Lethal injection to be examined in Washington

The U.S. Supreme Court agreed Tuesday to examine whether lethal injection, the method of execution in Washington and 36 other states, inflicts a cruel and unnecessarily painful death on condemned inmates.

It isn't clear what effect the outcome of that Kentucky case would have on Washington's death row. But death-penalty opponents here are continuing to pursue a separate legal challenge by focusing on how — and by whom — lethal injections are performed.

Earlier this summer, defense attorneys for Dayva Cross, a condemned inmate from King County, asked the state Supreme Court to force the state Department of Corrections (DOC) to disclose who is on execution teams, if they have medical backgrounds and what training they have to deal with "errors, mistakes or mishaps."

That is considered key information because of apparently botched executions elsewhere in the country that have been linked to poorly trained executioners. Those cases have prompted at least 10 states to suspend the use of lethal injection. No executions are currently scheduled for the eight men on Washington's death row.

In Washington, execution procedures don't specify if executioners must have medical training, said Richard Morgan, DOC's deputy secretary, in a recent court filing arguing that disclosing executioners' identities would put them at risk of harassment and "would negatively impact DOC's ability to carry out executions as required by law."

Even if names were withheld, describing any medical training of execution members could cause them to be identified, DOC spokesman Chad Lewis said.

Most states don't require their execution-team members to have medical training, said Deborah Denno, a Fordham University law professor who has worked on Cross' case. Doing so would put them in an ethically awkward spot, she said, because the American Medical Association and other major medical groups admonish their members against participating in executions.

"I think having medically trained personnel involved is best, but I recognize the ethical dilemmas they face. It would mean executions are carried out in the most humane way possible," Denno said.

Although Washington's lethal-injection procedure does not require participation of medical staff, a revision in July called for the DOC's chief doctor, Dr. Marc Stern, to verify the lethal-injection table is in working order.

But Stern is leery of even that level of involvement and said he would ask his bosses to reconsider it.

"The way the policy is currently phrased has me more active than I'm comfortable with," he said. "In general, in the medical community, physicians are admonished by ethical standards from invoking a death sentence."

But he suggested that members of other professions, such as morticians, may have more "gray areas" in their ethical guidelines and said his staff was checking with state medical licensers.

"I don't think this is a medical procedure," Stern said. "This is a forensic procedure. It's a criminal procedure."

The Kentucky case to be considered by the U.S. Supreme Court is the first time the court has considered a challenge to a method of execution since 1879, when it upheld the use of a firing squad in Utah. The court's decision will likely stall the use nationwide of the controversial three-drug cocktail that has been used to execute 927 inmates since 1972.

Lethal injection was first conceived in Oklahoma as a more humane method than the electric chair. Although the procedure varies among states, it generally involves injection of anesthetic, a muscle paralyzer and a substance to stop the heart. Death-penalty foes have argued that if the condemned prisoner is not given enough anesthetic, he can suffer excruciating pain without being able to cry out.

Three of the four men executed in Washington since the death penalty was reinstated in 1981 were killed by lethal injection, including the two most recent, Jeremy Sagastegui in 1998 and James Elledge in 2001.

Little is known about those execution teams, in part because both men volunteered to die, limiting their lawyers' ability to extract DOC records.

Last year, the American Civil Liberties Union of Washington State asked but failed to get details about the backgrounds of those who participated in the executions of Sagastegui and Elledge, said Aaron Caplan of the ACLU.

"Even if we don't know the names of the people who will be selected, the DOC at least ought to be able to tell us the people we draw the execution team from," Caplan said. "The public has the right to know when state officials are carrying out important procedures that affect the life and death of people of the state."

No county in Washington has sent more inmates to death row than Pierce County. County Prosecutor Gerald Horne said lethal injection has been a preferable method because it should be painless.

"No one wants to see anyone suffer," he said. "If something is going wrong with lethal injection, it should be corrected."

But debates about the lethal-injection procedure are largely academic in this state, he pointed out. Despite the fact that Pierce County leads the state in sending men to death row, no inmate from the county has ever been executed, Horne said.

"I don't think anyone in the state of Washington will hold their breath waiting for the next execution," he said. "I've said this in the past: The death penalty is a farce in the state of Washington, because the death penalty is never executed."

The Associated Press contributed to this report.

Jonathan Martin: 206-464-2605 or jmartin@seattletimes.com