Georgia lethal injection procedures still flawed despite post-Baze ruling

Michael Siem [lawyer for Jack Alderman, Clifford Chance]: "In applying the US Supreme Court's holding in Baze v. Rees [last week], Judge Martin found the Georgia Lethal Injection Procedures constitutional despite the Procedures' failure to provide the safeguards required by the plurality opinion. Accordingly, Mr. Alderman intends to appeal.

Specifically, Georgia's Procedures are flawed even after Baze because they do not require the following safeguards: there are no assurances that the inmate is properly anesthetized prior to the injection of the two painful drugs: pancuronium bromide and potassium chloride; no confirmation of unconsciousness; no requirement that the team practices prior to an execution, and no specified minimum qualifications for those involved in the executions. Furthermore, Georgia uses one less gram of sodium pentothal and a longer tube than Kentucky. Despite the shortcomings, Judge Martin upheld the constitutionality of the Georgia Procedures based on the State's assurances that while these requirement are not present in the Procedures, in practice they perform some of these safeguards. Judge Martin, ruling on Defendants' Motion for Summary Judgment, resolved the material facts regarding the evidence that the individuals involved in the executions are untrained, unqualified, do not check for unconsciousness, and cannot distinguish between unconsciousness and merely being asleep in Defendants favor.

Further undermining the assurance that executions will be carried out in a constitutional manner is the 11th Circuit's decision in McNair et al., v. Allen, et al., __ F.3d___, 2008 U.S. App. Lexis 1919 (11th Circuit January 29, 2008). The 11th Circuit held that the statute of limitations on § 1983 method of execution claims begin to run when an inmate completes his direct appeal. According to the 11th Circuit, a condemned inmate will have to file a method of execution challenge simultaneous with his habeas petition. This means that an inmate is forced to challenge the method of his potential execution before knowing whether his sentence of death will be upheld upon federal review. This decisions is even more disturbing when put in context. Mr. Alderman was precluded from bringing his claim prior to 2006 because the 11th Circuit barred § 1983 method of execution claims until the Supreme Court's decision in Hill v. McDonough, 547 U.S. 573 (2006). Thus, the 11th Circuit has made is procedurally impossible for Mr. Alderman to challenge the method of execution in Georgia.

There continue to be significant risks with the lethal injection procedures around the country. States are in the best position to determine whether the inmate is properly anesthetized by merely drawing samples (of the inmate's blood) within one hour after death, yet they refuse to take this step because they are concerned what the results might reveal. Furthermore, states prefer to rely on procedural bars instead of drafting procedures that ameliorate the substantial risks of pain and suffering."

 

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