Execution details are not clear ---- State law doesn't specify how to administer lethal injection
2 very different men stand accused of capital murder in New Hampshire for2 very different crimes. 27-year-old Michael Addison, a black man with a long criminal history, is charged with shooting a police officer trying to arrest him. John Brooks, a 55-year-old white multimillionaire, is accused of hiring men to kidnap and kill a man he believed had stolen from him.
In theory, both men would face the same penalty if they're convicted: death by lethal injection. But the specifics are far from certain. While lethal injection has been New Hampshire's method of execution since 1986, the state hasn't executed anyone for nearly 70 years and it has never detailed how a lethal injection would work: which drugs would be used, who would carry it out and where.
The situation is further complicated by a case the U.S. Supreme Court will hear next month, challenging Kentucky's lethal injection protocol. The high court's September decision to hear the case caused an unofficial moratorium on executions as states await its decision. Whatever the court decides could have a bearing on how New Hampshire writes its execution handbook.
"The case will not just resolve lethal injections in Kentucky, it will give guidance to the whole country," said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit that has been critical of capital punishment. "A state like New Hampshire, if they want to use lethal injection or if they want to prosecute these cases, may have to spell out how the lethal injection is to be carried out, what training they're giving people to do it, why they use these drugs and not other drugs, what steps they take to prevent unnecessary pain."
'Off to a bad start'
Lethal injection is the preferred method of execution in 37 of the 38 states where the death penalty is legal. (Nebraska is the only state to solely use the electric chair.) Most states use a three-drug cocktail: one drug to knock the person unconscious, one to paralyze him and one to stop his heart.
The formula was hastily developed in 1977 by Dr. Jay Chapman, the former chief medical examiner in Oklahoma. Asked to come up with a humane alternative to the firing squad, Chapman proposed the 3-drug combination. In 1982, Texas became the first state to execute anyone by lethal injection.
Since then, nearly every state with lethal injection on the books has copied Texas, which has held more than four times the executions of any other state in the past 30 years. Documents show that states don't often do their own research and that unskilled technicians carry out the procedure.
The lethal injection protocol "was off to a bad start from the beginning," Dieter said. "It was a medical procedure adopted from operating rooms but translated to prisons, where there are no doctors involved in the executions. . . . There's not much justification for (the three drugs) being used."
In fact, Chapman himself has said in recent years that it may be time to change the formula. He said he's surprised to see his protocol still used today and suggested updating it with newer, better drugs.
The crux of the Kentucky case, Baze v. Rees, is whether the prevalent three-drug cocktail causes an "unnecessary risk of pain." But the Supreme Court is unlikely to call for a complete ban on executions, lawyers and experts said. Instead, they said, it will consider the standard by which to measure whether lethal injection violates the Eighth Amendment prohibiting cruel and unusual punishment.
The examples that it does are pretty gruesome. Take Charles Walker, who was executed in Illinois in 1990 for shooting a young couple. According to news accounts, the executioner, who was brought in from Missouri to perform Illinois's first execution since the death penalty was reinstated in 1976, inserted the needle pointing toward Walker's fingers instead of his heart, prolonging the process.
Or Joseph Clark, a murderer from Ohio. A few minutes after technicians inserted the needle, Clark's vein collapsed and he cried out, "It don't work. It don't work." It took 30 minutes to find another vein.
Or Angel Diaz, whose execution last year caused widespread outrage. It took 34 minutes for the Florida murderer to die, something originally attributed to liver disease. But an autopsy showed that the technician had inserted the needle through Diaz's vein and out the other side, allowing the deadly chemicals to flow into Diaz's soft tissue rather than into his vein. Diaz grimaced the entire time.
While some botched lethal injections appear to be the result of human error, others appear to be due to the drugs themselves. There are dozens of stories of inmates writhing, groaning and gasping for air after the drugs are administered, suggesting that they're not fully unconscious or paralyzed.
But it's impossible to tell whether they're in pain because the first two drugs mask a person's reaction. Veterinarians have said the method is unacceptable for putting dogs and cats to sleep.
Relying on other states
Records suggest New Hampshire's lethal injection law was developed by the same copycat method as other states'. However, Steve Merrill, then the state's attorney general, said last week the state is too independent for that.
Merrill said he proposed changing the method of execution from hanging to lethal injection because of a much-publicized criminal case. In 1984, 8-year-old Tammy Belanger was abducted while walking to school in Exeter.
"I became convinced, relatively soon after becoming attorney general, that if we caught her abductor, there would be a hue and cry for an execution," Merrill said. "I thought for the first-in-the-nation primary state to have a gallows erected and to have a hanging would be unseemly."
But transcripts from 1986 legislative hearings show New Hampshire was relying on other states for guidance. Bruce Mohl, then-deputy attorney general and now a retired judge, told the Senate Judiciary Committee that he didn't know which drugs would be used in the state's executions.
"I'm not sure I know the exact substance," Mohl said. "It's a chemical that has been used in other states. One that has been, I believe, tested as being an efficient and painless . . . method of execution."
The committee asked Merrill the same question a few days later. He said the drugs "are basically muscle relaxers." One senator asked how the state would decide which drugs to use on whom.
"Any of them have been approved in all of the states that have passed lethal injections," Merrill said. "I realize that medical technicians and physicians disagree on this, but in layman's terms, there is no noticeable pain involved other than the shot involved. It simply is a muscle relaxer."
Lawmakers also heard from human-rights activists who argued that execution is cruel, and from nurses who said they would refuse to participate. Shirley Girouard of the New Hampshire Nurses Association told the Senate Judiciary Committee that to do so would breach the nurses' code.
"The goal of the nursing profession (is) the promotion of restoration and health," Girouard said. "It's doubtful to me, first of all, that any licensed person, (and) that would include registered nurses or certified people who have the skill, would be willing to put their license on the line . . . to do this."
Lethal injection passed the Legislature on the second try. The law now says death "shall be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbituate in combination with a chemical paralytic." If that can't be done, the condemned will be hanged.
Merrill, now a consultant, said he still believes lethal injection is the best method.
"I am not sympathetic with those who say that we need to spend extraordinary amounts of money to be certain that the injection itself is neither painful in the slightest and is the most effective mechanism of taking a life," he said. "Those who make those arguments forget that we're killing the person."
Potential executions
Today, New Hampshire has no prescribed method of lethal injection. Jeff Lyons, spokesman for the state Department of Corrections, the agency tasked with developing one, said the department has been slowly working on one for a couple of years. He said it has zeroed in on Connecticut's policy as a model: when to serve the last meal, when to give last rites, when to move to the execution chamber.
But nothing has been finalized, including what drugs would be used, he said. Another glaring loose end is the state's lack of an execution chamber. The old hanging room at the state prison in Concord has been turned into a recreation area, Lyons said, and the piece of plywood that for years covered the 15-foot hole where the inmate would drop was permanently replaced with new flooring recently.
The state doesn't even have a proper death row, Lyons said. What it has are four cells set off by themselves in the maximum security area of the prison. Built in the early 1980s, the area has in the past been used as a place for inmates to calm down after a fracas and for dry storage, Lyons said.
Addison is currently being held there while he awaits trial, Lyons said.
Addison's lawyers originally said they planned on filing a constitutional challenge to lethal injection on the grounds that it is cruel and unusual punishment. One of Addison's lawyers, Richard Guerriero, also represented the last man charged with capital murder in New Hampshire, Gordon Perry.
Perry was accused of shooting an Epsom police officer in 1997. Before he pleaded guilty as part of a deal with the attorney general's office that allowed him to avoid the death penalty, his lawyers alleged that lethal injection was cruel.
"Lethal injection is not a kinder, gentler way of killing," they wrote in 1998. "The reality is bursting veins, convulsions, unexpected drug interactions, needles popping from arms, blood and toxins spraying the walls of the execution chamber, witnesses traumatized to the point of unconsciousness."
Perry pleaded before the judge in his case could rule on the motion. Guerriero said last week he and his colleagues will now likely hold off on filing a similar challenge in Addison's case.
"I expect both sides and the court to delay consideration of the lethal injection issue in the Addison case until after the U.S. Supreme Court decision," he said.
But Addison's may not be the 1st execution the state has to perform. Gary Sampson, who pleaded guilty to carjacking and then stabbing to death 2 Massachusetts men, was ordered by a federal judge to be executed in New Hampshire.
Massachusetts doesn't have a death penalty. The judge in Sampson's case said executing him here would make the procedure "more accessible" to those interested in it and impacted by it.
Sampson's execution could be a long way away, however. His lawyer, David Ruhnke, said Sampson is at the beginning of an appeal to the U.S. Supreme Court, which may not be resolved for years.
"If and when everything associated with the case is lost, then the issue would become the effect of the Supreme Court decision in the Kentucky case, which will come long before our appellate case is over," Ruhnke said. "Whatever impact it has on the Sampson case, we'll see at that time."
Rep. Bill Knowles, the chairman of the House Criminal Justice Committee, has also adopted a wait-and-see attitude. Knowles isn't scrambling yet to revise the state's lethal injection law in anticipation of the high court's verdict. He said he has his eye on the Kentucky case but he's not holding his breath.
"We do have backup in the state of New Hampshire," he said last week. "We can hang."
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