2007 Archive

Death Penalty Clinic Assumes Leadership Role in Lethal Injection Litigation

 Whether an individual should be executed seems a more vexing question than how that individual should be executed. Yet litigation in more than a dozen states has challenged the administration of lethal injection, prompting the U.S. Supreme Court to consider the constitutionality of an execution method for the first time since 1879.

Of the 38 states with the death penalty, 37 use lethal injection. Boalt Hall’s Death Penalty Clinic has surged to the forefront on this issue, becoming a hub of valuable information for lawyers, journalists, and the public. The clinic created the website www.lethalinjection.org in 2005, and it has grown into the country’s top source on the subject, offering a wealth of centralized, well-organized material.

“We started posting information on lethal injection that was useful to different groups and it mushroomed from there,” says Ty Alper, the clinic’s associate director. “It’s really gratifying to know that the clinic is seen as a national resource. That’s certainly a goal of ours, particularly for lawyers who don’t have the resources to represent their clients without our help.”

The clinic has taken a lead role in the lethal injection litigation, particularly since the Supreme Court decided to review Kentucky’s procedures in the Baze v. Rees case. With the exception of a Texas execution that went forward on September 25, 2007, the day the Court granted review in Baze v. Rees, executions have come to a halt as the Supreme Court and state and lower federal courts have all granted stays since then.

Kentucky’s three-drug formula is similar to that used by the states and the federal government. The first drug administered is supposed to anesthetize the inmate. The second drug paralyzes the inmate and prevents breathing. The third drug stops the heart. Petitioners Ralph Baze and Thomas Bowling argue that the Kentucky courts did not consider that the risk of pain was “unnecessary.” They point to the foreseeable risk that, if the anesthetic drug is not properly administered, inmates will experience the conscious agony of suffocation when the second drug is injected and excruciating pain when the third drug is injected. The Supreme Court will review their claims, and decide the constitutional standard for determining whether an execution method violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

The Death Penalty Clinic filed an amici curiae brief on behalf of inmates who have raised challenges to lethal injection in California, Missouri, Maryland and Florida. According to Alper, the purpose of the clinic’s brief is to “demonstrate to the Court that the prison officials who are responsible for ensuring that the drugs are administered properly are unqualified, untrained, and unreliable.” The Supreme Court is scheduled to hear arguments January 7.

Clinic Eighth Amendment Fellow Jen Moreno developed the lethalinjection.org web site. And clinic students capitalized on a terrific opportunity to develop their litigation skills by drafting a Supreme Court brief and confronting the media attention the Baze case has garnered. Joy Haviland and Vanessa Ho helped to write the clinic’s brief, Mojgone Azemun and Armilla Staley performed detailed research and cite-checking, and Julia Smith-Aman helped prepare the clinic’s communications resource kit. Although the litigation is legally and factually complex—requiring a significant time commitment and the absorption of vast, technically dense information—clinic director Elisabeth Semel hails the students’ performance as exceptional.

 “This is definitely the hardest that I’ve worked in law school, but it’s gratifying to contribute significantly to such a groundbreaking issue,” says Haviland. “We had an expedited briefing schedule, and there were so many facts and just a few of us working on the brief. But there are no excuses not to do your absolute best, especially when it comes to death penalty litigation where the stakes are so high.”

For Smith-Aman, the flurry of media activity surrounding lethal injection made clear the value of the clinic’s resource kit. “For a case of this size and importance, you definitely need a coordinated effort to pull everything together,” she says. “We made sure everything is sourced, either to a case or news article, so people can get to the core information quickly and find what they need.”

To help ensure that that the Supreme Court was presented with facts from various jurisdictions, not just Kentucky, clinic students scoured the records of lethal injection cases in every state. What they discovered was helpful for their brief, but otherwise quite disturbing.

In Florida, for example, the execution of Angel Diaz took 34 minutes—more than twice as long as normal—and required a rare second dose of chemicals when guards failed to properly insert intravenous needles. In the Ohio execution of Joseph Clark, guards punctured his arm 19 times in an attempt to find a vein. Clark reportedly muttered, “It don’t work,” and after his anesthesia began to wear off added, “Can you just give me something by mouth to end this?” The execution, designed to last no longer than 12 minutes, took more than an hour. In Missouri, it was revealed that a doctor who administered the state’s lethal injections for over a decade had been sued for malpractice more than 20 times—and was disciplined by the State Medical Board for lying about his malpractice history. This same doctor assisted the federal government in its development and administration of lethal injection protocols.

However the lethal injection case is resolved, the Death Penalty Clinic stands poised to continue its leadership role. “Depending upon the Court’s decision,” Semel says, “there are a number of different scenarios that may take place in the states. However, we are committed to our clients, so the clinic is engaged in this issue for the long-term.”

- By Andrew Cohen