LITTLE ROCK — A panel of judges on the 8th U.S. Circuit Court of Appeals questioned Thursday whether the state Department of Correction's lethal injection protocol guarantees that a doctor will be called in if executioners have trouble establishing an intravenous line in a condemned inmate.
The questions arose during oral arguments in St. Louis that stemmed from an appeal of U.S. District Judge Susan Webber Wright's dismissal last August of a lawsuit filed by four death-row inmates.
The lawsuit challenges the constitutionality of the lethal injection protocol, saying it doesn't ensure that the procedure won't go awry, resulting in the infliction of cruel and unusual punishment, in violation of the 8th Amendment to the U.S. Constitution.
Assistant Federal Public Defender Scott Braden argued on behalf of the inmates that in dismissing the lawsuit without an evidentiary hearing, Wright relied on a misinterpreted ruling the appellate court made in a Missouri case, and on a recent U.S. Supreme Court ruling in a Kentucky case that stemmed from different facts.
The inmates are Frank Williams Jr., Terrick Noon-er, Don Davis and Jack Harold Jones.
Braden argued that "Arkansas' history of troubling executions" should prompt the district court to do as the appellate court directed in the Missouri case - carefully evaluate state procedures to determine whether safeguards exist to protect against the infliction of unnecessary, excruciating pain.
While the state says it has updated its protocol in light of the Kentucky case, Braden said Wright dismissed the lawsuit before attorneys for the inmates could properly evaluate that claim through the discovery process.
During the 1992 execution of Rickey Ray Rector, who weighed nearly 300 pounds, executioners made nine needle marks on his arms and hands and a 2-inch-wide incision on the inside of his right arm while trying to find a vein. Eventually, a catheter was inserted in a vein on top of his right hand.
Braden said it is unclear "to what extent the protocol is new. ... We need to look at the written document and see what it says it's going to do."
But Assistant Attorney General Joe Cordi insisted that the "new" protocol is "substantially different" from that in place when Rector was executed.
Cordi told the three-judge panel that the current protocol doesn't even mention "cut-down" procedures because "it's truly unforeseeable that the ADC would ever have to use any incision" to reach a vein. He said that's because the protocol allows executioners to deliver the drugs through a "central line," such as a jugular vein or an artery in the leg, as long as the line is first established by a licensed physician in a hospital or another clinical setting.
Cordi said the condemned inmate would be examined a day or so before the execution so that any anticipated trouble could be headed off by a medical doctor who is "specifically credentialed to do that particular procedure."
"If you're unable to have a physician standing by, the procedure will have to be suspended at that point?" the judge asked.
"I would believe so," Cordi replied.
A judge pointed out that, because of the Hippocratic oath that doctors take, "You may have trouble finding a physician who's going to do that."
"Your Honor," Cordi replied, "It's my understanding that the state of Arkansas has not had such difficulties in the past. My clients are confident they will have a physician there available."
"But if they can't," the judge persisted, "you would have to suspend the procedure?"
"I believe that would be my advice," Cordi replied.
After Cordi acknowledged that the protocol doesn't explicitly say a physician would establish a central line, one judge asked, "Why not just put it in the protocol?"
Cordi replied that Correction Department Director Larry Norris "has the authority to amend the protocol anytime he deems it necessary."
Asked if a public comment period precedes any amendments, Cordi noted that the Arkansas Legislature recently amended the law to remove that provision - and the change is the subject of a lawsuit in state court.
The panel, including 8th Circuit Judges Raymond Gruender of St. Louis and Duane Benton of Kansas City, Mo., will issue a written opinion on the appeal at a later date.
Northwest Arkansas, Pages 13, 18 on 09/25/2009