Cruel punishment? Lawsuit challenges death penalty

Summary

Washington's lethal injection method is illegal because it can't ensure condemned inmates will be totally unconscious when fatal drugs flow into their veins, three death row prisoners argued in a civil trial Thursday.

Story Published: May 21, 2009 at 6:41 AM PST

Story Updated: May 21, 2009 at 6:15 PM PST

Cruel punishment? Lawsuit challenges death penalty

This Nov. 20, 2008 photo shows the execution chamber at the Washington State Penitentiary in Walla Walla, Wash.

OLYMPIA, Wash. (AP) - Washington's lethal injection method is illegal because it can't ensure condemned inmates will be totally unconscious when fatal drugs flow into their veins, three death row prisoners argued in a civil trial Thursday.

The lawsuit doesn't seek to end lethal injections in Washington. Instead, it argues the state's procedures should be changed to give stronger assurances that an executed inmate won't be subjected to improper suffering and pain.

State lawyers, however, say the Department of Corrections' methods withstand constitutional tests because they're substantially similar to procedures in Kentucky, whose system was upheld last year by the U.S. Supreme Court.

Washington, like roughly three dozen states, uses a combination of three drugs to knock out, paralyze and kill a condemned inmate. Washington death row inmates may opt for hanging instead.

The trial, expected to last several days, began Thursday in Thurston County Superior Court.

The case is a combined lawsuit on behalf of three death row inmates: Darold Stenson, who shot his wife and business partner in Clallam County; Cal Coburn Brown, who tortured and killed a Burien woman; and Jonathan Gentry, who killed a 12-year-old girl in Kitsap County.

Stenson was scheduled to testify Thursday afternoon via a videoconference link from the state penitentiary in Walla Walla.

In opening statements, the inmates' attorneys said there were several specific shortcomings in the state's lethal injection procedure: No supervision by doctors or nurses, inadequate training and rehearsals for the execution team, and lack of medical qualifications for everyone involved.

Sherilyn Peterson, one of Stenson's attorneys, focused particularly on the lack of an execution team as evidence the state can't show it is able to carry out a constitutionally acceptable lethal injection.

Members of the state's previous execution team resigned in March, worried their identities could be exposed through the court's examination of their qualifications and experience. A substitute team has not been assembled.

"You can promise anything. You can put anything in writing," Peterson said. "The question is, can you do it?"

Inmates argue that more humane alternatives exist - using a larger dose of sedative to kill an inmate, rather than adding paralytic and heart-stopping drugs, or having a doctor or nurse involved. Presently, a doctor is employed only to certify an executed person is dead.

Assistant State Attorney General Sara Olson, the state's lead lawyer in the case, argued that Washington's existing policy gives proper assurances that a lethal injection will be carried out as required under the federal and state constitutions.

Under the U.S. Supreme Court ruling on Kentucky's lethal injection method, Washington doesn't need to prove its procedures will be followed in a perfect manner that avoids all risk of pain, Olson said.

Rather, the inmates must prove Washington's procedures represent a substantial, intolerable risk of harm - and since Washington's policies mirror Kentucky's, that hurdle can't be cleared, Olson argued.

The state also rejects the plaintiffs' argument that the Washington Constitution offers a stronger protection against cruel punishment than the U.S. Constitution's Eighth Amendment.

The last execution in Washington was the lethal injection death of James Elledge in 2001.

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