Execution changes occur without public scrutiny, input

Deborah Denno in The Austin American-Statesman, October 18, 2012

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On July 9, when Texas switched from three drugs to just one to execute its most heinous criminals, Rick Thaler, the state’s No. 3 corrections official, signed off on the change without fanfare after consulting with prison officials in other states.

No public hearings. No legislative action. No public vote by the prison system’s nine-member governing board, which routinely votes on tweaks to prison policies, such as hazardous-duty pay bumps for individual employees and donations of vegetable and Bibles.

Under a state law enacted years ago, Thaler — a former guard and warden with no medical training — alone decided the change on how Texas’ ultimate punishment is administered. His signature on the revised 10-page execution policy was all it took to upend almost three decades of precedent using three drugs in executions.

Lethal injection faces increasing scrutiny nationwide with states scrambling to keep their death chambers operating as their supplies of drugs run short, and because of that, critics of the death penalty say, the execution process is much more haphazard than it once was.

"It appears to be like the Keystone Kops running around changing the procedures to fit whatever drugs they can get at that time, just so they can keep executions going," said Richard Dieter, executive director of the Washington-based Death Penalty Information Center. “Clearly, this is not any way to be doing this.”

Added Deborah Denno, a law professor and death penalty expert at New York’s Fordham University: “The process has always been sloppy, but it’s getting much riskier from a constitutional standpoint, in my view. There used to be a pretense that the three-drug method was humane.

“Now, there is no such pretense. States are switching to whatever drug they can get.”

For their part, Texas prison officials say they are simply doing what they must to carry out the law, and they echo the response of colleagues across the country: Courts have approved all the changes so far.

The changes occur at a time when the death penalty appears to be under increasing siege across the country. Five states have suspended executions because of pending court challenges, five others have in recent years abolished executions altogether and, by some polls, public support for the death penalty appears to be at its lowest point in decades.

If the new one-drug method seems thinly researched, how the three-drug cocktail came into use might also seem arbitrary, though medical professionals had a hand in writing the first rules.

Legislators in Oklahoma were the first, in 1977, when they sought to replace their state’s broken electric chair with a method that would withstand court challenge. They briefly debated which drugs could painlessly cause death. One lawmaker who was authoring the new law sought advice from Dr. A. Jay Chapman, then Oklahoma’s medical examiner, after the state’s medical association and various doctors refused to help because working on execution procedures violated their oath to do no harm.

During one meeting, Chapman — who acknowledged no experience in executions — recalled dictating this suggestion to the lawmaker, who scribbled it on a yellow legal pad: “An intravenous saline drip shall be started in the prisoner’s arm, into which shall be introduced a lethal injection consisting of an ultra short-acting barbiturate in combination with a paralytic.”

One drug would anesthetize the condemned, the other would stop the heart.

Another lawmaker consulted with an anesthesiologist. In a letter, Dr. Stanley Deutsch, then head of the anesthesiology department at Oklahoma’s medical school, opined that anesthetizing condemned convicts would be “a rapidly pleasant way of producing unconsciousness” leading to death, according to a copy of his letter.

The day after Oklahoma adopted its lethal-injection method, Texas followed suit, using the same procedure. More than 30 other states would follow, many using Texas’ procedure as their model.

“I don’t recall what discussion there was, except that at one point (Texas state Sen.) Craig Washington said we ought to hook the execution to the voting machines on our desks, so we could push the button,” said state Sen. John Whitmire, a Houston Democrat who now chairs the Texas Senate Criminal Justice Committee that oversees the prison system. He was in the Texas House then, one of only three legislators still in office since that lethal-injection law was passed.

“We don’t vote on that (changing the execution procedure),” Whitmire said. “We left those details to (prison officials).”

For the next three decades, the three-drug cocktail was the execution norm in most states: Sodium thiopental, a fast-acting barbiturate that put the convict to sleep; pancuronium bromide, a paralytic that stopped breathing, and potassium chloride, a drug that stopped the heart.

Court challenges to the execution drugs dead-ended, and prison officials in Texas and other states kept their death chambers buzzing. Of the 848 prisoners executed nationally by lethal injection in 30 years, 487 of them died in Texas — a state that executed just 361 convicts in its electric chair in 40 years.

By this summer, as its existing lethal drug supply expired, Texas found pancuronium bromide unavailable. It was then, on July 9, just days before a scheduled execution, that Thaler signed off on using a single drug.

The change was approved without public notice, with little explanation and without even the agency’s nine-member governing board voting on it. Under agency policy, Thaler, director of the prison agency’s Correctional Institutions Division, is delegated sole responsibility for the execution procedure.

As Texas Department of Criminal Justice spokesman Jason Clark explained it, the reason for the July change was that “the agency’s stock of the second drug expired and the agency was unable to obtain a new shipment.”

“Agency officials examined the execution procedures of other jurisdictions before deciding to switch to a one-drug protocol,” Clark said. “The one-drug protocol has been adopted by several other states, and has been upheld as constitutional by the courts.”

“Changing the protocol has allowed the agency to fulfill its statutory responsibility to carry out scheduled executions,” Clark said.

Little else is known about whom Thaler consulted with before approving the switch. The agency released to a death penalty lawyer documents showing that Texas officials reviewed execution policies in Idaho, Arizona and Ohio. Included was a court transcript of a doctor’s testimony saying the one-drug procedure would essentially be painless.

Other states also have made the switch to different drugs or one drug without much, if any, public debate.

In fact, several states, including Oklahoma, have enacted laws keeping most details about their execution process secret — the suppliers, the amounts on hand and the expiration dates.

Likewise, Texas prison officials have tried unsuccessfully three times times in the past two years to convince state Attorney General Greg Abbott that most details about the drugs and their sources should be kept under wraps. So far, Abbott has refused and, because prison officials continue to be adamant that the information should be kept from public view, a change in state law could be filed when the Legislature convenes next year.

Megan McCracken, an attorney and death penalty expert with the University of California’s Berkley School of Law, said the fast-changing methods and drugs used in executions highlight a flaw in the system: There is no solid medical justification for the selection and use of specific drugs.

“(Texas) is able to change protocols with little or no oversight, no public input, little or no public knowledge,” she said. “When the Legislature delegates rule-making authority to an agency, that should not take it completely out of the light of day.”

She and Denno said the fast switches of drugs could portend legal issues ahead — because, as McCracken says, it seems to be occurring “with little or no medical examination or input. … Are (states) approaching this from the standpoint of what’s most humane, or are they just looking at what’s most expedient?”

“This has always been a sloppy process from the start, and recently it seems to have gotten worse now than it ever was,” Denno said. “Any attorney now worth their salt will be challenging the lethal injection procedure.”

Statesman Capitol reporter Mike Ward has been covering criminal justice issues for three decades, from prison contracting scandals to contraband cell phones on death row to the continuing issues surrounding lethal injection.