By Curt Woodward
Associated Press Writer
OLYMPIA — 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 last execution in Washington was the lethal injection death of James Elledge in 2001.
The civil 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 of Sequim, 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.
In afternoon testimony, Stenson testified via videoconference from the state penitentiary in Walla Walla about difficulty that medical staff have accessing his veins during regular blood draws related to medical treatment for diabetes.
“For well over a week, my whole arm would turn an off-yellow color and would be black and blue,” Stenson said.
Stenson’s attorneys argue that the difficulty of accessing Stenson’s veins with needles raises too high a risk that the state’s execution team would connect the lethal injection needle improperly.
The state rejects the argument that Stenson’s health conditions make the procedure unconstitutional.
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 eliminates 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 closely mirror Kentucky’s, the plaintiffs’ arguments don’t clear that hurdle, the state said.
It’s not enough to argue that Washington’s procedure could be administered incorrectly, and the plaintiffs’ arguments incorrectly presume that the state intends to administer the procedure haphazardly, Olson said.
On the important question of whether an inmate is fully unconscious during Washington’s lethal injections, the state’s procedure calls for the prison superintendent to closely observe the condemned inmate for signs of consciousness, and allows the superintendent to order a second dose of sedative, Olson said.
The idea that an inmate would be somehow conscious despite those safeguards presumes an inmate would pretend to be asleep and not warn anyone, Olson said. But the inmates’ lawyers argue that an incomplete dose of the sedative could cause an inmate to appear unconscious while still feeling pain, which could be excruciating when the final two drugs are injected.
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.
