Las Vegas Sun

September 19, 2017

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Lethal injection: Is it cruel?

Barring a last-minute appeal, an IV will drip lethal drugs into Daryl Mack's veins on Wednesday, and if doctors' estimates prove true, he will die about 90 seconds later - punishment for sexually assaulting and strangling a 55-year-old Reno woman in 1988.

But will his own death be painful?

To help answer that question, execution witnesses - for the first time since Nevada reinstated capital punishment in 1977 - will watch the actual injection of drugs into the arm of the condemned inmate.

For the 11 other inmates who have been executed since 1977, the death chamber's curtains have been closed as the injection was given. As a result, there have been no public witnesses to whether the injection caused pain to the inmate, which could violate the constitutional ban against cruel and unusual punishment.

But the curtains will be kept open when Mack, 47, is injected.

Nevada Prison officials agreed to allow viewing of the entire process in response to a lawsuit filed by the Reno Gazette-Journal that, arguing a First Amendment right to view the entire execution, challenged the limited viewing previously allowed by the Corrections Department.

Defense attorneys for death row inmates and other opponents of lethal injection argue that the use of inexperienced technicians or orderlies can lead to inmates experiencing torturelike pain if they are not fully anesthetized.

The lack of sufficient anesthetics has been attributed to drugs mixed improperly, injected into a muscle instead of a vein or clogged in the needle.

While the specific protocol for lethal injection in Nevada and the other 36 states that use that form of execution is kept secret, all are believed to use the same "standard method," which involves the mixing of three drugs.

Inmates are first sedated with an anesthetic and then injected with a drug that paralyzes their muscles, causing them to stop breathing. A final drug, potassium chloride, causes a deadly heart attack. The inmate is ultimately killed by a combination of anesthetic overdose and respiratory and cardiac arrest while unconscious.

Medical ethics preclude doctors from participating in these executions, but they do enter the chamber to confirm the inmate's death.

The contention that lethal injection is cruel and unusual punishment has not been raised in Nevada, but has come before federal courts in California and North Carolina. Judges in those cases have ruled that lethal injection can be carried out only if the injections are administered by those with proper medical training.

Last week four convicted murderers in Missouri filed a federal lawsuit challenging the legality of lethal injection.

The U.S. Supreme Court is scheduled on Wednesday to hear a Florida case challenging the constitutionality of lethal injection.

Mack has waived all of his available appeals and has instructed his lawyer, Marc Picker, not to intervene in his execution. Mack has said he wants to die even though he denies strangling and raping Betty May in her Reno home in 1988.

Mack has made it clear "he doesn't want to exercise his appellate rights and (he) wants to die," Picker said.

Citing attorney-client privilege, Picker would not comment on whether he advised Mack of the possibility of raising the lethal injection issue.

However, Picker said, "From what I've heard and read there seem to be some real questions out there as per whether lethal injection procedures equate to cruel and unusual punishment."

Picker said he's been told that the 9th U.S. Circuit Court of Appeals, U.S. District Court and the Nevada Supreme Court "are all standing by to see if Daryl changes his mind."

"I'm not sure how any of those courts would rule if Daryl changes his mind," Picker said. "It's not as if he's exhausted his appellate options, but instead he's just decided to go ahead with it."

Conrad Hafen , chief of the Nevada attorney general's criminal division, said Nevada's system of lethal injection "is legitimate and doesn't come close to being cruel and unusual punishment."

The other states have come under criticism, Hafen said, because of the concern that nondoctors are improperly mixing the solutions, causing the condemned inmates to suffer.

There is no evidence in Nevada that inmates have suffered pain during lethal injection, he said.

If there was indication in Nevada's executions of pain because of improper mixing or poor injection of drugs, a judge would have to hold an evidentiary hearing to determine if the complaint was valid - and then decide whether the pain constituted cruel and unusual punishment.

A ruling by the 9th Circuit or the U.S. Supreme Court banning lethal injections would affect Nevada, but rulings in North Carolina or California would not stop its use in Nevada. At most, Hafen said, rulings in those states could be cited by defense attorneys in raising the issue here.

Richard Siegel, president of the Nevada Chapter of the American Civil Liberties Union, said the issue hasn't been raised in Nevada primarily because there have been relatively few executions in the state - and the condemned inmates didn't object to the process.

He said he believes that if Mack didn't voluntarily want to be executed, Picker would seek a stay of execution based on the lethal injection issue.

Siegel predicted that the U.S. Supreme Court won't ban lethal injections, but call for greater safeguards, perhaps by involving physicians in the process.

"I don't think any ruling on the issue of lethal injections will be a system breaker," Siegel said.