
During the January 30-31, 2006 hearing, Terry Moore, Director of Adult Institutions for the Missouri Department of Corrections, described what he believed was the execution procedure used in Missouri. Mr. Moore testified that three drugs are administered by a board certified physician. The physician first administers five grams of sodium pentothal, also known as thiopental, which is a substance that produces anesthesia. Thereafter, the physician administers a syringe of saline to flush the IV line. Next, the physician administers pancuronium bromide, also referred to as pancuronium. This drug is a paralytic agent which prevents any involuntary movement of the body. The physician then again administers the saline solution. Finally, the third drug which is administered is potassium chloride, which is a drug which stops the electrical activity of the heart. There was no dispute that if an inmate is not sufficiently anesthetized when the potassium chloride is administered, it will cause excruciating pain as it is administered [*9] through the inmate's veins. The inmate, however, would be unable to show that he was experiencing discomfort due to the paralyzing effects of the pancuronium bromide.
After the Eighth Circuit remanded this case, the Court allowed plaintiff to conduct additional limited discovery. In a letter sent to the Court on May 17, 2006, plaintiff's counsel informed the Court that new evidence in the form of chemical dispensary logs, which had recently been produced by the State, contradicted the State's previous representations regarding the amount of thiopental that is used during executions.
In response, counsel for the State confirmed in a letter sent to the Court on May 17, 2006 that 5 grams of sodium pentothal are used:
As plaintiff correctly points out, defendants have stated consistently that 5 grams of sodium pentothal are used in executions in Missouri. Five grams are in fact used. The reference to the 2.5 grams noted in the drug log is not correct. The doctor and the nurse who have prepared the drugs for the last six executions and for plaintiff's stayed execution confirm that 5 grams has been used in the last six executions and was prepared for plaintiff's stayed execution. [*10] (Defendants are attempting to run down the source of the error in the record, and continue to do so.)
However, the next day on May 18, 2006, counsel for the State sent the Court another letter in which they acknowledge that a mistake had in fact been made regarding the representations as to the amount of thiopental administered. The letter stated in part:
Upon further review, defendants have just determined this afternoon, contrary to previous representations, that 2.5 grams of sodium pentothal was prepared and used at the last execution (not 5 grams) and that 2.5 grams was prepared for use at the execution of plaintiff (which was stayed before the femoral IV was inserted). Defendants and their counsel apologize to the Court and the parties for providing incorrect information.
(Doc. # 121).
Upon learning of this information, the Court submitted a set of interrogatories to John Doe I to answer. The Court inquired whether the lethal injection protocol was codified in any publication, policy statement or state regulation. John Doe I responded that he was not aware of the protocol being written down in any form. He stated that it was his understanding at the time [*11] of Mr. Gray's execution that he had the independent authority to change the dose based on his medical judgment. He stated that this understanding was based on past contacts with predecessors of the current Director of the Department of Corrections. When the Court asked how many times the protocol has been modified since it was put into place, John Doe I responded:
Defendants have disclosed that John Doe I is the physician that mixes the drugs used during the executions.
John Doe I can recall one instance when three syringes of potassium chloride were used based on the obesity of the offender. John Doe I can recall one instance when the IV was inserted in the offender's neck instead of his femoral vein based on the damage to both of his femoral veins from drug abuse. John Doe I is aware of one instance when a peripheral IV was used because John Doe I was unable to attend the execution. For the execution of Mr. Gray and the preparation for the execution of Mr. Taylor, John Doe I determined to use 2.5 grams of sodium pentothal. This determination occurred because of difficulty in dissolving powder, obtained from a new supplier, containing more than 2.5 grams in the liquid that could be accommodated in a syringe. The rate of infusion and the concentration of the dose ensured that 2.5 [*12] grams was more than sufficient to make the offender unconscious before administering the remaining drugs. Further, with regard to Mr. Taylor, John Doe I was aware that the dosage used in the execution of Mr. Gray was adequate.
(Response to Interrogatory No. 5, Doc. # 152).
When asked who was consulted before the dosage of thiopental was decreased, he responded that no one was consulted because he thought it was within the acceptable parameters to accomplish the goal. When questioned about his medical background, John Doe stated that although he was a board certified surgeon, he is not an anesthesiologist. The Court also allowed plaintiff to conduct an anonymous deposition of John Doe I on June 5, 2006.
When he was asked whether any part of the execution procedure was written down, John Doe I responded as follows:
A. I have never seen it. If it was, it would have been written on my recommendation. [*13]
Q. I see. Do you have any idea why it might not be written down?
A. I'm sure it's written down somewhere. If they're checking the logs of all the drugs every time we use them and recording expiration dates and number of sheets and needles that we use, I'm certain they have it written down somewhere.
Q. But in terms of the aspects of the procedure that you're responsible for, that you perform, those aren't written down, to your knowledge?
A. It might be written in there, but it would be written on by somebody observing what I was doing and using their interpretation. So if there was a written procedure that they had done I would — you know, I'm curious to see what they think I'm doing, but I don't know that they write down the individual details of how I insert an 18-gauge rather than a 22-gauge or a 14-gauge needle.
Q. I see. So people might write things down as you're doing them, but there's no guide that you follow as you're doing it?
A. Absolutely not.
Q. So you just rely on your memory?
A. Yes.
Q. And your judgment?
A. Yes.
(John Doe Depo. pp. 69-70)
During his deposition, John Doe I described how he has had to devise an improvised procedure with regard to mixing [*14] the correct dosage of thiopental:
Q. And could you take me step-by-step through that, your improvised process?
A. I'd have to see the containers because I cannot at the present time remember whether they have glass or — they are actually just two straight-walled glass bottles. One has powder in the bottom, one has liquid in the bottom, and they are designed to lock together and mix. So, I have to stick a needle through this plastic and inject my own diluents which I know will give me no more than 50 cc's for the final product, which is what I'm aiming for for the final injection.
We have encountered problems trying to mix more than three or four grams using this method, mainly because of an inert substance possibly put in by the manufacturer to prevent mis-mixing, which I know several drug companies will do. So right now the last time I saw and talked to the Director on each of these occasions saying we either need to change what we say we're dosing or we will have to go back to the original five-gram bottle that was available when we instituted this procedure. So right now we're still improvising. And he's also having me researching an alternate drug if it comes to that. [*15]
(John Doe Depo. pp. 9-10).
When John Doe I was asked why he did not initially recall why he prepared a smaller dose of thiopental, he responded:
A. . . . But I am dyslexic and so I can recall in the operating room specific facts and details of operation and function perfectly, but in terms of copying one line to another or trying to simply copy a phone number or account number I will sometimes transpose numbers even when I'm staring at the two numbers. So, it's not unusual for me to make mistakes. . . . But I am dyslexic and that is the reason why there are inconsistencies in my testimony. That's why there are inconsistencies in what I call drugs. I can make these mistakes, but it's not medically crucial in the type of work I do as a surgeon.
(John Doe Depo. pp. 24-25) (emphasis added).
In describing how the drugs are administered, John Doe I stated that, ". . .the people who do the injections are nonmedical and they're in the dark so they have a small flashlight that they're able to quickly identify the syringes, make the appropriate connections and injections, disconnect, clamp the tube, and changing the number of syringes or the order of syringes [*16] was an unnecessary risk." (John Doe Depo. p. 31).
When questioned about whether he monitors anesthetic depth, John Doe I testified as follows:
Q. Did you monitor Mr. Gray's anesthetic depth during the execution?
A. I monitor — the only thing that can be monitored is facial expression, and you can judge when the effect of the drug is accomplished, and that can be seen from across a room through a window. And when that effect occurs then I know the inmate is unconscious. . . .
Q. So you said that you can see that — an inmate's facial expression from where you stand?
A. Yes. That's the only thing any anesthesiologist uses in the course of inducing a person when pentothal was still used, was you simply started injecting, look at the face, and again, it's difficult to describe, but I can tell instantly when the pentothal has taken effect. And in medical practice the instant the pentothal has taken effect they gave absolutely no more because then they move on to the actual anesthesia which has to be started before the pentothal wears off.
(John Doe Depo. pp. 41-42).
When he was asked whether he had any discussions with Director Crawford about the scope of his authority, [*17] John Doe I stated:
A. Oh, yes. We talk — I talk in his office and at the time of the execution. In fact, he's the only director I have actually gone over to his office for other reasons and visited about this. And again, he has no background in corrections and he has no background in medicine, so the other corrections officers had long backgrounds in corrections so they were aware of what we were doing and why we were doing it. Since he has no background in either field, he reiterated that he's totally dependent on me advising him what could and should and will be done, and he will back up — if I think there's a change that needs to be made, he wants me to quickly inform him so he can make the appropriate changes.
Q. I see. So, it's your understanding that if you thought a change to the execution procedure needed to be made you would — Director Crawford would defer to your opinion?
A. Absolutely.
(John Doe Depo. pp. 63-64).
C. Is Missouri's Execution Procedure Constitutional?
In Morales v. Hickman, 415 F.Supp.2d 1037 (N.D.Cal. 2006), aff'd, 438 F.3d 926 (9th Cir. 2006), cert. denied, 126 S.Ct. 1314, 163 L.Ed.2d 1148 (2006), [*18] the Court stated:
The Eighth Amendment prohibits punishments that are incompatible with the evolving standards of decency that mark the progress of a maturing society. . . . Executions that involve the unnecessary and wanton infliction of pain . . . or that involve torture or a lingering death . . . are not permitted. When analyzing a particular method of execution or the implementation thereof, it is appropriate to focus on the objective evidence of the pain involved. . . .In this case, the Court must determine whether Plaintiff is subject to an unnecessary risk of unconstitutional pain or suffering such that his execution by lethal injection under California's protocol must be restrained.
Id. at 1039 (internal citations and quotations omitted) (emphasis added). In that case the Court focused on the narrow issue of "whether or not there is a reasonable possibility that Plaintiff will be conscious when he is injected with pancuronium bromide or potassium chloride, and, if so, how the risk of such an occurrence may be avoided." Id. at 1040. This is precisely the same question which this Court must address.
After learning more about how [*19] executions are carried out in Missouri, through the interrogatories submitted to the John Doe defendants, reviewing the chemical dispensary logs, reviewing the videotape of the execution chamber and listening to the testimony of John Doe I, and to the testimony of the other expert witnesses at the June 12-13, 2006 hearing, it is apparent that there are numerous problems. For example, there is no written protocol which describes which drugs will be administered, in what amounts and defines how they will be administered. John Doe I testified that he came up with the current protocol. John Doe I also testified that he felt that he had the authority to change or modify the formula as he saw fit. It is apparent that he has changed and modified the protocol on several occasions in the past. He has reduced the amount of thiopental given from 5.0 grams to 2.5 grams and has also changed the location on the inmate's body where the drugs were administered. It is obvious that the protocol as it currently exists is not carried out consistently and is subject to change at a moment's notice.
The Court is also concerned that John Doe I possesses total discretion for the execution protocol. Currently, [*20] there are no checks and balances or oversight, either before, during or after the lethal injection occurs. No one monitors the changes or modifications that John Doe I makes. John Doe I even testified that the Director of the Department of Corrections, Mr. Crawford, has no medical or corrections background, and that he is "totally dependent on me advising him." (John Doe Depo. p. 64).
In addition to the fact that there is no oversight and the responsibility for making changes or adjustments is completely vested in one individual, the Court also has concerns about John Doe I's qualifications. John Doe I readily admitted that he is dyslexic and that he has difficulty with numbers and oftentimes transposes numbers. John Doe I testified "it's not unusual for me to make mistakes. . . . But I am dyslexic and that is the reason why there are inconsistencies in my testimony. That's why there are inconsistencies in what I call drugs. I can make these mistakes, but it's not medically crucial in the type of work I do as a surgeon." (John Doe Depo. p. 25). The Court disagrees and is gravely concerned that a physician who is solely responsible for correctly mixing the drugs which will be responsible [*21] for humanely ending the life of condemned inmates has a condition which causes him confusion with regard to numbers. As the Court has learned, the process of mixing the three different drugs and knowing the correct amount of the drugs to dissolve in the correct amount of solution involves precise measurements and the ability to use, decipher, and not confuse numbers. Although John Doe I does not feel this is crucial in the type of work he does as a surgeon, it is critical when one is mixing and dissolving chemicals for a lethal injection.
In addition, John Doe I testified that although he is not an anesthesiologist, he monitors the anesthetic depth of an inmate by observing the inmate's facial expression. However, as can be seen from the videotape of the execution chamber, when the inmate is lying on the gurney in the execution room, the inmate is facing away from the Operations room where John Doe I is located. Additionally, it is dark in the Operations room and there are blinds on the window which are partially closed and obstruct the view. This would make it almost impossible for John Doe I to observe the inmate's facial expression. This leads the Court to conclude that there is [*22] little or no monitoring of the inmate to ensure that he has received an adequate dose of anesthesia before the other two chemicals are administered.
All of these concerns lead the Court to conclude that Missouri's lethal injection procedure subjects condemned inmates to an unnecessary risk that they will be subject to unconstitutional pain and suffering when the lethal injection drugs are administered.
D. Revisions to the Execution Protocol
Having determined that Missouri's current method of administering lethal injections subjects condemned inmates to an unacceptable risk of suffering unconstitutional pain and suffering, the Court concludes that it is within its equitable powers to fashion a remedy that "preserves both the State's interest in proceeding with Plaintiff's execution and Plaintiff's constitutional right not to be subject to an undue risk of extreme pain." Morales, 415 F.Supp.2d at 1046. Director Crawford testified at the hearing that the Department of Corrections is in the process of developing a directive which would establish a protocol for administering lethal injections. However, from his testimony, it was apparent that the directive would [*23] not encompass all of the attributes which the Court finds are necessary to ensure that lethal injections are carried out humanely. Recently other courts have also faced this challenge and have modified execution procedures in those states. See e.g. Brown v. Beck, No. 5:06-CT-3018-H, (E.D.N.C. April 7, 2006) (Doc. No. 32) and Morales, 415 F.Supp.2d at 1046 .
Accordingly, the Court hereby AMENDS its previous order of January 31, 2006 and ORDERS the Department of Corrections for the State of Missouri to prepare a written protocol for the implementation of lethal injections which incorporates the following provisions:
1. Personnel
A board certified anesthesiologist shall be responsible for the mixing of all drugs which are used in the lethal injection process. If the anesthesiologist does not actually administer the drugs through the IV, he or she shall directly observe those individuals who do so. Additionally, the Operations Room shall be sufficiently lighted so that the corrections personnel can see which drugs are being administered.
2. Lethal Injection Drugs Method of Administration
The level of thiopental administered shall [*24] not be less than 5 grams. Pancuronium Bromide and Potassium Chloride will not be administered until the anesthesiologist certifies that the inmate has achieved sufficient anesthetic depth so that the inmate will not feel any undue pain when the Potassium Chloride is injected. The State in conjunction with the anesthesiologist will have discretion to determine the most appropriate location on the inmate's body to inject the drugs. The State shall specify in the protocol how the anesthesiologist will certify that the inmate has achieved the appropriate anesthetic depth.
3. Monitoring
The State will put in place procedures which will allow the anesthesiologist to adequately monitor the anesthetic depth of the inmate. This may require the State to purchase additional equipment in order to adequately monitor anesthetic depth. The State should also consider repositioning the gurney so that the inmates's face will be visible to the anesthesiologist, using a mirror, or even allowing the anesthesiologist to be present in the room with the inmate when the drugs are injected.
4. Contingency Plan
The State's protocol shall also contain a contingency plan in case problems [*25] develop during the execution procedure.
5. Auditing Process
The Department of Corrections shall put in place an auditing process which will ensure that the individuals involved in the lethal injection process are correctly following the protocol, including administering the correct dosages of the medication, in the proper order. The Court contemplates that the State will consult with a board certified anesthesiologist in designing the auditing process.
6. Changes to the Lethal Injection Procedure
After approval by the Court, no further changes shall be made to the lethal injection protocol without seeking the prior approval of this Court. This Order contemplates consultation with a board certified anesthesiologist in arriving at a proposed written protocol. The Court will retain jurisdiction over the State's implementation of the lethal injection protocol for the next six executions or until the Court is satisfied that the protocol is being administered in a consistent fashion. The Department of Corrections shall submit its revised lethal execution protocol to this Court for review and approval on or before July 15, 2006. All executions in the State of [*26] Missouri are hereby STAYED pending approval of the protocol.
III. CONCLUSION
For the reasons stated above, the Court hereby AMENDS its January 31, 2006 Order and in accordance with the April 27, 2006 Order of the Eighth Circuit, this Court hereby CERTIFIES this Order to the Eighth Circuit for its review and consideration.
Tenn Code Ann. § 44-17-303 TENNESSEE CODE ANNOTATED 2007 by The State of Tennessee All rights reserved *** CURRENT THROUGH THE 2006 SESSION *** *** ANNOTATIONS CURRENT THROUGH FEBRUARY 6, 2006 *** Title 44 Animals And Animal Husbandry Chapter 17 Dogs and Cats Part 3 — Nonlivestock Animal Humane Death Act GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION Tenn. Code Ann. § 44-17-303 (2007)
44-17-303. Methods allowed. (a) Sodium pentobarbital and such other agents as may be specifically approved by the rules of the board of veterinary medicine shall be the only methods used for euthanasia of nonlivestock animals by public and private agencies, animal shelters and other facilities operated for the collection, care and/or euthanasia of stray, neglected, abandoned or unwanted nonlivestock animals. A lethal solution shall be used in the following order of preference:
(1) Intravenous injection by hypodermic needle;
(2) Intraperitoneal injection by hypodermic needle;
(3) Intracardial injection by hypodermic needle, but only if performed on heavily sedated, anesthetized or comatose animals; or
(4) Solution or powder added to food.
(b) A nonlivestock animal may be tranquilized with an approved and humane substance before euthanasia is performed.
(c) Succinylcholine chloride, curare, curariform mixtures, strychnine, nicotine, chloral hydrate, magnesium or potassium or any substance which acts as a neuromuscular blocking agent, or any chamber which causes a change in body oxygen may not be used on any nonlivestock animal for the purpose of euthanasia. Any such chamber in use as of July 1, 2001, shall be phased out and shall not be used on or after July 1, 2002.
(d) Euthanasia shall be performed only by a licensed veterinarian, Tennessee veterinarian medical technician or an employee or agent of a public or private agency, animal shelter or other facility operated for the collection, care and/or euthanasia of stray, neglected, abandoned or unwanted nonlivestock animals, provided that the Tennessee veterinarian medical technician, employee or agent has successfully completed a euthanasia-technician certification course. The curriculum for such course must be approved by the board of veterinary medical examiners and must include, at a minimum, knowledge of animal anatomy, behavior and physiology; animal restraint and handling as it pertains to euthanasia; the pharmacology, proper dosages, administration techniques of euthanasia solution, verification of death techniques, laws regulating the storage, security and accountability of euthanasia solutions; euthanasia technician stress management and the proper disposal of euthanized nonlivestock animals.
(e) An employee, agent or Tennessee veterinarian medical technician performing euthanasia prior to July 1, 2001, who previously passed an approved euthanasia-technician certification course will be accepted as qualified under the Nonlivestock Animal Humane Death Act to perform euthanasia on nonlivestock animals. Any other employee, agent or Tennessee veterinarian medical technician seeking to perform euthanasia on nonlivestock animals on or after July 1, 2001, must obtain certification prior to performing any such euthanasia.
(f) A nonlivestock animal may not be left unattended between the time euthanasia procedures are first begun and the time that death occurs, nor may its body be disposed of until a qualified person confirms death.
(g) Notwithstanding the provisions of this section or any other law to the contrary, whenever an emergency situation exists in the field which requires the immediate euthanasia of an injured, dangerous or severely diseased nonlivestock animal, a law enforcement officer, a veterinarian, or agent of a local animal control unit or the designee of such an agent may humanely destroy the nonlivestock animal.
(h) For purposes of this part, "nonlivestock animal" shall have the meaning set forth in § 39- 14-201(3). (i) The attorney general may bring an action to enjoin any violation of the Nonlivestock Animal Humane Death Act.
(j) Any person who violates the provisions of the Nonlivestock Animal Humane Death Act is guilty of a Class A misdemeanor.
(k) These provisions shall not apply to exotic animals being held under the authority of title 70, chapter 4, part 4, and Rule 1660-1-18-.05 of the Official Compilation of Rules and Regulations of the State of Tennessee.
HISTORY: [Acts 1980, ch. 482, § 3; 1997, ch. 106, §§ 8, 9; 2001, ch. 70, § 1.]
NOTES:
Amendments.
The 2001 amendment rewrote the section which read:
"No dog or cat shall be destroyed by any agency subject to the provisions of this part, except by the following methods:
"(1) In chambers using carbon monoxide. This method may not be used on puppies and kittens under four (4) months old. Where there is doubt as to the age of any puppy or kitten, the opinion, as to age, of any veterinarian licensed by the state of Tennessee shall be binding;
"(2) For puppies and kittens under four (4) months of age, chambers using chloroform may be used;
"(3) By the nitrogen inhalation method. Such method provides that nitrogen be injected into a chamber such that the oxygen content of the air within the chamber is reduced from a normal of twenty-one percent (21%) to one and a half percent (1.5%) or less within sixty (60) seconds. Only pure nitrogen in cylinders may be used. This method may not be used on puppies and kittens under four (4) months old. Where there is doubt as to the age of any puppy or kitten, the opinion of any veterinarian licensed by the state of Tennessee as to the age of any such puppy or kitten shall be binding;
"(4) In any system using chambers herein approved, cats shall not be put in the same chamber as dogs and the chambers shall not be overcrowded; and
"(5) Notwithstanding any provision of this section, any animal shelter, dog pound, animal control agency, or humane shelter as defined in § 44-17-302, currently using or which has used prior to January 1, 1980, the drug sodium pentobarbital or other barbiturate to destroy a dog or cat, shall be permitted to continue using such drug to destroy a dog or cat. Animal shelters, dog pounds, animal control agencies or humane associations as defined in this section may also use other drugs as authorized for use in certified animal control agencies by the board of veterinary medical examiners pursuant to title 63, chapter 12, or as otherwise provided by law; and
"(6) Sodium pentobarbital or such other drugs as authorized by the board of veterinary medical examiners shall be the only drugs used by certified animal control agencies for the euthanasia of animals as provided by title 63, chapter 12."
Effective Dates.
Acts 2001, ch. 70, § 3. July 1, 2001.
Cross-References.
Penalty for Class A misdemeanor, § 40-35-111.
2000 Report
IN THE CHANCERY COURT FOR THE STATE OF TENNESSEE TWENTIETH JUDICIAL DISTRICT, DAVIDSON COUNTY, PART III
ABU-ALI ABDUR'RAHMAN, ) ) Plaintiff, ) ) NO. 02-2236-III VS. ) ) DON SUNDQUIST, et al., )
MEMORANDUM AND ORDER
There are persons in our society who decry the use of the death penalty, and there are persons who decry the resources, time and concern expended on death row inmates. Those views are discourse in a vocal democracy. They are not, however, the issue or the framework of the case before this Court.
It is the law of the land that the death penalty is a constitutionally permissible punishment, and it is the law of the land that resources, time and concern shall be expended to insure that punishment by death is not inflicted cruelly and inhumanely. It is within this framework and these bounds that this case arises.
A death row inmate, Abu-Ali Abdur'Rahman, who has been condemned to punishment by death for committing first degree murder, asserts that Tennessee's method of execution by lethal injection creates an unreasonable risk that the inmate will be paralyzed but will not be rendered unconscious before he is administered horrific painful drugs. The effect, the inmate argues, of such an occurrence is that before the inmate expires he is subjected to torturous pain but because of his total paralysis he is unable to communicate his consciousness and viewers are unable to perceive that the inmate is conscious. The unreasonable risk of this occurring, the inmate asserts, constitutes cruel and inhumane punishment, and is unconstitutional.
"The death sentence was imposed pursuant to the jury's finding of three aggravating circumstances: (1) the defendant was previously convicted of one or more felonies whose statutory elements involved the use of violence to the person; (2) the murder was especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death; and (3) the murder was committed while the defendant was engaged in committing, or was an accomplice in the commission of, or was attempting to commit, or was fleeing after committing or attempting to commit, any first-degree murder, arson, rape, robbery, burglary, theft or, kidnapping." Abu-Ali Abdur'Rahman v. Bell, 226 F.3d 696, 697-99 (6th Cir. 2000).
The State contends that no method can be error free, and, in any event, the risk alleged by the plaintiff, under Tennessee's lethal injection method, is remote and, therefore, not violative of the constitution.
After conducting an evidentiary hearing where the Court considered the testimony of a veterinarian, an anesthesiologist, a patient who endured an unanesthetized procedure, the warden in charge of the execution in issue, and the State Medical Examiner, the Court concludes that the plaintiff has failed to demonstrate that Tennessee's method of lethal injection is unconstitutional.
The proof established that Tennessee's method is not state of the art. It was developed simply by copying the same method currently in use by some thirty other states. The method could be updated with second or third generation drugs to, for example, streamline the number of injections administered. Moreover, the method's use of Pavulon, a drug outlawed in Tennessee for euthanasia of pets, is arbitrary. The State failed to demonstrate any need whatsoever for the injection of Pavulon.
But whether dated or discomfiting in terms of modern veterinary science, the method was shown by the proof to be reliable in rendering an inmate unconscious, if not dead, before the paralytical and lethal painful drugs take effect. Thus, the plaintiff failed to demonstrate that Tennessee's lethal injection method poses a reasonable likelihood of a cruel or inhumane death.
The findings of fact and conclusions of law on which the Court bases its determination are as follows.
The plaintiff, Abu-Ali Abdur'Rahman, is a death row inmate who has been condemned to punishment by death for first degree murder. The plaintiff is scheduled to be executed on June 18, 2003, by the State of Tennessee using the lethal injection method.
The plaintiff filed this lawsuit asserting that Tennessee Code Annotated section 40-23-114, death by lethal injection, as it shall be applied by the Tennessee Department of Correction to the plaintiff's execution, violates the prohibition against cruel and inhuman treatment provided by the Eighth Amendment of the United States Constitution, and Article I, § 16 of the Tennessee Constitution. During the evidentiary hearing of this matter, the plaintiff also argued that the application of section 40-23-114 violates his constitutional right of free access to the courts guaranteed by the United States Constitution.
The case is before this Court pursuant to Tennessee Code Annotated section 4-5-225 which vests authority in the Chancery Court of Davidson County to determine whether the application of a statute within the primary jurisdiction of an agency (in this case the Tennessee Department of Correction) is unconstitutional.
The method of lethal injection in Tennessee consists of the injection of three drugs: sodium thiopental (Pentothal), pancuronium bromide (Pavulon), and potassium chloride. Warden Bell testified that prior to the execution he uses a kit to prepare the Pentothal. The Pentothal comes in a powder form which he is required to mix with sterile water with the use of syringes. He sticks a needle into the sterile water vial, withdraws the necessary amount to mix with the Pentothal powder. He then shakes the mixture and draws it into a big syringe with sterile water. The shelf life of the Pentothal mixture is very short, 24 hours or less. The shelf life of the powder is much longer, in the range of six months. That is why the Pentothal is not converted to a liquid state until just before the execution. The Pavulon and potassium chloride come in a liquid state and do not have to be mixed. Seven syringes are prepared: one syringe of Pentothal, two syringes of saline, two syringes of Pavulon, two syringes of potassium chloride. Then seven exact replicas of these syringes are prepared as backups in case the first injection procedure fails and a second must be used. The syringes are labeled with numbers 1 through 7 in the sequence that they are to be injected. They are also color coded, i.e. a color corresponds with the substance in the syringe. The syringes are not labeled with the names of the substances in them.
After the inmate is transported to the execution chamber by gurney, IV catheters are placed in both of the inmates arms by certified EMT paramedics. If necessary there are execution team members, prison staff, who have been through a course of training in intravenous therapy who can also perform this function. In the event that the IV technicians are unable to establish a port due to the unavailability of a suitable vein, a physician is available to perform a "cut down" procedure where an incision is made to gain direct access to a vein. The warden, deputy warden, and a chaplain are present in the execution chamber. After the flow of normal saline is begun, the paramedics leave the execution chamber.
The warden then signals the executioner, who is located in a chamber next to the execution chamber, but behind a window with a portal for the IV lines. The warden gives the word to the executioner to sequentially inject the Pentothal, saline, Pavulon, saline and sodium chloride into the IV tubing connected to the catheter placed in the inmate's arm. A quick push of the syringes is required.
There is a camera above the gurney in the death chamber and a monitor in the executioner's room which allows the executioner to observe the flow of the drugs to the IV. In addition, the warden is located in the execution chamber, approximately a foot from the inmate's head, and the warden can see the flow of the drugs through the IV tubing and can notify the executioner if the line becomes clogged or if other visible problems are encountered.
Following the injection of the drugs and a five-minute waiting period, the condemned inmate is examined by a physician, who waits in an area adjacent to the death chamber during the administration of the drugs, and death is pronounced.
A significant part of the plaintiff's challenge to Tennessee's lethal injection method is the use of Pavulon. Dr. Heath, an assistant professor of clinical anesthesia at Columbia University who obtained his bachelor of arts from Harvard University in 1983 magna cum laude and graduated with honors from University of North Carolina Medical School in 1987 and whose practice is devoted one-third to clinical patient care, one-third education of residents and fellows and one-third research, testified that Pavulon is a neuromuscular blocking agent. Its effect is that it renders the muscles unable to contract but it does not affect the brain or the nerves. It is used in surgery to assure that there is no movement and that the patient is securely paralyzed so that the surgery can be performed without contraction of the muscles. Pavulon is never applied until the patient is under a proper plane of anesthesia. The anesthesia must first be administered such that the patient is unconscious and does not feel, see or perceive the procedure. Once the anesthesia has taken effect, the Pavulon paralyzes the patient so that the surgery can be performed. Dr. Heath testified to what he termed the "chemical veil" of Pavulon. He stated that Pavulon, because of its paralytic effect on the muscles, makes the patient look serene. The face muscles cannot move or contract or any muscles to show pain or suffering.
Testimony was also provided by Carol Weihrer who endured a surgery where Pavulon was administered and the anesthesia was not effective. Ms. Weihrer testified that she was able to hear, perceive and feel everything that was going on in her surgery. She was able to think. Torturously she was unable to move because of the effects of the Pavulon. She testified that she was attempting with all of her will to communicate that she was still conscious but that she was unable to because of the Pavulon.
Dr. Geiser, a professor of veterinary science at the University of Tennessee School of Agriculture, testified similarly to the effect of Pavulon on animals. He stated that before 1980 it was not the practice to use Pavulon and that it is not acceptable under the American Veterinary Association guidelines to use Pavulon by itself or in combination with other drugs in pet euthanasia. He testified that the use of Pavulon in euthanasia of animals has been outlawed in Tennessee and a number of other states. Dr. Geiser testified that Pavulon could potentially produce an inhumane situation with animals because it causes respiratory arrest without arrest of the central nervous system. He testified that the effect is like asphyxiation.
Significantly, there was no proof from the State that the Pavulon is necessary to the lethal injection process. No proof was provided by the State for the use of Pavulon in its lethal injection process. The State's expert, Dr. Levy, on cross-examination, testified that he did not know of any legitimate purpose for the use of Pavulon in the Tennessee lethal injection process. He agreed that the injection of Pavulon without anesthesia would be a horrifying experience.
Dr. Heath testified that if the Pavulon were eliminated from the Tennessee lethal injection method, it would not decrease the efficacy or the humaneness of the procedure.
In this matter the Court shall analyze the plaintiff's claims under the Eighth Amendment to the United States Constitution and Article I, § 16 of the Tennessee Constitution. To the extent to which the plaintiff asserts that Tennessee's lethal injection method violates his rights to substantive due process by exposing him to an unnecessary risk of pain and suffering, the Court concludes as a matter of law that such a claim is better analyzed under the cruel and unusual punishment provision of the State and Federal Constitutions. See County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 1714, 14 L. Ed. 2d 1043 (1998), quoting Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) ("where a particular amendment provides and explicit textual source of constitutional protection against a particular sort of government behavior, that amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims."). In United States v. Lanier, 520 U.S. 259, 272, 117 S. Ct. 1219, 137 L. Ed. 2d 432 n. 7 (1997), the Court explained that if a constitutional claim is covered by a specific constitutional provision such as the Fourth or Eighth Amendment the claim should be analyzed under the standard appropriate to that provision not under substantive due process.
The law which this Court is required to apply in determining the plaintiff's claims are the United States and Tennessee Constitutions as ruled upon by the United States Supreme Court and the Tennessee Supreme Court.
The United States Supreme Court has explained that the Eighth Amendment prohibition of the United States Constitution is that cruel punishment involves torture or a lingering death. In re Kemmler, 136 U.S. 436, 447, 10 S. Ct. 930, 933, 34 L. Ed. 519, 524 (1890). The Eighth Amendment prohibition forbids punishments that involve unnecessary and wanton inflictions of pain. Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976).
The Tennessee Supreme Court has held that no greater protection is provided under Article I, § 16 of the Tennessee Constitution than under the Eighth Amendment to the United States Constitution, Cozzolino v. State, 584 S.W.2d 765, 767 (Tenn. 1979), and challenges under Article I, § 16 of the Tennessee Constitution use the analysis and holdings of federal courts on the Eighth Amendment.
The United States Supreme Court has held that in determining whether a method of execution violates the Eighth Amendment prohibition against cruel and unusual punishment, a court shall examine (1) whether the method of execution comports with contemporary norms and standards of society; (2) offends the dignity of the person and society; (3) whether it inflicts unnecessary physical pain; and (4) whether it inflicts unnecessary psychological suffering. Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910).
As to whether a risk of suffering creates a constitutional violation, the United States Supreme Court in Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S. Ct. 374, 91 L. Ed. 422 (1947) (plurality opinion) held that a method of execution is viewed as cruel and unusual punishment under the federal constitution when the procedure for execution creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death. In addressing the constitutionality of a second attempt at an electrocution after the first attempt failed, the Court rejected the defendant's argument that subjecting him to a second electrocution constituted cruel and unusual punishment. The Court stated that the fact that an unforeseeable accident prevented the prompt consummation of the sentence did not add an element of cruelty to a subsequent execution. Id.
Finally, the United States Supreme Court has stated that the determination of whether a punishment violates the Eighth Amendment considers the evolving standards of decency that mark the progress of a maturing society. Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976). Evidence of legislative trends is particularly relevant when measuring evolving standards of decency. Penry v. Lynaugh, 492 U.S. 302,331, 109 S. Ct. 2934, 2953-54, 106 L. Ed. 2d 256 (1989). In Atkins v. Virginia, the Supreme Court held that executions of mentally retarded criminals were "cruel and unusual punishments" prohibited by the Eighth Amendment. 536 U.S. 304, 122 S. Ct. 2242 (2002). Significant in this decision was the review of recent trends of state legislatures prohibiting the use of the death penalty for mentally retarded criminals. These trends were found to be representative of "evolving standards of decency." Id. at 321.
Starting with an assessment of the factors established by the United States Supreme Court, the first being evidence of norms and standards, the Court finds the most compelling evidence to be Warden Bell's testimony that some 30 states use the same lethal injection method as Tennessee, including use of Pavulon. Tennessee copied other states in developing its method.
In opposition to Warden Bell's testimony was the plaintiff s expert Dr. Heath. He was critical of the Tennessee lethal injection method in its use of Pentothal, the physical separation of the executioner (who administers the drugs to the prisoner in another room with long tubing that run from the prisoner through a portal in the wall to a syringe held by the executioner), the absence of a physician in the execution chamber to assure intake of the Pentothal, and the failure to label the syringes with the names of the drugs — as deviations from standard anesthesiological practice.
Dr. Heath criticized the use of Pentothal, stating that he had not used it in the last five years. Its use, he stated, is mostly as an induction drug to prepare a patient for another anesthetic. Sodium pentobarbotol is more stable and is more commonly used. He also testified that the person administering the drugs should be in close physical proximity to assure proper intact and that a physician should attend the intact of drugs. He additionally asserted that it was unacceptable to color code the syringes or number them in the absence of labeling them with the drugs they contain.
Dr. Heath's testimony, when weighed against the proof that some 30 states use the same lethal injection method as Tennessee, did not persuade the Court that Tennessee's lethal injection method does not comport with standards and norms. While somewhat applicable, the surgical setting in which Dr. Heath's experience is from, is nevertheless distinguishable from an execution.
A paramount concern in an execution is security. The condemned has committed a violent act, and he is facing termination of life. Under these circumstances it is necessary to deviate from the surgical norm of physical proximity. It is necessary, for security reasons, to assure that the executioner is securely removed from the condemned. The separateness of the executioner and the syringes containing the lethal dosages, while it does decrease the executioner's ability to monitor intake of the Pentothal, is for good reason. To make up for the separateness of the executioner, the Tennessee lethal injection method has a TV monitor in the execution room, a camera above the gurney, and the warden is located in the execution room within a foot of the condemned's head. The warden has been trained on detecting problems such as crimping of the IV line, or failure of the injection to go into the vein. Simply stated, the standard for an operating room of physical proximity is not a completely accurate analogy.
The same is true with labeling. In a surgical setting, many drugs are present and available. Syringes must be labeled to distinguish them from other drugs in the area. Moreover the physicians administering the drugs are more familiar with chemical names than numbering or color coding. Chemical name labeling is an effective method in a surgical setting.
The holder of the syringes, the executioner, however, is not a doctor. Color coding and sequential numbering is as effective, if not more so, than chemical name labeling, for a nonphysician. Also unlike a surgical setting, no other drugs or syringes are present — only the fourteen necessary for the lethal injection.
The use of Pentothal in the execution process, as well, is different from a surgical setting. Dr. Heath testified that Pentothal is used currently as mostly an induction drug and not the dominant agent to render the patient unconscious. In surgery, however, maintaining viability is critical. That is not a concern in the execution. A large dose of Pentothal is applied in the Tennessee lethal injection method — five grams. The testimony from the experts was that a dosage in this amount in and of itself should result in death. Dr. Levy testified that in the case of the Coe execution the administration of the five grams of Pentothal was the cause of death.
Another difference between a surgical setting and an execution is that the Tennessee Medical Association has issued an opinion that physicians violate ethical standards if they participate in an execution. While the Tennessee Supreme Court has rejected that opinion, nevertheless there was testimony that there are individualized standards of ethics among physicians not to participate in an execution. Those individual ethical principles, as a practical matter, render it difficult if not impossible to find an individual physician who would consider it consistent with his professional ethical standards to monitor the induction of a lethal injection. Dr. Heath's requirement of a physician monitoring is an unlikely one.
In addition to Dr. Heath's testimony concerning norms and standards, the plaintiff used the testimony of Dr. Geiser, a professor of veterinary science at the University of Tennessee. He testified that in animal euthanasia it is significantly below the standard of acceptable practice to use an injection of Pavulon. The use of that drug in pet euthanasia is outlawed in Tennessee and a number of other states.
Dr. Geiser's testimony gives superficial expert support to the plaintiff's argument that if Pavulon is unacceptable for pet euthanasia it necessarily is unacceptable for euthanasia of human beings. But to substantively be able to use animal euthanasia as an analogy for a human execution, one has to know the reason why Pavulon was outlawed in pet euthanasia. Dr. Geiser provided some of that information. He testified that the medical problem with Pavulon in animal euthanasia is that Pavulon masks whether the animal is really unconscious or dead. What was not testified to but is clear from Tennessee's statutes on pet euthanasia is that animal euthanasia is carried out much more frequently in less regulated circumstances[fn2 ] than the termination of human life such that there is a need to outlaw the use of Pavulon in pet euthanasia. Thus, what the Court does conclude as to the outlawing of Pavulon in Tennessee in pet euthanasia is that it is not against the norm to use Pavulon in lethal injections but the use of Pavulon requires that the accused be sufficiently anesthetized prior to the injection of the Pavulon to assure unconsciousness.
The Court, therefore, finds that neither the testimony of Dr. Heath on anesthesiological standards nor Dr. Geiser's testimony on veterinary euthanasia outweighs the evidence that 30 some states use the Tennessee method. The Tennessee method comports with norms and standards.
Where the plaintiff's argument concerning the Tennessee statutory prohibition against the use of Pavulon in animal euthanasia is most compelling is in assessing, under the standard articulated by the United States Supreme Court, whether the method of execution offends the dignity of the person and society. As Dr. Geiser and Dr. Heath explained, the problem with Pavulon and why it was medically outlawed for use on pets is that it paralyzes all the muscles but not the brain, consciousness or nerves. Thus, 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.
Coupled with the testimony of the paralytic effect of Pavulon is that the State failed to provide any proof of the reason for its use in the lethal injection method. There was no testimony that the purpose of Pavulon in Tennessee's lethal injection method was to hasten death. The testimony was that Pavulon has no pain relieving properties. Simply stated, the record is devoid of any expert testimony on behalf of the State of Tennessee to explain why Pavulon is used.
From this void of proof and in conjunction with the proof on the effects of Pavulon, the plaintiff argues that the reason Pavulon is used by the State is to mask or put a chemical veil over what death by lethal injection really looks like. The Pavulon gives a false impression of serenity to viewers, making punishment by death more palatable and acceptable to society.
The plaintiffs chemical veil argument raises the age-old concern of a society conceived as colonists and schooled during maturing in the abuses of power by government. The chemical veil taps into every citizen's fear that the government manipulates the setting and gilds the lily, whether it be with reporting on the economy or election results, to orchestrate and manipulate public reaction.
The proof before this Court did not demonstrate that the State, in creating Tennessee's lethal injection method, included use of Pavulon to create a chemical veil. Instead, the proof demonstrated that, if anything, Pavulon was included by the State out of ignorance and by just copying what other states do. In preparing the lethal injection method used by Tennessee, the proof revealed that the State did not consult physicians or pharmacologists. The State "copy-catted," using what a majority of other states were doing, including the use of Pavulon. The Court, therefore, concludes that there was no showing of malice or an attempt to create a chemical veil in Tennessee's use of Pavulon.
But regardless of the State's ignorance and even if it did not intend to create a chemical veil, the fact that Pavulon has the property of creating a chemical veil raises the issue of whether there is offense to the dignity of the prisoner and the public. As will be discussed in more detail later in assessing whether the Tennessee lethal injection method inflicts unnecessary physical suffering and psychological suffering, the proof demonstrated that there is less than a remote chance that the condemned would ever be conscious by the time the Pavulon is administered. The chances of the Pavulon acting as a chemical veil and working a deception on the public are so much less than remote, that the Court concludes that its use does not offend the dignity of the prisoner or the public.
But the use of Pavulon is problematic because it is unnecessary. As stated above, the State failed to demonstrate any reason for its use. The record is devoid of proof that the Pavulon is needed. Thus, the Court concludes that, while not offensive in constitutional terms, the State's use of Pavulon is "gilding of the lily" or, stated in legal terms, arbitrary.
The final matter the Court must examine according to the factors set out by the United States Supreme Court is whether the method inflicts unnecessary physical pain and psychological suffering.
All of the experts testified that if the lethal injection method proceeds as planned it will not result in physical or psychological suffering: the five grams of Pentothal will render the prisoner unconscious or dead, Pavulon is injected and paralyzes the prisoner, and the sodium chloride stops the heart.
The focus of the dispute is whether there is a reasonable likelihood that the Pentothal will not take effect such that the prisoner feels the full affects of the Pavulon and the sodium chloride and, because of the Pavulon, it is unknown to those witnessing the execution that the prisoner is being subjected to such torture. Sodium chloride is extremely painful. Pavulon, as explained above, is psychologically horrific. There is no doubt, as established by the testimony of Ms. Weihrer, the patient who underwent an unsuccessful anesthesia administration, that failure of the anesthetic to block consciousness and allow the patient to experience the Pavulon is torturous.
The plaintiff attempted to establish that there is a reasonable risk under Tennessee's lethal injection method that the inmate will not be rendered unconscious by attacking the competency of almost every step of the procedure. Dr. Heath criticized the risks associated with Pentothal which, once in liquid form, has a short shelf life such that its potency could be compromised. The use of seven syringes, he testified, is a complex procedure which he has never done and is difficult on the executioner to maintain an aggressive push. The numerous contingencies on administering an IV — missing the vein, an extravenous injection, solution washing back into the IV bag — require a physician to monitor the intake of the Pentothal not just paramedics. The physical distance between the executioner, the person pushing the Pentothal syringe, and the inmate is a risky monitoring system. That there is no reason for the use of Pavulon, Dr. Heath testified, significantly increases the risk of suffering in the procedure. That the fall back procedure for inability to locate a vein is a cut down procedure instead of a percutaneous, more modern procedure, increases the risk of suffering. When all of these contingencies are considered and that the Tennessee method is, according to Dr. Heath "sloppy" and not state of the art, he opined that the procedure is reasonably likely to not render the prisoner unconscious before the injection of the painful drugs.
Dr. Heath's impressive education and practice credentials and his excellent explanations during his testimony made him a credible witness. But his testimony was not based on direct experience with an execution. His testimony was hypothetical and metaphysical.
In contrast was the testimony of Dr. Bruce Levy, the State Medical Examiner and the Medical Examiner for Davidson County, who performed the autopsy on prisoner Coe after he was executed in Tennessee by the same method proposed to be used on the plaintiff. Dr. Levy's autopsy is direct evidence of the effects of the Tennessee lethal injection method in question in this case.
The autopsy revealed that the level of Pentothal remaining in the body after prisoner Coe's execution was not only therapeutic, i.e. the prisoner lost consciousness before the effects of the Pavulon, but it was at a lethal level. The therapeutic, lethal level of Pentothal in the body following execution demonstrates that the potency of the Pentothal was in no way compromised and that there was no problem with the IV injection and intake. Dr. Levy testified that he observed that there were two "stick" points in the arm which indicated that the first time the IV was attempted on prisoner Coe another site had to be obtained. Despite that a second attempt had to be made to put in the IV, the procedure was nevertheless completed effectively. This proof of the two sticks demonstrates the ability of the IV team to effectively complete the process when encountering difficulty. The results of the Coe autopsy, direct evidence of the effects of Tennessee's lethal injection method, carry great weight with the Court.
Like Dr. Levy, Warden Bell also provided direct testimony of the effects of the Pentothal based on his presence in the execution chamber during the Coe execution. Warden Bell testified that shortly after the Pentothal was pushed through the IV to prisoner Coe, the prisoner said something along the lines that he "was gone" and then the prisoner was unconscious.
In contrast to the State's direct evidence of the effects of the Tennessee lethal injection method, Dr. Heath's only testimony in that regard was his viewing of the Timothy McVeigh execution. Dr. Heath testified that he thought he saw tearing by prisoner McVeigh. Dr. Heath testified that this would have indicated that the prisoner was not unconscious and was feeling the effects of the painful drug injection. Significantly, however, Dr. Heath did not present to the Court any autopsy reports supportive of his theory about the McVeigh execution or autopsy reports from any other executions to demonstrate that the initial drug was ineffective in rendering the prisoner unconscious.
Also counterpoised against Dr. Heath's testimony of the deficiencies of Tennessee's lethal injection method was the testimony of Warden Bell of the precautions taken and training engaged in to minimize error. Warden Bell testified that he does not mix the Pentothal to a liquid form until the time of the execution. To lower any risks with the Pentothal, Warden Bell has a kit which is provided by the medical supplier where the Pentothal comes in powder form and contains an expiration date. Warden Bell trains regularly on preparing the Pentothal. Warden Bell also testified that he is the one who is in charge of the execution process. He signals when the injection is to begin and if there is a problem he decides what to do. Warden Bell is located one foot from the head of the prisoner. Warden Bell testified that once a month he and other persons are trained on the execution process including insertion of an IV catheter.
As to the risk posed by use of paramedics in the IV process, the Court credits Dr. Levy's testimony that it is reasonable in his expert opinion to assume that paramedics would not have any trouble inserting an IV considering their training and that they are required to do so under all kinds of emergency situations.
The Court also credits Dr. Levy's testimony that a cut down procedure to find a vein if the IV fails, while not as state of the art as a percutaneous procedure, is nevertheless an acceptable back-up procedure to use to obtain an injection site. The Court further credits Dr. Levy's testimony that it is a simple procedure which physicians are taught in medical school, and does not pose an unreasonable excessive risk.
The Court therefore concludes that the proof demonstrated that there is less than a remote chance that the prisoner will be subjected to unnecessary physical pain or psychological suffering under Tennessee's lethal injection method. That proof is not sufficient to demonstrate that the punishment is unconstitutional. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S. Ct. 374, 91 L. Ed. 422 (1947).
It is therefore ORDERED, pursuant to Tennessee Code Annotated section 4-5-225, which authorizes the Chancery Court of Davidson County to pass on the legal validity of a statute as administered by an administrative agency of the State, that the application by the Tennessee Department of Correction of lethal injection pursuant to Tennessee Code Annotated section 40-23-114 does not violate the United States Constitution or the Tennessee Constitution. Accordingly, the plaintiff's petition is dismissed with prejudice.
Consistent with the rules of chancery court that all orders to be final must tax costs, and consistent with the rule that the nonprevailing party bears the costs, the Court taxes costs to the plaintiff.
______________________________ ELLEN HOBBS LYLE CHANCELLOR
cc. Bradley MacLean William Redick, Jr. Stephanie Reevers
AFFIDAVIT OF JAMES J. RAMSEY
County of Davidson ) ) State of Tennessee )
I. My name is James J. Ramsey. I presently reside at 466 Rodney Street, Gallatin, Tennessee 37066.
II. I am a Licensed Clinical Perfusionist (LCP). Perfusionists perform and monitor the initiation, maintenance, and discontinuation of cardiopulmonary bypass (CPB) and other circulatory support technologies, commonly referred to as 'heart-lung' bypass procedures. I have been so certified (now licensed in the State of Tennessee pursuant to T.C.A. Section 63-28-101 et seq.) and practicing Perfusion Care since my graduation from Vanderbilt's Program in 1984, and to date have participated in approximately five thousand (5000) clinical applications of heart-lung machine and other circulatory support technologies.
III. I am currently employed by the Department of Cardiac and Thoracic Surgery, School of Medicine, Vanderbilt University Medical Center, Nashville, Tennessee. My position is that of Program Director for the post-graduate Allied Health Program in Cardiovascular Perfusion Technology. I have held that position for the past nine (9) years, and previously held that position from 1986 — 1989.
IV. I am an attorney, licensed to practice and currently practicing in the State of Tennessee. My BPR # is 16263.
V. Regarding my clinical practice during CPB, one of the clinical functions (and statutory duties) of the LCP is that of '. . . . myocardial and (other) organ preservation', which in simple terms as related to CPB involves the application of appliance technologies directed at the arrest of (stopping the beating of) the human and animal heart, preserving its function during the arrest period so as to enable it to function adequately following the arrest interval, modifying the re-perfusion of the arrested heart, and re-establishment of the function of the heart to a beating, working state. As a licensed perfusionist, I am also certified to undertake physiologic monitoring and analysis, as well as blood gas and chemistry monitoring and analysis. For nearly all of the clinical cases I have performed, it has been my duty to arrest the electromechanical function of the heart through a variety of means. For purposes of this affidavit, I will address only the actual electrical arrest of the beating human or animal heart.
VI. Attorneys for Philip Workman have asked me to review the New Lethal Injection Protocol adopted by the State of Tennessee on April 30, 2007. I have previously reviewed the older versions of the Tennessee Lethal Injection Protocols as well as documents which the State of Tennessee has provided in discovery. I have reviewed the new April 30, 2007 protocol and reach the following conclusions.
VII. As a preface, it is my professional opinion, based upon my knowledge, training, and experience in the field of Perfusion Care and especially in the area of myocardial arrest, and my review of the Tennessee execution protocol, that the potassium component of the lethal injection protocols currently used by the State of Tennessee (100 mg/mL of a 2mEq/ml concentrate) (sic) is wholly ineffective in causing electrical arrest of the human heart. Furthermore it is a pathophysiological impossibility, based upon well-established and accepted mathematical equations, for the heart to succumb to electrical arrest due to the potassium component of the lethal injection protocol. The loss of function of the heart, if and when it does arrest during lethal injection, is entirely due to suffocation and lack of oxygen delivery, and not electrical arrest due to potassium injection. I hold this opinion within a reasonable degree of scientific certainty.
Potassium concentrations are scientifically measured in units of mEq/L.
VIII. The chemical compositions of extracellular and intracellular fluids are described in Exhibit #1. Based upon the relative concentrations of especially sodium (Na+), calcium (Ca++), and potassium (K+) ions inside and outside the cell, the 'resting membrane potential' of any living cell (and especially cells of 'excitable' tissue — nerves and muscles) is described by the Nernst Equation (see Exhibit #2).
IX. This electrical voltage of an excitable cell is commonly referred to as the 'action potential' for excitable cells, and is based upon the fact that at some point (generally due to some kind of electrical or other stimulus) the action potential of excitable tissues and cells can change, resulting in an alteration of the electrical potential. This alteration causes an action (in nerves, conduction of an electrical impulse, or in muscles, a contraction of the muscle fibers).
X. Application of the Nernst Equation may result in calculations for the various action potentials attributable to sodium, potassium, and calcium (see Exhibit #3 and #4). However, the Nernst Equation does not take into account the fact that the cell membranes of excitable tissue exhibit properties of varying states of permeability, relative to their structure and function. Permeability to ions results in a dynamic component regarding the action potential and its calculation.
XI. Further inquiry must include calculations that take into account the resting ionic permeability for sodium, potassium, and calcium regarding excitable cells, in order to accurately calculate the action potential of excitable cells. The Goldman-Hodgkin-Katz Equation describes the calculation of action potential for excitable cells, inclusive of the factor referred to above as resting ionic permeability (see Exhibit #5).
XII. A calculated action potential of-86 mV is derived from that formula (see Exhibit #6 and #7).
XIII. However, the inquiry is not yet complete, because there is a phenomenon referred to as the 'sodium-potassium pump' that is present in the cell membranes of excitable cells (see Exhibit #8). The sodium-potassium pump is an active-transport mechanism (not a passive mechanism) that causes the continuous pumping of sodium and potassium in and out of the cell in order to establish and maintain the action potential. The net effect of the sodium-potassium pump, from an electrical perspective, results in a loss of positive charges from inside the cell, creating an additional negativity (-4 mV) across the cell membrane.
XIV. By adding the-4mV attributable to the sodium-potassium pump to the-86 mV action potential as calculated by the Goldman-Hodgkin-Katz Equation, a net action potential of-90mV is determined. This is in fact the physiological action potential for excitable cells (see Exhibits #9 and #10).
XV. Excitable cells in that resting state of-90 mV action potential are said to be 'polarized', that is, they are not in an electrically neutral state. In fact, the reason for the polarized condition is as previously stated: the cells being excitable, they are subject to and capable of causing an action of some kind (nerve impulse or muscle contraction).
XVI. Polarized cells are said to be in a resting state; that is, there is no action occurring as long as the action potential remains at-90 mV.
XVII. Excitable cells that undergo a change in action potential may become depolarized; that is, the action (resting) potential of the cell changes due to a stimulus, with the net electrical effect being that the-90mV potential is increased (becomes less negative). At the point that that the potential reaches the level of-65mV, the cell becomes depolarized. At this point, the characteristics of the cell membrane undergo radical changes of permeability, with sodium rushing into the cell through what are called sodium channels, and later potassium leaving the cell through a similar mechanism.
XVIII. The important point here is that these changes result in dramatic changes in electrical status, and as demonstrated in Exhibit #11 and #12, an electrical action occurs (change in cell polarization from negative to positive). Soon afterwards (milliseconds in time) the cell membrane potential is caused to become negative again, based upon among other things the active transport mechanisms associated with the cell membrane, and following the 'action' of the cell, it again reaches a resting state, with its resting potential now found to be-90mV (just as before its action or stimulus).
XIX. The same mechanism occurs in myocardial cells, as described in Exhibit #12, with several important differences. In the case of myocardial cells ('Cardiac Muscle'), the depolarization of the cells results in a muscle contraction rather than an electrical impulse (nerves). Secondly, calcium ions play a major role in the process, as calcium is an important contributor to the actual 'shortening' of the muscle fibers, characteristic of muscle contraction. Following the depolarization of myocardial cells, a re-polarization occurs, with the cell again returning to its resting state.
XX. The question becomes-if we are to stop this process from occurring (arresting the heart so that the cells do not depolarize and therefore the myocardial fibers do not contract), how are we to accomplish this?
XXI. Based upon the science as previously described, there are two means of accomplishing this: (1) remove sodium from the extracellular space so that it cannot rush into the cell and depolarize it; or (2) alter the membrane potential to prevent the opening of the sodium channels, thereby preventing sodium from rushing into the cell causing depolarization.
XXII. Based upon the very high extracellular concentration of sodium (see Exhibit #1), it would be impractical to remove enough sodium so as to prevent depolarization as described in method #1 above.
XXIII. It is possible, however, to alter the membrane potential of excitable (myocardial)cells so as to prevent the opening of the sodium channels, thereby preventing sodium from rushing into the cells causing depolarization (in effect, stopping the beating and squeezing of the heart).
XXIV. In order to do that, it is possible to add enough potassium to the extracellular fluid space so that the action potential of-65mV as previously described is no longer a factor, and that the resting potential of the cell (previously-90mV) is raised (made more positive) such that the sodium channels never open, and a state of depolarization never occurs.
XXV. By applying the Goldman-Hodgkin-Katz Equation and solving for a potassium solution that would raise the resting potential of the myocardial cell from-90mV to-56 mV (taking into account the target of-60 mV and accounting for the-4mV attributable to the sodium-potassium pump), we find that the minimum effective extracellular potassium concentration necessary to prevent the opening of sodium channels in the cell membrane as previously described is 16.4 mEq/L. (See Exhibit #13).
XXVI. It should be noted, per Exhibit #1, that the normal extracellular potassium concentration is in the range of 4 mEq/L.
XXVII. When the extracellular potassium concentration is 16.4 mEq/L or greater, the sodium channels will not open, there will be no net effective change in membrane potential, and no action potential or change of electrical status as previously described will occur. The net result: the myocardial muscle fibers will not shorten, and the heart will not beat.
XXVIII. In the operating room, the common method for infusing potassium-rich solutions into the heart so as to cause the heart to cease function is as follows:
a. High potassium solutions (20 mEq/L) are administered directly into the coronary arteries, both in a forward direction (antegrade) and in a backward direction (retrograde). This methodology insures that all segments of myocardial tissue (regardless of native supply being disrupted due to atherosclerotic disease) are exposed to the high potassium solutions.
b. High potassium solutions are delivered in both directions as well because often times patients have insufficiency of the aortic valve, which results in the inability of the antegrade delivery method to adequately perfuse myocardial tissues through the coronaries (the flow that would otherwise go through the coronaries is redirected into the left ventricle in that case).
c. High potassium solution is delivered in a profoundly hypothermic state; that is, at approximately 5-7 degrees Celsius (or nearly freezing, as opposed to normal body temperature of 37 degrees Celsius). The net effect of hypothermic delivery is an enhanced state of cellular arrest (see the temperature component as stated in the previous formulae).
d. High potassium solution is delivered at precise pressures, as measured both at the site of delivery, and at the appliance delivering the device ('back-pressure'), to insure adequate and effective delivery, and in the case of the operating room, adequate electrical arrest of the heart in order to preserve its function.
XXVIX. In spite of these extensive and precise efforts, it is in my experience still difficult to achieve adequate arrest of the heart for surgical purposes in some cases.
XXX. The lethal injection process as described in the discovery documents reviewed does not describe a precise or extensive effort to deliver the potassium solution to the heart-rather, they describe a crude and imprecise method of delivery through IV injection, with the profoundly inaccurate expectation that potassium solution in high concentrations would reach the coronary arteries and effect an arrest. One of the main contributing factors to low potassium concentration solutions reaching the heart would be that, given an intravenous injection, the solution would necessarily have to pass through the lungs (which have the surface area of approximately that of a tennis court), during which potassium concentrations would fall dramatically.
XXXI. Additionally, discovery documents (from State of Tennessee) describe that the amount and concentration of potassium delivered cannot result in the minimum potassium concentration of 16.4 mEq/L being achieved that is required to arrest the electromechanical function of the heart. The resultant potassium concentrations as described in the Vitreous Electrolyte Panel and Profile Results for inmate Robert Glen Coe, for example, following lethal injection indicate an extracellular potassium concentration of 9 mEq/L, far short of the required minimum concentration of 16.4 mEq/L to cause electromechanical arrest of the heart.
XXXII. It should be noted that given the very high intracellular potassium concentration (per Exhibit #1), and the fact that postmortem cells would, if anything, leak potassium into the extracellular space, the postmortem potassium concentration is in all likelihood higher than it was a the time following injection.
XXXIII. In my professional opinion, and based upon my knowledge, training, and experience in the field of Perfusion Care and arrest of the heart's function, and following review of the disclosures by the State of Tennessee previously described, it is a pathophysiological impossibility, based upon well-established and accepted mathematical equasions, for the heart to succumb to electromechanical arrest due to the potassium component of the lethal injection protocol. The function of the heart, if and when it does arrest during lethal injection, is entirely due to suffocation and lack of oxygen delivery, and not electromechanical arrest due to potassium injection. I hold this opinion within a reasonable degree of scientific certainty.
I affirm or swear under the penalty of perjury that the foregoing is true and correct to the best of my knowledge
Subscribed and sworn before me this day of May, 2007.
Notary Public, State of Tennessee
My Commission Expires: 9/25/10.
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7
Exhibit 8
Exhibit 9
Exhibit 10
Exhibit 11
Exhibit 12
Exhibit 13
Executed man takes 34 minutes to die Early edition
CHRIS TISCH and CURTIS KRUEGER
Published December 13, 2006
STARKE — A death row inmate who had argued that Florida's execution procedures were cruel hung on for much longer than usual after his lethal injection Wednesday evening, once again calling into question the way the state kills condemned prisoners.
Angel Diaz winced, his body shuddered and he remained alive for 34 minutes, nearly three times as long as the last two executions.
Department of Corrections officials said they had to take the rare step of giving Diaz a second dose of drugs to kill him.
A second dose is part of their protocol and was anticipated in this case because Diaz had liver disease, which they said can slow the time it takes the drugs to metabolize, they said.
But capital defense lawyers said Diaz's execution was so unusual that it could once again upend executions in Florida.
"Obviously there was something very wrong here," said Neal Dupree, supervisor of the capital collateral regional counsel office for South Florida, which represented Diaz in his appeals.
Dupree, who sat in the front row while Diaz was executed, said the procedure appeared botched, particularly when Diaz squinted his eyes and tightened his jaw as if in pain.
Twenty-six minutes into the procedure, Diaz's body suddenly jolted.
"It looked like Mr. Diaz was in a lot of pain," Dupree said. "He was gasping for air for 11 minutes. This is a big deal. This is a problem."
Corrections officials acknowledged that 34 minutes was an unusually long time but said no records are kept that would tell if it's the longest ever in state history.
They were not sure how many other times a second dose was needed.
Gretl Plessinger, a DOC spokeswoman, said it's unknown at what times the first and second doses were given because those records are not kept.
Diaz began snoring after the first dose was given and never regained consciousness, she said.
The execution team called for the second dose after noticing on heart monitors that Diaz was not dying, she said.
Diaz's cousin Maria Otero said the family had no knowledge of any liver disease. She said the execution was political.
"Who came down to earth and gave you the right to kill somebody?" Otero said, referring to Gov. Jeb Bush. "Why a stupid second dose?"
Florida voluntarily began using lethal injection in 2000 after a number of gruesome executions in the electric chair put electrocutions at risk of being declared unconstitutionally cruel and unusual punishment.
But capital defense lawyers have said lethal injection, which in Florida and most states is given with a three-drug cocktail, has its own cruelty problems. They cite a recent study that shows a painkiller administered first wears off before the third and fatal drug kills the person. That third drug can cause excruciating pain, the study said, but no one would know because the second drug in the cocktail paralyzes the person.
Martin McClain, an attorney who has represented more than 100 death row inmates, said authorities should conduct a complete investigation to get to the bottom of what went wrong with Diaz's execution.
McClain said the state should have disclosed any liver problems in advance and explained its plans for dealing with them. This scenario makes McClain wonder if Diaz was given the pain-inducing drug potassium chloride before the anesthetic started working.
He said he's concerned that this could have caused the kind of pain in Diaz that constitutes "cruel and unusual punishment," outlawed by the U.S. Constitution.
Lethal injection had been a subject of legal challenges, including one to the U.S. Supreme Court, which put executions in Florida on hold for much of this year. But once those legal maneuvers failed, Gov. Jeb Bush began signing death warrants.
Diaz, 55, was the fourth person to be executed this year, the most the state has put to death since six were executed in 2000.
Diaz was condemned for the 1979 shooting death of Joseph Nagy, a topless bar manager in Miami. Nagy was killed during a robbery by three men. The case was unsolved for four years before a girlfriend of Diaz's called police to say he was involved.
Diaz had been sentenced to life in prison in Puerto Rico for another murder but escaped and came to the United States. He also escaped from a prison in Connecticut and tried to arrange an escape from jail in Miami.
Though no one witnessed Diaz pull the trigger, a jury convicted him of Nagy's murder and sentenced him to death by an 8-4 vote.
His defense lawyers vigorously challenged his conviction and death sentence, especially after the jailhouse snitch recanted his testimony. But courts let the death sentence stand.
Diaz clung to his innocence in his final statement.
"The state of Florida is killing an innocent person," Diaz said in Spanish. "The state of Florida is committing a crime because I am innocent. The death penalty is a form of vengeance but also a cowardly act by humans. I am sorry for what is happening to me and my family who have been put through this."
Second dose needed to kill inmate
CHRIS TISCH and CURTIS KRUEGER
Published December 14, 2006
STARKE — A death row inmate who argued that Florida's execution procedures were cruel punishment needed 34 minutes and two drug doses to die by lethal injection Wednesday evening.
The scene of a grimacing Angel Diaz once again called into question the way the state kills condemned prisoners. Diaz winced, his body shuddered and he remained alive nearly three times as long as the state's two most recent executions.
Department of Corrections officials said they had to take the rare step of giving Diaz a second dose of drugs to kill him. A second dose is part of their protocol and was anticipated because Diaz had liver disease, which they said can slow the time it takes the drugs to metabolize.
But defense lawyers said Diaz's execution was so unusual it could once again disrupt executions in Florida.
"Obviously there was something very wrong here," said Neal Dupree, supervisor of the Capital Collateral Regional Counsel office for South Florida, which represented Diaz in his appeals.
Dupree, who sat in the front row while Diaz was executed, said the procedure appeared botched, particularly when Diaz squinted his eyes and tightened his jaw as if in pain. Twenty-six minutes into the procedure, Diaz's body suddenly jolted.
"It looked like Mr. Diaz was in a lot of pain," Dupree said. "He was gasping for air for 11 minutes. This is a big deal. This is a problem."
Corrections officials acknowledged that 34 minutes was an unusually long time but said no records are kept that would tell if it's the longest in state history. They said they were not sure how many times a second dose has been needed.
Gretl Plessinger, a Department of Corrections spokeswoman, said it's unknown at what times the first and second doses were given because those records are not kept.
The execution team called for the second dose after noticing on heart monitors that Diaz was not dying, she said.
Diaz's cousin Maria Otero said the family had no knowledge of any liver disease.
"Who came down to Earth and gave you the right to kill somebody?" Otero said, referring to Gov. Jeb Bush. "Why a stupid second dose?"
Bush said in a written statement that the Department of Corrections followed all protocols.
"As announced earlier this evening by the department, a preexisting medical condition of the inmate was the reason tonight's procedure took longer than recent procedures carried out this year," the statement said.
Florida voluntarily began using lethal injection in 2000 after a number of gruesome executions in the electric chair put electrocutions at risk of being declared unconstitutionally cruel and unusual punishment.
But capital defense lawyers have contended that lethal injection, which in Florida and most states is given with a three-drug cocktail, has its own cruelty problems.
They cite a recent study that suggests a painkiller administered first wears off before the third and fatal drug kills the person. That third drug can cause excruciating pain, the study said, but no one would know because the second drug in the cocktail paralyzes the person.
Earlier this year, executions in Florida were halted while the Supreme Court considered the case of Clarence Hill, condemned for the 1982 shooting death of a Pensacola police officer. Hill's lawyers argued that lethal injection was cruel and unusual, but the court's ultimately rejected his argument and Hill was executed this fall.
Martin McClain, a lawyer who has represented more than 100 death row inmates, called for an investigation into Diaz's execution.
McClain said the state should have disclosed any liver problems in advance and explained its plans for dealing with them.
McClain said he questions if Diaz was given the pain-inducing drug potassium chloride before the anesthetic started working.
Lethal injection had been a subject of legal challenges, including one to the U.S. Supreme Court, which put executions in Florida on hold for much of this year. When those legal maneuvers failed, Gov. Bush began signing death warrants.
Diaz, 55, was the fourth person to be executed this year, the most the state has put to death since six were executed in 2000.
Diaz was condemned for the 1979 shooting death of Joseph Nagy, a topless bar manager in Miami. Nagy was killed during a robbery by three men. The case was unsolved for four years before a girlfriend of Diaz's called police to say he was involved.
Diaz had been sentenced to life in prison in Puerto Rico for another murder but escaped and came to the United States. He also escaped from a prison in Connecticut and tried to arrange an escape from jail in Miami.
Though no one witnessed Diaz pull the trigger, a jury convicted him of Nagy's murder and sentenced him to death.
His defense lawyers challenged his conviction and death sentence, especially after a jailhouse snitch who said Diaz confessed to him recanted his testimony. But courts let the death sentence stand.
Time line Diaz's death
What happened in the execution chamber as Angel Diaz was put to death Wednesday night:
6:00 p.m.: The curtain opens. Angel Diaz gives a short last statement claiming he is innocent.
6:02: Diaz begins grimacing and seems to speak, though a microphone is off and none of the witnesses can hear him.
6:06: Diaz squints his eyes and juts his chin as if in pain. He continues this for several minutes.
6:12: Diaz's head slips to the right. He coughs several times and appears to shudder.
6:15: His mouth has appeared to widen and his breathing is deep.
6:18: A member of the execution team hands a phone to another member of the team. What they say on the phone is not revealed. Diaz's mouth and chin move as he breathes deeply.
6:24: Diaz's mouth and chin slowly stop moving. His eyes appear fixed.
6:26: His body suddenly jolts. His eyes appear to be opening more widely. Again, a member of the execution team gets on the phone.
6:34: A doctor wearing a blue hood that covers his face enters the execution chamber and checks Diaz's vital signs. The doctor returns a minute later, checks the vital signs again and nods to a member of the execution team.
6:36: A member of the execution team announces that the sentence of Angel Diaz has been carried out. The curtain closes.
Past controversies
May 4, 1990: Smoke, sparks and flames shoot from behind his mask as Jessie Tafero is executed in the electric chair. A synthetic sponge used to conduct electricity into the brain caught fire.
March 25, 1997: Pedro Medina's head catches fire as he is electrocuted. The leather skullcap burned because copper wiring inside it had not been cleaned.
July 8, 1999: Blood appears on the face and shirt front of 344-pound Allen Lee Davis, for whom a larger electric chair was specially built. Photos later show Davis bleeding from the nose and grimacing.
June 8, 2000: The lethal injection of Bennie Demps is delayed 33 minutes while technicians cut his groin and leg searching for a second injection spot. In his final statement he says, "They butchered me back there."
The Governor's Commission on Administration of Lethal Injection
John W. "Bill" Jennings Representative Dennis Ross Senator Victor Crist Harry K. Singletary Rodney Doss, Harley Dr. Peter Springer Lappin Honorable Stan Morris Carolyn Snurkowski Dr. Steve Morris Dr. David Varlotta
Final Report With Findings and Recommendations Presented to the Honorable Charlie Crist Governor of Florida March 1, 2007 TABLE OF CONTENTS
Introduction . . . . . . . . . . . . . . . . . 2 The Commission's Meetings. . . . . . . . . . . 3 Areas of Inquiry. . . . . . . . . . . . . . . 5 Legal Overview. . . . . . . . . . . . . . . . 6 Findings and Recommendations. . . . . . . . . 8 Findings . . . . . . . . . . . . . . . . . . . 8 Recommendations . . . . . . . . . . . . . . . 9 Chairman's Closing Comments . . . . . . . . . 14 Appendix A . . . . . . . . . . . . . . . . . 15 Appendix B . . . . . . . . . . . . . . . . . 16INTRODUCTION
On December 13, 2006, the execution of Angel Diaz created concerns whether Florida's lethal injection protocols were being adequately implemented by the Florida Department of Corrections. The amount of time required to effectuate death, eyewitness accounts of the execution and the preliminary autopsy findings prepared by William Hamilton, M.D., the Chief Medical Examiner for the Eighth Circuit, called into question the adequacy of the lethal injection protocols and the Department of Corrections' ability to implement them in a manner consistent with the Eighth Amendment to the United States Constitution.As a result, then Governor Jeb Bush issued Executive Order 06-260 on December 15, 2006, which created the Governor's Commission on Administration of Lethal Injection to "review the method in which the lethal injection protocols are administered by the Department of Corrections and to make findings and recommendations as to how administration of the procedures and protocols can be revised". The Commission's purpose and mission was limited to evaluating these protocols and not the "policy decisions of the Legislature in enacting a death penalty or the means chosen by the Legislature for implementing the state's death penalty." While limited to evaluating Florida's lethal injection procedures and protocols, the Commission was given broad authority to re-evaluate the lethal injection process including "enforcement of those procedures and protocols."
Chapter 922 is the only legislative expression of Florida's method of execution which, under section 922.105, Florida Statutes (2006), calls for executions to be by either electrocution or lethal injection. Chapter 922 does not delineate with any detail how Florida's death penalty by lethal injection is to be implemented. The promulgation of procedures and protocols for implementing the death penalty by lethal injection was left to the discretion of the Department of Corrections.
Once this Commission was fully comprised by the current Governor, the commissioners set out to fully investigate Florida's method of execution consistent with the mandate of the Executive Order.
THE COMMISSION'S MEETINGS
The Commission met eight times in a manner that was open, transparent and conducive to citizen input on this vital issue consistent with Article I, Section 24(b) of the Florida Constitution and Florida's "Sunshine Act" under Chapter 286 of the Florida Statutes. The Commission first convened on January 29, 2007, and met subsequently on February 5th, 9th, 12th, 19th 24th,, 25th, and 28th. During these meetings, numerous witnesses testified before the Commission, pages of documentary evidence were received and public comments, both oral and written, were given. An account of the evidence received by the Commission follows.
January 29 th, 2007
The Commission heard testimony from the Following witnesses:
Neal Dupree: The Capital Collateral Regional Counsel for the Southern Region of Florida and attorney for Angel Diaz.
Randall Bryant: Warden of the Florida State Prison.
Randall Polk: Assistant Warden of the Florida State Prison.
William F. Mathews, P.A.: A physician's assistant employed by the Florida Department of Corrections.
February 5 th, 2007
The Commission heard testimony from the following witness:
Denise Clark, D.O.: an osteopathic physician trained in vein therapy.
February 9 th, 2007
The Commission heard testimony from the following witnesses:
Timothy J. Westveer: Inspector with the Office of Executive Investigations, Internal Affairs Unit, for the Florida Department of Law Enforcement.
Nikolaus Gravenstein, M.D.: An anesthesiologist and professor at the University of Florida.
Primary Executioner: Anonymous testimony from the primary executioner employed by the Florida Department of Corrections.
A Medically Qualified Member of the Execution Team: Anonymous testimony from a medically qualified member of the execution team.
The Commission also received comments from the public:
Carol Weihrer
Gavin Lee
Mark Elliot
Sol OteroFebruary 12 th, 2007
The Commission heard testimony from the following witnesses:
Brenda Whitehead: A correctional specialist employed by the Florida Department of Corrections who witnessed the execution of Angel Diaz.
Bruce A. Goldberger, Ph.D, D.A.B.F.T.: A forensic toxicologist employed at the University of Florida who conducted a blood analysis on samples taken from Angel Diaz.
Mark Heath, M.D.: An anesthesiologist employed by Columbia University.
William F. Hamilton, M.D.: The Medical Examiner for the Eighth District of Florida who performed the autopsy on Angel Diaz.
February 19 th, 2007
The Commission heard testimony from the following witnesses:
Mark Dershwitz, M.D., Ph.D.: An anesthesiologist with a Ph.D. in Pharmacology with the Department of Anesthesiology at the University of Massachusetts.
George B. Sapp: Assistant Secretary for Institutions for the Florida Department of Corrections.
James R. McDonough: Secretary of the Florida Department of Corrections.
A Medically Qualified Member of the Execution Team: Anonymous testimony from a medically qualified member of the execution team.
Bonita Sorenson, M.D.: An employee of the Florida Department of Health and a member of the December 15, 2006, Department of Corrections' Task Force.
Maximillian J. Changus: Attorney supervisor in the Office of General Counsel for the Florida Department of Corrections and member of the December 15, 2006, Department of Corrections' Task Force.
The Commission also received comments from the public:
Mary Berglund
February 24 th, 2007
The Commission conducted a workshop session concerning this report.
February 25 th, 2007
The Commission conducted a workshop session concerning this report.
February 28 th, 2007
The Commission met telephonically by means of a conference call and conducted a workshop session concerning this report. As a result of this meeting, the final draft of this report was written and approved.
AREAS OF INQUIRY
Much of the Commission's work focused on the execution of Angel Diaz on December 13, 2006. This was aided by the Summary of Findings of the Department of Corrections' Task Force Regarding the December 13, 2006, Execution of Angel Diaz which was submitted on December 20, 2006, to James R. McDonough, Secretary of the Florida Department of Corrections. In summary, the task force report offered adequate details surrounding the execution of Angel Diaz, finding that several protocols were not followed that day.
The Commission built on this foundation by calling several individuals of the execution team from the Department of Corrections responsible for carrying out the lethal injection protocols during the execution of Angel Diaz. This proved to be a difficult task, complicated by the executioners' desire for anonymity under Florida Statues and a number of medical personnel requests to maintain their anonymity. The task was also complicated because the Commission lacked the ability to subpoena witnesses.
Further restraints were placed on the Commission by the very nature of the lethal injection procedure itself. The use of medical personnel in capital punishment presents a profound dilemma. Every medical organization that has commented has taken a similar position. Medical personnel are prohibited from participating in executions and rendering technical advice. This prohibition hindered the Commission's ability to gather information. Many members of the medical profession were reluctant to appear in front of the Commission and were likewise reluctant to testify in the context of lethal injection. The Commission was also concerned that this prohibition may limit the best advice, the latest technology and the most capable individuals to enact lethal injection. This issue also limited the medical members of the Commission from offering advice or recommending suggestions during this process. Although the execution by lethal injection process is not a medical procedure; the process does require some qualified medical personnel to successfully accomplish a humane and lawful execution.
Both medical and legal ethics regulating each profession limited inquiry of those commissioners affiliated with either profession. These Commission members appreciate the other Commissioners' understanding of these ethical issues.
Despite the above issues, the Commission was able to convene in a manner that was collegial, deliberate and dedicated to the mandate bestowed upon it by the Governor. As a result, the Commission is proposing several findings and recommendations to be considered by those who create policy and those charged with its implementation.
LEGAL OVERVIEW
Lethal injection is currently the method of execution used by 37 of the 38 capital punishment states. The Florida Supreme Court, like other State and federal courts, has regularly rejected arguments that lethal injection as a method of execution is cruel and unusual. Sims v. State, 754 So. 2d 657 (Fla. 2000); Rolling v. State, 944 So. 2d 176, 179 (Fla. 2006); Rutherford v. State, 926 So. 2d 1100, 1113-14 (Fla. 2006); Hill v. State, 921 So. 2d 579, 582-83 (Fla. 2006); Diaz v. State, 945 So. 2d 1136 (Fla. 2006). No court thus far has held that lethal injection is cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. The courts and legal articles acknowledge that humane concerns formed a large part of the motivation in adopting lethal injection as the presumptive method of execution in most states, and it has been observed that "with lethal injection, we know exactly what the person is going through because it's exactly what someone undergoing surgery experiences." Jonathan S. Abernethy, The Methodology of Death: Re-examining the Deterrence Rationale, 27 Colum. Hum. Rts. L. Rev. 379, 414 (1996).
The lethal injection procedure used by most states, originated in Oklahoma when Senator Bill Dawson asked Dr. Stanley Deutsch, then chair of the Anesthesiology Department at Oklahoma University Medical School, to recommend a method for executing prisoners through the administration of intravenous drugs. In a responsive letter, Dr. Deutsch recommended the administration of an "ultra short acting barbiturate" to induce unconsciousness, followed by the administration of a neuromuscular blocking drug to induce paralysis and death. See Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of Electrocution and Lethal Injection and What It Says About Us, 63 Ohio St. L.J. 63, 95-97 (2002). Shortly thereafter, in 1977, Oklahoma became the first state to adopt lethal injection as an execution method, employing the protocol described in Dr. Deutsch's letter. See Rebecca Brannan, Sentence and Punishment: Change Method of Executing Individuals Convicted of Capital Crimes from Electrocution to Lethal Injection, 17 Ga. St. U. L. Rev. 116, 121 (2000). The first lethal injection execution occurred in Texas in 1982. Christina Michalos, Medical Ethics and the Execution Process in the United States of America, 16 Med. L. 125, 126 (1997).
The Eighth Amendment prohibits punishments that are "incompatible with 'the evolving standards of decency that mark the progress of a maturing society.'" Estelle v. Gamble, 429 U.S. 97, 102, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958) (plurality opinion)). In the context of executions, the Eighth Amendment prohibits punishments that "involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976), "involve torture or a lingering death," In re Kemmler, 136 U.S. 436, 447, 34 L. Ed. 519, 10 S. Ct. 930 (1890), or do not accord with "the dignity of man, which is the basic concept underlying the Eighth Amendment," Gregg, 428 U.S. at 173 (internal quotation marks and citation omitted). The Ninth Circuit, for example, has held that execution by hanging under the State of Washington's protocols did not constitute cruel and unusual punishment based on the district court's findings that the "mechanisms involved in bringing about unconsciousness and death in judicial hanging occur extremely rapidly, that unconsciousness was likely to be immediate or within a matter of seconds, and that death would follow rapidly thereafter." Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994) (en banc); Note: Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1946).
The Eighth Amendment prohibits punishments that involve the unnecessary and wanton inflictions of pain, or that are inconsistent with evolving standards of decency that mark the progress of a maturing society. Estelle v. Gamble, 429 U.S. 97, 102-03 (1976); Furman v. Georgia, 408 U.S. 238, 269-70 (1972); Gregg v. Georgia, 428 U.S. at 173 (opinion of Stewart, Powell, Stevens, JJ.). Punishments are cruel when they involve torture or a lingering death. In re Kemmler, 136 U.S. 436, 447 (1890). A method of execution is considered to be cruel and unusual punishment under the Federal Constitution when the procedure for execution creates "a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death". Gregg v. Georgia, supra. In reviewing whether the method of execution is a constitutional violation, courts must consider whether it is contrary to evolving standards of decency that mark the progress of a maturing society. See Baze v. Rees, 2006 Ky. LEXIS 301 (Ky. 2006); Trop v. Dulles, 356 U.S. 86 (1958); Roper v. Simmons, 543 U.S. 551 (2005); Solem v. Helm, 463 U.S. 277, 292 (1983).
The United States Supreme Court has analyzed challenges to a method for carrying out the punishment, as to: (1) whether a method of execution comports with the contemporary norms and standards of society, ("the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures." Penry v. Lynaugh, 492 U.S. 302, 331 (1989)); (2) whether a method of execution offends the dignity of the prisoner and society; (3) whether a method of execution inflicts unnecessary physical pain; and (4) whether a method of execution inflicts unnecessary psychological suffering. Weems v. United States, 217 U.S. 349, 373 (19-20). In considering objections to a particular execution method, the "methodology review focuses more heavily on objective evidence of the pain involved in the challenged method." Campbell, 18 F.3d at 682. To that end, "the objective evidence, though of great importance, [does] not 'wholly determine' the controversy, 'for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.'" Atkins v. Virginia, 536 U.S. 304, 312, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002) (quoting Coker, 433 U.S. at 597). See Beardslee v. Woodford, 395 F.3d 1064, 1070-71 (9th Cir. 2005).
These factors dictate that punishments may not include "torture, lingering death, wanton infliction of pain, or like methods." Estelle v. Gamble, 429 U.S. 97, 102 (1976); In re Kemmler, 136 U.S. 436, 447 (1890), but the Court has likewise held that the afore-noted does not contemplate a totally painless execution.
FINDINGS AND RECOMMENDTIONS
As a result of the review of testimony, written reports, Commission transcripts, articles and documents submitted to the Commission, it is the conclusion of the Commission that there are conflicts that the Commission believes that it has resolved that lead to our findings and recommendations. Examples of these resolved conflicts are as follows:
1. The execution team failed to ensure that a successful IV access was maintained throughout the execution of Angel Diaz.
2. Failure of the execution team to follow the existing protocols in the delivery of the chemicals.
3. The protocols as written are insufficient to properly carry out an execution when complications arise.
4. Failure of the training of the execution team members.
5. Failure of the training to provide adequate guidelines when complications occur.
6. There was a failure of leadership as to how to proceed when a complication arose in the execution process.
7. There was inadequate communication between the execution team members and the warden who was not informed of the problem and the changes implemented.
However, the Commission discovered during its investigation that there are other conflicts which remain unresolved. Examples of these unresolved conflicts are as follows:
1. Observations of the inmate during the execution process, including movement of the body, facial movements and verbal comments
2. Conflicting testimony of the expert medical witnesses regarding the impact of drugs, absorption of drugs, etc.
FINDINGS
1. Execution of inmate Diaz took 34 minutes, which was substantially longer than in any previous lethal injection execution in Florida. This was reflected in the testimony of all witnesses or participants in the Diaz execution, who had also witnessed prior executions by lethal injection.
2. The preponderance of physical evidence demonstrates that venous access at the time of execution was improperly maintained and administered. This was derived from the testimony of William F. Mathews P.A., Dr. William F. Hamilton, M.D. and FDLE Inspector Timothy J. Westveer.
3. The Department of Corrections failed to follow their August 16, 2006 Protocols, which resulted in the administration of the lethal chemicals to inmate Diaz at least in part subcutaneously. This was derived from the December 20, 2006, Department of Corrections report and testimony of William F. Mathews, P.A., Dr. William F. Hamilton, M.D. and FDLE Inspector Timothy J. Westveer. 4. There was inadequate training as to the August 16, 2006 Protocols. This was derived from testimony of the Primary Executioner, FDLE Inspector Westveer, and a Medically Qualified Member of the Execution Team.
5. Failure to adhere to Department of Corrections Protocol 14 (e) and the fact that this protocol inadequately provides direction when changing to the secondary site (B), that the lethal chemicals are to commence from the second rack (B) in the order described in protocol 14 (d). In this instance, the sequence in which the drugs were actually administered and the rack from which they were taken, created the opportunity, with or without the venous access failure, to allow the second chemical, pancuronium bromide, and the third chemical, potassium chloride, to take affect before the first drug, sodium pentothal, was able to fully take effect.
6. Because of the findings above, it is impossible for the Commission to reach a conclusion as to whether inmate Angel Diaz was in pain.
RECOMMENDATIONS: (see attachment (A) for The Physicians' Statement)
The Commission recommends that the Florida Department of Corrections, in consultation with other entities in the State of Florida, consider modifications to its written policies and procedures:
a. Related to the implementation of lethal injections carried out by officers and agents of the State of Florida;
b. Implement written policies, practices, and procedures related to ensuring optimal supervision and management of every lethal injection procedure by the appropriate officials, including the selection of personnel involved in each part of the lethal injection procedure;
c. Implement a comprehensive, systematic procedure for ensuring that persons selected to perform these official duties related to carrying out lethal injections are suitably qualified and trained to perform the assigned duties.
A. PROTOCOLS, PROCEDURES, CHECKLISTS AND DOCUMENTATION:
1. EXECUTION PROTOCOL
a. Develop and implement written procedures that clearly establish the chain of command in the lethal injection process, to include that the Warden (or other such person designated by the Secretary, Florida Department of Corrections) has final and ultimate decision making authority in each and every aspect of the lethal injection process.
b. Develop and implement procedures to insure that there is effective two-way audio communication between the execution team members in the Chemical Room and the execution team members in the Death Chamber (for example, a dedicated frequency should be considered).
2. DOCUMENTATION OF ACTIONS AND PROCEDURES:
a. Develop and implement procedures which require that any step or function which is required to be documented on a checklist or other document(s) be verified by utilization of the execution team member's initials or other identifier.
b. Develop and implement procedures to monitor and document all stages of the lethal injection process, including the administration of the lethal chemicals.
c. Change the designation of the lines used for the IVs and racks holding the lethal chemicals so that one has a number designation and the other has a letter designation.
d. Implement a change so that the primary FDLE agent will be located in the Chemical Room, and the agent's responsibilities are to include documenting and keeping a detailed log as to what occurs in the Chemical Room at a minimum of 30 second intervals. The log should be available at the post execution debriefing.
e. A second FDLE agent should be added to the procedures. This agent will be located in the Witness Room, and will be responsible for keeping a detailed log of what is occurring in the Death Chamber at a minimum of 30 seconds intervals. The log should be available for the post execution debriefing.
f. The duties of both the primary and secondary FDLE Agent should be defined in detail by the Department of Corrections and the Florida Department of Law Enforcement.
g. The debriefing process following an execution should be a formal process that details who should participate and what should be covered. A written record of the debriefing should be produced.
3. LETHAL INJECTION CHEMICAL PREPARATION
Develop and implement a procedure to ensure that each syringe used in the lethal injection process is appropriately labeled, including the name of the chemical contained therein.
4. ESTABLISHING INTRAVENOUS (IV) ACCESS:
a. Develop and implement a procedure which requires that the condemned inmate be individually assessed by appropriately trained and qualified persons at a minimum of one week prior to the scheduled execution. The results of this examination shall be documented in the appropriate record.
b. Develop and implement a process to determine the most suitable method of venous access (peripheral or femoral) for the lethal injection process, considering the technical skills of available personnel and the individual circumstances of the condemned inmate.
c. Develop and implement procedures for gaining venous access to the condemned inmate which do not require movement of the condemned person after venous access is obtained. These procedures should optimize the length of tubing, so that it is as short as possible.
d. Develop and implement procedures to ensure that unexpected event(s) are identified, including inability to access a venous site, problems with tubing, apparent consciousness of the inmate, etc. In the event that an above describe event(s) occurs, the execution process should be interrupted, appropriate persons advised, and corrective steps discussed and implemented before resuming the execution process.
e. Develop and implement procedures to allow for the monitoring of the condemned inmate's restraints and the adhesive tape to eliminate the risk of restricting the flow of lethal chemicals through the IV line.
f. Develop and implement procedures to insure that a closed circuit monitoring of the inmate in the Death Chamber by the execution team members in the Chemical Room. This should include at a minimum the condemned inmate's face and IV access points. No recordings by the closed circuit monitor should be made.
5. ADMINISTRATION OF LETHAL CHEMICALS:
a. Develop and implement procedures to ensure that the condemned inmate is unconscious after the administration of the first lethal chemical, sodium pentothal, before initiating administration of the second and third lethal chemicals. Under no circumstances should the execution continue with the second and third lethal chemical without the Warden's authorization.
b. Develop and implement procedures to ensure that if at any stage of the administration of the lethal chemicals a decision is made to change IV sites or utilize a secondary site, that the entire lethal chemical administration process is re-initiated from the beginning (syringe # 1 {sodium pentothal}), unless the Warden, in consultation with available medical staff, determines that the process may be re- initiated at a different stage.
B. DEVELOPMENT OF COMMAND STRUCTURE AND INFLUENCE AND SELECTION OF PERSONNEL INVOLVED IN THE LETHAL INJECTION PROCESS:
1. Develop and implement written procedures that clearly establish and define the role of each person in the lethal injection process, including the duties required of the position, the expected outcome of each duty or function to be observed or performed, the necessity for compliance with established procedures, that person's responsibility to perform duties as set forth in the protocol or procedure, and to provide necessary information to supervisory level personnel as is needed or required.
2. Consider limiting appointment of persons as members of the execution team, who are otherwise responsible for the routine care and custody of condemned inmates.
3. Consider assigning as few individuals to the Death Chamber as possible to enhance an unobstructed view of the condemned inmate.
4. Develop and implement clearly defined duties for the two FDLE agents who should document what occurs during the execution.
5. Establish that the Warden is responsible for each and every decision during the execution, after receiving input from other members of the execution team.
C. DEVELOPMENT AND IMPLEMENTATION OF TRAINING PROCEDURES FOR PERSONS INVOLVED IN THE LETHAL INJECTION PROCESS:
1. Develop and implement a training program for all persons involved in the lethal injection process. This training program should consider including a requirement for periodic exercises involving all team members and the representative(s) from FDLE. If not feasible for persons to be involved in the periodic training, a procedure should be established to ensure that the person performing a given function is proficient to perform that task. The training program should be documented as to the participants (by name or other identifier) and the function rehearsed. A procedure should be developed and implemented in which each training exercise is critiqued at all levels to address contingencies and the response to those contingencies.
2. Develop and implement procedures which review foreseeable lethal injection contingencies and formulate responses to the contingencies which are rehearsed in the periodic training.
3. Develop and implement written policies, practices, and procedures requiring all team members who participate in an actual execution to have completed, to the satisfaction of the Warden or designee, any and all training necessary to ensure the team member is qualified to perform the specific function or task in a lethal injection.
D. MISCELLANEOUS RECOMMENDATIONS RELATED TO THE FLORIDA LETHAL INJECTION PROCESS:
1. Develop and implement procedures to ensure that a member of the execution team is able to communicate in the primary language of the inmate being executed.
2. Install additional clocks and any additional necessary lighting in the Death Chamber.
3. It is the Commission's opinion that an agency following the procedures framed in our recommendations can carry out an execution utilizing the three proscribed chemicals identified in the Florida Department of Corrections' August 16, 2006, protocol within the existing parameters of the Constitution. However, the Commission suggest, that the Governor have the Florida Department of Corrections on an ongoing basis explore other more recently developed chemicals for use in a lethal injection execution with specific consideration and evaluation of the need of a paralytic drug like pancuronium bromide in an effort to make the lethal injection execution procedure less problematic.
Respectfully Submitted,
The Commission
CHAIRMAN'S CLOSING COMMENTS
I feel it is important to recognize several individuals for their contribution to the Commission's effort in fulfilling the task assigned to it by the Governor. I wish to thank Governor Crist for giving me the opportunity to serve the citizens of the State of Florida. Next, I wish to recognize the enormous sacrifice of time and energy by each and every commissioner. Without their dedication to this task, it would have been impossible for the Commission to have accomplished its work in a timely manner. Additionally, Gerald Curington, Deputy Chief of the Governor's Legal Staff, was instrumental in assisting the Commission in navigating the early fiscal and structural requirements. Kathy Torian, Governor's Deputy Press Secretary, cheerfully provided all the meeting notifications to the news media on what always seemed like short notice. A special thanks to Max Changus, Deputy Council for the Department of Corrections, who was constantly required to produce Department of Corrections' personnel to testify before the Commission with only minimum notice. The Florida Bar's willingness in providing a meeting room, and daily assistance with the little details was of significant assistance to the Commission in its work. I wish to voice my appreciation to Pat Gleason of the Governor's staff, who was continually providing much appreciated advice on the Florida Sunshine Law requirements. Finally, I would like express my appreciation to the members of my office, who were constantly required to assist me on this project, while continuing to perform their normal duties. In particular, I wish to mention the efforts of Peter Cannon of my staff, who worked tirelessly behind the scenes, so that the Commissioners had all of the materials, as well as coordinating the witnesses and producing the meeting agendas. I hope that by acknowledging these individuals that it is apparent to everyone that this was a group effort, which was made possible by the dedication, congeniality and perseverance of everyone, but especially the Commission members.
APPENDIX A
The Physicians' Statement
The American Medical Association has maintained a Code of Ethics for Physicians since 1847. This Code is regularly updated and revised and is currently relevant, it is also extremely specific when addressing physician participation in legal executions, including lethal injection. According to the Code a physician is prohibited from participating in an execution, observing an execution, and assisting in an execution including providing technical advice. Indeed, countless organizations representing medical and clinical professions have adopted a similar position.
When asked to participate in the Lethal Injection Commission for the State of Florida we physicians were faced with a dilemma. Should we decline the request of the State and let others decide the direction of the Commission's actions, or should we involve ourselves at the risk of being labeled unethical physicians? Ultimately we agreed to serve as we trust that the State neither wants to create unethical physicians, nor would it be interested in consulting physicians willing to operate outside of their ethical boundaries. It is our contention from testimony of witnesses and interacting with the other Commission members that authoritative bodies in this country are tending to require more sophisticated medical techniques and personnel to administer the lethal injection. This is a legal and societal problem, not a medical one. A physician must always act in the best interest of the individual as they apply their knowledge and skill; otherwise they risk damage to the trust that patients place in their physician. Maintaining a patient's trust is paramount. A physician must always place the individual's interest above all else. Physician participation in lethal injection places this trust in jeopardy.
We physicians are aware that the Commission rendered specific recommendations in its report. We have refrained from rendering our medical expertise or consent to these specific recommendations. After hearing the testimony of the witnesses and through our deliberations, it is of great concern to us that this task may require the use of medical personnel. The participation of these individuals requires them to operate outside the ethical boundaries of their profession. This is a unique situation. We know of no other occasion where the State employs the services of individuals operating outside of the ethical boundaries of their profession. This is not a desirable situation. It is also our conclusion that because of the above noted points, the inherent risks, and therefore the potential unreliability of lethal injection cannot be fully mitigated.
Respectfully,
Steve Morris, M.D.
Peter Springer, M.D., F.A.C.E.P.
Dave Varlotta, D.O.
APPENDIX B
Dear Chairman:
I must first observe that it has been a great pleasure to work with you and the other esteemed members of the Governor's Commission on Administration of Lethal Injection. While the task assigned the Commission was serious and challenging, getting to know and work with the Commission members was rewarding and educational. I write this letter however, to register my concerns that, in questioning whether the lethal drugs utilized in Florida's method of execution should be evaluated, the Commission has moved beyond the mission and purpose assigned by Governor Bush in Executive Order 06-260. That Order set forth that the Commission's "purpose and mission shall be limited to evaluating Florida's lethal injection procedures and protocols, including enforcement of those procedures and protocols, and shall not extend to re-evaluating the policy decisions of the Legislature in enacting a death penalty or the means chosen by the Legislature for implementing the state's death penalty."
While the Commission clearly addressed a number of very important issues regarding needed enhancements of the existing protocols and shoring up identified lapses in the adherence to the existing protocols, the issues identified by the Commission dealt with personnel matters, the failure to properly deliver the lethal drugs and the failure to follow current protocols once a problem was detected, not the use of particular drugs set forth in the Department of Corrections' protocols.
Because I believe the Commission was not authorized to expand its charge beyond the Governor's Executive Order, I must respectfully voice my dissent regarding the overreaching of the Commission's remarks on this point.
Sincerely yours,
Carolyn M. Snurkowski
DECLARATION OF MARGO A. ROCCONI
I, Margo A. Rocconi, declare and state as follows:
I have personal knowledge of the following and, if called to testify, I could and would competently testify thereto:
1. I am a deputy federal public defender at the Federal Public Defender's Office in the Central District of California. I represented Stephen Wayne Anderson in federal habeas proceedings challenging his conviction and death sentence.
2. I was a witness to the execution of Stephen Wayne Anderson on January 29, 2002 at San Quentin State Prison in California. At about 11:40 p.m. on January 28, 2002, I was transported to the execution viewing area with two other witnesses. The three of us were the last witnesses to enter the viewing area just, before 12:00 a.m. on January 29, 2002. We stood on two steps to the left side of the execution chamber. Shortly thereafter, Stephen Anderson was brought into the execution chamber and strapped down onto the table. His right foot twitched from time to time.
3. A male technician came in to the room with a caddy full of syringes and needles. He tried for quite awhile to insert the needle into a vein in Mr. Anderson's left arm. He was not able to find a vein and Mr. Anderson's arm began to bleed. The technician wiped the blood off with gauze several times. The technician became frustrated, removed his gloves, put them back on, and started over. During this time, Mr. Anderson looked over at his arm several times to see what was happening. Mr. Anderson attempted to help the technician find a vein by pumping his fist. After what took at least 3 to 4 minutes, the technician successfully inserted the needle in Mr. Anderson's arm and taped it down.
4. The male technician then left the room and a female technician entered. She inserted a needle into Mr. Anderson's right arm in less than one minute.
5. Mr. Anderson's table was then turned and the IV lines were attached to a mechanism in the wall of the execution chamber. At this point, Mr. Anderson lifted his head up several times and looked at the three of us standing on the risers.
6. Mr. Anderson then laid his head back down and waited. Within a minute his eyes closed and his head rolled over slightly. Thereafter, his cheeks began puffing as if air were coming out of his mouth. Within moments after that, Mr. Anderson's chest and stomach area began to heave upward. The convulsions continued with some irregular pauses in between. Altogether, Mr. Anderson's chest and stomach heaved more than 30 times.
7. More than 10 and less than 15 minutes elapsed from the time that Mr. Anderson had closed his eyes until the guard announced that he was dead. I never looked away during that time period.
I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct.
EXECUTED this 28th day of January, 2004.
Margo A. Rocconi
DECLARATION OF MARK J. S. HEATH, M.D.
I, Mark J.S. Heath, M.D., hereby declare as follows:
1. I am an Assistant Professor of Clinical Anesthesiology at Columbia University in New York City. I received my Medical Doctorate degree from the University of North Carolina at Chapel Hill in 1986 and completed residency and fellowship training in Anesthesiology in 1992 at Columbia University Medical Center. I am Board Certified in Anesthesiology, and am licensed to practice Medicine in New York State. My work consists of approximately equal parts of performing clinical anesthesiology, teaching residents, fellows, and medical students, and managing a neuroscience laboratory. As a result of my training and research I am familiar and proficient with the use and pharmacology of the chemicals used to perform lethal injection. I am qualified to do animal research at Columbia University and am familiar with the American Veterinary Medical Association's guidelines.
2. Over the past several years, I have performed many hundreds of hours of research into the techniques that are used during lethal injection procedures in the United States. I have testified as an expert medical witness in courts in Maryland, Georgia, Tennessee, Kentucky, Virginia, and Louisiana in the following actions: Reid v. Johnson, No. Civil Action 3:03cv1039 (E.D. Va.); Abdur'Rahman v. Bredesen, No. 02-2236-III (Davidson County Chancery Ct., Tenn.); State v. Michael Wayne Nance, 95-B-2461-4 (Ga. Superior Ct.); Ralph Baze Thomas Bowling v. Rees, 04-CI-01094, (Franklin County Circuit Ct., Ky.); Walker v. Johnson, No. 1:05cv934 (E.D. Va.); Evans v. Saar, No. 06-149 (D. Md.); Code v. Cain, No. 138,860-A (1st Judicial District Court, Caddo Parish, La.); Baker v. Saar, No. WDQ-05-03207 (D. Md.). I have also filed affidavits and/or declarations regarding lethal injection that have been reviewed by courts in the above states and also in California, Pennsylvania, New York, Alabama, North Carolina, South Carolina, Ohio, Oklahoma, Texas, Missouri, Nevada, Delaware, and by the United States Supreme Court.
3. During court proceedings, I have heard testimony from prison officials who are responsible for conducting executions by lethal injection. I testified before the Nebraska Senate Judiciary Committee regarding proposed legislation to adopt lethal injection. I also testified before the Pennsylvania Senate Judiciary Committee regarding proposed legislation to prohibit the use of pancuronium and the other neuromuscular blockers in Pennsylvania's lethal injection protocol. My research regarding lethal injection has involved extensive conversations with recognized experts in the field of lethal injection, toxicology, and forensic pathology and the exchange of personal correspondence with the individuals responsible for introducing lethal injection as a method of execution in Oklahoma (the first state to formulate the procedure) and in the United States.
4. My qualifications are further detailed in my curriculum vitae, a copy of which is attached hereto as Exhibit A and incorporated by reference as if fully rewritten herein.
5. I have been asked by attorney Julie Brain, counsel for Mr. Terrick Nooner, to review the procedures concerning lethal injection currently in place in Arkansas to assess whether those lethal injection procedures create medically unacceptable risks of inflicting pain and suffering on inmates while the lethal injection is administered. I hold all opinions expressed in this Declaration to a reasonable degree of medical certainty, except as specifically noted at the end of paragraph 41, where I make a speculative comment.
includes:
-an Arkansas statute entitled "5-4-617. Method of execution;"
-a document entitled "Arkansas Department of Correction Administrative Directive 96-06 Procedure for Execution" approved 5/23/96;
-statutory text related to veterinary practice in Arkansas;
-execution logs, photographs, toxicology reports, autopsy reports, and other material related to 26 executions conducted by lethal injection in Arkansas;
-newspaper reports discussing and describing executions conducted in Arkansas;
-declarations of execution witnesses Charles L. Carpenter and John Jewell.
7. I have also reviewed the 2000 Report of the Panel on Euthanasia of the American Veterinary Medical Association, the American Society of Anesthesiologist's Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, and the American Society of Anesthesiologist's Standards for Basic Anesthetic Monitoring.
8. Based upon my review of this material and my knowledge of and experience in the field of anesthesiology, and based on my research regarding the practice of lethal injection in the United States, I have formed several conclusions with respect to the protocol of the Arkansas Department of Corrections ("ADC") for carrying out lethal injections. These conclusions arise both from the details disclosed in the materials I have reviewed and from medically relevant, logical inferences drawn from the omission of details in those materials (e.g., details regarding the training of the personnel involved; details of all of the medical equipment used; and details of the precise methods by which the personnel involved use the equipment to carry out an execution by lethal injection).
ADC's Lethal Injection Protocol — The Use of Potassium Chloride
9. ADC's lethal injection protocol calls for the administration of 2 grams of sodium thiopental, 50 milligrams of pancuronium bromide (Pavulon), and 50 milliequivalents of potassium chloride. Broadly speaking, the sodium thiopental is intended to serve as an anesthetic, rendering the inmate unconscious for the duration of the execution. Two grams of sodium thiopental is a massive, and potentially lethal, dose. The pancuronium bromide paralyzes the inmate's muscles and thereby disables all voluntary movements, including those of his chest and diaphragm. Pancuronium is not an anesthetic or sedative drug, and it does not affect consciousness. Potassium chloride is a salt solution that, when rapidly administered in high concentrations, induces cardiac arrest. Potassium chloride, too, has no effect on consciousness or ability to feel pain; to the contrary, the drug itself causes excruciating pain.
10. Although the successful delivery into the circulation of 2 grams of sodium thiopental and 50 milligrams of pancuronium would be lethal, it is important to understand that the lethality of sodium thiopental and pancuronium is due to respiratory arrest, which takes several minutes to ensue and does not typically occur prior to the administration of potassium. In the execution sequence, before death is caused by respiratory arrest from sodium thiopental and pancuronium, death is caused by cardiac arrest brought on by potassium. I base this opinion, that the potassium and not the pancuronium or sodium thiopental is responsible for the death of prisoners during lethal injection, on the following:
A) Review of records from EKGs from lethal injection procedures conducted in other states. During lethal injection, cardiac activity consistent with generating perfusion persists through the administration of sodium thiopental and pancuronium and only stops after potassium has been administered. The relatively sudden cessation of organized EKG activity is not consistent with a cessation of circulation due to administration of sodium thiopental and/or pancuronium and is consistent with cessation of circulation after the administration of a large dose of potassium chloride.
B) Properties of Sodium Thiopental and Pancuronium. Sodium thiopental and pancuronium exert their effects by interacting with molecular targets in the nervous system and on muscle cells in a manner that induces unconsciousness and stops breathing. Sodium thiopental and pancuronium, unlike other chemicals such as cyanide, do not kill cells or tissues, and are useful to clinicians precisely because they do not kill or harm cells or tissues. The reason that sodium thiopental and pancuronium can cause death is that they cause the prisoner to stop breathing. Failure to breathe will result in brain damage, brain death, and cardiac arrest as the level of oxygen in the blood declines over time. These processes take a varying amount of time, depending on many factors. Physicians generally use four minutes of not breathing as the approximate benchmark time after which irreversible brain damage from lack of oxygen occurs, and death typically occurs some number of minutes after the onset of brain damage. It is worth noting, however, that this general figure of four minutes is often used in the context of cardiac arrest, in which there is no circulation of blood through the brain. If some level of blood circulation persists, it is very likely that brain damage and brain death would take longer than four minutes.
C) Of note, the Arkansas Medical Examiner appears to agree with the conclusion that in lethal injection procedures death is caused by potassium chloride. For example, the Medical Examiner Report on the death by execution of Ronald Gene Simmons states that the cause of death was "hyperkalemia due to Injection of Potassium Chloride 50 milliequivalents", (the term "hyperkalemia" means an abnormally elevated concentration of potassium in the blood).
11. In the context of lethal injection, sodium thiopental and pancuronium, if successfully delivered into the circulation in large doses, would indeed each be lethal, because they would stop the inmate's breathing. However, as described above, in execution by lethal injection as practiced by Arkansas and other states the administration of potassium and death precede any cardiac arrest that would be caused by sodium thiopental and pancuronium. cause death in a painless manner.
13. Thus, ADC has exercised its statutory discretion to select the means of causing death by choosing a medication (potassium chloride) that causes extreme pain upon administration, instead of selecting available, equally effective yet essentially painless medications for stopping the heart. In so doing, ADC has created the necessity for ensuring, through all reasonable and feasible steps, that the prisoner is sufficiently anesthetized and cannot experience the pain of the potassium chloride injection.
ADC's Lethal Injection Protocol — The Use of Pancuronium Bromide
14. As noted, the ADC's lethal injection protocol additionally calls for the administration of 50 milligrams of pancuronium bromide (Pavulon). The use of pancuronium bromide serves no legitimate purpose and compounds the risk that an inmate may suffer excruciating pain during his execution. Pancuronium paralyzes all voluntary muscles, but does not affect sensation, consciousness, cognition, or the ability to feel pain and suffocation. Because the sodium thiopental and potassium chloride would in themselves be sufficient to cause death, and the potassium is administered well before death would result from the pancuronium alone, it is my opinion held to a reasonable degree of medical certainty that there would be no rational place in the protocol for pancuronium as the lethal amount of potassium chloride is administered.
15. Pancuronium bromide is a neuromuscular blocking agent. Its effect is to render the muscles unable to contract; it does not affect the brain or the nerves. It is used in surgery to ensure that the patient is securely paralyzed so that surgery can be performed without movement resulting from contraction of the muscles. If administered alone, a lethal dose of pancuronium would not immediately cause a condemned inmate to lose consciousness. It would totally immobilize the inmate by paralyzing all voluntary muscles and the diaphragm, causing the inmate to suffocate to death while experiencing an intense, conscious desire to inhale. Ultimately, consciousness would be lost, but it would not be lost as an immediate and direct result of the pancuronium. Rather, the loss of consciousness would be due to suffocation, and would be preceded by the torment and agony caused by suffocation. This period of torturous suffocation would be expected to last at least several minutes and would only be relieved by the onset of suffocation-induced unconsciousness or by the onset of death resulting from potassium chloride.
16. Because the administration of a paralyzing dose of pancuronium bromide to a conscious person would necessarily cause excruciating suffering, it would be unconscionable to administer pancuronium without first anesthetizing the inmate and without first assessing the plane of anesthetic depth. In surgery, pancuronium bromide is not administered until the patient is adequately anesthetized. The anesthetic drugs must first be administered to ensure that the patient is unconscious and does not feel, see, or perceive the procedure. This can be determined by a trained medical professional, either a physician anesthesiologist or a nurse anesthetist, who provides close and vigilant monitoring of the patient, their vital signs, and the various diagnostic indicators of anesthetic depth. ADC's execution protocol, to the extent disclosed, fails to provide any indication that anesthetic depth will be properly assessed prior to the administration of pancuronium bromide.
17. It is my understanding that ADC's execution protocol requires the presence of official witnesses to the execution and permits media witnesses to the execution. It is my opinion based on a reasonable degree of medical certainty that pancuronium, when successfully administered, effectively nullifies the ability of witnesses to discern whether or not the condemned prisoner is experiencing a peaceful or agonizing death. Regardless of the experience of the condemned prisoner, whether he or she is deeply unconscious or experiencing the excruciation of suffocation, paralysis, and potassium injection, he or she will appear to witnesses to be serene and peaceful due to the immobilization of the facial and other skeletal muscles.
18. The doses of sodium thiopental and potassium chloride are lethal doses. Therefore, it is unnecessary to administer pancuronium bromide in the course of an execution when it is quickly followed by a lethal dose of potassium chloride. It serves no legitimate purpose and only places a chemical veil on the process that prevents an adequate assessment of whether or not the condemned is suffering in agony, and greatly increases the risks that such agony will ensue. Removal of pancuronium from the protocol would eliminate the risk of conscious paralysis from occurring. It would also eliminate the risk that an inhumane execution would appear humane to witnesses. Finally, removal of pancuronium would vastly reduce the possibility that the citizens, officials, and courts of Arkansas could be inadvertently misled by media reports describing a peaceful-appearing execution when in fact the prisoner could be experiencing excruciating suffering.
Failure to Adhere to a Medical Standard of Care in Administering Anesthesia
19. Based on the information available to me, it is my opinion held to a reasonable degree of medical certainty that the ADC's lethal injection protocol creates an unacceptable risk that the inmate will not be anesthetized to the point of being unconscious and unaware of pain for the duration of the execution procedure. If the inmate is not first successfully anesthetized, then it is my opinion to a reasonable degree of medical certainty that the pancuronium will paralyze all voluntary muscles and mask external, physical indications of the excruciating pain being experienced by the inmate during the process of suffocating (caused by the pancuronium) and having a cardiac arrest (caused by the potassium chloride).
20. The provision of anesthesia has become a mandatory standard of care whenever a patient is to be subjected to a painful procedure. Throughout the civilized world, the United States, and Arkansas, whenever a patient is required to undergo a painful procedure, it is the standard of care to provide some form of anesthesia. Circumstances arise in which prisoners in Arkansas require surgery, and in many instances the surgery requires the provision of general anesthesia. In these circumstances general anesthesia is provided, and it is provided by an individual with specific training and qualifications in the field of anesthesiology. It is critical to understand that the great majority of physicians and nurses and other health care professionals do not possess the requisite training, skills, experience, and credentials to provide general anesthesia. It would be unconscionable to forcibly subject any person, including a prisoner in Arkansas, to a planned and anticipated highly painful procedure without first providing an appropriate anesthetic, and it would be unconscionable to allow personnel who are not properly trained in the field of anesthesiology to attempt to provide or supervise this anesthetic care.
painful surgery. Given that the injection of potassium is a scheduled and premeditated event that is known without any doubt to be extraordinarily painful, it would be unconscionable and barbaric for potassium injection to take place without the provision of sufficient general anesthesia to ensure that the prisoner is rendered and maintained unconscious throughout the procedure, and it would be unconscionable to allow personnel who are not properly trained in the field of anesthesiology to attempt to provide or supervise this anesthetic care.
22. Presumably because of the excruciating pain evoked by potassium and the torture that would result from death by suffocation following paralysis, lethal injection protocols like that in Arkansas purport to provide general anesthesia using sodium thiopental. When successfully delivered into the circulation in sufficient quantities, sodium thiopental causes sufficient depression of the nervous system to permit excruciatingly painful procedures to be performed without causing discomfort or distress. Failure to successfully deliver into the circulation a sufficient dose of sodium thiopental, however, will result in a failure to achieve adequate anesthetic depth and thus failure to block the excruciating pain of potassium administration and suffocation.
23. The ADC's procedures do not comply with the medical standard of care for inducing and maintaining anesthesia prior to and during a painful procedure. Likewise, the ADC's procedures are not compliant with the guidelines set forth by the American Veterinary Medical Association for the euthanasia of animals. Further, the ADC has made insufficient preparation for the real possibility, which has been encountered in Arkansas as well as in many other jurisdictions, and planned for in those jurisdictions, that peripheral IV access cannot be successfully established.
1. The Dangers of Using Sodium Thiopental as an Anesthetic
24. The use of sodium thiopental as the anesthetic in the ADC's lethal injection protocol is inappropriate and medically unsatisfactory. Sodium thiopental is an ultrashort-acting barbiturate with a relatively short shelf life in liquid form. Sodium thiopental is distributed in powder form to increase its shelf life; it must be mixed into a liquid solution by trained personnel before it can be injected.
25. When anesthesiologists use sodium thiopental, we do so for the purposes of temporarily anesthetizing patients for sufficient time to intubate the trachea and institute mechanical support of ventilation and respiration. Once this has been achieved, additional drugs are administered to maintain a "surgical depth" or "surgical plane" of anesthesia (i.e., a level of anesthesia deep enough to ensure that a surgical patient feels no pain and is unconscious). The medical utility of sodium thiopental derives from its ultrashort-acting properties: if unanticipated obstacles hinder or prevent successful intubation, patients will likely quickly regain consciousness and resume ventilation and respiration on their own.
26. The benefits of sodium thiopental in the operating room engender serious risks in the execution chamber. Although the full two grams of sodium thiopental, if properly administered into the prisoner's bloodstream, would be more than sufficient to cause unconsciousness and, eventually, death, if no resuscitation efforts were made, my research into executions by lethal injection strongly indicates that executions have occurred where the full dose of sodium thiopental listed in the protocol was not fully and properly administered. If an inmate does not receive the full dose of sodium thiopental because of errors or problems in administering the drug, the inmate might not be rendered unconscious and unable to feel pain, or alternatively might, because of the short-acting nature of sodium thiopental, regain consciousness during the execution.
27. Although the concerns raised in this declaration apply regardless of the size of the dose of sodium thiopental that is prescribed under the protocol, the ADC's arbitrary decision to administer only two grams, as opposed to the three or five grams used in some other jurisdictions, unduly decreases the margin of error and the risk that inadequate anesthesia will be achieved. The level of anesthesia, if any, achieved in each individual inmate depends on the amount that is successfully administered, although other factors such as the inmate's weight and sensitivity/resistance to barbiturates are also important. Many foreseeable situations exist in which human or technical errors could result in the failure to successfully administer the intended dose. If error occurs that results in the prisoner receiving only half of a five gram dose, the prisoner will still receive 2.5 grams and adequate anesthesia will likely occur despite the error. If the same error occurs and the prisoner receives only half of a two gram dose, however, the risks of inadequate anesthesia and conscious suffering are significant. ADC's execution protocol both fosters potential problems and fails to provide adequate instruction for preventing or rectifying such situations, and it does these things needlessly and without legitimate reason. Examples of problems that could prevent proper administration of sodium thiopental include, but are not limited to, the following:
a) Errors in Preparation. Sodium thiopental is delivered in powdered form and must be mixed into an aqueous solution prior to administration. This preparation requires the correct application of pharmaceutical knowledge and familiarity with terminology and abbreviations. Calculations are also required, particularly if the protocol requires the use of a concentration of drug that differs from that which is normally used. The ADC's protocol instructs only that the powder be dissolved in "the least amount of clear diluent possible to attain complete, clear suspension," without providing any indication as to how much fluid that might be or how the person performing the mixing should determine how much to use or how success has been achieved.
b) Error in Labeling of Syringes. ADC's execution protocol calls for the execution drugs to be placed in syringes labeled only by number and not by name. This creates the risk of confusion in creating the syringes, leading to mislabeling, which is highly unlikely to be detected and corrected later in the process.
c) Error in Selecting the Correct Syringe during the sequence of administration. The syringes are to be selected in series by hand during the execution, and thus the wrong sequence of drug administration will occur if the executioner simply picks up an incorrect syringe.
d) Error in Correctly Injecting the Drug into the Intravenous Line. The Arkansas execution description fails to identify the persons responsible for injecting the lethal drugs and further fails to specify their qualifications. The use of insufficiently qualified executioners increases the risk that problems such as the following will occur, and decreases the probability that such problems will be detected and corrected if they do occur.
site. Any of these connections may loosen and leak. In clinical practice, it is important to maintain visual surveillance of the full extent of IV tubing so that such leaks may be immediately detected. The Arkansas practice, in which the executioners are in a separate room with hindered opportunity for visual surveillance, interferes with detection of any leak that may occur and is not acceptable.
f) Incorrect Insertion of the Catheter. If the catheter is not properly placed in a vein, the sodium thiopental will enter the tissue surrounding the vein but will not be delivered to the central nervous system and will not render the inmate unconscious. This condition, known as infiltration, occurs with regularity in the clinical setting. Recognition of infiltration requires continued surveillance of the IV site during the injection, and that surveillance should be performed by the individual who is performing the injection so as to permit correlation between visual observation and tactile feedback from the plunger of the syringe.
g) Migration of the Catheter. Even if properly inserted, the catheter tip may move or migrate, so that at the time of injection it is not within the vein. This would result in infiltration, and therefore a failure to deliver the drug to the inmate's circulation and failure to render the inmate unconscious.
h) Perforation or Rupture or Leakage of the Vein. During the insertion of the catheter, the wall of the vein can be perforated or weakened, so that during the injection some or all of the drug leaves the vein and enters the surrounding tissue. The likelihood of rupture occurring is increased if too much pressure is applied to the plunger of the syringe during injection, because a high pressure injection results in a high velocity jet of drug in the vein that can penetrate or tear the vessel wall.
i) Excessive Pressure on the Syringe Plunger. Even without damage or perforation of the vein during insertion of the catheter, excessive pressure on the syringe plunger during injection can result in tearing, rupture, and leakage of the vein due to the high velocity jet that exits the tip of the catheter. Should this occur, the drug would not enter the circulation and would therefore fail to render the inmate unconscious.
j) Securing the Catheter. After insertion, catheters must be properly secured by the use of tape, adhesive material, or suture. Movement by the inmate, even if restrained by straps, or traction on the IV tubing may result in the dislodging of the catheter.
k) Failure to Properly Loosen or Remove the Tourniquet from the Arm or Leg after placement of the IV catheter will delay or inhibit the delivery of the drugs by the circulation to the central nervous system. This may cause a failure of the sodium thiopental to render and maintain the inmate in a state of unconsciousness.
1) Impaired Delivery Due to Restraining Straps. Restraining straps may act as tourniquets and thereby impede or inhibit the delivery of drugs by the circulation to the central nervous system. This may cause a failure of the sodium thiopental to render and maintain the inmate in a state of unconsciousness. Even if the IV is checked for "free flow" of the intravenous fluid prior to commencing injection, a small movement within the restraints on the part of the inmate could compress the vein and result in impaired delivery of the drug.
2. The Need for Adequate Training in Administering Anesthesia
29. Because of these foreseeable problems in administering anesthesia, in Arkansas and elsewhere in the United States the provision of anesthetic care should be performed only by personnel with advanced training in the medical subspecialty of Anesthesiology. This is because the administration of anesthetic care is complex and risky, and can only be safely performed by individuals who have completed the extensive requisite training to permit them to provide anesthesia services. Failure to properly administer a general anesthetic not only creates a high risk of medical complications including death and brain damage, but also is recognized to engender the risk of inadequate anesthesia, resulting in the awakening of patients during surgery, a dreaded complication known as "intraoperative awareness." The risks of intraoperative awareness are so grave that, in October 2005, the American Society of Anesthesiologists published a new practice advisory on the subject of intraoperative awareness. If the individual providing anesthesia care is inadequately trained or experienced, the risk of these complications is enormously increased. In Arkansas and elsewhere in the United States, general anesthesia is administered by physicians who have completed residency training in the specialty of Anesthesiology, and by nurses who have undergone the requisite training to become Certified Registered Nurse Anesthetists (CRNAs). Physicians and nurses who have not completed the requisite training to become anesthesiologists or CRNAs are not permitted to provide general anesthesia.
29. In my opinion, individuals providing general anesthesia in the Arkansas prisons should not be held to a different or lower standard than is set forth for individuals providing general anesthesia in any other setting in Arkansas. Specifically, the individuals providing general anesthesia within prisons in Arkansas should possess the experience and proficiency of anesthesiologists and/or CRNAs. Conversely, a physician who is not an anesthesiologist or a nurse who is not a CRNA should not be permitted to provide general anesthesia within an Arkansas prison or anywhere in Arkansas.
30. ADC's execution protocol fails to specify whether the person or persons administering the lethal injection have any training in administering anesthesia, or, if personnel are given training, what that training might be. The absence of any details as to the training, certification, or qualifications of injection personnel raises critical questions about the degree to which condemned inmates risk suffering excruciating pain during the lethal injection procedure. The great majority of nurses are not trained in the use of ultrashort-acting barbiturates; indeed, this class of drugs is essentially only used by a very select group of nurses who have obtained significant experience in intensive care units and as nurse anesthetists. Very few paramedics are trained or experienced in the use of ultrashort-acting barbiturates. Based on my medical training and experience, and based upon my research of lethal injection procedures and practices, inadequacies in these areas elevate the risk that the lethal injection procedure will cause the condemned to suffer excruciating pain during the execution process. Failure to require that the person or persons administering the lethal injection have training equivalent to that of an anesthesiologist or a CRNA compounds the risk that inmates will suffer excruciating pain during their executions.
3. ADC's Failure to Account for Foreseeable Problems in Anesthesia Administration
31. In addition to lacking any policy on the training necessary to perform a lethal injection, ADC's execution protocol imposes conditions that exacerbate the foreseeable risks of improper anesthesia administration described above, and fails to provide any procedures for dealing with these risks. Perhaps most disturbingly, the Arkansas lethal injection practice prevents any type of effective monitoring of the inmate's condition or whether he is anesthetized and unconscious. This falls below the standard of care. Accepted medical practice dictates that trained personnel monitor the IV lines and the flow of anesthesia into the veins through visual and tactile observation and examination. The lack of any qualified personnel present in the chamber during the execution thwarts the execution personnel from taking the standard and necessary measures to reasonably ensure that the sodium thiopental is properly flowing into the inmate and that he is properly anesthetized prior to the administration of the pancuronium and potassium.
32. In my opinion, having a properly trained and credentialed individual examine the inmate after the administration of the sodium thiopental (but prior to the administration of pancuronium) to verify that the inmate is completely unconscious would substantially mitigate the danger that the inmate will suffer excruciating pain during his execution. As discussed later in this affidavit, this is the standard of care, and in many states the law, that is set forth for dogs and cats and other household pets when they are subjected to euthanasia by potassium injection. Yet ADC's execution protocol does not provide for such verification, and indeed Arkansas practice actively prevents the person or persons administering the lethal injection from determining whether or not the inmate remains conscious by requiring that all of the drugs must be administered remotely, from another room without even visual surveillance.
33. The ADC's execution protocol provides no specifications regarding the timing of the administration of the drugs, thereby compounding the risks described in this Declaration. This concern is greatly amplified by the use of an ultrashort-acting barbiturate and is borne out by a review of the execution records from California. In each of the executions, the time between administrations of the three drugs varied for no apparent reason. The lack of a defined schedule for the administration of the three drugs increases the risk that the sedative effect of the sodium thiopental will wear off, should the inmate not receive the full dose.
34. The Arkansas lethal injection protocol fails to account for procedures designed to ensure the proper preparation of the drugs used. I have not seen details regarding the credentials, certification, experience, or proficiency of the personnel who will be responsible for the mixing of the sodium thiopental from powder form, or for the drawing up of the drugs into the syringes. Preparation of drugs, particularly for intravenous use, is a technical task requiring significant training in pharmaceutical concepts and calculations. It is my opinion based on my review of lethal execution procedures in states that have disclosed more detailed information than what I have seen about the Arkansas procedures, that there exist many risks associated with drug preparation that, if not properly accounted for, further elevate the risk that the drug will not be properly administered and the inmate will consciously experience excruciating pain during the lethal injection procedures.
35. The altering of established medical procedures without adequate medical review and research, by untrained personnel, causes great concern about the structure of the lethal injection protocol and its medical legitimacy. Appropriate mechanisms for medical review, and standardization of the implementation and amendment process, are critical features in any medical protocol so that the medical professionals and the public can be assured that proper and humane procedures are in place and being followed. Indeed, in other states, physicians and other medical personnel play a role in ensuring that any protocol is consistent with basic medical standards of care and humaneness. Otherwise, the process is subject and prone to ad hoc administration and error, if not gross negligence. With lethal injection, such concerns are highly elevated.
36. Based on my medical training and experience, and based on my research into lethal injection procedures and practices, it is my opinion to a reasonable degree of medical certainty that any reliable, humane lethal injection procedure must account for the foreseeable circumstance of a condemned inmate having physical characteristics that prevent intravenous access from being obtained by a needle piercing the skin and entering a superficial vein suitable for the reliable delivery of drugs. There have been multiple lethal injections in which this problem has arisen from a variety of circumstances, including at least two procedures performed in Arkansas. Problems may occur due to conditions including obesity, corticosteroid treatment, history of intravenous drug use and history of undergoing chemotherapy. Additionally, some people just happen to have veins that are too small or deep to permit peripheral access. It is often not possible to anticipate difficult intravenous access situations in advance of the execution, and there are multiple examples of executions in which the personnel placing the intravenous lines struggled to obtain peripheral IV access and eventually abandoned the effort. ADC's execution protocol is deficient in its failure to plan for the foreseeable possibility that peripheral IV access cannot be obtained.
37. In this setting, state lethal injection protocols typically specify the use of a "cut-down" procedure to access a vein adequate for the reliable infusion of the lethal drugs. Despite the fact that serious difficulties with gaining intravenous access have been experienced by the ADC in the past, the Arkansas lethal injection execution protocol contains no reference to plans for dealing with the foreseeable circumstance wherein peripheral intravenous access cannot be obtained in the arm or leg. No information regarding the training, experience, expertise, credentials, certification, or proficiency of the personnel who would perform such a "cut down" procedure is listed in the Arkansas lethal injection protocol. In this regard, the ADC's lethal injection protocol is deficient in comparison to those of other states that I have reviewed. This complicated medical procedure requires equipment and skill that are not accounted for in the execution protocol. It has a very high probability of not proceeding properly in the absence of adequately trained and experienced personnel, and without the necessary equipment. If done improperly, the "cut-down" process can result in very serious complications including severe hemorrhage (bleeding), pneumothorax (collapse of a lung which may cause suffocation), and severe pain.
38. It is well documented that lethal injection procedures in other states have at times required the use of a central intravenous line. Further, the ADC has at times obtained intravenous access using cut down and central line techniques. For example, based on photographs and the Medical Examiner's report it appears that Mr. Rickey Rector underwent 10 failed attempts to place a peripheral IV, followed by a cutdown procedure. Reports by witnesses to the execution, describing "loud moans," indicate that Mr. Rector experienced significant pain while enduring this. Additionally, Mr. Clay Smith was executed by means of lethal injection through a subclavian central line, a form of intravenous access that is significantly more difficult, risky, painful and invasive to obtain than peripheral iv access. In the absence of further information about the personnel who performed these procedures, their proficiency and credentialing and currency, the equipment available to them, and their ability to recognize and treat complications, is not possible to make any assessment about whether the necessary safeguards have been set in place to ensure that the procedure is reasonably humane.
Arkansas, and have been encountered in other jurisdictions. During the recent execution of Joseph Clark in Ohio, difficulties in finding a vein delayed the execution by almost 90 minutes. The execution team struggled for several minutes to find usable vein. The team placed a "shunt" in Clark's left arm, but the vein "collapsed". Subsequently, the team placed a "shunt" in Clark's right arm, but mistakenly attempted to administer the lethal drugs through the IV in the left arm where the vein had already "collapsed". The difficulties prompted Clark to sit up and tell his executioners "It don't work" and to ask "Can you just give me something by mouth to end this?"
40. Similar problems occurred during the execution of Stanley "Tookie" Williams, the injection team took 12 minutes to insert the IV lines. The first line was placed quickly but spurted blood, and the staff struggled for 11 minutes to insert the second line, having so much difficulty that Williams asked whether they were "doing that right." The difficulty of the challenge presented to the IV team is evidenced by the comment that "by 12:10 a.m., the medical tech's lips were tight and white and sweat was pooling on her forehead as she probed Williams' arm."
41. In the execution of Stephen Anderson on January 29, 2002, one of the persons who attempted to secure an IV was unable to do so without causing significant bleeding and the need to remove his gloves. Again, this indicates that the process is a difficult one and that it is necessary that the persons doing it are properly trained and experienced. As is widely recognized in the medical community, administration of intravenous medications and the management of intravenous systems are complex endeavors. While speculative and not evidence-based, it is my opinion that it is likely that IV placement is rendered more difficult in the context of executions because the inmates are often in a very anxious status, which causes the release of epinephrine (adrenalin) and norepinephrine, thereby causing constriction (narrowing) of blood vessels (including veins). When veins are constricted/narrowed it can be difficult or impossible to insert an IV catheter. This phenomenon, in conjunction with the use of inadequately qualified execution personnel, is the best explanation I can provide for the otherwise unexplained extremely high incidence of difficult or failed peripheral IV placement, in individuals lacking known risk factors for difficult IV access.
4. ADC's Protocol Has Resulted in Botched Executions
42. There is evidence that the ADC's lethal injection protocol has caused some inmates in Arkansas to be executed without adequate anesthesia. Both execution records and witnesses' accounts of these executions provide evidence that is indicative of continued consciousness following the purported administration of the sodium pentothal. A dose of Sodium Pentothal of 2mg or more, properly administered, will cause unconsciousness within one minute or less. However, in several executions that have been performed in Arkansas, the inmate displayed signs of consciousness for considerably longer that the one minute maximum that is consistent with successful administration of the anesthetic.
43. Ronald Gene Simmons was executed by the State of Arkansas on June 25, 1990.
employee twice appeared to adjust the IV tube in Mr. Simmons' arm, and not until 9:19pm was Mr. Simmons pronounced dead by the coroner.
44. The typical reaction to the administration of sodium pentothal is yawning, drawing one or two deep breaths, or visibly exhaling so that the cheeks puff out. Obviously, repeated audible vocalization is not consistent with the induction of a surgical plane of anesthesia by sodium thiopentol. Also, repeated, prolonged, irregular heaving of the chest is not consistent with the deep depression of the central nervous system caused by the successful administration of a large dose of sodium pentothal.
45. On January 24, 1992, Rickey Ray Rector was put to death in Arkansas. The execution took one hour and 9 minutes to complete, during which time Mr. Rector's hands and arms were punctured 10 separate times by ADC personnel searching for a suitable vein in which to place the IV line, as noted above. The catheter was finally inserted into a vein in Mr. Rector's hand, although not before a cut-down was made in his arm. Once the IV line was secured, the flow of lethal chemicals began at 9:50pm. For two minutes Mr. Rector looked to witnesses as though he was nodding off to sleep. However, one observer noted that Mr. Rector said "I'm getting dizzy" two minutes after the execution began. Then at 9:55pm, Mr. Rector's lips were seen to move rapidly, as if he was drawing shallow breaths. His lips did not stop moving until one minute later. Mr. Rector still was not pronounced dead; at 10:06pm a witness noted that a heart monitor at the head of the gurney appeared to be flat-lining, only to then see another jump followed by another flutter. Death was finally pronounced at 10:09pm.
46. On May 7, 1992, Steven Douglas Hill was executed. His execution began at 9:02pm. His eyes closed one minute later, but shortly after that he had what witnesses described as a seizure. His back was arched and his cheeks were popping out. He was visibly gasping for air, and even though he was strapped down to the gurney his chest was noticeably heaving against the belt across his chest. The seizure ended at 9:04pm and Mr. Hill was pronounced dead at 9:10pm. minutes while ADC personnel struggled to insert the IV line into her elbows. When they could not do so, they asked Ms. Riggs if they could insert the catheters into her wrists, and she consented. The execution then proceeded. However, a minute after the drugs had purportedly begun to flow into her body, Ms. Riggs was still vocalizing. Witnesses heard her say "I love you, my babies."
48. It is my opinion that these accounts of Arkansas executions are indicative of problems with the administration of the lethal drugs and raise concerns that adequate anesthesia may not be being reliably provided. They are part of a growing body of evidence that suggests that such problems are recurring over and over again in jurisdictions throughout the country that utilize similar lethal injection protocols.
49. It is my further opinion that to ensure a lethal injection without substantial risks of inflicting severe pain and suffering, proper procedures must be put in place that are clear and consistent: there must be qualified personnel to ensure that anesthesia has been achieved prior to the administration of pancuronium bromide and potassium chloride, if those drugs are used; there must be qualified personnel to select chemicals and dosages, set up and load the syringes, administer "pre-injections," insert the IV catheter, and perform the other tasks required by such procedures; and there must be adequate inspection, testing and monitoring of the equipment and apparatus by qualified personnel throughout the execution process. The Arkansas Department of Corrections' written procedures for implementing lethal injection, to the extent that they have been made available, provide for none of the above.
The Arkansas Execution Protocol Falls Below the Minimum Standards Mandated for Veterinary Euthanasia
50. The injection protocol employed by the ADC for putting human beings to death is strongly discouraged by the American Veterinary Medical Association (AVMA) and prohibited by law from being used on animals in 19 states. Specifically, the 2000 Report of the Panel on Euthanasia of the American Veterinary Medical Association states that when potassium chloride is to be used as a euthanasia agent, the animals must be under a surgical plane of anesthesia and the personnel performing the euthanasia must be properly trained to assess the depth of anesthesia. The AVMA panel specifically states that the animal must be in a surgical plane of anesthesia characterized not simply by loss of consciousness, but also by "loss of reflex muscle response and loss of response to noxious stimuli." Additionally, the AVMA recommends that sodium pentobarbital be used as an anesthetic, which is much longer lasting and more stable than sodium thiopental. It is difficult to understand why the ADC would chose, at its discretion, to use potassium to execute prisoners and would then fail to adhere to the basic requirements set forth by the AVMA to ensure that animals do not experience the excruciating pain of potassium injection during euthanasia.
Conclusion
51. Based on my research into methods of lethal injection used by various states and the federal government, and based on my training and experience as a medical doctor specializing in anesthesiology, it is my opinion based on a reasonable degree of medical certainty that, given the apparent absence of a central role for a properly trained medical or veterinary professional in the ADC's execution procedure, the chemicals used, the lack of adequately defined roles and procedures, and the failure to properly account for foreseeable risks, the lethal injection procedure Arkansas employs creates medically unacceptable risks of inflicting excruciating pain and suffering on inmates during the lethal injection procedure. All of these problems could easily be remedied, and yet ADC has failed to address them and has failed to meet the minimum standards set forth for veterinary euthanasia.
52. In addition, in order to more fully and fairly assess the impact of the failings of the Arkansas execution protocol, it will be necessary to obtain all official witness statements from prior executions, all available EKG and toxicology data from prior executions, as well as the full rules and regulations devised by the ADC for administering lethal injections. This would include identifying the qualifications, experience and training of those persons who apply the IVs and who administer and monitor the injection.
I declare under penalty of perjury under the laws of the United States and the State of Arkansas that the foregoing is true and correct to the best of my knowledge and that this declaration was executed on June 11, 2006 in Kansas City, Missouri.
Mark J. S. Heath, M.D.
Curriculum Vitae
1)Date of preparation:December 19, 2004 2) Name: Mark J. S. Heath
Birth date: March 28, 1960
Birthplace: New York, N
Citizenship: United States, United Kingdom
3) Academic Training:
Harvard University B.A., Biology, 1983
University of North Carolina, Chapel Hill M.D., 1987
Medical License New York: 177101-1
4) Traineeship:
1987 — 1988 Internship, Internal Medicine, George Washington University Hospital, Washington, DC.
1988 — 1991 Residency, Anesthesiology, Columbia College of Physicians and Surgeons, New York, NY
1991 — 1993 Fellowship, Anesthesiology, Columbia College of Physicians and Surgeons, New York, NY
5) Board Qualification:
Diplomate, American Board of Anesthesiology, October 1991. Testamur, Examination of Special Competence in Perioperative Transesophageal Echocardiography (PTEeXAM), 2001.
6) Military Service: None
7) Professional Organizations:
American Society of Anesthesiologists International Anesthesia Research Society Society of Cardiovascular Anesthesiology
8) Academic Appointments:
1993 — 2002 Assistant Professor of Anesthesiology, Columbia University, New York, NY
2002 — present Assistant Professor of Clinical Anesthesiology, Columbia University, New York, NY
9) Hospital/Clinical Appointments:
1993 — present Assistant Attending Anesthesiologist, Presbyterian Hospital, New York, NY.
10) Honors:
Magna cum laude, Harvard University Alpha Omega Alpha, University of North Carolina at Chapel Hill First Prize, New York State Society of Anesthesiologists Resident Presentations, 1991
11) Fellowship and Grant Support:
Foundation for Anesthesia Education and Research, Research Starter Grant Award, Principal Investigator, funding 7/92 — 7/93, $15,000.
Foundation for Anesthesia Education and Research Young Investigator Award, Principal Investigator, funding 7/93 — 7/96, $70,000.
NIH KO8 "Inducible knockout of the NK1 receptor" Principal Investigator, KO8 funding 12/98 — 11/02, $431,947 over three years (no-cost extension to continue through 11/30/2002)
NIH RO1 "Tachykinin regulation of anxiety and stress responses" Principal Investigator, funding 9/1/2002 — 8/30/2007 $1,287,000 over 5 years
12) Departmental and University Committees:
Research Allocation Panel (1996 — 2001) Institutional Review Board (Alternate Boards 1-2, full member Board 3) (2003 — present)
13) Teaching:
Lecturer and clinical teacher: Anesthesiology Residency Program, Columbia University and Presbyterian Hospital, New York, NY
Advanced Cardiac Life Support Training
Anesthetic considerations of LVAD implantation. Recurrent lecture at Columbia University LVAD implantation course.
Invited Lecturer:
NK1 receptor functions in pain and neural development, Cornell University December 1994
Anxiety, stress, and the NK1 receptor, University of Chicago, Department of Anesthesia and Critical Care, July 2000
Anesthetic Considerations of LVAD Implantation, University of Chicago, Department of Anesthesia and Critical Care, July 2000
NK1 receptor function in stress and anxiety, St. John's University Department of Medicinal Chemistry, March 2002
Making a brave mouse (and making a mouse brave), Mt.Sinai School of Medicine, May 2002
Problems with anesthesia during lethal injection procedures, Geneva, Switzerland. Duke University School of Law Conference, "International Law, Human Rights, and the Death Penalty: Towards an International Understanding of the Fundamental Principles of Just Punishment", July 2002.
NK1 receptor function in stress and anxiety, Visiting Professor, NYU School of Medicine, New York, New York. October 2002.
Anesthetic Depth, Paralysis, and other medical problems with lethal injecton protocols: evidence and concerns, Federal Capital Habeas Unit Annual Conference, Jacksonville, Florida. May 2004.
Medical Scrutinyof Lethal Injection Procedures. National Association for the Advancement of Colored People Capital Defender Conference, Airlie Conference Center, Warrenton, Virginia. July 2004.
Anesthetic considerations of LVAD implantation. Recurrent lecture at Columbia University LVAD implantation course.
14) Grant Review Committees: None
15) Publications:
Original peer reviewed articles
* Santarelli, L., Gobbi, G., Debs, P.C., Sibille, E. L., Blier, P., Hen, R., Heath, M.J.S. (2001). Genetic and pharmacological disruption of neurokinin 1 receptor function decreases anxiety-related behaviors and increases serotonergic function. Proc. Nat. Acad. Sci. , 98(4), 1912 — 1917.
* King, T.E., Heath M. J. S ., Debs, P, Davis, MB, Hen, R, Barr, G. (2000). The development of nociceptive responses in neurokinin-1 receptor knockout mice. Neuroreport.; 11(3), 587-91 authors contributed equally to this work *
Heath, M. J. S., Lints, T., Lee, C. J., Dodd, J. (1995). Functional expression of the tachykinin NK1 receptor by floor plate cells in the embryonic rat spinal cord and brainstem. Journal of Physiology 486.1, 139-148.
* Heath, M. J. S., Womack M. D., MacDermott, A. B. (1994). Subsance P elevates intracellular calcium in both neurons and glial cells from the dorsal horn of the spinal cord. Journal of Neurophysiology 72(3), 1192 — 1197.
McGehee, D. S., Heath, M. J. S., Gelber, S., DeVay, P., Role, L.W. (1995) Nicotine enhancement of fast excitatory synaptic transmission in the CNS by presynaptic receptors. Science 269, 1692 — 1696.
Morales D, Madigan J, Cullinane S, Chen J, Heath, M. J. S., Oz M, Oliver JA, Landry DW. (1999). Reversal by vasopressin of intractable hypotension in the late phase of hemorrhagic shock. Circulation. Jul 20; 100(3):226-9.
LoTurco, J. J., Owens, D. F., Heath, M. J. S., Davis, M. B. E., Krigstein, A. R. (1995). GABA and glutamate depolarize cortical progenitor cells and inhibit DNA synthesis. Neuron 15, 1287 — 1298.
Kyrozis A., Goldstein P. A., Heath, M. J. S., MacDermott, A. B. (1995). Calcium entry through a subpopulation of AMPA receptors desensitized neighboring NMDA receptors in rat dorsal horn neurons. Journal of Physiology 485.2, 373 — 381.
McGehee, D.S., Aldersberg, M., Liu, K.-P., Hsuing, S., Heath, M.J.S., Tamir, H. (1997). Mechanism of extracellular Ca2+-receptor stimulated hormone release from sheep thyroid parafolicular cells. Journal of Physiology : 502,1, 31 — 44.
Kao, J., Houck, K., Fan, Y., Haehnel, I., Ligutti, S. K., Kayton, M. L., Grikscheit, T., Chabot, J., Nowygrod, R., Greenberg, S., Kuang, W.J., Leung, D. W., Hayward, J. R., Kisiel, W., Heath, M. J. S., Brett, J., Stern, D. (1994). Characterization of a novel tumor-derived cytokine. Journal of Biological Chemistry 269, 25106 — 25119.
Dodd, J., Jahr, C.E., Hamilton, P.N., Heath, M.J.S., Matthew, W.D., Jessell, T.M. (1983). Cytochemical and physiological properties of sensory and dorsal horn neurons that transmit cutaneous sensation. Cold Spring Harbor Symposia of Quantitative Biology 48, 685-695.
Pinsky, D.J., Naka, Y., Liao, H., Oz, M. O., Wagner, D. D., Mayadas, T. N., Johnson, R. C., Hynes, R. O., Heath, M.J.S., Lawson, C.A., Stern, D.M. Hypoxia-induced exocytosis of endothelial cell Weibel-Palade bodies. Journal of Clinical Investigation 97(2), 493 — 500. Case reports none
Review, chapters, editorials
* Heath, M. J. S., Dickstein, M. L. (2000). Perioperative management of the left ventricular assist device recipient. Prog Cardiovasc Dis.; 43(1):47-54.
* Dickstein, M.L., Mets B, Heath M.J.S. (2000). Anesthetic considerations during left ventricular assist device implantation. Cardiac Assist Devices pp 63 — 74.
* Heath, M. J. S. and Hen, R. (1995). Genetic insights into serotonin function. Current Biology 5.9, 997- 999. * Heath, M.J.S., Mathews D. (1990). Care of the Organ Donor. Anesthesiology Report 3, 344-348.
* Heath, M. J. S., Basic physiology and pharmacology of the central synapse. (1998) Anesthesiology Clinics of North America 15(3), 473 — 485.
Abstracts
Heath, M.J.S., Davis, M., Santarelli L., Hen H. (2002). Gene targeting of the NK1 receptor blocks stress-evoked induction of c-Fos in the murine locus coeruleus. IARS American-Japan Congress A-15.
Heath, M.J.S., Davis, M., Santarelli L., Hen H. (2002). Gene targeting of the NK1 receptor blocks stress-evoked induction of c-Fos in the murine locus coeruleus. Anesthesiology 95:A-811.
Heath, M.J.S., Davis, M., Santarelli L., Hen H. (2002). Expression of Substance P and NK1 Receptor in the Murine Locus Coeruleus and Dorsal Raphe Nucleus. Anesthesia and Analgesia 93; S-212
Heath, M.J.S., Davis, M., Santarelli L., Hen H. (2002). Expression of Substance P and NK1 Receptor in the Murine Locus Coeruleus and Dorsal Raphe Nucleus. Anesthesia and Analgesia 93; S-212.
Heath, M.J.S., Santarelli L, Hen H. (2001) The NK1 receptor is necessary for the stress-evoked expression of c-Fos in the paraventricular nucleus of the hypothalamus. Anesthesia and Analgesia 92; S233.
Heath, M.J.S., Santarelli L, Debs P, Hen H. (2000). Reduced anxiety and stress responses in mice lacking the NK1 receptor. Anesthesiology 93: 3A A-755. Heath, M.J.S., King, T., Debs, P.C., Davis M., Hen R., Barr G. (2000). NK1 receptor gene disruption alters the development of nociception. Anesthesia and Analgesia; 90; S315.
Heath, M.J.S., Lee, J.H., Debs, P.C., Davis, M. (1997). Delineation of spinal cord glial subpopulations expressing the NK1 receptor. Anesthesiology; 87; 3A; A639.
Heath, M.J.S., MacDermott A.B. (1992). Substance P elevates intracellular calcium in dorsal horn cells with neuronal and glial properties. Society for Neuroscience Abstracts; 18; 123.1.
Heath, M.J.S., Lee C.J., Dodd J. (1994). Ontogeny of NK1 receptor-like immunoreactivity in the rat spinal cord. Society for Neuroscience Abstracts; 20; 115.16.
Heath, M.J.S.,_Berman M.F. (1991) Isoflurane modulation of calcium channel currents in spinal cord dorsal horn neurons. Anesthesiology 75; 3A; A1037.
SUBSEQUENT HISTORY: Affirmed by Brown v. beck, 445 F.3d 752, 2006 U.S. App. LEXIS 9894 (4th Cir., 2006)
PRIOR HISTORY: Brown v. Polk, 135 Fed. Appx. 618, 2005 U.S. App. LEXIS 12250 (4th Cir. N.C., 2005)
CORE TERMS: protocol, lethal injection, sodium pentothal, inmate, potassium chloride, pancuronium, bromide, anesthesia, preliminary injunction, injunctive relief, irreparable harm, unconscious, excruciating pain, concentration, scheduled, vacated, minute, consciousness, injection, syringes, pain, personnel, stay of execution, thiopental, barbituate, sodium, blood, criminal judgments, death sentence, post-mortem
COUNSEL: [*1] For Willie Brown, Jr., Plaintiff: J. Donald Cowa, Jr., Smith Moore, Raleigh, NC; Laura Murray Loyek, Smith Moore, LLP, Raleigh, NC.
For Theodis Beck, Marvin Polk, Defendant: James Peeler Smith, NC Dept. of Justice, Raleigh, NC; Thomas James Pitman, N. C. Dept. of Justice, Raleigh, NC.
JUDGES: MALCOLM J. HOWARD, SENIOR UNITED STATES DISTRICT JUDGE.
OPINION BY: MALCOLM J. HOWARD.
OPINION: ORDER
Before the Court today is the condemned Willie Brown, Jr.'s motion for a preliminary injunction barring Defendants from executing him pursuant to North Carolina's current lethal injection protocol. Brown contends that the protocol fails to ensure that inmates are properly anesthetized prior to execution, causing excruciating pain in violation of the Eighth Amendment's prohibition on the use of "cruel and unusual" punishment, applicable to states through the Fourteenth Amendment. A preliminary injunction is necessary, Plaintiff contends, to allow the parties and this Court time to fully review the protocol and to arrive at a reasoned determination of its constitutionality or lack thereof.
STATEMENT OF THE CASE
Willie Brown, Jr. is a state inmate convicted of first-degree murder and sentenced to death. See State v. Brown, 315 N.C. 40, 337 S.E.2d 808 (1985). For more than two decades, Brown has appealed his conviction and death sentence to North Carolina's appellate courts and to every level of the federal court system. None of these appeals has resulted in alteration of his conviction or sentence. He is currently scheduled to be executed by lethal injection on April 21, 2006.
In 2003, the Fourth Circuit Court of Appeals reversed this Court's finding of procedural default as to Plaintiff's habeas claim concerning an instruction requiring juror unanimity as to mitigating circumstances. See Brow n v. Lee, 319 F.3d 162 (4th Cir. 2003). On remand, the Court determined that the instruction given was indistinguishable from the one found unconstitutional in McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990) but that Plaintiff was not entitled to habeas relief because McKoy did not apply retroactively to cases, like Plaintiff's, that became final prior to the McKoy decision. See Brown v. Polk, 2004 U.S. Dist. LEXIS 29974, No. 5:98-HC-774-H (E.D.N.C. Aug. 25, 2004) (relying on Beard v. Banks, 542 U.S. 406, 124 S. Ct. 2504 , 159 L. Ed. 2d 494 (2004)).
Brown no longer challenges his conviction or the validity of his death sentence. Instead, in this action filed pursuant to 42 U.S.C. § 1983, Brown challenges North Carolina's lethal injection protocol and the procedures Defendants intend to employ in effecting his execution on April 21, 2006. Specifically, Brown contends that the protocol and procedures Defendants intend to use are constitutionally deficient in the following ways:
1. Defendants' protocol fails to ensure that the personnel responsible for anesthesia are appropriately trained and qualified;
2. Defendants' protocol lacks adequate standards for administering injections and monitoring consciousness; and
3. Defendants fail to make adequate efforts to identify and address contingencies that may arise during execution.
Counsel for both parties have, in recent weeks, engaged in extensive briefing of this matter. The arguments made on both sides have been well reasoned and expertly presented. This Court held a status conference in this matter on March 27, 2006. Subsequently, on April 6, 2006, the Court heard arguments from learned counsel for Mr. Brown and Defendants. This matter is now ripe and must be decided expeditiously, as the date of Mr. Brown's execution is imminent.
North Carolina's Execution Protocol
The State of North Carolina executes death row inmates by lethal injection. N.C. Gen. Stat. §§ 15-187,-188. Pursuant to the execution protocol adopted by Defendants, lethal injection is performed by the administration of three chemical substances: (1) sodium thiopental or sodium pentothal, a short-acting barbituate; (2) pancuronium bromide or Pavulon, a neuromuscular blocking agent that causes total muscle paralysis; and (3) potassium chloride, which causes cardiac arrest. Each of these chemicals is injected separately into two intravenous lines leading to the inmate's body. The first set of syringes contains a total of 3000 mg. of sodium pentothal. The second syringes contain saline to flush the IV line clean. The third set of syringes contains a total of 40 mg of pancuronium bromide. The fourth set of syringes contains a total of 160 mEq of potassium chloride. The fifth set of syringes contain saline to again flush the IV line clean.
Plaintiff does not dispute that, if administered properly, 3000 mg of sodium pentothal will render an individual unconscious and unable to perceive pain. Plaintiff, however, claims that the execution protocol is inadequate to ensure that an appropriate plane of anesthesia is induced and maintained prior to execution. The neuromuscular blocking agent paralyzes voluntary muscles but does not affect consciousness or the perception of pain. As a consequence, Plaintiff contends, an individual will appear unconscious while, in fact, he may be "experienc[ing] excruciating pain as a result of the conscious asphyxiation caused by pancuronium bromide and the painful burn and cardiac arrest caused by the injection of potassium chloride." (Am. Compl. PP 11, 12.) Plaintiff further challenges the protocol on the grounds that it fails to require the presence of medical personnel trained in anesthesia and that it lacks other medically necessary safeguards to ensure that an individual is properly sedated prior to the administration of the pancuronium bromide and potassium chloride or to provide guidance to the executioners in the event of problems. (Am. Compl. PP 18-20.)
As an alternative to the execution protocol, Plaintiff suggests that Defendants instead use a long-acting barbituate, such as pentobarbital or secobarbitol. According to Plaintiff these substances cause both unconsciousness and death if properly administered. Plaintiff further suggests that Defendants establish appropriate protocols to monitor the "level of consciousness prior to injection of [the] other chemical[s];" "to require the presence of medical personnel credentialed, licensed, and proficient in the practice of anesthesia;" "to eliminate unnecessary physical barriers to direct visual and tactile monitoring;" and "to make provisions for responding to foreseeable issues that may arise during the execution." (Mem. Supp. Prelim. Inj. at 21-22.)
"Euthanasia shall be performed only by a licensed veterinarian, Tennessee veterinarian medical technician or an employee or agent of a public or private agency, animal shelter or other facility operated for the collection, care and/or euthanasia of stray, neglected, abandoned or unwanted nonlivestock animals, provided that the Tennessee veterinarian medical technician, employee or agent has successfully completed a euthanasia-technician certification course. The curriculum for such course must be approved by the board of veterinary medical examiners and must include, at a minimum, knowledge of animal anatomy, behavior and physiology; animal restraint and handling as it pertains to euthanasia; the pharmacology, proper dosages, administration techniques of euthanasia solution, verification of death techniques, laws regulating the storage, security and accountability of euthanasia solutions; euthanasia technician stress management and the proper disposal of euthanized nonlivestock animals." TENN. CODE ANN. § 44-17-303.
PRELIMINARY INJUNCTION STANDARD In determining whether Brown is entitled to a preliminary injunction, the Court is guided by the hardship balancing test set forth in Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977). This test requires the Court to consider four factors:
(1) the likelihood of irreparable harm to the plaintiff if injunctive relief is denied;
(2) the likelihood of harm to the defendants if injunctive relief is granted;
(3) the likelihood that the plaintiff will succeed on the merits; and
(4) the public interest.
Rum Creek Coal Sales , Inc. v. Caperton, 926 F.2d 353 (4th Cir. 1991) (citing Blackwelder). It "correctly emphasizes that, where serious issues are before the court, it is a sound idea to maintain the status quo ante litem, provided it can be done without imposing too excessive an interim burden upon the defendant." Bla ck welder, 550 F.2d at 194-95. Thus, the most important factors are the likelihood of irreparable harm to the plaintiff and the likelihood of harm to the defendants. Rum Creek, 926 F.2d at 359. "If, after balancing those two factors, the balance 'tips decidedly' in favor of the plaintiff, a preliminary injunction will be granted if 'the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more [*8] deliberate investigation." Id. (citations omitted) (quoting Blackwelder, 550 F.2d at 195).
"The inability to obtain damages from the State in a § 1983 action reduces the showing necessary to establish irreparable harm." Id. at 360. Because injunctive and declaratory relief are the only remedies available, "the showing necessary to meet the irreparable harm requirement for a preliminary injunction should be less strict than in other instances where future monetary remedies are available." I d. at 362. Where, however, a stay of execution is sought, the court must also consider whether the inmate has unnecessarily delayed bringing the claim. "Given the State's significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay." Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S. Ct. 2117, 158 L. Ed. 2d 924 (2004) (citations omitted).
DISCUSSION
This is not the first time that an individual has challenged a state's execution protocol for the reasons cited by Plaintiff. Since the Supreme Court's decision in Nelson, inmates facing execution have raised similar claims throughout the country, contending they are at significant risk of needlessly and consciously suffering excruciating pain. See, e.g., Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006); Smith v. Johnson, 2006 U.S. Dist. LEXIS 14668, No. Civ.A. H-06-450, 2006 WL 644424 (S.D. Tex. Feb. 13, 2006), aff'd, 440 F.3d 262 (5th Cir. 2006); Evans v. Saar, 412 F. Supp. 2d 519 (D. Md. 2006); Rutherford v. Crosby, 2006 U.S. Dist. LEXIS 3815, No. 4:06-CV-50/MCR, 2006 WL 228883 (N.D. Fla. Jan. 28, 2006), aff'd, 438 F.3d 1087 (2006); Anderson v. Evans, 2006 U.S. Dist. LEXIS 1632, No. CIV-05-0825-F, 2006 WL 83093 (W.D. Okla. Jan. 11, 2006); Ross v. Rell, 392 F. Supp. 2d 224 (D. Conn. 2005); Beardslee v. Woodford, 2005 U.S. Dist. LEXIS 144, No. C 04-5381 JF, 2005 WL 40073 (N.D. Cal. Jan. 7, 2005), aff'd, 395 F.3d 1064 (9th Cir. 2005); Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va. 2004); Harris v. Johnson, 323 F. Supp. 2d 797 (S.D. Tex. 2004), vacated, 376 F.3d 414 (5th Cir. 2004); Oken v. Sizer, 321 F. Supp. 2d 658 (D. Md. 2004); Cooper v. Rimmer, 2004 U.S. Dist. LEXIS 1624, No. C 04 436 JF, 2004 WL 231325 (N.D. Cal. Feb. 6, 2004); Bieghler v. Indiana, 839 N.E.2d 691 (Ind. 2005); Abdur 'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005). In this Court alone, there have been six § 1983 actions challenging North Carolina's execution protocol. Of the various federal and state cases, the Court is aware of only four cases since Nelson in which injunctive relief has been granted based on challenges to a state's execution protocol. In each of those cases, the stay was ultimately vacated on appeal. See Bieghler v. Donahue, 163 Fed. Appx. 419, 2006 WL 229027 (7th Cir.), vacated, 126 S. Ct. 1190, 163 L. Ed. 2d 1144 (2006); Harris v. Johnson, 323 F. Supp. 2d 797 (S.D. Tex.), vacated, 376 F.3d 414 (5th Cir. 2004); Oken v. Sizer, 321 F. Supp. 2d 658 (D. Md.), vacated, 542 U.S. 916, 124 S. Ct. 2868, 159 L. Ed. 2d 290 (2004); Perkins v. Beck, No. 5:04-CT-643-BO (Oct. 1, 2004), vacated, 543 U.S. 920, 125 S. Ct. 307, 160 L. Ed. 2d 211 (2004). In Moody, this Court recently denied the plaintiffs request for injunctive relief because he had delayed filing his § 1983 complaint until thirteen days before his scheduled execution. Based on the record before it, the Court further concluded that "the relative harm to the parties also weigh[ed] against granting injunctive relief." Moody v. Beck, No. 5:06-CT-3020-D (Mar. 14, 2006) at 7.
In fact, the principal experts involved in this case, Dr. Mark J. S. Heath and Dr. Mark Dershwitz, are the same experts relied upon by the parties in a number of these cases. See, e.g., Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006); Evans v. Saar, 412 F. Supp. 2d 519 (D. Md. 2006); Abdur 'Rahman v. Bredesen, 181 S.W.3d 292 (Tenn. 2005) (Heath only); Beardslee v. Woodford, 2005 U.S. Dist. LEXIS 144, No. C 04-5381 JF, 2005 WL 40073 (N.D. Cal. Jan. 7, 2005), aff'd, 395 F.3d 1064 (9th Cir. 2005); Reid v. Johnson, 333 F. Supp. 2d 543 (E.D. Va. 2004).
The other five actions filed in this Court are Page v. Beck, No. 5:04-CT-4-BO (formerly designated as Rowsey v. Beck), which was filed by four inmates challenging the execution protocol formerly used by the State of North Carolina; Conner v. Beck, No. 5:06-CT-3032-D; Perkins v. Beck, No. 5:04-CT-643-BO; Boyd v. Beck, No. 5:05-CT-774-D; and Moody v. Beck, No. 5:06-CT-3020-D. Perkins, Boyd and Moody have previously been dismissed. Page and Conner are still pending before the Court.
The Northern District of California recently considered claims similar to those raised by Plaintiff and denied injunctive relief on condition that the State of California would agree to modify its execution protocol to address certain concerns raised by the plaintiff. Acknowledging that "no court has found either lethal injection in general or a specific lethal-injection protocol in particular to be unconstitutional," the court noted that the record before it was much more extensive and included "evidence of a kind that was not presented" in the other cases. Morales, 415 F. Supp. 2d 1037, 2006 WL 335427, *5. The Morales Court expressed specific concern with information contained in logs from a number of executions suggesting that inmates may have continued breathing more than a minute after the administration of sodium thiopental. The court noted that this evidence appeared contrary to Dr. Dershwitz's opinion, which had been relied upon in other cases, that the amount of sodium thiopental used would cause an inmate to stop breathing and lose consciousness within a minute after administration began. While acknowledging Dr. Dershwitz's explanation that these "respirations" may have simply [*13] been "chest wall movements" and not respirations, the court concluded that the evidence before it raised some doubt whether California's execution protocol was functioning as intended. Based on these concerns, the court determined that preservation of "both the State's interest in proceeding with [Morales'] execution and [Morales'] constitutional right not to be subject to an undue risk of extreme pain" would be best served by denying Morales' motion for injunctive relief provided that the State agreed either to use only barbituates in executing Morales or to have an individual trained and experienced in the field of general anesthesia to ensure that Morales was rendered unconscious prior to the administration of pancuronium bromide or potassium chloride. Morales, 415 F. Supp. 2d 1037, 2006 WL 335427, at *8.
While the Court does not fashion its order based solely on Morales, the Court does find the Morales decision persuasive. As in Morales, Plaintiff here has presented evidence of a kind that is different from that presented in the cases previously considered by this and other courts. Among this evidence is toxicology data from four recent North Carolina executions showing post-mortem levels of sodium pentothal ranging from 1.5 mg/L to 42 mg/L. At the very least, this evidence appears contrary to Dr. Dershwitz's opinion that a man of average size injected with 3000 mg of sodium pentothal would have an expected concentration of 40 mg/L ten minutes later and a concentration of 33 mg/L twenty minutes later. In response, Defendants have filed an affidavit of Dr. Dershwitz in which it is stated that the discrepancies between the post-mortem toxicology results and his predictions may be explained by a number of factors, including the following: (i) that his predictions are based on arterial blood concentrations, whereas the post-mortem samples may not have been arterial blood samples; (ii) that sodium pentothal is subject to postmortem redistribution, causing a decrease in the blood concentration with time lapse; (iii) that due to the administration of the potassium chloride, blood circulation may have stopped prior to equilibration of the sodium pentothal concentrations between the arterial and venous circulatory systems; and (iv) there would be a systematic decrease in the reported concentrations due to delays in obtaining and shipping the samples and improper storage of the samples. While Dr. Dershwitz's explanation may be correct, the Court cannot ignore the serious questions raised by this data. This is especially true considering that the blood samples of which Dr. Dershwitz complains were collected, shipped, stored and analyzed at Defendants' direction by agents of the State for the express purpose of determining whether inmates executed under Defendants' protocol are receiving sufficient anesthesia prior to the administration of the pancuronium bromide and potassium chloride.
Toxicology results of blood samples taken from the left femoral vessel of Steven Van McHone, who was executed November 11, 2005, indicate sodium pentothal levels of 1.5 mg/L and 21 mg/L. Similar tests revealed sodium pentothal levels of 4.4 mg/L, 11 mg/L and 12 mg/L in Elias Syriani, who was executed November 18, 2005; 11 mg/L and 29 mg/L in Kenneth Boyd, executed December 2, 2005; and 8.7 mg/L, 12 mg/L and 42 mg/L in Perrie Dyon Simpson, following his execution on January 20, 2006.
Plaintiff also relies on affidavits from attorneys who report having witnessed individuals writhing, convulsing, and gagging when executed. For example, Heather Wells, an attorney for Eddie Ernest Hartman, reports that Eddie appeared to suffer for at least five minutes after the lethal injection. She states that "Eddie's throat began thrusting outward and collapsing inward. His neck pulsed, protruded, and shook repeatedly. Eddie's chest at first pulsated frequently, then intermittently, and at least twice I saw Eddie's chest heave violently. . . . Throughout the execution, Eddie's eyes were partly open while his body relentlessly convulsed and contorted." (Mem. Supp. Prelim. Inj., Ex. K, PP 7-9, 12 (paragraph numbers omitted).) Kim Stevens and Cynthia Adcock report similar observations during the executions of John Daniels, Willie Fisher, and Timmy Keel. (Mem. Supp. Prelim. Inj., Exs. J, L.) Ms. Adcock states that she witnessed three executions by lethal injection in the State of North Carolina. The first was Zane Hill. Ms. Adcock states that in the hours preceding his death Mr. Hill was heavily medicated and behaved similar to someone who was intoxicated. When he was executed, he appeared unconscious, and he never opened his eyes or grimaced. She states that was not the case, however, with the executions of Willie Fisher and Timmy Keel. According to Ms. Adcock, Mr. Fisher's execution commenced at 9:00 p.m. and concluded at 9:21 p.m. Ms. Adcock states that Mr. Fisher appeared to lose consciousness around 9:00 p.m., but subsequently began convulsing. She states that he looked as though he was trying to catch his breath but could not and that his eyes were open as his chest heaved repeatedly. She further reports watching Timmy Keel's body "twitching and moving about" for approximately ten minutes. Kim Stevens describes a similar scene with the execution of John Daniels:
Mr. Daniels lay still for a moment after the Warden's announcement [that the execution would proceed], and turned his face away from us. Then, all of a sudden he started to convulse, violently. He sat up and gagged. We could hear him through the glass. A short time later, he sat up and gagged and choked again, and struggled with his arms under the sheet. He appeared to me to be in pain. He finally lay back down and was still.
(Mem. Supp. Prelim. Inj., Ex. L, P 5.) According to Dr. Heath, "[w]itness accounts of writhing and convulsing during execution are not consistent with a sufficient dose of [sodium pentothal] having been successfully delivered to the brain such that the condemned inmate does not feel pain." (Mem. Supp. Prelim. Inj., Ex. F, P 31.) While these particular executions took place prior to Defendants' adoption of the current execution protocol, the amount of sodium pentothal administered during these executions was the same as under the current protocol (3000 mg), it was simply administered in a different sequence. Thus, evidence of the problems associated with these executions while, perhaps, not clearly indicative of the current protocol, does raise some concerns about the effect of North Carolina's protocol.
As to the balance of hardship, Brown contends:
The excruciating pain that Plaintiff will suffer during his execution clearly constitutes irreparable harm. Moreover, Plaintiff will have no meaningful retrospective remedy, as he will no longer be alive. Indeed, the Fourth Circuit has recognized that, because of the absence [of] retrospective remedies, the showing required for a preliminary injunction is less strict in cases involving [*19] an alleged violation of rights under Section 1983. See Rum Creek , 926 F.2d 353, 362 (4th Cir. 1991).
. . . .
Defendants will incur minimal, if any, harm if they are enjoined from conducting Plaintiff's execution using their intended inadequate protocol. Plaintiff seeks only to enjoin Defendants from doing what they have no right or need to do — employing an inadequate protocol for inducing and maintaining anesthesia with blatant disregard for the conscious suffering and excruciating pain Plaintiff will experience as a result. Plaintiff does not seek to prevent Defendants from carrying out his execution, or even from carrying out his execution by lethal injection, a fact that minimizes any risk of harm to Defendants.
There is no obstacle, other than Defendants' own refusal, to the adoption of alternative procedures or other measures that would ensure proper induction and monitoring of anesthesia throughout the course of the lethal injection process. . .
Finally, Plaintiff's lack of undue delay in bringing this claim further tips the equitable balance in Plaintiff's favor. From the time of his conviction until the denial of his Petition for Writ of Habeas Corpus on 27 February 2006, Plaintiff has continuously pursued state and federal appeals and post-conviction proceedings in an effort to obtain a new trial or sentencing hearing. In fact, in 2003, the Fourth Circuit concluded that Plaintiff was entitled to a new sentencing hearing because of constitutional errors affecting his death sentence. Due to an intervening decision of the United States Supreme Court, his Petition was subsequently dismissed without re-sentencing. Any challenge to Defendants' anesthesia protocol prior to the denial of his federal habeas petition would have been premature, given that a favorable habeas ruling would have mooted a claim under Section 1983 and rendered any ruling on this matter advisory.
After the United States Supreme Court denied certiorari with respect to Plaintiff's habeas petition, eliminating all legal barriers to the State's ability to schedule Plaintiff's execution, Plaintiff moved promptly to assert his claim, filing his Complaint the same day the Supreme Court's order was issued and before an execution date was set.
(Mem. Supp. Prelim. Inj. at 9, 20-23 (parenthetical omitted) (citations omitted).)
Defendants, on the other hand, assert that Brown cannot show he will suffer irreparable harm. According to Defendants:
Plaintiff will not suffer physically because he will be rendered fully unconscious by the administration of thiopental sodium before the injection of pancuronium bromide and will remain so until he is declared dead. . . .
. . . .
On the other hand, the State of North Carolina suffers irreparable harm because of its inability to enforce its criminal judgments. . . . The citizens of North Carolina have a strong interest in seeing the judgment rendered in Plaintiff's criminal case carried out. More than twenty years have passed since a North Carolina jury found Plaintiff guilty of capital murder beyond a reasonable doubt and further decided the aggravating circumstance of the crimes [sic] outweighed the circumstances mitigating the punishment. The verdicts and judgments have been upheld by the North Carolina Supreme Court and sustained by the federal courts. Although the statute prescribing lethal injection as the sole form of capital punishment in North Carolina . . . had been in effect since 1988, Plaintiff did not challenge the State's method of execution until shortly before the time when the State set the date for his execution. Such a deliberate dilatory tactic by a criminal defendant is a ground for denying equitable relief. Such tactics irreparably harm the State and are contrary to the public interest.
(Mem. Opp. Prelim. Inj. at 35-42 (citations omitted).)
On balance, the Court concludes that the likelihood of irreparable harm to Brown far exceeds the likelihood of harm to Defendants. Serious questions have been raised by the evidence concerning the effect of the current execution protocol. If the alleged deficiencies do, in fact, result in inadequate anesthesia prior to execution, there is no dispute that Brown will suffer excruciating pain as a result of the administration of pancuronium bromide and potassium chloride. Moreover, if the State of North Carolina is permitted to execute Brown as scheduled, on April 21, 2006, Brown will be deprived of any opportunity to pursue this action or to seek redress in the event he suffers a torturous death. The Court recognizes the State's significant interest in finality and the enforcement of its criminal judgments. However, the Court determines that it would be inappropriate to allow Defendants to proceed [*23] with Mr. Brown's execution under the current protocol considering the substantial questions raised. Although Plaintiff may have been able to file this action prior to the time he did, this case is not like Moody, where the plaintiff waited until fifteen days prior to his scheduled execution before filing his § 1983 action. In this case, Plaintiff filed his action the same day the Supreme Court denied certiorari in his case and prior to the time his execution was scheduled. Considering the Fourth Circuit's decision remanding the case for consideration of Plaintiff's McKoy claim and the subsequent stay entered by this Court, the Court concludes that Plaintiff's delay in filing is not so great that Plaintiff should be deprived of his only opportunity to pursue the "serious, substantial, difficult and doubtful" questions raised in this action. That said, it has been more than twenty years since Plaintiff was convicted and sentenced to death. As noted by the Morales Court:
Even if the Court were to hold an evidentiary hearing and Plaintiff were to prevail, Plaintiff would remain under a sentence of death. Neither the death penalty nor lethal injection as a means of execution would be abolished. At best, Plaintiff would be entitled to injunctive relief requiring the State to modify its lethal-injection protocol to correct the flaws Plaintiff has alleged. Presumably, at some point, Plaintiff would be executed.
Morales, 415 F. Supp. 2d 1037, 2006 WL 335427, *7.
This Court has the authority and the responsibility to ensure that the State, if it chooses to go forward with executing Brown, does so in a manner that comports with the Eighth Amendment. See Morales v. Hickman, 438 F.3d 926 (9th Cir. 2006). The Court finds that Plaintiff has raised substantial questions as to whether North Carolina's execution protocol creates an undue risk of excessive pain. However, the Court finds, as did the Morales Court, that the questions raised "may be addressed effectively by means other than a stay of execution, and that these alternative means would place a substantially lesser burden on the State's strong interest in proceeding with its judgment." Morales, 415 F. Supp. 2d 1037, 2006 WL 335427, *7. Specifically, the Court finds that the questions raised could be resolved by the presence of medical personnel who are qualified to ensure that [*25] Plaintiff is unconscious at the time of his execution.
CONCLUSION
The Court concludes that Plaintiff's primary concern is ensuring that Plaintiff will not experience pain during the injection of pancuronium bromide and potassium chloride into his bloodstream during his execution. As the reviewer of the constitutional sufficiency of the process employed by Defendants in this matter, this is the Court's main concern as well. Therefore, based on the foregoing discussion, and after considering the blood test summaries and affidavits submitted by counsel who have viewed past executions in North Carolina, the Court concludes this issue must be addressed before Willie Brown's execution may go forward.
Accordingly, the Court hereby conditionally DENIES Plaintiff's motion for preliminary injunction, and Plaintiff's execution may proceed as scheduled on April 21, 2006, on the condition that there are present and accessible to Plaintiff throughout the execution personnel with sufficient medical training to ensure that Plaintiff is in all respects unconscious prior to and at the time of the administration of any pancuronium bromide or potassium chloride. Should Plaintiff exhibit effects of consciousness at any time during the execution, such personnel shall immediately provide appropriate medical care so as to insure Plaintiff is immediately returned to an unconscious state.
On or before April 12, 2006, at 12:00 noon, Defendants shall file with this Court and serve upon Plaintiff a notice setting forth the plans an*d qualifications of such personnel. Plaintiff may file any objections to the plans and/or qualifications of such personnel on or before 5:00 p.m. on April 14, 2006. In the event Defendants fail to provide such information or choose not to proceed with Plaintiff's execution in this manner, a preliminary injunction including a stay of execution will issue immediately, without the necessity of further proceedings. A schedule for discovery and future hearings shall be entered forthwith thereafter. In no event shall a stay of execution remain in effect for more than 180 days without an order of this Court finding extraordinary circumstances warranting extension of the stay.
This the 7th day of April 2006.
MALCOLM J. HOWARD
SENIOR UNITED STATES DISTRICT JUDGE
TROUBLE FINDING INMATE'S VEIN SLOWS LETHAL INJECTION IN OHIO
By ADAM LIPTAK .
It took almost 90 minutes to execute Joseph L. Clark in anOhio prison yesterday, in what critics of the death penalty said was the latest in a series of botched executions nationwide.
Courts around the country are considering a variety of challenges to lethal injections, which lawyers for death row inmates contend can be needlessly painful and therefore cruel and unusual punishment.
In Mr. Clark's case, prison technicians had trouble finding a suitable vein through which to administer the lethal chemicals, said a prison spokeswoman, Andrea Dean. Ms. Dean speculated that Mr. Clark's veins might have been damaged by drug abuse.
"It took them about 22 minutes, and they found one good site," she said.
The deadly chemicals started to flow at 10:25 a.m., Ms. Dean said.
"But after about three or four minutes," she continued, "the inmate was able to raise his head off the gurney and said, 'It's not working.'" The vein had collapsed, she said.
The curtains separating witnesses from the execution chamber were then closed for more than a half-hour while technicians tried to find a second suitable vein. After one was located, the execution continued, and Mr. Clark was pronounced dead at 11:26 a.m.
Ohio has executed 21 prisoners since 1999, all by lethal injection. "We have never had an incident like this," Ms. Dean said. "We are going to review our policies and our protocol."
Mr. Clark, 57, was convicted of the 1984 killing of David Manning, a gas station clerk. He was also serving a life sentence for killing a second man. He was executed at the Southern Ohio Correctional Facility in Lucasville.
Opponents of the death penalty said it was time to re-examine lethal injections, which are used in 37 states. "The constitutional requirement is that the best available technology be used to extinguish life as painlessly as possible," said Eric M. Freedman, a law professor at Hofstra University. "Today's botched execution makes perfectly clear that the first generation of drug protocols needs to be succeeded by a second generation, just as the electric chair became technologically obsolete and therefore vanished."
Deborah W. Denno, a Fordham University law professor who is an authority on methods of execution, expressed surprise at yesterday's events. "With all the visibility of this topic and all the scrutiny," she said, "the authorities still are not able to do these executions properly."
RICHARD COOEY, and JEFFREY D. HILL, Plaintiffs, v. ROBERT TAFT, Governor, REGINALD WILKINSON, Director, and JAMES HAVILAND, Warden, Defendants. Case No. 2:04-cv-1156 United States District Court for the Southern District of Ohio, Eastern DivisionFiled April 28, 2006
SUBSEQUENT HISTORY: Motion granted by Cooey v. Taft, 2006 U.S. Dist. LEXIS 40020 (S.D. Ohio, June 16, 2006)
PRIOR HISTORY: Cooey v. Taft, 2005 U.S. Dist. LEXIS 44225 (S.D. Ohio, Mar. 28, 2005) Hill v. Mitchell, 126 S. Ct. 744, 163 L. Ed. 2d 582, 2005 U.S. LEXIS 8697 (U.S., 2005) CORE TERMS: preliminary injunction, protocol, inmate, lethal injection, lethal-injection, enforcing, issuance, civil rights action, criminal judgments, challenging, prescribed, intervene, condemned, likelihood of success, interlocutory appeal, thiopental, movant, sodium, stay of execution, sodium pentothal, injunction, dose, cruel and unusual punishment, public interest, undue delay, self-inflicted, violating, constitutional rights, emergency, raising
For Richard Cooey, Plaintiff: Gregory William Meyers, Kelly Leann, Culshaw, Ohio Public Defender's Office — 2, Columbus, OH.
For John R Hicks, Intervenor Plaintiff: Marc David Mezibov, Christian A Jenkins, Mezibov Jenkins, LLP, Cincinnati, OH.
For Jeffrey D Hill, Intervenor Plaintiff: Gary Wayne Crim, Dayton, OH; David Bodiker, Timothy R Payne, Ohio Public Defender's Office — 2, Columbus, OH.
For Governor Robert Taft, Govenor of the State of Ohio, Director Reginald Wilkinson, Director, Ohio Department of Rehabilitation and Correction, James Haviland, Warden Southern Ohio, Correctional Facility, Defendants: Michael L Collyer, Assistant Attorney General, Cleveland, OH; Kelley Ann Sweeney, Ohio Attorney General — 2, Cleveland, OH.
GREGORY L. FROST, UNITED STATES DISTRICT JUDGE. Magistrate Judge Abel.
OPINION: [*703] ORDER GRANTING PRELIMINARY INJUNCTION
GREGORY L. FROST.
Jeffrey Hill, a state prisoner sentenced to death by the State of Ohio, is a plaintiff in a civil rights action pending before this Court that challenges multiple facets of the lethal injection protocol used by the State of Ohio. This matter is before the Court on Plaintiff Hill's emergency motion [**2] for a preliminary injunction, i.e., a stay of execution. (Doc. # 37.) For the reasons that follow, the Court finds the motion well taken. Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Jeffrey D. Hill issued by any court of the State of Ohio until further Order from this Court.
Plaintiff Richard Cooey initiated in this Court a civil rights action challenging multiple facets of Ohio's lethal injection protocol as violating the Eighth Amendment's prohibition against cruel and unusual punishment. These proceedings have been stayed since April 13, 2005, when the Court issued an order granting Defendants' motion for an order certifying an interlocutory appeal to the United States Court of Appeals for the Sixth Circuit concerning the issue of whether Plaintiffs' action is time-barred. (Doc. # 21.) On August 24, 2005, the Sixth Circuit issued an order expanding the scope of the interlocutory appeal to include the issues of whether Plaintiffs' action is barred by res judicata and whether Plaintiffs' action [*704] should be construed as a habeas corpus action pursuant [**3] to 28 U.S.C. § 2254 instead of a civil rights action pursuant to 42 U.S.C. § 1983. (Doc. # 22.)
On January 19, 2006, this Court issued an order granting Plaintiff Jeffrey Hill permission to intervene. (Doc. # 35.) On April 12, 2006, the Supreme Court of Ohio set an execution date for Plaintiff Hill, i.e., June 15, 2006. (Plaintiff's Emergency Motion for Preliminary Injunction, Doc. # 37, at 1.) Accordingly, Plaintiff Hill filed the instant Emergency Motion for Preliminary Injunction on April 14, 2006. Also before the Court are the Defendants' brief in opposition (Doc. # 39) and Plaintiff's reply memorandum (Doc. # 42).
On April 28, 2006, this Court conducted an informal telephone conference in accordance with S.D. Ohio Civ. R. 65.1. During that conference, the parties agreed to forego a hearing and have this Court resolve the preliminary injunction motion on their briefs.
"The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits." United Food Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Authority , 163 F.3d 341, 348 (6th Cir. 1998) [**4] (quoting Stenberg v. Cheker Oil Co. , 573 F.2d 921, 925 (6th Cir. 1978)). The decision of whether to issue a preliminary injunction rests within the discretion of the district court. See, e.g., N.A.A.C.P. v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989). In determining whether to exercise its discretion to grant a preliminary injunction, a district court must balance the following factors:
(1) whether the movant has a "strong" likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.
Addressing the stay-of-execution issue in the context of a method-of-execution challenge, the Supreme Court of the United States in Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2125-26, 158 L. Ed. 2d 924 (2004), observed that, "the mere fact that an inmate states a cognizable § 1983 claim does not warrant the entry of a stay as a matter of right." The Supreme Court pointed to its decision in Gomez v. United States Dist. Court for Northern Dist. of California , 503 U.S. 653, 112 S. Ct. 1652, 118 L. Ed. 2d 293 (1992) ( per curiam), where it left open the question of whether an inmate's claim was cognizable under § 1983, but vacated the stay of execution nonetheless because the inmate "waited until the 11th hour to file his challenge despite the fact that California's method of execution had been in place for years." Nelson, 124 S.Ct. at 2126 (discussing Gomez, 503 U.S. at 654). The Supreme Court emphasized:
Thus, before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the [**6] inmate has delayed unnecessarily in bringing the [*705] claim. Given the State's significant interest in enforcing its criminal judgments, see Blodgett, 502 U.S. 236, 239, 112 S. Ct. 674, 116 L. Ed. 2d 669; McCleskey, 499 U.S. 467, 491, 111 S. Ct. 1454, 13 L. Ed. 2d 517, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.
Nelson, 124 S.Ct. at 2126.
In connection with this civil rights action and similar actions that have since been dismissed, this Court has twice considered and denied motions for a preliminary injunction staying the execution of a movant. In the case of Adremy Dennis, the Court was constrained to deny that plaintiff's motion for a preliminary injunction because, given the State's strong interest in enforcing its criminal judgments, along with the plaintiffs' inexcusable delay in pursuing a civil rights action challenging Ohio's lethal injection protocol, "there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits [**7] without requiring entry of a stay." Dennis v. Taft, 2:04-cv-532, Doc. # 14, at 14 (quoting Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L. Ed. 2d 924 (2004)). Following the United States Supreme Court's reasoning in Nelson and Gomez, this Court concluded that:
If the instant action cannot be characterized as an 11th hour challenge, given the fact that Petitioner Dennis was not facing an execution date when he filed his complaint, it can certainly be characterized as a 9th or 10th hour challenge, given the fact that he had exhausted all of his other available remedies and the State had requested an execution date to be set.
(Dennis, 2:04-cv-532, Doc. # 14, at 12.)
In the case of John R. Hicks, who was granted permission on November 23, 2005 to intervene in the instant action, the Court observed that:
The situation here is perhaps even more egregious than that in Dennis. Here, although the Ohio Supreme Court set Hicks's execution date on October 5, 2005, Hicks waited until November 23, 2005 to pursue a stay. This exceeds the eleven days separating the establishment of an execution date and the motion for injunctive relief involved in Dennis. [**8] In both instances, the movant delayed unnecessarily.
(Doc. # 26, at 4.)
Plaintiff Jeffrey Hill's case is readily distinguishable from those of Dennis and Hicks. First, Plaintiff Hill, when he moved to intervene in the instant action, initiated his civil rights action challenging Ohio's lethal injection protocol in a timely fashion as specifically outlined by this Court in its Opinion and Order of March 28, 2005. (Doc. # 14.) There, the Court concluded that "the statute of limitations on claims raising specific challenges to a method of execution, but otherwise conceding that the execution can be carried out in a constitutional manner if the specific challenges are addressed, begins to run when the execution becomes imminent and the plaintiff knows or has reason to know of the facts giving rise to his specific challenges." (Doc. # 14, at 12.) This Court has reasoned that those two conditions are met when the plaintiff has exhausted all of his state and federal avenues of relief, i.e., when the United States Supreme Court denies certiorari in the plaintiff's habeas corpus proceedings or otherwise issues a decision foreclosing federal habeas corpus relief. (Doc. # 14, [**9] at 11.) When Plaintiff [*706] Hill filed his emergency motion to intervene on December 11, 2005, he avers, the United States Supreme Court had "recently denied [his] petition for a writ of certiorari and the time for filing the rehearing petition has not yet run." (Hill's Emergency Motion to Intervene, Doc. # 29, at 2.) Thus, unlike Dennis and Hicks, Plaintiff Hill was not within days of his execution. He did not sit on his laurels. He did not wait until the State had set or even requested an execution date. Rather, immediately after the occurrence in his case of the preconditions identified by this Court in its March 28, 2005 for the accrual of his cause of action, Plaintiff Hill moved to intervene in the instant action.
The Court takes note of Crawford v. Taylor, 126 S. Ct. 1192, 163 L. Ed. 2d 1145 (2006), a case highlighted by Plaintiff Hill in his reply memorandum in which the Supreme Court of the United States refused to interfere with the entry of a stay of execution in a case challenging the State of Missouri's lethal injection protocol. (Reply Memorandum, Doc. # 42, at 4.) As Plaintiff Hill points out, and as review of the attached docket confirms, the plaintiff had commenced [**10] his federal litigation challenging the lethal injection protocol years before his execution date had been set. (Doc. # 42, at 4-5; App. A, at 7-10.) Thus, to the extent that anything can be gleaned from non-action on the part of the Supreme Court of the United States, it would appear that the Court seems poised to let stand an entry of a stay of execution in cases raising lethal-injection challenges wherein the plaintiff had not engaged in undue delay in bringing his challenge.
A second factor distinguishing Plaintiff Hill's case from those of Dennis and Hicks is the mounting evidence calling Ohio's lethal injection protocol, and the same or similar protocols employed by other states, increasingly into question. In Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006), the district court took note of "evidence of a kind that was not presented in earlier cases," id. at 1043, purporting to demonstrate that inmates recently executed in California under its lethal-injection protocol may have continued breathing more than a minute after the administration of sodium thiopental, in contravention of the opinion of Dr. Mark Dershwitz that the [**11] amount of sodium thiopental prescribed under California's lethal-injection protocol, i.e., 5 mg, would cause an inmate to lose consciousness and stop breathing within one minute. Id. at 1043-44. Although the State subsequently submitted a supplemental affidavit by Dr. Dershwitz opining that the "respirations" observed by witnesses may have been "chest wall movements" and not respirations at all, the district court, while duly considering Dr. Dershwitz's opinion in that regard, concluded that "evidence from eyewitnesses tending to show that many inmates continue to breathe long after they should have ceased to do so cannot simply be disregarded on its face." Id. at 1045.
Less than two months later, in Brown v. Beck, No. 5:06-CT-3018-H, the District Court for the Eastern Division of North Carolina, Western Division, also had the benefit of "evidence of a kind that is different from that presented in the cases previously considered by this and other courts." (Doc. # 37-2, at 8.) Specifically, the district court had before it toxicology data following four recent executions in North Carolina showing post-mortem levels of sodium pentothal contradicting [**12] the opinion of Dr. Dershwitz as to the expected concentration that would be present in a man of average size after having been given a dose of 3000 mg of sodium pentothal. (Doc. # 37-2, at 8-9.) As in Morales, the defendants submitted a supplemental affidavit from Dr. Dershwitz offering possible [*707] explanations for the post-mortem levels of sodium pentothal. The district court in Brown stated that, "while Dr. Dershwitz's explanation may be correct, the Court cannot ignore the serious questions raised by this [toxicology] data." (Doc. # 37-2, at 9.) The district court in Brown also had before it affidavits from attorneys present at recent executions who had witnessed the condemned inmates "writhing, convulsing, and gagging when executed." (Doc. # 37-2, at 9.) The district court noted that, according to an affidavit by Dr. Mark J.S. Heath, such witness accounts of writhing and convulsing would be inconsistent with a sufficient dose of sodium pentothal having been successfully delivered to the brain such that the condemned inmate" would not feel pain. (Doc. # 37-2, at 10.)
This Court has no evidence before it of the kind that the district courts in Morales and Brown [**13] had before them. The reason is not due to a lack of diligence on the part of the plaintiffs, but because this case has been stayed since April 13, 2005, when this Court granted Defendants' motion for an order to certify an interlocutory appeal. (Doc. # 21.) The parties in this case have also relied, preliminarily, on affidavits by Drs. Mark J.S. Heath and Mark Dershwitz. That being so, this Court would be remiss if it did not take note of the evidence that the district courts in Morales and Brown considered. And that evidence raises grave concerns about whether a condemned inmate would be sufficiently anesthetized under Ohio's lethal-injection protocol prior to and while being executed, especially considering that the dose of sodium thiopental prescribed under Ohio's lethal-injection protocol (2 grams) is less than that prescribed under California's protocol (5 grams) and that prescribed under North Carolina's protocol (3000 mg). Compounding the gravity of the risk that Plaintiff Hill will not be properly anesthetized prior to and while being executed, as the district courts in Morales and Brown noted, is the absence prior to and during the execution process [**14] of certified medical personnel capable of ensuring, among other things, that the drugs are properly prepared and delivered, and that the condemned inmate has been rendered unconscious prior to and during the administration of the pancuronium bromide and potassium chloride. In short, the growing body of evidence calling Ohio's lethal injection protocol increasingly into question distinguishes Plaintiff Hill's case from previous cases that this Court has considered.
The defendants have also submitted an affidavit by Dr. Carl Rosow agreeing with various observations by Dr. Dershwitz and disagreeing with several observations by Dr. Mark J.S. Heath. (Doc. # 39-7.)
As the foregoing demonstrates, principles of equity do not militate against Plaintiff Hill regarding undue delay versus the State's substantial interest in enforcing its criminal judgments. Turning to the four factors that must be balanced, McPherson, 119 F.3d at 459, this Court is persuaded that Plaintiff Hill is entitled to a preliminary [**15] injunction staying his execution. At the very least, Plaintiff has demonstrated a stronger likelihood of success on the merits than the plaintiffs who preceded him, given the growing body of evidence calling Ohio's lethal injection protocol increasingly into question. This Court can not and will not turn a blind eye to the evidence presented in the cases of Brown v. Beck in North Carolina and Morales v. Hickman in California appearing to contradict the opinion of Dr. Mark Dershwitz that virtually all persons given the dose of sodium thiopental prescribed under Ohio's lethal-injection protocol would be rendered unconscious and would stop breathing within one minute. [*708] (Doc. # 39-6, at P8.) Given the evidence that has begun to emerge calling this and other conclusions by Dr. Dershwitz into question, the Court is persuaded that there is an unacceptable and unnecessary risk that Plaintiff Hill will be irreparably harmed absent the injunction, i.e., that Plaintiff Hill could suffer unnecessary and excruciating pain while being executed in violation of his Eighth Amendment right not to be subjected to cruel and unusual punishment.
The Court is not persuaded that issuance of [**16] the preliminary injunction will cause substantial harm to the State by comparison. Without diminishing in any way the State's significant interest in enforcing its criminal judgments in a timely fashion, it appears to this Court — even without a fully developed record — that the potential flaws identified in Ohio's lethal injection protocol giving rise to the unacceptable risk of violating the Eighth Amendment's proscription against cruel and unusual punishment are readily fixable. Thus, any delay in carrying out Plaintiff's execution should and can be minimal. Additionally, in regard to Defendants' argument that the granting of an injunction would harm the State's interest in fulfilling the judgment against Plaintiff Hill in a timely manner, the Court notes that but for the State's interlocutory appeal, many if not all of the underlying issues would in all likelihood have been resolved by now. The fact that the state-obtained stay has prevented such resolution qualifies the weight to be afforded Defendants' asserted harm, because such harm is ultimately self-inflicted. Self-inflicted harm that could result from issuance of preliminary injunctive relief should not necessarily preclude [**17] an injunction. Cf. Pappan Enters. v. Hardee's Food Sys., Inc., 143 F.3d 800, 806 (3d Cir. 1998) (holding in trademark infringement case that "a party's self-inflicted harm by choosing to stop its own performance under the contract and thus effectively terminating the agreement is outweighed by the immeasurable damage done to the franchiser of the mark"); Midwest Guar. Bank v. Guaranty Bank, 270 F. Supp. 2d 900, 924 (E.D. Mich. 2003) (holding that a party "cannot place itself in harms way, and then later claim that an injunction should not issue because of costs which it must incur in order to remedy its own misconduct"). Finally, as noted by counsel for Plaintiff Hill during the informal telephone conference, it bears noting in regard to the extent to which issuance of the preliminary injunction would cause substantial harm to others that the victim's family in this case, who are also Plaintiff Hill's family, do not want him to be executed at all.
Finally, this Court is in agreement with Plaintiff Hill that the public interest only is served by enforcing constitutional rights and by the prompt and accurate resolution of disputes concerning those constitutional [**18] rights. By comparison, the public interest has never been and could never be served by rushing to judgment at the expense of a condemned inmate's constitutional rights.
This Court is mindful of the many cases raising the same or similar challenges in which motions for a preliminary injunction have been denied. See, e.g., Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006); Bieg hler v. Donahue , 163 Fed. Appx. 419, 2006 WL 229027 (7th Cir. 2006), vacated, 126 S. Ct. 1190, 163 L. Ed. 2d 1144 (2006); Vinson v. Johnson, 126 S. Ct. 1908, 164 L. Ed. 2d 588, 2006 U.S. LEXIS 3453, No. 05A971, 2006 WL 1109748 (U.S. Apr. 27, 2006). In those cases, however, the plaintiff's undue delay in bringing his § 1983 action was a factor weighing against him relative to the State's strong interest in enforcing its criminal judgments. For instance, in Smith v. Johnson, the Fifth Circuit remarked, "we have made clear that waiting [*709] to file such a challenge days before a scheduled execution constitutes unnecessary delay." 440 F.3d at 263 (citations omitted). Further, in Vinson v. Johnson, it appears that the plaintiff filed his § 1983 action within one month of his scheduled execution. (Doc. # [**19] 44-1.) As discussed more fully above, Plaintiff Hill does not, in this Court's view, have that factor weighing against him.
The Court is also mindful that in the cases upon which it has relied in finding that petitioner has demonstrated a stronger likelihood of success on the merits than any plaintiff before him, Morales and Brown, the district courts conditionally denied the plaintiffs' respective motions for a preliminary injunction, choosing instead to fashion remedies under which the States of California and North Carolina, respectively, could carry out the planned executions without violating the plaintiffs' Eighth Amendment rights. Mo rales, 415 F. Supp. 2d at 1047; Brown, No. 5:06-CT-3018-H, at *13-15 (Doc. # 37-2). In view of the lack of development of the record in this case, this Court does not feel that it is in a position to avoid the issuance of a preliminary injunction by fashioning a remedy by which Ohio could carry out the execution of Plaintiff Hill within the confines of the Eighth Amendment.
For the foregoing reasons, Plaintiff Hill's motion for an emergency preliminary injunction is GRANTED. (Doc. # 37.) This Court declines to [**20] require a security bond. Moltan Co. v. Eagle-Pic her I ndu s., I nc., 55 F.3d 1171, 1176 (6th Cir. 1995) (explaining that whether to require a bond is within the discretion of the court).
Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Jeffrey D. Hill issued by any court of the State of Ohio until further Order from this Court.
IT IS SO ORDERED.
United States District Court for the Eastern District of Arkansas, Pine Bluff Division
TERRICK TERRELL NOONER, PLAINTIFF
and INTERVENOR PLAINTIFF
DON WILLIAMS DAVIS,
No. 5:06CV00110 SWW
VS.
LARRY NORRIS, Director, Arkansas Department of Correction; GAYLON LAY, Warden, Arkansas Department of Correction; WENDY KELLY, Deputy Director for Health and Correctional Programs; JOHN BYUS; Administrator, Correctional Medical Services, Arkansas Department of Correction; and OTHER UNKNOWN EMPLOYEES, Arkansas Department of Correction DEFENDANTS
ORDER
Terrick Terrell Nooner ("Nooner") and Don Williams Davis ("Davis"), Arkansas death-row inmates, bring this action pursuant to 42 U.S.C. § 1983 claiming that the protocol for carrying out execution by lethal injection in Arkansas violates the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. Plaintiffs seek a declaration that the protocol is unconstitutional, and an injunction enjoining Defendants from carrying out future executions in accordance with the protocol.
Before the Court is Plaintiff Davis's motion for a preliminary injunction (docket entry #21) asking the Court to stay his July 5, 2006 execution and permit him to litigate his constitutional claims. Defendants have responded (docket entry #28), and the matter is ready for decision. After careful consideration, and for the reason that follow, the Court concludes that the motion for a preliminary injunction should be granted.
I.
In 1992, Davis was convicted of capital murder, burglary, and theft of property and sentenced to death. His conviction and sentence were affirmed on direct appeal,[fn 1] and his petition for post-conviction relief in state court was denied.[fn 2] On September 14, 2005, the Eighth Circuit affirmed denial of Davis's petition for habeas relief,[fn 3] and on April 17, 2006, the United States Supreme Court denied Davis's petition for a writ of certiorari.[fn 4] Plaintiff Nooner initiated this § 1983 action on May 1, 2006, and on May 4, 2006, Davis filed a motion to intervene as a party plaintiff. On May 11, 2006, Governor Mike Huckabee scheduled Davis's execution for July 5, 2006. On May 26, 2006, the Court granted Davis's motion to intervene, and on June 16, 2006, Davis filed the present motion for a preliminary injunction.
Arkansas' lethal injection statute provides that the "punishment of death is to be administered by a continuous intravenous injection of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent until the defendant's death is pronounced according to accepted standards of medical practice." Ark. Code Ann. 5-4-17(a)(1). Arkansas law gives the Director of the Arkansas Department of Correction ("ADC") the responsibility to determine the substances to be administered and the procedures to be used in any execution. See Ark. Code Ann. § 5-4-617(a)(2). The Director's protocol for execution by lethal injection, set forth in ADC Administrative Directive 96-06 ("AD 96-06"), calls for the administration of three chemicals in the following order: (1) a 2-gram injection of sodium pentothal (also known as thiopental), administered to cause unconsciousness; (2) 2, 50-milligram injections of pancuronium bromide, administered to cause paralysis; and (3) up to 3, 50-milliequivalent injections of potassium chloride, to stop the heart.[fn 5] Each injection is followed by a saline flush. According to AD 96-06, the injections are administered by way of control devices located in a control room, separate from the execution chamber. The control devices are connected, by extension tubing, to IV catheters inserted into each arm of the condemned inmate. The catheters are inserted by an "IV team" and the injections are administered by executioners, whose identities are kept secret. AD 96-06 contains no provision requiring that the IV team or executioners have any type of medical training or certification.
The State asserts that the protocol requires the use of trained individuals for both the placement of the IV lines and the administration of chemicals. Docket entry #28, at 9. The Court has carefully reviewed ADC 96-06 and finds no such provision.
Davis alleges that the State's protocol creates a substantial risk that the first injection (2 grams of sodium pentothal) will fail to render him unconscious to the point that he will not experience intense pain and agony after the administration of pancuronium bromide and potassium chloride.
Davis's medical expert, Mark J. S. Heath, M.D., a board-certified anesthesiologist and the Assistant Professor of Clinical Anesthesiology at Columbia University in New York City, states that the ADC's lethal injection procedure creates medically unacceptable risks of inflicting excruciating pain and suffering. See docket entry #21, Ex. 1 (Heath Decl.), ¶ 51. In his declaration, Dr. Heath explains that pancuronium bromide stops all movement, including that necessary to breathe, but it has no effect on the ability to feel pain, and potassium chloride burns intensely as it travels through the veins to the heart. Thus, if a condemned inmate is conscious when the pancuronium bromide and potassium chloride are administered, he or she will feel the sensations of slow suffocation and excruciating pain.
Dr. Heath maintains that the ADC's protocol creates an unacceptable risk that condemned inmates will be conscious for the duration of the execution procedure. He states that the protocol fails to comply with medical standards of care for inducing and maintaining anesthesia and the American Veterinary Medical Association's standards for the euthanasia of animals. Dr. Heath finds that the protocol fails to address several foreseeable situations in which human or technical error could result in the failure to successfully administer the 2-gram dose of sodium pentothal. Further, Dr. Heath opines that the protocol creates a substantial risk of unnecessary pain which is easily remedied.
In addition to Dr. Heath's declaration, Davis submits the declaration of a witness to the 1992 execution of Steven Hill. The witness states: "Approximately 3-5 minutes after the IV fluid began to flow, I noticed Steven struggling to breathe. He was strapped down, but his chest was heaving. . . . He appeared to be gasping for air. Within another minute, he turned a bright red color and then lay completely still." Docket entry #21, Ex. 38. Davis also submits several newspaper articles containing eye-witness accounts of ADC executions which, according to Davis, indicate that inmates remained conscious and suffered pain during their executions. See docket entry #21, Exs. 28, 34, 37, 42, 45, 49.
II.
The factors to consider when deciding whether to grant or deny motions for preliminary injunctions include (1) the threat of irreparable harm to the movant; (2) the state of the balance between his harm and the injury that granting the injunction will inflict on other parties involved in the litigation; (3) the probability the movant will succeed on the merits; and (4) the public interest. See Dataphase Sys., Inc. v. CL Sys., 640 F.2d 109, 113 (8th Cir. 1981). Additionally, a court considering a stay of execution must apply "'a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring an entry of a stay.'" Hill v. McDonough, 2006 WL 1584710, at *8 (U.S. June 12, 2006) (quoting Nelson v. Campbell, 124 S. Ct. 2117, 2126 (2004)).
The Court finds that Davis has shown that he is personally under a threat of irreparable harm. If Davis remains or becomes conscious during the execution, he will suffer intense pain that will never be rectified. The Court further finds that the balance of potential harms favors Davis. If a stay is granted and Davis's allegations prove true, he and others will be spared subjection to an unconstitutional execution procedure, and the State's interest in enforcing death penalties in compliance with constitutional standards will be served. If, on the other hand, a stay is granted and Davis's allegations are without merit, the State can carry out Davis's execution without the specter that the ADC's protocol carries an unreasonable risk of inflicting unnecessary pain.
The State argues that the equities favor the State because Davis unjustifiably delayed bringing his claims. However, Davis moved to intervene in this case before the State set his execution date and shortly after he exhausted all means for challenging his conviction. The Court disagrees that Davis delayed pursuing his claims.
The Eighth Circuit's opinion in Taylor v. Crawford, 445 F.3d 1095 (8th Cir. 2006), indicates that the Court of Appeals would agree that Davis did not delay bringing his claims. In Taylor, Larry Crawford, sentenced to death in 1991, brought claims under § 1983, challenging Missouri's three-chemical protocol for executions by lethal injection. Like Davis, Taylor initiated his lawsuit after he exhausted his state post-conviction remedies and after his petitions for habeas relief were denied in federal court. Also similar to this case, the State of Missouri set Taylor's execution date after he commenced suit under § 1983. The district court stayed Taylor's execution, but gave no reasons for the stay, other than the court's inability to hold an evidentiary hearing before the scheduled execution date.
The Eighth Circuit reversed the stay after concluding that the State's interest in prompt execution of its judgment was not outweighed by the district court's scheduling difficulties. The Eighth Circuit ordered that the case be reassigned to a district judge who could hear the case immediately "[i]n recognition of Mr. Taylor's equally strong interest in having an evidentiary hearing on his claims prior to his execution." Taylor, 445 F.3d at 1098-99. The district court followed the Eighth Circuit's instructions and determined that Taylor's claims had no merit. Taylor appealed, arguing that the district court, in its haste to make a decision before Taylor's execution date, prevented him from calling medical witnesses. On appeal, the Eighth Circuit stayed Taylor's execution, concluding that it asked the district court to do too much in too little time. The Court of Appeals stated, "In view of the existing record, the importance of the issue to this plaintiff as well as others, and the likelihood of recurrence of these identical issues in future Missouri death penalty cases, we remand for . . . a continuation of the hearing. . . ." Taylor, 445 F.3d at 1099.
Next, the Court must consider the probability that Davis will succeed on the merits. The Eighth Amendment prohibits punishments repugnant to "'the evolving standards of decency that mark the progress of a maturing society'" or those involving "'unnecessary and wanton infliction of pain.'" Estelle v. Gamble, 97 S. Ct. 285, 290, 290 (1976) (quoting Trop v. Dulles, 78 S. Ct. 590, 598 (1958) (first quote); Gregg v. Georgia, 96 S. Ct. 2909, 2925 (1976) (second quote)).
The State contends that Davis has not shown that he might succeed on the merits because Dr. Heath's declaration offers no information about the probability that Davis might experience unnecessary pain. However, Davis need not show a mathematical probability of success at trial before a stay can be granted. It is enough that Davis has raised serious questions that call for deliberate investigation. See Dataphase, 640 F.2d at 113 ("But where the balance of other factors tip decidedly toward movant a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation.").
Finally, the Court finds that the public interest will be served if the Court holds an evidentiary hearing on Plaintiffs' claims. Crime victims and the general public have an important interest in the timely enforcement of criminal sentences. However, failure to consider Davis's allegations would ignore the equally important public interest in the humane and constitutional application of the State's lethal injection statute.
III.
For the reasons stated, Plaintiff Davis's motion for a preliminary injunction (docket entry #21) is GRANTED. IT IS HEREBY ORDERED that the State of Arkansas is STAYED from implementing an order for the execution of Don William Davis until further notice from this Court.
The Court will attempt to schedule an expedited hearing. The time of the hearing will depend on the Court's schedule as well as the schedules of others involved.
IT IS SO ORDERED THIS 26TH DAY OF JUNE, 2006.
UNITED STATES DISTRICT JUDGE
STATE OF TENNESSEE EXECUTIVE ORDER BY THE GOVERNOR Number 43
AN ORDER DIRECTING THE DEPARTMENT OF CORRECTION TO COMPLETE A COMPREHENSIVE REVIEW OF THE MANNER IN WHICH THE DEATH PENALTY IS ADMINISTERED IN TENNESSEE.
WHEREAS, this Administration has been and continues to be firmly committed to carrying out death sentences properly imposed under the laws of this state in a timely and judicious manner; and
WHEREAS, this Administration also recognizes its unique responsibility to ensure that death sentences are administered in a constitutional and appropriate manner; and
WHEREAS, since 2000, two inmates sentenced to death have been executed in Tennessee by lethal injection, and both executions were completed professionally in a constitutional and appropriate manner; and
WHEREAS, while these executions have been carried out appropriately, a recent review has highlighted deficiencies in the written procedures intended to ensure that all legal executions will continue to be carried out appropriately; and
WHEREAS, the administration of the death penalty in a constitutional and appropriate manner is a responsibility of the highest importance.
NOW THEREFORE, I, Phil Bredesen, Governor of the State of Tennessee, by virtue of the power and authority vested in me by the Tennessee Constitution and law, do hereby order and direct the following:
1. I hereby direct the Commissioner of Correction ("Commissioner") to initiate immediately a comprehensive review of the manner in which death sentences are administered in Tennessee. This review shall specifically include the state's protocols and any related procedures, whether written or otherwise, related to the administration of death sentences, both by lethal injection and by electrocution. In completing this review, the Commissioner is directed to utilize all relevant and appropriate resources, including but not limited to scientific and medical experts, legal experts, and Correction professionals, both from within and outside of Tennessee. As a component of this review, the Commissioner is further directed to research and perform an analysis of best practices used by other states in administering the death penalty.
2. As soon as practical, but no later than May 2, 2007, the Commissioner of Correction is directed to establish and provide to me new protocols and related written procedures for administering death sentences in Tennessee, both by lethal injection and electrocution. In addition, the Commissioner is directed to provide me with a report outlining the results of the review completed pursuant to paragraph one (1) above.
3. The current protocols and any related procedures, whether written or otherwise, used by the Department of Correction and related to the administration of death sentences in Tennessee, both by lethal injection and by electrocution, are hereby revoked.
By separate orders of reprieve, I have this day granted reprieves to the following individuals, all of whom had sentences of death scheduled to be carried out within the next ninety (90) days: Michael Joe Boyd a/k/a/ Mika'eel Abdullah Abdus-Samad, Edward Jerome Harbison, Daryl Keith Holton and Pervis T. Payne. These four (4) reprieves will remain in place until May 2, 2007.
IN WITNESS WHEREOF, I have subscribed my signature and caused the Great Seal of the State of Tennessee to be affixed this 1st day of February, 2007.
DECLARATION OF MARK J. S. HEATH, M.D.
I, Mark J.S. Heath, M.D., hereby declare as follows:
1. I am an Assistant Professor of Clinical Anesthesiology at Columbia University in New York City. I received my Medical Doctorate degree from the University of North Carolina at Chapel Hill in 1986 and completed residency and fellowship training in Anesthesiology in 1992 at Columbia University Medical Center. I am Board Certified in Anesthesiology, and am licensed to practice Medicine in New York State. My work consists of approximately equal parts of performing clinical anesthesiology, teaching residents, fellows, and medical students, and managing a neuroscience laboratory. As a result of my training and research I am familiar and proficient with the use and pharmacology of the chemicals used to perform lethal injection. I am qualified to do animal research at Columbia University and am familiar with the American Veterinary Medical Association's guidelines.
2. Over the past several years, I have performed many hundreds of hours of research into the techniques that are used during lethal injection procedures in the United States. I have testified as an expert medical witness in courts in Maryland, Georgia, Tennessee, Kentucky, Virginia, and Louisiana in the following actions: Reid v. Johnson, No. Civil Action 3:03cv1039 (E.D. Va.); Abdur'Rahman v. Bredesen, No. 02-2236-III (Davidson County Chancery Ct., Tenn.); State v. Michael Wayne Nance, 95-B-2461-4 (Ga. Superior Ct.); Ralph Baze Thomas Bowling v. Rees, 04-CI-01094, (Franklin County Circuit Ct., Ky.); Walker v. Johnson, No. 1:05cv934 (E.D. Va.); Evans v. Saar, No. 06-149 (D. Md.); Code v. Cain, No. 138,860-A (1st Judicial District Court, Caddo Parish, La.); Baker v. Saar, No. WDQ-05-03207 (D. Md.). I have also filed affidavits and/or declarations regarding lethal injection that have been reviewed by courts in the above states and also in California, Pennsylvania, New York, Alabama, North Carolina, South Carolina, Ohio, Oklahoma, Texas, Missouri, Nevada, Delaware, and by the United States Supreme Court.
3. During court proceedings, I have heard testimony from prison officials who are responsible for conducting executions by lethal injection. I testified before the Nebraska Senate Judiciary Committee regarding proposed legislation to adopt lethal injection. I also testified before the Pennsylvania Senate Judiciary Committee regarding proposed legislation to prohibit the use of pancuronium and the other neuromuscular blockers in Pennsylvania's lethal injection protocol. My research regarding lethal injection has involved extensive conversations with recognized experts in the field of lethal injection, toxicology, and forensic pathology and the exchange of personal correspondence with the individuals responsible for introducing lethal injection as a method of execution in Oklahoma (the first state to formulate the procedure) and in the United States.
4. My qualifications are further detailed in my curriculum vitae, a copy of which is attached hereto as Exhibit A and incorporated by reference as if fully rewritten herein.
5. I have been asked by attorney Julie Brain, counsel for Mr. Terrick Nooner, to review the procedures concerning lethal injection currently in place in Arkansas to assess whether those lethal injection procedures create medically unacceptable risks of inflicting pain and suffering on inmates while the lethal injection is administered. I hold all opinions expressed in this Declaration to a reasonable degree of medical certainty, except as specifically noted at the end of paragraph 41, where I make a speculative comment.
6. The material I have reviewed in order to prepare specifically for this report includes:
-an Arkansas statute entitled "5-4-617. Method of execution;"
-a document entitled "Arkansas Department of Correction Administrative Directive 96-06 Procedure for Execution" approved 5/23/96;
-statutory text related to veterinary practice in Arkansas;
-execution logs, photographs, toxicology reports, autopsy reports, and other material related to 26 executions conducted by lethal injection in Arkansas;
-newspaper reports discussing and describing executions conducted in Arkansas;
-declarations of execution witnesses Charles L. Carpenter and John Jewell.
7. I have also reviewed the 2000 Report of the Panel on Euthanasia of the American Veterinary Medical Association, the American Society of Anesthesiologist's Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, and the American Society of Anesthesiologist's Standards for Basic Anesthetic Monitoring.
8. Based upon my review of this material and my knowledge of and experience in the field of anesthesiology, and based on my research regarding the practice of lethal injection in the United States, I have formed several conclusions with respect to the protocol of the Arkansas Department of Corrections ("ADC") for carrying out lethal injections. These conclusions arise both from the details disclosed in the materials I have reviewed and from medically relevant, logical inferences drawn from the omission of details in those materials (e.g., details regarding the training of the personnel involved; details of all of the medical equipment used; and details of the precise methods by which the personnel involved use the equipment to carry out an execution by lethal injection).
ADC's Lethal Injection Protocol — The Use of Potassium Chloride
9. ADC's lethal injection protocol calls for the administration of 2 grams of sodium thiopental, 50 milligrams of pancuronium bromide (Pavulon), and 50 milliequivalents of potassium chloride. Broadly speaking, the sodium thiopental is intended to serve as an anesthetic, rendering the inmate unconscious for the duration of the execution. Two grams of sodium thiopental is a massive, and potentially lethal, dose. The pancuronium bromide paralyzes the inmate's muscles and thereby disables all voluntary movements, including those of his chest and diaphragm. Pancuronium is not an anesthetic or sedative drug, and it does not affect consciousness. Potassium chloride is a salt solution that, when rapidly administered in high concentrations, induces cardiac arrest. Potassium chloride, too, has no effect on consciousness or ability to feel pain; to the contrary, the drug itself causes excruciating pain.
10. Although the successful delivery into the circulation of 2 grams of sodium thiopental and 50 milligrams of pancuronium would be lethal, it is important to understand that the lethality of sodium thiopental and pancuronium is due to respiratory arrest, which takes several minutes to ensue and does not typically occur prior to the administration of potassium. In the execution sequence, before death is caused by respiratory arrest from sodium thiopental and pancuronium, death is caused by cardiac arrest brought on by potassium. I base this opinion, that the potassium and not the pancuronium or sodium thiopental is responsible for the death of prisoners during lethal injection, on the following:
A) Review of records from EKGs from lethal injection procedures conducted in other states. During lethal injection, cardiac activity consistent with generating perfusion persists through the administration of sodium thiopental and pancuronium and only stops after potassium has been administered. The relatively sudden cessation of organized EKG activity is not consistent with a cessation of circulation due to administration of sodium thiopental and/or pancuronium and is consistent with cessation of circulation after the administration of a large dose of potassium chloride.
B) Properties of Sodium Thiopental and Pancuronium. Sodium thiopental and pancuronium exert their effects by interacting with molecular targets in the nervous system and on muscle cells in a manner that induces unconsciousness and stops breathing. Sodium thiopental and pancuronium, unlike other chemicals such as cyanide, do not kill cells or tissues, and are useful to clinicians precisely because they do not kill or harm cells or tissues. The reason that sodium thiopental and pancuronium can cause death is that they cause the prisoner to stop breathing. Failure to breathe will result in brain damage, brain death, and cardiac arrest as the level of oxygen in the blood declines over time. These processes take a varying amount of time, depending on many factors. Physicians generally use four minutes of not breathing as the approximate benchmark time after which irreversible brain damage from lack of oxygen occurs, and death typically occurs some number of minutes after the onset of brain damage. It is worth noting, however, that this general figure of four minutes is often used in the context of cardiac arrest, in which there is no circulation of blood through the brain. If some level of blood circulation persists, it is very likely that brain damage and brain death would take longer than four minutes.
C) Of note, the Arkansas Medical Examiner appears to agree with the conclusion that in lethal injection procedures death is caused by potassium chloride. For example, the Medical Examiner Report on the death by execution of Ronald Gene Simmons states that the cause of death was "hyperkalemia due to Injection of Potassium Chloride 50 milliequivalents", (the term "hyperkalemia" means an abnormally elevated concentration of potassium in the blood).
11. In the context of lethal injection, sodium thiopental and pancuronium, if successfully delivered into the circulation in large doses, would indeed each be lethal, because they would stop the inmate's breathing. However, as described above, in execution by lethal injection as practiced by Arkansas and other states the administration of potassium and death precede any cardiac arrest that would be caused by sodium thiopental and pancuronium.
12. Intravenous injection of concentrated potassium chloride solution causes excruciating pain. The vessel walls of veins are richly supplied with sensory nerve fibers that are highly sensitive to potassium ions. The intravenous administration of concentrated potassium in doses intended to cause death therefore would be extraordinarily painful. ADC's selection of potassium chloride to cause cardiac arrest needlessly increases the risk that a prisoner will experience excruciating pain prior to execution. There exist alternative chemicals that cause cardiac arrest without activating the nerves in the vessel walls of the veins in the way that potassium chloride does. Despite the fact that the statute authorizing lethal injection in Arkansas does not specify or require the use of potassium, ADC has failed to choose a chemical that would cause death in a painless manner.
13. Thus, ADC has exercised its statutory discretion to select the means of causing death by choosing a medication (potassium chloride) that causes extreme pain upon administration, instead of selecting available, equally effective yet essentially painless medications for stopping the heart. In so doing, ADC has created the necessity for ensuring, through all reasonable and feasible steps, that the prisoner is sufficiently anesthetized and cannot experience the pain of the potassium chloride injection.
ADC's Lethal Injection Protocol — The Use of Pancuronium Bromide
14. As noted, the ADC's lethal injection protocol additionally calls for the administration of 50 milligrams of pancuronium bromide (Pavulon). The use of pancuronium bromide serves no legitimate purpose and compounds the risk that an inmate may suffer excruciating pain during his execution. Pancuronium paralyzes all voluntary muscles, but does not affect sensation, consciousness, cognition, or the ability to feel pain and suffocation. Because the sodium thiopental and potassium chloride would in themselves be sufficient to cause death, and the potassium is administered well before death would result from the pancuronium alone, it is my opinion held to a reasonable degree of medical certainty that there would be no rational place in the protocol for pancuronium as the lethal amount of potassium chloride is administered.
15. Pancuronium bromide is a neuromuscular blocking agent. Its effect is to render the muscles unable to contract; it does not affect the brain or the nerves. It is used in surgery to ensure that the patient is securely paralyzed so that surgery can be performed without movement resulting from contraction of the muscles. If administered alone, a lethal dose of pancuronium would not immediately cause a condemned inmate to lose consciousness. It would totally immobilize the inmate by paralyzing all voluntary muscles and the diaphragm, causing the inmate to suffocate to death while experiencing an intense, conscious desire to inhale. Ultimately, consciousness would be lost, but it would not be lost as an immediate and direct result of the pancuronium. Rather, the loss of consciousness would be due to suffocation, and would be preceded by the torment and agony caused by suffocation. This period of torturous suffocation would be expected to last at least several minutes and would only be relieved by the onset of suffocation-induced unconsciousness or by the onset of death resulting from potassium chloride.
16. Because the administration of a paralyzing dose of pancuronium bromide to a conscious person would necessarily cause excruciating suffering, it would be unconscionable to administer pancuronium without first anesthetizing the inmate and without first assessing the plane of anesthetic depth. In surgery, pancuronium bromide is not administered until the patient is adequately anesthetized. The anesthetic drugs must first be administered to ensure that the patient is unconscious and does not feel, see, or perceive the procedure. This can be determined by a trained medical professional, either a physician anesthesiologist or a nurse anesthetist, who provides close and vigilant monitoring of the patient, their vital signs, and the various diagnostic indicators of anesthetic depth. ADC's execution protocol, to the extent disclosed, fails to provide any indication that anesthetic depth will be properly assessed prior to the administration of pancuronium bromide.
17. It is my understanding that ADC's execution protocol requires the presence of official witnesses to the execution and permits media witnesses to the execution. It is my opinion based on a reasonable degree of medical certainty that pancuronium, when successfully administered, effectively nullifies the ability of witnesses to discern whether or not the condemned prisoner is experiencing a peaceful or agonizing death. Regardless of the experience of the condemned prisoner, whether he or she is deeply unconscious or experiencing the excruciation of suffocation, paralysis, and potassium injection, he or she will appear to witnesses to be serene and peaceful due to the immobilization of the facial and other skeletal muscles.
18. The doses of sodium thiopental and potassium chloride are lethal doses. Therefore, it is unnecessary to administer pancuronium bromide in the course of an execution when it is quickly followed by a lethal dose of potassium chloride. It serves no legitimate purpose and only places a chemical veil on the process that prevents an adequate assessment of whether or not the condemned is suffering in agony, and greatly increases the risks that such agony will ensue. Removal of pancuronium from the protocol would eliminate the risk of conscious paralysis from occurring. It would also eliminate the risk that an inhumane execution would appear humane to witnesses. Finally, removal of pancuronium would vastly reduce the possibility that the citizens, officials, and courts of Arkansas could be inadvertently misled by media reports describing a peaceful-appearing execution when in fact the prisoner could be experiencing excruciating suffering.
Failure to Adhere to a Medical Standard of Care in Administering Anesthesia
19. Based on the information available to me, it is my opinion held to a reasonable degree of medical certainty that the ADC's lethal injection protocol creates an unacceptable risk that the inmate will not be anesthetized to the point of being unconscious and unaware of pain for the duration of the execution procedure. If the inmate is not first successfully anesthetized, then it is my opinion to a reasonable degree of medical certainty that the pancuronium will paralyze all voluntary muscles and mask external, physical indications of the excruciating pain being experienced by the inmate during the process of suffocating (caused by the pancuronium) and having a cardiac arrest (caused by the potassium chloride).
20. The provision of anesthesia has become a mandatory standard of care whenever a patient is to be subjected to a painful procedure. Throughout the civilized world, the United States, and Arkansas, whenever a patient is required to undergo a painful procedure, it is the standard of care to provide some form of anesthesia. Circumstances arise in which prisoners in Arkansas require surgery, and in many instances the surgery requires the provision of general anesthesia. In these circumstances general anesthesia is provided, and it is provided by an individual with specific training and qualifications in the field of anesthesiology. It is critical to understand that the great majority of physicians and nurses and other health care professionals do not possess the requisite training, skills, experience, and credentials to provide general anesthesia. It would be unconscionable to forcibly subject any person, including a prisoner in Arkansas, to a planned and anticipated highly painful procedure without first providing an appropriate anesthetic, and it would be unconscionable to allow personnel who are not properly trained in the field of anesthesiology to attempt to provide or supervise this anesthetic care.
21. As a living person who is about to be subjected to the excruciating pain of potassium injection, or the unnecessary suffering of suffocation due to a paralyzed diaphragm, it is imperative that all prisoners undergoing lethal injection be provided with adequate anesthesia. This imperative is of the same order as the imperative to provide adequate anesthesia for any Arkansas prisoner requiring general anesthesia (or any type of anesthesia) before undergoing painful surgery. Given that the injection of potassium is a scheduled and premeditated event that is known without any doubt to be extraordinarily painful, it would be unconscionable and barbaric for potassium injection to take place without the provision of sufficient general anesthesia to ensure that the prisoner is rendered and maintained unconscious throughout the procedure, and it would be unconscionable to allow personnel who are not properly trained in the field of anesthesiology to attempt to provide or supervise this anesthetic care.
22. Presumably because of the excruciating pain evoked by potassium and the torture that would result from death by suffocation following paralysis, lethal injection protocols like that in Arkansas purport to provide general anesthesia using sodium thiopental. When successfully delivered into the circulation in sufficient quantities, sodium thiopental causes sufficient depression of the nervous system to permit excruciatingly painful procedures to be performed without causing discomfort or distress. Failure to successfully deliver into the circulation a sufficient dose of sodium thiopental, however, will result in a failure to achieve adequate anesthetic depth and thus failure to block the excruciating pain of potassium administration and suffocation.
23. The ADC's procedures do not comply with the medical standard of care for inducing and maintaining anesthesia prior to and during a painful procedure. Likewise, the ADC's procedures are not compliant with the guidelines set forth by the American Veterinary Medical Association for the euthanasia of animals. Further, the ADC has made insufficient preparation for the real possibility, which has been encountered in Arkansas as well as in many other jurisdictions, and planned for in those jurisdictions, that peripheral IV access cannot be successfully established.
1. The Dangers of Using Sodium Thiopental as an Anesthetic
24. The use of sodium thiopental as the anesthetic in the ADC's lethal injection protocol is inappropriate and medically unsatisfactory. Sodium thiopental is an ultrashort-acting barbiturate with a relatively short shelf life in liquid form. Sodium thiopental is distributed in powder form to increase its shelf life; it must be mixed into a liquid solution by trained personnel before it can be injected.
25. When anesthesiologists use sodium thiopental, we do so for the purposes of temporarily anesthetizing patients for sufficient time to intubate the trachea and institute mechanical support of ventilation and respiration. Once this has been achieved, additional drugs are administered to maintain a "surgical depth" or "surgical plane" of anesthesia (i.e., a level of anesthesia deep enough to ensure that a surgical patient feels no pain and is unconscious). The medical utility of sodium thiopental derives from its ultrashort-acting properties: if unanticipated obstacles hinder or prevent successful intubation, patients will likely quickly regain consciousness and resume ventilation and respiration on their own.
26. The benefits of sodium thiopental in the operating room engender serious risks in the execution chamber. Although the full two grams of sodium thiopental, if properly administered into the prisoner's bloodstream, would be more than sufficient to cause unconsciousness and, eventually, death, if no resuscitation efforts were made, my research into executions by lethal injection strongly indicates that executions have occurred where the full dose of sodium thiopental listed in the protocol was not fully and properly administered. If an inmate does not receive the full dose of sodium thiopental because of errors or problems in administering the drug, the inmate might not be rendered unconscious and unable to feel pain, or alternatively might, because of the short-acting nature of sodium thiopental, regain consciousness during the execution.
27. Although the concerns raised in this declaration apply regardless of the size of the dose of sodium thiopental that is prescribed under the protocol, the ADC's arbitrary decision to administer only two grams, as opposed to the three or five grams used in some other jurisdictions, unduly decreases the margin of error and the risk that inadequate anesthesia will be achieved. The level of anesthesia, if any, achieved in each individual inmate depends on the amount that is successfully administered, although other factors such as the inmate's weight and sensitivity/resistance to barbiturates are also important. Many foreseeable situations exist in which human or technical errors could result in the failure to successfully administer the intended dose. If error occurs that results in the prisoner receiving only half of a five gram dose, the prisoner will still receive 2.5 grams and adequate anesthesia will likely occur despite the error. If the same error occurs and the prisoner receives only half of a two gram dose, however, the risks of inadequate anesthesia and conscious suffering are significant. ADC's execution protocol both fosters potential problems and fails to provide adequate instruction for preventing or rectifying such situations, and it does these things needlessly and without legitimate reason. Examples of problems that could prevent proper administration of sodium thiopental include, but are not limited to, the following:
a) Errors in Preparation. Sodium thiopental is delivered in powdered form and must be mixed into an aqueous solution prior to administration. This preparation requires the correct application of pharmaceutical knowledge and familiarity with terminology and abbreviations. Calculations are also required, particularly if the protocol requires the use of a concentration of drug that differs from that which is normally used. The ADC's protocol instructs only that the powder be dissolved in "the least amount of clear diluent possible to attain complete, clear suspension," without providing any indication as to how much fluid that might be or how the person performing the mixing should determine how much to use or how success has been achieved.
b) Error in Labeling of Syringes. ADC's execution protocol calls for the execution drugs to be placed in syringes labeled only by number and not by name. This creates the risk of confusion in creating the syringes, leading to mislabeling, which is highly unlikely to be detected and corrected later in the process.
c) Error in Selecting the Correct Syringe during the sequence of administration. The syringes are to be selected in series by hand during the execution, and thus the wrong sequence of drug administration will occur if the executioner simply picks up an incorrect syringe.
d) Error in Correctly Injecting the Drug into the Intravenous Line. The Arkansas execution description fails to identify the persons responsible for injecting the lethal drugs and further fails to specify their qualifications. The use of insufficiently qualified executioners increases the risk that problems such as the following will occur, and decreases the probability that such problems will be detected and corrected if they do occur.
e) The IV Tubing May Leak. An "IV setup" consists of multiple components that are assembled by hand prior to use. If, as appears to be the practice in Arkansas, the personnel who are injecting the drugs are not at the bedside but are instead in a different room or part of the room, multiple IV extension sets need to be inserted between the inmate and the administration site. Any of these connections may loosen and leak. In clinical practice, it is important to maintain visual surveillance of the full extent of IV tubing so that such leaks may be immediately detected. The Arkansas practice, in which the executioners are in a separate room with hindered opportunity for visual surveillance, interferes with detection of any leak that may occur and is not acceptable.
f) Incorrect Insertion of the Catheter. If the catheter is not properly placed in a vein, the sodium thiopental will enter the tissue surrounding the vein but will not be delivered to the central nervous system and will not render the inmate unconscious. This condition, known as infiltration, occurs with regularity in the clinical setting. Recognition of infiltration requires continued surveillance of the IV site during the injection, and that surveillance should be performed by the individual who is performing the injection so as to permit correlation between visual observation and tactile feedback from the plunger of the syringe.
g) Migration of the Catheter. Even if properly inserted, the catheter tip may move or migrate, so that at the time of injection it is not within the vein. This would result in infiltration, and therefore a failure to deliver the drug to the inmate's circulation and failure to render the inmate unconscious.
h) Perforation or Rupture or Leakage of the Vein. During the insertion of the catheter, the wall of the vein can be perforated or weakened, so that during the injection some or all of the drug leaves the vein and enters the surrounding tissue. The likelihood of rupture occurring is increased if too much pressure is applied to the plunger of the syringe during injection, because a high pressure injection results in a high velocity jet of drug in the vein that can penetrate or tear the vessel wall.
i) Excessive Pressure on the Syringe Plunger. Even without damage or perforation of the vein during insertion of the catheter, excessive pressure on the syringe plunger during injection can result in tearing, rupture, and leakage of the vein due to the high velocity jet that exits the tip of the catheter. Should this occur, the drug would not enter the circulation and would therefore fail to render the inmate unconscious.
j) Securing the Catheter. After insertion, catheters must be properly secured by the use of tape, adhesive material, or suture. Movement by the inmate, even if restrained by straps, or traction on the IV tubing may result in the dislodging of the catheter.
k) Failure to Properly Loosen or Remove the Tourniquet from the Arm or Leg after placement of the IV catheter will delay or inhibit the delivery of the drugs by the circulation to the central nervous system. This may cause a failure of the sodium thiopental to render and maintain the inmate in a state of unconsciousness.
1) Impaired Delivery Due to Restraining Straps. Restraining straps may act as tourniquets and thereby impede or inhibit the delivery of drugs by the circulation to the central nervous system. This may cause a failure of the sodium thiopental to render and maintain the inmate in a state of unconsciousness. Even if the IV is checked for "free flow" of the intravenous fluid prior to commencing injection, a small movement within the restraints on the part of the inmate could compress the vein and result in impaired delivery of the drug.
2. The Need for Adequate Training in Administering Anesthesia
29. Because of these foreseeable problems in administering anesthesia, in Arkansas and elsewhere in the United States the provision of anesthetic care should be performed only by personnel with advanced training in the medical subspecialty of Anesthesiology. This is because the administration of anesthetic care is complex and risky, and can only be safely performed by individuals who have completed the extensive requisite training to permit them to provide anesthesia services. Failure to properly administer a general anesthetic not only creates a high risk of medical complications including death and brain damage, but also is recognized to engender the risk of inadequate anesthesia, resulting in the awakening of patients during surgery, a dreaded complication known as "intraoperative awareness." The risks of intraoperative awareness are so grave that, in October 2005, the American Society of Anesthesiologists published a new practice advisory on the subject of intraoperative awareness. If the individual providing anesthesia care is inadequately trained or experienced, the risk of these complications is enormously increased. In Arkansas and elsewhere in the United States, general anesthesia is administered by physicians who have completed residency training in the specialty of Anesthesiology, and by nurses who have undergone the requisite training to become Certified Registered Nurse Anesthetists (CRNAs). Physicians and nurses who have not completed the requisite training to become anesthesiologists or CRNAs are not permitted to provide general anesthesia.
29. In my opinion, individuals providing general anesthesia in the Arkansas prisons should not be held to a different or lower standard than is set forth for individuals providing general anesthesia in any other setting in Arkansas. Specifically, the individuals providing general anesthesia within prisons in Arkansas should possess the experience and proficiency of anesthesiologists and/or CRNAs. Conversely, a physician who is not an anesthesiologist or a nurse who is not a CRNA should not be permitted to provide general anesthesia within an Arkansas prison or anywhere in Arkansas.
30. ADC's execution protocol fails to specify whether the person or persons administering the lethal injection have any training in administering anesthesia, or, if personnel are given training, what that training might be. The absence of any details as to the training, certification, or qualifications of injection personnel raises critical questions about the degree to which condemned inmates risk suffering excruciating pain during the lethal injection procedure. The great majority of nurses are not trained in the use of ultrashort-acting barbiturates; indeed, this class of drugs is essentially only used by a very select group of nurses who have obtained significant experience in intensive care units and as nurse anesthetists. Very few paramedics are trained or experienced in the use of ultrashort-acting barbiturates. Based on my medical training and experience, and based upon my research of lethal injection procedures and practices, inadequacies in these areas elevate the risk that the lethal injection procedure will cause the condemned to suffer excruciating pain during the execution process. Failure to require that the person or persons administering the lethal injection have training equivalent to that of an anesthesiologist or a CRNA compounds the risk that inmates will suffer excruciating pain during their executions.
3. ADC's Failure to Account for Foreseeable Problems in Anesthesia Administration
31. In addition to lacking any policy on the training necessary to perform a lethal injection, ADC's execution protocol imposes conditions that exacerbate the foreseeable risks of improper anesthesia administration described above, and fails to provide any procedures for dealing with these risks. Perhaps most disturbingly, the Arkansas lethal injection practice prevents any type of effective monitoring of the inmate's condition or whether he is anesthetized and unconscious. This falls below the standard of care. Accepted medical practice dictates that trained personnel monitor the IV lines and the flow of anesthesia into the veins through visual and tactile observation and examination. The lack of any qualified personnel present in the chamber during the execution thwarts the execution personnel from taking the standard and necessary measures to reasonably ensure that the sodium thiopental is properly flowing into the inmate and that he is properly anesthetized prior to the administration of the pancuronium and potassium.
32. In my opinion, having a properly trained and credentialed individual examine the inmate after the administration of the sodium thiopental (but prior to the administration of pancuronium) to verify that the inmate is completely unconscious would substantially mitigate the danger that the inmate will suffer excruciating pain during his execution. As discussed later in this affidavit, this is the standard of care, and in many states the law, that is set forth for dogs and cats and other household pets when they are subjected to euthanasia by potassium injection. Yet ADC's execution protocol does not provide for such verification, and indeed Arkansas practice actively prevents the person or persons administering the lethal injection from determining whether or not the inmate remains conscious by requiring that all of the drugs must be administered remotely, from another room without even visual surveillance.
33. The ADC's execution protocol provides no specifications regarding the timing of the administration of the drugs, thereby compounding the risks described in this Declaration. This concern is greatly amplified by the use of an ultrashort-acting barbiturate and is borne out
by a review of the execution records from California. In each of the executions, the time between administrations of the three drugs varied for no apparent reason. The lack of a defined schedule for the administration of the three drugs increases the risk that the sedative effect of the sodium thiopental will wear off, should the inmate not receive the full dose.
34. The Arkansas lethal injection protocol fails to account for procedures designed to ensure the proper preparation of the drugs used. I have not seen details regarding the credentials, certification, experience, or proficiency of the personnel who will be responsible for the mixing of the sodium thiopental from powder form, or for the drawing up of the drugs into the syringes. Preparation of drugs, particularly for intravenous use, is a technical task requiring significant training in pharmaceutical concepts and calculations. It is my opinion based on my review of lethal execution procedures in states that have disclosed more detailed information than what I have seen about the Arkansas procedures, that there exist many risks associated with drug preparation that, if not properly accounted for, further elevate the risk that the drug will not be properly administered and the inmate will consciously experience excruciating pain during the lethal injection procedures.
35. The altering of established medical procedures without adequate medical review and research, by untrained personnel, causes great concern about the structure of the lethal injection protocol and its medical legitimacy. Appropriate mechanisms for medical review, and standardization of the implementation and amendment process, are critical features in any medical protocol so that the medical professionals and the public can be assured that proper and humane procedures are in place and being followed. Indeed, in other states, physicians and other medical personnel play a role in ensuring that any protocol is consistent with basic medical standards of care and humaneness. Otherwise, the process is subject and prone to ad hoc administration and error, if not gross negligence. With lethal injection, such concerns are highly elevated.
36. Based on my medical training and experience, and based on my research into lethal injection procedures and practices, it is my opinion to a reasonable degree of medical certainty that any reliable, humane lethal injection procedure must account for the foreseeable circumstance of a condemned inmate having physical characteristics that prevent intravenous access from being obtained by a needle piercing the skin and entering a superficial vein suitable for the reliable delivery of drugs. There have been multiple lethal injections in which this problem has arisen from a variety of circumstances, including at least two procedures performed in Arkansas. Problems may occur due to conditions including obesity, corticosteroid treatment, history of intravenous drug use and history of undergoing chemotherapy. Additionally, some people just happen to have veins that are too small or deep to permit peripheral access. It is often not possible to anticipate difficult intravenous access situations in advance of the execution, and there are multiple examples of executions in which the personnel placing the intravenous lines struggled to obtain peripheral IV access and eventually abandoned the effort. ADC's execution protocol is deficient in its failure to plan for the foreseeable possibility that peripheral IV access cannot be obtained.
37. In this setting, state lethal injection protocols typically specify the use of a "cut-down" procedure to access a vein adequate for the reliable infusion of the lethal drugs. Despite the fact that serious difficulties with gaining intravenous access have been experienced by the ADC in the past, the Arkansas lethal injection execution protocol contains no reference to plans for dealing with the foreseeable circumstance wherein peripheral intravenous access cannot be obtained in the arm or leg. No information regarding the training, experience, expertise, credentials, certification, or proficiency of the personnel who would perform such a "cut down" procedure is listed in the Arkansas lethal injection protocol. In this regard, the ADC's lethal injection protocol is deficient in comparison to those of other states that I have reviewed. This complicated medical procedure requires equipment and skill that are not accounted for in the execution protocol. It has a very high probability of not proceeding properly in the absence of adequately trained and experienced personnel, and without the necessary equipment. If done improperly, the "cut-down" process can result in very serious complications including severe hemorrhage (bleeding), pneumothorax (collapse of a lung which may cause suffocation), and severe pain.
38. It is well documented that lethal injection procedures in other states have at times required the use of a central intravenous line. Further, the ADC has at times obtained intravenous access using cut down and central line techniques. For example, based on photographs and the Medical Examiner's report it appears that Mr. Rickey Rector underwent 10 failed attempts to place a peripheral IV, followed by a cutdown procedure. Reports by witnesses to the execution, describing "loud moans," indicate that Mr. Rector experienced significant pain while enduring this. Additionally, Mr. Clay Smith was executed by means of lethal injection through a subclavian central line, a form of intravenous access that is significantly more difficult, risky, painful and invasive to obtain than peripheral iv access. In the absence of further information about the personnel who performed these procedures, their proficiency and credentialing and currency, the equipment available to them, and their ability to recognize and treat complications, is not possible to make any assessment about whether the necessary safeguards have been set in place to ensure that the procedure is reasonably humane.
39. Problems with intravenous access during lethal injection are not unique to Arkansas, and have been encountered in other jurisdictions. During the recent execution of Joseph Clark in Ohio, difficulties in finding a vein delayed the execution by almost 90 minutes. The execution team struggled for several minutes to find usable vein. The team placed a "shunt" in Clark's left arm, but the vein "collapsed". Subsequently, the team placed a "shunt" in Clark's right arm, but mistakenly attempted to administer the lethal drugs through the IV in the left arm where the vein had already "collapsed". The difficulties prompted Clark to sit up and tell his executioners "It don't work" and to ask "Can you just give me something by mouth to end this?"
40. Similar problems occurred during the execution of Stanley "Tookie" Williams, the injection team took 12 minutes to insert the IV lines. The first line was placed quickly but spurted blood, and the staff struggled for 11 minutes to insert the second line, having so much difficulty that Williams asked whether they were "doing that right." The difficulty of the challenge presented to the IV team is evidenced by the comment that "by 12:10 a.m., the medical
tech's lips were tight and white and sweat was pooling on her forehead as she probed Williams' arm."
41. In the execution of Stephen Anderson on January 29, 2002, one of the persons who attempted to secure an IV was unable to do so without causing significant bleeding and the need to remove his gloves. Again, this indicates that the process is a difficult one and that it is necessary that the persons doing it are properly trained and experienced. As is widely recognized in the medical community, administration of intravenous medications and the management of intravenous systems are complex endeavors. While speculative and not evidence-based, it is my opinion that it is likely that IV placement is rendered more difficult in the context of executions because the inmates are often in a very anxious status, which causes the release of epinephrine (adrenalin) and norepinephrine, thereby causing constriction (narrowing) of blood vessels (including veins). When veins are constricted/narrowed it can be difficult or impossible to insert an IV catheter. This phenomenon, in conjunction with the use of inadequately qualified execution personnel, is the best explanation I can provide for the otherwise unexplained extremely high incidence of difficult or failed peripheral IV placement, in individuals lacking known risk factors for difficult IV access.
4. ADC's Protocol Has Resulted in Botched Executions
42. There is evidence that the ADC's lethal injection protocol has caused some inmates in Arkansas to be executed without adequate anesthesia. Both execution records and witnesses' accounts of these executions provide evidence that is indicative of continued consciousness following the purported administration of the sodium pentothal. A dose of Sodium Pentothal of 2mg or more, properly administered, will cause unconsciousness within one minute or less. However, in several executions that have been performed in Arkansas, the inmate displayed signs of consciousness for considerably longer that the one minute maximum that is consistent with successful administration of the anesthetic.
43. Ronald Gene Simmons was executed by the State of Arkansas on June 25, 1990. The administration of the lethal chemicals began at 9:02pm. Between 9:02 and 9:04pm, according to an eyewitness, Mr. Simmons appeared to nod off into unconsciousness. However, at 9:05pm he called out "Oh! Oh!" and began to cough as though he might be having difficulty breathing. During the next two minutes, he coughed approximately 20 times. With each cough his stomach heaved slightly and the gurney to which he was strapped shook. Mr. Simmons became still at 9:07pm, after which his face and arm turned first blue and then purple. An ADC employee twice appeared to adjust the IV tube in Mr. Simmons' arm, and not until 9:19pm was Mr. Simmons pronounced dead by the coroner.
44. The typical reaction to the administration of sodium pentothal is yawning, drawing one or two deep breaths, or visibly exhaling so that the cheeks puff out. Obviously, repeated audible vocalization is not consistent with the induction of a surgical plane of anesthesia by sodium thiopentol. Also, repeated, prolonged, irregular heaving of the chest is not consistent with the deep depression of the central nervous system caused by the successful administration of a large dose of sodium pentothal.
45. On January 24, 1992, Rickey Ray Rector was put to death in Arkansas. The execution took one hour and 9 minutes to complete, during which time Mr. Rector's hands and arms were punctured 10 separate times by ADC personnel searching for a suitable vein in which to place the IV line, as noted above. The catheter was finally inserted into a vein in Mr. Rector's hand, although not before a cut-down was made in his arm. Once the IV line was secured, the flow of lethal chemicals began at 9:50pm. For two minutes Mr. Rector looked to witnesses as though he was nodding off to sleep. However, one observer noted that Mr. Rector said "I'm getting dizzy" two minutes after the execution began. Then at 9:55pm, Mr. Rector's lips were seen to move rapidly, as if he was drawing shallow breaths. His lips did not stop moving until one minute later. Mr. Rector still was not pronounced dead; at 10:06pm a witness noted that a heart monitor at the head of the gurney appeared to be flat-lining, only to then see another jump followed by another flutter. Death was finally pronounced at 10:09pm.
46. On May 7, 1992, Steven Douglas Hill was executed. His execution began at 9:02pm. His eyes closed one minute later, but shortly after that he had what witnesses described as a seizure. His back was arched and his cheeks were popping out. He was visibly gasping for air, and even though he was strapped down to the gurney his chest was noticeably heaving against the belt across his chest. The seizure ended at 9:04pm and Mr. Hill was pronounced dead at 9:10pm.
47. Christina Riggs was executed on May 2, 2000. The procedure was delayed for 18 minutes while ADC personnel struggled to insert the IV line into her elbows. When they could not do so, they asked Ms. Riggs if they could insert the catheters into her wrists, and she consented. The execution then proceeded. However, a minute after the drugs had purportedly begun to flow into her body, Ms. Riggs was still vocalizing. Witnesses heard her say "I love you, my babies."
48. It is my opinion that these accounts of Arkansas executions are indicative of problems with the administration of the lethal drugs and raise concerns that adequate anesthesia may not be being reliably provided. They are part of a growing body of evidence that suggests that such problems are recurring over and over again in jurisdictions throughout the country that utilize similar lethal injection protocols.
49. It is my further opinion that to ensure a lethal injection without substantial risks of inflicting severe pain and suffering, proper procedures must be put in place that are clear and consistent: there must be qualified personnel to ensure that anesthesia has been achieved prior to the administration of pancuronium bromide and potassium chloride, if those drugs are used; there must be qualified personnel to select chemicals and dosages, set up and load the syringes, administer "pre-injections," insert the IV catheter, and perform the other tasks required by such procedures; and there must be adequate inspection, testing and monitoring of the equipment and apparatus by qualified personnel throughout the execution process. The Arkansas Department of Corrections' written procedures for implementing lethal injection, to the extent that they have been made available, provide for none of the above.
The Arkansas Execution Protocol Falls Below the Minimum Standards Mandated for Veterinary Euthanasia
50. The injection protocol employed by the ADC for putting human beings to death is strongly discouraged by the American Veterinary Medical Association (AVMA) and prohibited by law from being used on animals in 19 states. Specifically, the 2000 Report of the Panel on Euthanasia of the American Veterinary Medical Association states that when potassium chloride is to be used as a euthanasia agent, the animals must be under a surgical plane of anesthesia and the personnel performing the euthanasia must be properly trained to assess the depth of anesthesia. The AVMA panel specifically states that the animal must be in a surgical plane of anesthesia characterized not simply by loss of consciousness, but also by "loss of reflex muscle response and loss of response to noxious stimuli." Additionally, the AVMA recommends that sodium pentobarbital be used as an anesthetic, which is much longer lasting and more stable than sodium thiopental. It is difficult to understand why the ADC would chose, at its discretion, to use potassium to execute prisoners and would then fail to adhere to the basic requirements set forth by the AVMA to ensure that animals do not experience the excruciating pain of potassium injection during euthanasia.
Conclusion
51. Based on my research into methods of lethal injection used by various states and the federal government, and based on my training and experience as a medical doctor specializing in anesthesiology, it is my opinion based on a reasonable degree of medical certainty that, given the apparent absence of a central role for a properly trained medical or veterinary professional in the ADC's execution procedure, the chemicals used, the lack of adequately defined roles and procedures, and the failure to properly account for foreseeable risks, the lethal injection procedure Arkansas employs creates medically unacceptable risks of inflicting excruciating pain and suffering on inmates during the lethal injection procedure. All of these problems could easily be remedied, and yet ADC has failed to address them and has failed to meet the minimum standards set forth for veterinary euthanasia.
52. In addition, in order to more fully and fairly assess the impact of the failings of the Arkansas execution protocol, it will be necessary to obtain all official witness statements from prior executions, all available EKG and toxicology data from prior executions, as well as the full rules and regulations devised by the ADC for administering lethal injections. This would include identifying the qualifications, experience and training of those persons who apply the IVs and who administer and monitor the injection.
I declare under penalty of perjury under the laws of the United States and the State of Arkansas that the foregoing is true and correct to the best of my knowledge and that this declaration was executed on June 11, 2006 in Kansas City, Missouri.