[Deathpenalty] death penalty news----ALABAMA

[Rick Halperin]

April 1


ALABAMA:

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


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 2 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 3-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 5 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 3rd 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 2nd and 3rd 
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.

(source: Montgomery Advertiser)