Cruel and unusual?: Death row inmate challenges state execution procedure

By: Brian Lyman
Montgomery Advertiser
Sunday, April 1, 2012

A death row inmate who had his execution blocked by a federal court that cited Alabama’s “secrecy” concerning its execution procedure says that procedure could leave him conscious while drugs that stop his breathing and his heart flow through his body.

Attorneys for Thomas Arthur, who was convicted in a 1982 murder-for-hire scheme, argue that the use of pentobarbital to anesthetize a prisoner during an execution violates Arthur’s Eighth Amendment protections.

Suhana Han, Arthur’s attorney, claims the drug does not work fast enough to prevent the inmate from feeling the potentially painful effects of the two drugs that follow, and that the state’s secrecy surrounding its execution protocols makes it impossible to determine whether its use constitutes cruel and unusual punishment, or even if the state follows its own procedures during executions.

Documents filed by Arthur’s attorneys cite the execution of inmate Eddie Powell last year, in which officials apparently did not pinch Powell, the final step of a consciousness test before the fatal drugs are administered.

“What we’re asking the court to do is allow us the opportunity to prove our claim,” Han said. “Alabama has never had its lethal injection process challenged at trial on the merits.”

Arthur was scheduled to be executed March 29, but the 11th Circuit Court of Appeals on March 21 overturned a lower court’s dismissal of Arthur’s appeal on the use of pentobarbital, finding there was no evidence that Alabama was conducting executions in a constitutional manner.

The situation, the court wrote, was “exacerbated by Alabama’s policy maintaining secrecy surrounding every aspect of its three-drug execution method.

“It is certainly not speculative and indeed plausible that Alabama will disparately treat Arthur because the protocol is not certain and could be unexpectedly changed for his execution,” the court wrote.

Brian Corbett, a spokesman for the Alabama Department of Corrections, declined comment last week, saying he was not at liberty to discuss the state’s execution procedures. The Alabama Attorney General’s office also declined comment on the case.

Arthur was convicted of murder in the 1982 death of Muscle Shoals businessman Troy Wicker Jr. Wicker’s murder occurred while Arthur was in a work release program after being convicted of murdering the sister of his common-law wife in 1977. Arthur has maintained that he is innocent of Wicker’s murder.

The state Department of Corrections does not release information on its execution procedures, but the protocols have come out in litigation over capital punishment.

The condemned are first administered pentobarbital, rendering the condemned unconscious. After the pentobarbital, the inmate is given pancuronium bromide, which paralyzes the inmate’s muscles and stops breathing. Finally, the condemned receives a dosage of potassium chloride, which stops the heart.

Alabama, like other states with the death penalty, had used sodium thiopental until 2011, when Hospira, the manufacturer of the drug, stopped making it in the United States. Pentobarbital, which had been used by veterinarians and in physician-assisted suicide in some countries, was adopted as a replacement by most states.

The Death Penalty Information Center said the drug was used in 35 executions in the United States last year, including five in Alabama.

According to court filings, sodium thiapentol takes about 60 seconds to render an inmate unconscious. But Arthur’s attorneys, citing affidavits from two experts, argue that pentobarbital can take between 15 to 60 minutes to reach “maximum effect, which, in the context of a lethal injection, is an inmate’s anesthetization,” a brief filed by Arthur’s attorneys said.

With executions usually taking place within a half-hour attorneys for Arthur argue, that an inmate could feel the effects of the other two drugs before the pentobarbital takes hold.

“The Supreme Court recognizes that if an inmate is not unconscious, that will cause excruciating pain,” Han said. “If an inmate is not unconscious, (pancuronium bromide) is comparable to feeling like you’re being buried alive. The third drug, we’re told, is comparable to your veins and your heart being on fire.”

In filings with the court, the Attorney General’s office has cited experts who say that a longer-acting anesthetic like pentobarbital would be preferable to sodium thiopental, quoting one of Arthur’s experts in a prior affidavit as saying sodium thiopental “has a quick onset and a short duration.”

The state further argued that the time it took for the drugs to take effect was irrelevant, as corrections officials would not allow an execution to move forward if the inmate was found to be conscious.

“Contrary to Arthur’s argument, the amount of time it takes for pentobarbital to reach its ‘maximum effect’ is constitutionally irrelevant so long as the inmate is fully unconscious prior to the administration of the second and third drugs,” the Attorney General’s office wrote.

Han said the state’s execution protocols are needed to present Arthur’s case against pentobarbital to the court. Arthur’s attorneys argue they were not informed of the change in the execution protocols, despite a 2007 letter from a Department of Corrections lawyer saying they had an “ethical obligation” to notify his attorneys about the change.

The Attorney General’s Office argued the letter was misunderstood, and said the use of pentobarbital was disclosed to the public. Arthur’s attorneys noted the state did so after the Equal Justice Initiative, a Montgomery-based legal aid group, had filed a complaint about the state’s use of imported sodium thiopental.

“If they’re so confident they’re complying with the Constitution, then it makes no sense that they would refuse to provide information that would give the public and an inmate the satisfaction that the procedure is compliant with the Constitution,” she said.