[Deathpenalty] death penalty news------USA

[Rick Halperin]

July 30



USA:

After Flawed Executions, States Draw Hoods Tighter


A Missouri doctor who had supervised more than 50 executions by lethal
injection testified last year that he sometimes gave condemned inmates
smaller doses of a sedative than the state's protocol called for,
explaining that he is dyslexic. "So it's not unusual for me to make
mistakes," said the doctor, who was referred to in court papers as John
Doe I.

The St. Louis Post-Dispatch identified him last July as Dr. Alan R.
Doerhoff, revealing that he had been a magnet for malpractice suits
arising from his day job as a surgeon and that two hospitals had revoked
his privileges. In September, a federal judge barred Dr. Doerhoff from
participating "in any manner, at any level, in the State of Missouri's
lethal injection process."

Naturally, state lawmakers took action to address the issue.

A new law, signed this month by Gov. Matt Blunt, makes it unlawful to
reveal "the identity of a current or former member of an execution team,"
and it allows executioners to sue anyone who names them.

The governor explained that the law "will protect those Missourians who
assist in fulfilling the state's execution process."

In the wake of several botched executions around the nation, often
performed by poorly trained workers, you might think that we would want to
know more, not less, about the government employees charged with
delivering death on behalf of the state.

But corrections officials say that executioners will face harassment or
worse if their identities are revealed, and that it is getting hard to
attract medically trained people to administer lethal injections, in part
because codes of medical ethics prohibit participation in executions.

The Missouri law addresses that point, too. It bars licensing boards from
taking disciplinary actions against doctors or nurses who participate in
executions.

The job of executioner has never been a high-status profession, of course,
which accounts for the hoods that hangmen wore. But in the old days, as
John D. Bessler wrote in a history of executions, killing condemned
prisoners "called for no expertise apart from the ability to tie a knot."

Lethal injections are different. They require executioners to insert
catheters and to prepare 3 chemicals and inject them, in the right dosage
and sequence, into intravenous lines. If the 1st chemical is ineffective
as a sedative, the other 2 are torturous.

Yet a federal judge in California found last year that prison execution
teams there had been poorly screened and included people who had been
disciplined for smuggling drugs and who had post-traumatic stress
disorder.

In a decision a week ago Sunday, a state court judge in Florida, Carven D.
Angel, halted the execution of a death row inmate, saying, "We need to
have people with competence and experience" to perform executions.

But, according to lethal injection procedures issued by Florida's
corrections department in May, there is only one job requirement to be an
executioner there: you must be "a person 18 years or older who is selected
by the warden to initiate the flow of lethal chemicals into the inmate."

Those credentials struck Judge Angel as a little thin.

"I don't think that any 18-year-old executioner," the judge said from the
bench, "with the pressure of a governor's warrant behind him to carry out
an execution, and with the pressure of the whole world - the press and the
whole world - in front of him and looking at him is going to have enough
experience and competence to stop an execution when it needs to be
stopped."

The concern is not hypothetical. In December, Florida executioners had to
inject Angel N. Diaz, a convicted murderer, with a second dose of lethal
chemicals after the 1st set did not do the trick. It took Mr. Diaz 34
minutes to die, and witnesses said he continued to move, squint and mouth
words after the 1st dose hit.

It would be good to know more about who is performing executions in
Florida. But that state's law, like Missouri's, forbids the disclosure of
"information which identifies an executioner." Quite a few states have
similar laws, and a new Virginia law shielding executioners came into
effect this month.

A forceful and persuasive article published in the Fordham Law Review in
April argued for "a right to know who is hiding behind the hood."

Its author, Ellyde Roko, who will start her 3rd year of law school at
Fordham in the fall, said in an interview that society's interest in
knowing how the death penalty is administered should outweigh the
relatively flimsy interests supporting secrecy. "Not knowing who the
executioners are takes away a huge check on the system," she said.

A 2002 decision of the federal appeals court in San Francisco allowing the
press and public to view executions in California supports Ms. Roko's
position.

"Even assuming an execution team member were identified by a witness, the
notion of retaliation is pure speculation," Judge Raymond C. Fisher wrote
for a unanimous 3-judge panel. "No execution team member has ever been
threatened or harmed by an inmate or by anyone outside the prison because
of his participation in an execution."

Indeed, Judge Fisher continued, there are far more likely targets for
retaliation, including the warden, the governor and the judges who
rejected the condemned prisoner's appeals. And all of their names are
public.

RELATED:

"Executioner Identities: Toward Recognizing a Right to Know Who Is Hiding
Beneath the Hood" by Ellyde Roko (Fordham Law Review, April 2007)

California First Amendment Coalition v. Woodford, in which the United
States Court of Appeals for the Ninth Circuit ruled in 2002 that the
press and public have a First Amendment right to view executions.

(source: Column, Adam Liptak, New York Times)