State of Connecticut v. Daniel Webb
COUNTERSTATEMENT OF THE ISSUES
I. WHETHER THIS COURT LACKS STATE CONSTITUTIONAL
AUTHORITY TO INVALIDATE A LEGISLATIVELY CREATED PUNISHMENT?
II. WHETHER LETHAL INJECTION IS THE MOST HUMANE
METHOD OF IMPOSING THE DEATH PENALTY?
NATURE OF PROCEEDINGS
The defendant's conviction and death sentence were
affirmed by this Court in August of 1996. State v. Webb, 238 Conn. 389,
680 A.2d 147 (1996). Although on direct appeal the defendant mounted a
non-evidentiary based challenge to electrocution as the method of
execution, the legislature changed the method to lethal injection while
the appeal was pending. Id. at 488-489. Consequently, the case was
remanded "for a hearing limited to the defendant's claim concerning the
state constitutionality of lethal injection as a means of execution." Id.
at 489.
This Court retained jurisdiction over the matter to
in order to review any findings of the trial court. Id. After a motion
by the State, the trial court, Espinosa, J., scheduled a hearing on
April 2, 1997 to comply with the remand order. As a result of this
hearing, both parties filed briefs seeking to resolve issues concerning
the scope of the remand hearing. Also, on May 6, 1997, the State
informed the defendant of the lethal drugs and quantity thereof that
would cause his death. S/App. at 1-3.
The issue of the scope of the remand was argued
before the court, Espinosa, J., on June 4, 1997. Judge Espinosa
indicated that she would resolve the issue of the scope of the remand
before holding an evidentiary hearing. T. 6/4/97 at 40. She also
permitted the parties to file simultaneous briefs to present additional
arguments regarding any issues discussed during the June 4 hearing, and
responsive briefs to address issues raised in the original briefs. Id.
After this matter was briefed and argued before Judge Espinosa, but
before she was able to decide it, she was transferred from the Hartford
Judicial District. See T. 12/5/97 at 2. The case was then assigned to
the Honorable Roland Fasano. Id.
After re-argument on the scope of the remand hearing,
Judge Fasano ruled that Webb ordered him to determine whether the
mechanism of death employed in an execution by lethal injection amounts
to cruel and unusual punishment under the State constitution. T. 12/5/97
at 26-27. At the conclusion of an extensive evidentiary hearing, the
trial court noted that "the defense abandoned any claim that proper
implementation of Administrative Directive 6.15 would constitute cruel
and unusual punishment under the state constitution or result in
anything other than a virtually painless death." D/App. at 12. Instead
the defense "shifted its focus to several new due process claims
seemingly unrelated to the purpose of the hearing held pursuant to the
order of remand." Id. Nevertheless, in order to comply with the remand,
the court ruled that the evidence showed that procedures adopted for
executing prisoners were designed "to impose death upon the inmate in as
humane a manner as possible." D/App. at A14. The case has returned for
this Court's review pursuant to State v. Webb, 238 Conn. at 489.
While the matter was pending in this Court, and after
the defendant's brief was filed, defense counsel Norman Pattis filed a
motion to withdraw his appearance due to a potential conflict of
interest. At a hearing before the trial court, Clifford, J., the
defendant was informed of the nature of the conflict and agreed to
accept the Public Defender's office as counsel for this appeal. Pattis
was allowed to withdraw and the Public Defender's office was appointed
to represent the defendant. On a motion from the State, this Court
struck Pattis's brief and permitted the Public Defender to file a
substitute brief. This is a response to that substitute brief.
I. THIS COURT LACKS STATE CONSTITUTIONAL AUTHORITY
TO INVALIDATE A LEGISLATIVELY CREATED PUNISHMENT
When this Court decided to grant an evidentiary
hearing on whether lethal injection violated the state constitution, it
did so without the benefit of full briefing by the parties on the
propriety of or necessity for such a remand. As this Court has
previously noted, it often operates at a disadvantage when it chooses to
decide a matter without full briefing by the parties. State v. Magnano,
204 Conn. 259, at 276-277, 523 A.2d 760 (1987). Had the issue been
briefed originally, the Court could have considered whether it has the
constitutional authority to invalidate execution by lethal injection,
and rejected the defendant's request for a remand on that basis. The
Court also would have been informed that no Court has taken similar
claims seriously. The State preserved the constitutional issue for
appeal knowing full well that the trial court was bound by the remand
order to hold the hearing. T. 12/5/97 at 12-13. Therefore, the State
presents this constitutional argument first, because it is the primary
reason the defendant's claims should be rejected.
A. The Absence of an Express Prohibition Against
Cruel and Unusual Punishment in the State Constitution Prevents this
Court from Invalidating a Form of Punishment
The Connecticut Constitution contains no clause
explicitly proscribing cruel and/or unusual punishments. In a state
constitutional sense, the absence of a specific clause akin to the
Eighth Amendment, which pre-dated Connecticut's 1818 constitution, has
important ramifications. For this Court has noted that, when a legal
doctrine existed before the drafting of the state constitution and it is
not specifically included therein, its "omission is [a] significant
indication that the doctrine is not of constitutional magnitude." State
v. Worden, 46 Conn. 349, 366 (1978) (where state constitution does not
include language in federal constitution, strong presumption that rights
enumerated in latter are not meant to be found in former).
Despite the rather obvious void in the constitutional
text regarding cruel and/or unusual punishments and the meaning ascribed
to it in Worden, this Court cobbled together a state constitutional
protection against cruel and unusual punishment from Article first
sections 8 and 9. State v. Ross, 230 Conn. 183, 249, 646 A.2d 1318
(1994). Therefore, to the extent the state constitution affords
protection against such punishment, its properties must be divined from
existing constitutional clauses and precedent.
In Ross the Court asserted its power by ruling that
it was vested with the inherent authority to review the capital
sentencing scheme. Nothing in Ross suggests, however, that the Court
also wrested for itself the constitutional authority to invalidate an
entire form of punishment. In Ross,the Court cautioned that it must use
"great restraint" when exercising its authority under its newly-asserted
power to decide what punishments are cruel and unusual. State v. Ross,
230 Conn. at 249.
Here, the restraint is all the more imperative
because the state constitution gives the Court no
authority to invalidate lethal injection.
1. State constitutional history regarding
sentencing limits
Article I Section 9 was the most obvious referent on
this subject, because it places explicit constitutional limits on
punishments: "No person shall be arrested, detained or punished, except
in cases clearly warranted by law." As this Court has recognized,
however, the historical antecedent of Article I Section 9 was the Ludlow
Code of 1650. State v. Lamme, 216 Conn. 172, 178-179, 579 A.2d 404
(1990).
The Ludlow Code was enacted, in part, because
citizens were concerned about punishments meted out by a judiciary whose
authority was not constrained by the popular will. Thus, the Ludlow Code
forbade any punishment that was not codified by the people's
representatives in the General Court. H. Cohen and W. Horton,
Connecticut's Four Constitutions, 5 Conn. Bar Assn. (1989). Connecticut
colonists chose the legislature as the constitutional body which would
protect them from arbitrary and cruel punishment at the hands of an
unfettered judiciary. H. Hammond Trumbell, Historical Notes on the
Connecticut Constitution 1639-1818, at 9-10. Article I Section 9 (originally
enacted as Section10) was the final formulation of this concern, and was
adopted by the 1818 constitutional convention without discussion. Horton,
Annotated Debates of the 1818 Constitutional Convention, Sept. 1, 1818.
Logic dictates, therefore, that pursuant to Article I Section 9, the
only punishment a Connecticut Court can impose is one duly authorized by
the legislature. A corollary of this conclusion, however, is that if the
legislature has adopted a specific form of punishment, the Court is
powerless to assert the State constitution to invalidate it. The latter
conclusion is borne out by both history and precedent.
2. Precedent establishing that the Court cannot
rely on the state constitution to invalidate sentencing schemes
In State v. Ellis, 197 Conn. 436, 450-451 n.13, 497
A.2d 974 (1985) this Court noted Justice Swift's reaction to one
punishment he considered overly harsh. This Court explored the
circumstances wherein Justice Swift Justice explained which branch of
government must provide penal reform. Prior to 1821, manslaughter was
punished by methods which might be described as medieval. The 1808
statute provided that "whatsoever person shall be guilty of the crime of
man-slaughter ... shall forfeit to the public treasury of this state,
all the goods and chattels to him or her belonging ... and be further
punished by whipping on the naked body, and be stigmatized, or burnt on
the hand with the letter M, on a hot iron, and shall also be forever
disabled from giving any verdict or evidence in any of the courts within
this state." (Emphasis in original.) General Statutes (Rev. to 1808),
tit. 66, c. 7.
Zephaniah Swift, a leading legal figure of his day,
author of several major works on early Connecticut law, and later Chief
Justice of this court, inveighed against this barbaric form of
punishment: "The dreadful punishment annexed to this crime, must have
been dictated by that horror which is universally entertained respecting
homicide, without due attention to the circumstances under which it may
be committed." 2 Swift, A System of the Laws of the State of Connecticut
(1796) p. 307. He argued that the ways of committing manslaughter
differed greatly in "criminality" and that "the punishment ought to be
varied and proportioned accordingly." Id., p. 306. He concluded that in
"this enlightened period, when reason and science have dispelled the
gloom of prejudice and superstition, it is to be hoped that the
legislature will soon enact more rational and consistent laws on this
subject." Id., pp. 307-308.
It is beyond question that the views of Chief Justice
Swift proved influential with the legislature. A former legislator
himself, he headed the committee appointed by the legislature in 1820 to
revise the General Statutes. See Preface to the General Statutes (Rev.
to 1821). Notably, one of the objects of the legislature in enacting the
new criminal code was "to proportion the punishment according to the
nature and grade of the crime...." General Statutes (Rev. to 1821), tit.
22, section 118, p. 177.
Despite his influence as a jurist and former
legislator, Justice Swift, a source cited by the defendant, had to wait
for legislative change to eliminate what he considered a "barbaric"
punishment. This view of the state constitution was consistent with
Article I Section 9 and its historical antecedents. Not coincidentally,
this Court has always understood that its role in determining the
validity of a punishment under the state constitution was to decide
whether it was consistent with the legislative enactment. For state
constitutional purposes, if the punishment was dictated by the
legislature, it was constitutional. State v. Williams, 157 Conn. 114,
121, 249 A.2d 245 (1968) (sentence within statutory limits is not, as
matter of law, cruel and unusual punishment); State v. McNally, 152 Conn.
598, 602-603, 211 A.2d 162 (1965); State v. Kyles, 169 Conn. 438, 363
A.2d 97 (1979); State v. Kreminski, 178 Conn. 145, 153, 422 A.2d 294
(1979); State v. Levy, 103 Conn. 138, 148, 103 A. 96 (1925); Cinque v.
Boyd, 99 Conn. 70, 94, 121 A. 678 (1923) (where legislature had not
provided for incarceration, court order to contrary violated Article I
Section 9). Even the authority cited by the defendant shows that the
Court never sought a mechanism for invalidating a punishment prescribed
by the legislature: rather it always sought a method of maximizing the
penalty decreed.
For example, the defendant claims that State v. Smith,
5 Day, (Conn.) 1811, is an expression of this Court's apparent
willingness to abate a defendant's punishment that it perceives as
inhumane. D/B at 18. The quote cited by the defendant, however, actually
stands for two propositions do not support the argument which must carry
the day in this case: (1) while a sentence can be postponed for humane
reasons, the goal is to enforce it in the future, and: (2) when
evaluating punishments, the trial court should consider the uniqueness
of a particular defendant. Smith, is totally silent about any exercise
of constitutional authority to invalidate a method of punishment (i.e.
ruling that confinement of anyone in Newgate is unconstitutional).
Moreover, what occurred in Smith is actually damaging
to the defendant's claim. The question at issue was whether the trial
Court could postpone a sentence because the defendant was already
serving a sentence for a prior crime. The defendant claimed it would be
unconstitutional to impose what we now call consecutive sentences. Id.
at 178. This Court rejected his claim. Id. at 179. Thus, any dictum in
Smith about humane treatment must be viewed in the context of what the
Court actually ruled: the trial court has the ability to cumulate
sentences for periods beyond those designated by the legislature for a
single offense if doing so ensures that a defendant is fully punished
for each individual crime. Smith is relevant only insofar as it holds
that the judiciary is empowered to enforce legislatively created
punishments to the hilt.
3. The overall harshness of a penalty is
unreviewable by this Court
The defendant is claiming, in essence, that executing
him by lethal injection is too harsh or excessive a method of punishment.
"It is well established that when the sentence imposed is within the
limits fixed by statute for the offenses charged, an appellate claim
that the sentence is excessive is nothing more than an appeal for
clemency and a request that this court exercise discretionary authority
it does not possess. (emphasis added) State v. Nardini, 187 Conn. 109,
127, 445 A.2d 304 (1982)." State v. Baldwin, 224 Conn. 347, 370-371, A.
2d (1993). From the days of Justice Swift to the writings of a majority
of the present Court it has been acknowledged that "we have no
discretionary power to modify or overturn a sentence within the limits
fixed by statute, except where a trial court appears to have abused its
discretion. . . . An abuse of discretion, however, means more than that
the defendant's sentence was too severe." Id. Absent statutory authority
to the contrary (e.g. General Statutes section 53a-46b), this Court does
not have the authority to second guess a legislative determination that
lethal injection is the appropriate method for executing a Connecticut
prisoner.
4. The legislature has performed the fact-finding
necessary to select a constitutional method of execution
In State v. Webb, the Court was concerned with the
fact that lethal injection was a sufficiently different method of
execution that separate fact finding would be needed to determine
whether it was cruel and unusual punishment. 234 Conn. at 488. This
Court did not consider, however, whether the requisite fact finding had
already been done by the legislature, which heard testimony, debated the
issues, and determined that lethal injection was the most humane way to
execute a condemned inmate. See, 38 Sen. Proc., PT. 3 1995 Sess. pp
812,816, 820. When the House of Representative passed lethal injection
as a mode of execution it was aware of the allegedly "botched" execution
that the defendant asks this Court to consider for the first time on
appeal. 28 H. R. Proc., PT. 3, 1995 Sess., p.1083 (comments of Rep.
Scalettar). The hearings and findings occurred in the only branch of
government the state constitution authorizes to select criminal
penalties. State v. Ellis, 197 Conn. at 455-56. Despite this Court's
willingness to remand this case for state constitutional adjudication,
it offered the promise of a remedy that, due to the separation of powers
clause of Article second, it cannot provide. On these grounds alone, the
defendant's challenge to lethal injection must be rejected.
II. LETHAL INJECTION IS THE MOST HUMANE METHOD OF
IMPOSING THE DEATH PENALTY
Assuming arguendo, that the Court rejects the State's
argument in Issue I, it must still affirm the constitutionality of
lethal injection because it is the most humane method yet devised for
imposing capital punishment.
A. Facts Revealed About the Effects of Lethal
Injection
Administrative Directive 6.15, which was prepared by
the Commissioner of Correction pursuant to General Statutes section
54-100, indicates that the State will execute a prisoner by a continuous
intravenous injection of the following substances:
1. Step One- The first step shall require the
administration of 2,500 milligrams of Thiopental Sodium (a lethal dose)
in 50 ml of clear (without visible precipitate) Sodium Chloride) 0.9%
solution of an approximate concentration of 50 mg/ml or 5%.
2. Step Two- The second step shall require the
administration of 100 milligrams (mg) of Pancuronium Bromide (contents
of ten (10) 5 ml vials of 2 mg/ml concentration) in 50 ml.
3. Step Three- The third and final step shall require
the administration of 120 milliequivalent (mEg) of Potassium Chloride (contents
of two (2) 30 ml vials of 2mEq/ml concentration) in 60 ml.
Administrative directive 6.15.; D/App. A25-A26. The
drugs were selected by Thomas J. Macura, a pharmacist for the state
Department of Correction, hereinafter, (DOC), who consulted with
officials in other states that use lethal injection and with Dr. Edward
Blanchette, a physician employed by the DOC. T. 3/30/98 at 201, 202;
3/31/98 at 69-72.
The person selected as the executioner shall be
trained to the satisfaction of a licensed physician to ensure that
he/she is qualified to establish the intravenous line and administer the
drugs in a professional manner. D/App at A20, A25. Dr. Blanchette
indicated that he would be willing to train executioners so that they
could carry out the execution in a professional and humane manner. T.
3/31/98 at 72-79.
Three witnesses offered their expert opinions about
whether lethal injection carried out pursuant to the Directive was a
painful way to execute a death sentenced inmate. The first was Dr.
Edward Brunner, a Board certified anesthesiologist, who was Chairman of
the Department of Anesthesiology at Northwestern University Medical
School in Chicago. T. 10/6/97 at 3-4. Dr. Brunner had testified before
Judge Fasano on the same issue in State v. Breton, S.C.15876. His
testimony was offered by the defendant and admitted in this case by
agreement of the parties. T. 3/31/98 at 1-10; Exh F. Voir dire of Dr.
Brunner revealed that he believed that executing someone by lethal
injection was unethical. T. 10/6/97 at 10. Indeed, he was a consultant
to the MacArthur Center for Justice, which worked in concert with him
and other physicians to sue the Illinois Department of Corrections over
the issue of executing inmates by lethal injection. Id. at 13. The
theory for that lawsuit was that the "use of medical drugs was unethical
and that it was fraught with risks of undue and unnecessary
suffering.... [even though the] severe suffering. . . . is not obvious
to onlookers." Id. at 13.
Dr. Brunner explained that thiopental sodium is a
fast but short-acting barbiturate that is used "to induce the state of
anesthesia, that is the state of non-feeling, unconsciousness." Id. at
16. When used for medical procedures the normal dose is 200 or 250
milligrams, depending on the weight of the patient. Id. at 18. Although
Dr. Brunner would not admit that there was a known "lethal dose" of
thiopental sodium, he indicated that a massive dose might be lethal
because it would depress a patient's ability to breathe. Id. at 20.
According to Brunner, a patient given a massive dose would fall asleep
and eventually die of asphyxiation. Id. at 21. He described Pancuronium
bromide as a paralytic drug that is used by surgeons to relax muscles so
that they will be easier to manipulate without resistance during surgery.
Id. According to Dr. Brunner, a normal dose is between 7 to 20
milligrams for a 150 pound patient. Id. at 22. For medical use, dosage
varies according to body weight. Id. When Pancuronium is used in surgery,
the patient's muscles are paralyzed and he/she cannot breath. Id.
Breathing is performed mechanically by those attending the surgical
procedure. Id. Potassium chloride is used to stop a patient's heart
during heart surgery. Id. at 24. If a patient is administered a
sufficient dose of potassium chloride during surgery and a heart lung
machine is not employed, the patient will die. Id. at 25. Dr. Brunner
testified that potassium chloride acts very rapidly, and the heart will
completely lose its ability to beat in five or six minutes resulting in
irreversible brain damage and death of brain tissue. Id. at 25. Dr.
Brunner testified that after a normal dose of thiopental sodium, a
patient will begin regaining consciousness in four or five minutes, but
a massive dose, such as the 2,500 mg used in the execution protocol,
would extend that time to five to seven minutes. Id. at 42. On cross-examination,
Dr. Brunner explained that thiopental sodium is used to induce a state
of "anesthesia" which he defined as a state that relieves a patient of "pain
and anxiety." Id. at 78. Indeed, Dr. Brunner uses thiopental sodium in
clinical procedures ,"[t]o allow them [his patients] to become
anesthetized in a pleasant fashion." Id. 79. Dr. Brunner acknowledged
that if thiopental accomplishes its intended task "[i]t induces a state
of nonsensation. . . .unconsciousness." Id. at 90.
Then, if Pancuronium is given correctly, the patient
will assuredly lie still on the gurney, without twitching or jumping up
and down. Id. Finally, the potassium chloride will stop the unconscious,
insensate, paralyzed inmate's heart. Id. at 91. Brunner also testified
that Administrative Directive 6.15 posed several potential problems
which could result in the drugs being improperly administered. Each of
these examples was premised, however, on the assumption that something
would go wrong during the execution procedure. Dr. Brunner's testimony
also was given the Breton hearing of 1997, of a time when he was unaware
of the some of the apparatus to be used during Connecticut executions
and how these have responded to his concerns. Moreover, Dr. Brunner made
it abundantly clear that he did not approve of any of the execution
protocols he had reviewed (Illinois, Texas and Delaware); obviously a
reflection of his opinion that executing someone by lethal injection is
unethical. Despite his strongly held beliefs, Dr. Brunner conceded that
if Directive 6.15 were carried out as written "that would be a way to
die without any pain." Id. at 91. "If we hypothesize that things are
done in an appropriate fashion, then it [execution by lethal injection]
is painless." Id. at 103. He also agreed with the proposition that, if a
large enough dose of the selected drugs were administered, the only
discomfort an inmate would feel is a pin-prick. T. 10/6/97 at 93.
Dr. Jeffrey Gross, a professor of Anesthesiology and
Pharmacology at the University of Connecticut School of Medicine also
offered his opinion on the substances and procedure employed to execute
a prisoner pursuant to Directive 6.15. Dr. Gross testified that when
thiopental sodium is injected into the veins it "makes the brain go to
sleep" in about thirty seconds. T. 4/1/98 at 12. Due to the fact that
the dose prescribed in Directive 6.15 is five times the amount that
would be used on a three hundred pound patient, Dr. Gross indicated that
it would anesthetize a prisoner slightly faster than a normal patient.
Id. at 14.
Dr. Gross confirmed that pancuronium bromide was a
paralytic agent that was a synthetic form of curare. Id. at 15. Once
introduced into a patient's system it prevents messages from the brain
from passing to any part of the body, thus preventing a patient from
moving voluntarily or involuntarily. Id. at 15-16. Dr. Gross calculated
that the dosage called for in Directive 6.15 would paralyze the
prisoner's muscles in approximately two minutes. Id. at 17. Dr. Gross
described potassium chloride as a salt that is often found in
nutritional salt substitutes. Id. at 18. Potassium chloride can be
administered to regulate a patient's heartbeat or, in surgical
situations, to stop the patient's heart. Id. "If you administer [potassium
chloride] quickly you get a high blood level and you will stop the heart
instantly." Id. at 19. Dr. Gross also reminded the court that in
medicine, dosages are calculated and drugs are administered to improve
somebody's health and well-being. With lethal injection, however, the
goal is not to keep the person alive, but to assure that the dosages
will end the inmate's life. Id. 23. His opinion about the nature of
Directive 6.15, however, was the same as Dr. Brunner's: executing
someone by lethal injection is not a medical procedure. Id. at 24. Dr.
Gross testified that an individual executed pursuant to Administrative
Directive 6.15 "would probably have no pain at all." Id. at 25. Dr.
Gross based his opinion, in part, on the fact that when he has used the
chemicals set forth in the Directive during major surgery, patients
would awaken and inform him that they felt no discomfort during their
surgical procedure. Id. at 55. Dr. Gross indicated that he could say "with
a reasonable degree of medical probability" that lethal injection was
the least painful way to execute someone. T. 4/1/98 at 53. Dr.
Blanchette, of the Department of Correction, testified that he felt
obligated to review the protocol to ensure the execution process was
completed in as humane a method as possible. T. 3/31/98 at 73. He agreed
with the opinions stated above, that if the defendant were executed
pursuant to the protocol, the only physical pain he would feel is the
actual needle used to insert the IV catheter. Id. at 92.
One of the most interesting pieces of evidence was
presented during Dr. Brunner's testimony in Breton. Through Dr. Brunner,
the defense introduced the report of a study of capital punishment
performed by a Royal Commission in England between 1949 and 1953. Exh B
(Brunner); D/App. A28-A35. The portion of the report admitted into
evidence ostensibly deals with whether England should select an
alternative to hanging as a method of execution. D/App. at A30. At the
time, lethal injection was considered an "untried" method. Id. The
Commission recognized that an intravenous injection of a lethal drug
makes "certain that death will be both quick and painless." Id. at 257.
The report also noted that even the British Medical Association agreed
that execution by intravenous lethal injection "would be a speedy and
merciful procedure." Id. at 258. One of the potential problems
acknowledged in the Royal Commission's Report was the expertise needed
to ensure that the injection was actually made directly into the vein
rather than the muscle. Id. The Commission determined that doctors are
the most skilled at performing this function; but would probably be
unwilling to participate. Id. at A32. The Commission noted, however, "that
it is not only within the medical profession that the necessary skill is
to be found. There are many outside it who are fully competent either to
give injections themselves or train others to do it." Id. at A33. On the
issue of competent executioners, the Commission concluded: "[o]ur
evidence does not justify a conclusion that the difficulty of getting
executioners, if it were the only obstacle in the way of a desirable
reform (to employ lethal injection), would prove insuperable." Id.
Moreover, it is clear from this report that the
Commission was contemplating using one syringe and needle to inject the
lethal drug, and only the lethal drug, directly into the prisoner's
veins. See, D/App at A34 (discussing giving injections through cut in
inmates trousers). There is no indication that the Commission considered
what is an important part of Directive 6.15; gaining access to a vein
first via an intravenous catheter before ever introducing any lethal
drugs. D/App. at A25.
Two things are apparent from this 1956 report: (1)
the Commission considered offering prisoners the choice of lethal
injection instead of hanging as a "pleasanter method of execution;" and
(2) the Commission recommended that the question of execution by lethal
injection should be revisited as the science of anesthetics progressed,
with the goal of adopting it at some time in the future. D/App at A 33 &
33.
It is no wonder that, upon considering this evidence,
the trial court ruled that the procedures adopted for executing
Connecticut prisoners were designed "to impose death upon the inmate in
as humane a manner as possible." D/App. at A14.
B. The Standards for Determining Cruel and Unusual
Punishment
As with any legislative pronouncement, this Court
must presume that the selected method of execution is constitutional.
State v. Ross, 230 Conn. at 236. Thus, the defendant has the burden of
showing that lethal injection in unconstitutional beyond a reasonable
doubt. Id; State v. Webb, supra. When evaluating this claim, the Court's
primary focus must be on the potential for physical pain to the
condemned inmate, and not on the psychological discomfort of the inmate
or anybody else. Woolls v. McCotter, 798 F.2d at 698; Gray v. Lucas, 710
F.2d 1048, 1061 (5th Cir.), cert. denied, 463 U.S. 1237 (1983); State v.
Deputy, 644 A.2d at 421. "The suffering due to. . . fear, the law, does
not seek to spare." In Re Storti, 60 N.E. 210, 211 (Mass. 1901). Put
another way, the defendant must show wanton and unnecessary infliction
of pain in the use of lethal injection and must do so by objective
evidence. Campbell, 18 F.3d 662, 681-877 (9th Cir. 1994). "[T]he cruelty
against which the constitution protects a convicted man is cruelty
inherent in the method of punishment, not the necessary suffering
involved in any method employed to extinguish life humanely." Francis v.
Resweber, 329 U.S. 459, 67 S.Ct 374, 376 (1947).
1. The trial court reached the only conclusion
possible
Although this case was hotly contested below, the
trial court reached the only conclusion even remotely suggested by the
evidence: lethal injection complying with Administrative Directive 5.15
is the most humane way of executing a prisoner. Indeed, the evidence was
so overwhelming that "[a]t the conclusion of the evidence, in its
argument to the court and in its subsequent brief, the defense abandoned
any claim that a proper implementation of Administrative Directive 5.15
would constitute cruel and unusual punishment under the state
constitution or result in anything other than a painless death." D/App
at A12. It was obvious even to the defendant that lethal injection meets
any and every constitutional standard beyond a reasonable doubt. See,
Bailey v. Snyder, 855 F.Supp. 1392, 1412 (D.C. Del. 1994) (court permits
petitioner to withdraw Eighth Amendment claim after realizing that
defeat is "certain and imminent"). This is not a surprising conclusion
because every court that has ruled on this issue to date concurs. Kelly
v. Lynaugh, 862 F.2d 1126, 1135 (5th Cir. 1988), cert. denied, 492 U.S.
925 (1989); Woolls v. McCotter, 798 F.2d 695, 698 (5th Cir.), cert.
denied, 478 U.S. 1031 (1986); LaGrand v. Lewis, 883 F. Supp. 469 (D.
Ariz 1995); Hill v. Lockhart, 791 F.Supp. 1388, 1394 (E.D. Ark. 1992);
Felder v. Estelle, 588 F.Supp. 664, 674 (S.C. Tex. 1984); United States
v. Thomas, 43 M. J. 550 (1995); State v. Hinchey, No. CR-92-0104-AP, (Ariz.
Sup. Ct. Mar. 1995), slip op. at 17; State v. Deputy, 644 A.2d 411, 421
(Del. Super. 1994); Hopkinson v. State, 798 P.2d 1186, 1187 (Wyo. 1990);
Romano v. Oklahoma, 917 P.2d 12, 17 (1996). State v. Moen, 309 Or. 45,
786 P.2d 111, 143 (1990)(on its face lethal injection not cruel and
unusual); People v. Stewart, 123 Ill.2d 368, 123 Ill. Dec. 27, 528 N.E.2d
631, 639, cert. denied, 489 U.S. 1072 (1989). See also, State v. Barber,
753 S.W.2d 659, 670 (Tenn. 1988)(defendant challenges electrocution
claiming lethal injection, "more humane.")
Moreover, Connecticut was only the second state to
require an evidentiary hearing before rejecting similar challenges. See
Gray v. Lucas, 710 F.2d 1048, 1061 (5th Cir 1983) (accepting as true
proffer that prisoner will remain conscious for period of time that will
result in some pain and terror from method of execution insufficient as
matter of law to require a hearing). Even after this protracted hearing,
wherein the defendant received ample time to provide the court with
evidence to the contrary: ...the petitioner has failed to identify any
authority indicating that any court has found the instant claim [that
lethal injection constitutes cruel and/or unusual punishment] to be
meritorious. He has also failed to show that an eighth amendment
violation has arisen in any of the several executions by lethal
injection that have taken place in other jurisdictions. [T]he petitioner
has failed to provide any sworn factual assertions whatsoever to support
it. People v. Stewart, 528 N.E.2d at 639. The trial court concluded
likewise, and that decision should be affirmed. D/App. at A9-A17.
2. Issues that are not part of the constitutional
equation
The defendant raises several objections to the
details of the process that he suggests renders lethal injection
unconstitutional. D/Brief at 26-31. Although the state will briefly
respond to these concerns below, it is important to understand that
these matters are of no moment to this Court. [T]here is a presumption
that public officials entrusted with specific public functions related
to their jobs properly carry out their duties. See, e.g., Beechwood
Gardens Tenants' Assn. v. Dept. of Housing, 214 Conn. 505, 514-15, 572
A.2d 989 (1990); Bowman v. 1477 Central Avenue Apartments, Inc., 203
Conn. 246, 255, 524 A.2d 610 (1987); Brookfield v. Candlewood Shores
Estates, Inc., 201 Conn. 1, 6, 513 A.2d 1218 (1986); Aczas v. Stuart
Heights, Inc., 154 Conn. 54, 58-59, 221 A.2d 589 (1966); State v.
Lenihan, 151 Conn. 552, 555, 200 A.2d 476 (1964). Indeed, " '[i]t is ...
presumed until the contrary appears that a public officer acting
officially has done his duty.' State v. Lenihan, [supra, at 555, 200
A.2d 476]." State v. Crawford, supra, 202 Conn. [443] at 451, 521 A.2d
1034 [1987]. State v. Figueroa, 235 Conn.145, 181, 665 A.2d 63 (1995).
This particular presumption has important constitutional significance
relevant to lethal injection because, executing an inmate is a
governmental act that is wholly assigned to the executive branch. In the
area of penal operations, this Court yields to the expertise of those
charged with carrying out the executive branch's penal function. See,
Washington v. Meachum, 238 Conn. 692, 725-727, 680 A.2d 262 (1996) (and
cases cited therein). Here the evidence reflects that Connecticut has
selected the substances and adopted a methodology to execute people "professionally"
and "humanely." There is no cause to question the executive decision
made in this matter.
Moreover, courts are loath to undertake judicial
review of the details of an execution process as long as the agent of
death (here lethal drugs) presents a facially constitutional method.
Thus, in Illinois the court refused to consider a challenge to lethal
injection even where the state lacked a protocol entirely. People v.
Stewart, 528 N.E. 2d at 384. Stewart is consistent with two distinct
lines of cases which refutes the premise that the Court has to review
the details of the execution protocol before deciding on its
constitutionality. There is no requirement that the legislature provide
minute details about how a defendant is to be executed. Ex Parte
Granviel, 561 S.W.2d. 503, 510 (Tex. Crim App. 1978) (en banc) (absence
of a detailed blueprint for execution does not render sentencing statute
vague); State v. Gee John, 211 P. 2d 676, 682 (1923) (statute providing
for execution by lethal gas in proper enclosure not invalid for failing
to provide greater detail); see also, Wilkerson v. Utah, 99 U.S. 130
(1830) (death penalty not invalid due to absence of legislatively
authorized method of execution as long as death is the authorized
punishment). When reviewing the method of execution, the Court does not
speculate about what could go awry during the execution process. "The
risk of accident need not be eliminated from the execution process in
order to survive constitutional review." Campbell v. Wood, 18 F.3d at
687. For example, in LaGrand v. Lewis the petitioner challenged
Arizona's execution protocol in federal court. 883 F. Supp. at 470. The
petitioner 's effort included an offer of proof in the form of an
affidavit from a physician indicating that the protocol used "could
cause the condemned to feel great pain." Id . The federal district court
refused to give any credence to speculative assertions about potential
mishaps during the administration of the lethal drugs and thus affirmed
use of lethal injection. Id. at 470. In Hill v. Lockhart, 791 F. Supp.
1388, 1394 (E.D. Ark. 1992) the court rejected a claim that lethal
injection was unconstitutional because of the executioner's inability to
locate a vein. The court noted that even in hospital settings
intravenous access can be difficult, but this rare difficulty is "hardly"
cruel and unusual punishment. Id. Similarly, a Delaware superior court
judge refused to hold an evidentiary hearing on a defendant's challenge
to lethal injection based on his claim that there was a possibility that
a prisoner could suffer a lingering death during an execution by lethal
injection. See, Bailey v. Snyder, 855 F. Supp. 1392, 1412 (D.C. Del.
1994). Bailey's trial court affidavits failed to prove that the state
Department of Corrections could not carry out his execution in
accordance with the Eighth Amendment. Id. Courts do not consider
evidence of possible problems or potential pitfalls of an execution
protocol because of the overriding presumption that the state officer
will act in compliance with the Constitution. LaGrande v. Lewis, at 470;
see also, Campbell v. Wood, 18 F.3d 662, 686 (9th Cir. 1994) (evidence
of botched hangings properly excluded). As in Campbell, the trial court
was not required to consider allegedly "bungled" executions that were
performed in other states, but only had to review the process selected
in Connecticut. Id. at 686. Although someone may be executed "in such a
bungling fashion" as to produce intense pain and suffering," "this is
not argument against execution by [that] method." State v. Gee John, 211
P. ar 681. Indeed, even when an execution fails and the process has to
be repeated, "the hardship imposed on the petitioner [does not] rise to
the level of hardship denounced as a denial of due process because of
cruelty." Francis v. Resweber, 67 S.Ct. at 376.
3. The concerns raised by the defendant are
contrary to the evidence
a. The Dose of Thiopental Sodium will perform
adequately
The defendant's first complaint is that the dose of
thiopental sodium may not be sufficient to render the inmate unconscious
and maintain the proper level of anesthesia. D/B at 27. The problem with
his analysis is that it relies on a medicinal use of thiopental sodium
which is designed to anesthetize a patient but permit recovery. As Dr.
Gross testified, however, the defendant will be given a dose five times
more powerful than what is needed to anesthetize a 300 pound man. T.
4/1/98 at 14. He also indicated that no additional dose is needed if the
inmate exceeds 300 pounds. Id. Thus, the dose given to an inmate will
certainly render him completely unconscious and insensate. Although Dr.
Brunner testified that the thiopental sodium could so depress an
inmate's breathing that he would die of asphyxia, he never testified
this would be painful. T. 10/6/97 at 20. Indeed, according to Dr.
Brunner, the purpose for using thiopental sodium was to render a patient
unconscious and insensate and to relieve him of pain and anxiety. Id. at
78-79. Thiopental sodium lets a patient becomes anesthetized in "a
pleasant fashion." Id. at 79. Thus, the dosage used in this process
would pleasantly put the inmate to sleep a bit more quickly and for a
longer period than a clinical dose of the same drug. Id. at 42. It might
also stop his breathing, causing death by asphyxiation, but if that
occurs, the inmate will be unconscious and insensate. There was no
evidence that death in this manner would be anything but peaceful and
painless.
b. The lethal dose will be administered
sequentially and expeditiously
DOC pharmacist Thomas Macura assembled a system for
delivering the lethal drugs in the proper order and with the proper
safeguards to ensure that the execution will proceed quickly and without
complication. The system includes a chemical delivery manifold with
several ports to be used for the infusion of the necessary agents. Exh.
G. T. 3/31/98 at 16; S/App 4. Each of the drugs will be contained in its
own syringe. Exh H. At one end of the manifold there is a syringe port
for thiopental sodium. Exh. H. The syringe is locked into place what
called a "clave connector," a device designed to minimize potential
problems and avoid delaying the execution. T. 3/31/98 at 22. The next
syringe is for the delivery of a saline solution. T. 3/31/98 at 16.
Locked next in line is a syringe of pancuronium bromide. Id. The final
syringe port is for the fatal dose of potassium chloride. Id; A colored
stopcock ensures that the drugs are not infused into the intravenous
line until the proper time. Id. Pharmacist Macura selected a particular
"J-loop" to fit into the angiocatheter inserted into the inmates arm.
Exh H. This J-loop has been used in other states to avoid complications
from the rapid delivery of a high volume of fluids. T. 3/31/98 at 24-26.
According to Dr. Blanchette, this manifold will ensure that all the
drugs are delivered in an appropriate fashion and in the right sequence.
T. 3/31/98 at 92. Systems such as the one assembled by Macura are
especially appropriate for delivering drugs sequentially and rapidly. Id.
at 93. The manifold was selected because it is also an effective tool
that doctors use to prevent administering drugs in the wrong order. T.
3/31/98 at 43. To the extent Dr. Brunner testified that he was concerned
about the speed and sequence of the injection process, concerns echoed
in the defendant's brief, these concerns were expressed without any
knowledge of the equipment Connecticut plans to use to execute its
inmates. Indeed, the trial court was aware of these concerns in Breton
when it stated "the state is on notice with respect to the legitimate
risks and concerns associated with procedures to effect execution by
lethal injection and should take advantage of the opportunity to `fine
tune' its procedures accordingly." D/ App. at A7. In this case, however,
after hearing evidence about the system assembled by Macura, the trial
court stated: the employment of tested procedures used in medicine is
perfectly consistent with the purpose behind death by lethal injection;
that is to impose death upon the inmate in as humane a way as possible.
D/App. at 6. Thus, the protocol and equipment selected respond to the
concerns the defendant expresses about the speed and order in which the
drugs will be administered.
1. Baseless fears about the competence of the
executioner
Any concerns about the skill and training of the
executioner are baseless. Deputy Commissioner Peter Matos indicated that
DOC intended to employ Emergency Medical Technicians (EMTs) or
paramedics as executioners, but did not rule out using a nurse. T.
2/24/98 at 137-38. Training on inserting an intravenous line is included
in the licensing procedure for EMTs, and the person(s) selected would
have to have just such a license. T. 3/31/98 at 84. Dr. Gross confirmed
that people such as EMTs are often trained to establish intravenous
lines. T. 4/1/98 at 26. The protocol makes it clear that a licensed
Connecticut physician must be satisfied that the executioner can perform
the execution properly. D/App at A20, A21, A25. Dr. Blanchette, of the
DOC, is willing to train the executioner accordingly, because his goal
is to ensure that the execution will be as humane as possible. T.
3/31/98 at 78-79, 83-84. Dr. Gross indicated that it would be easy for
someone to learn the proper way of injecting the drugs through the
manifold. T. 4/1/98 at 33. The defendant wants this Court to presume
that Dr. Blanchette's training will overlook the need to administer the
drugs in a timely manner and that something considered rather easy to
learn will become difficult for the already skilled people eventually
selected as executioners. As set forth above, a court does not engage in
such speculation.
2. Baseless concerns about "flocculence"
The defendant also complains that the protocol does
not prevent "flocculence" which Dr. Brunner claims could cause an
excruciatingly painful death. D/B at 29. Flocculence occurs when two
chemicals, here thiopental sodium and pancuronium bromide, are
incompatible. T. 3/31/98 at 38-40; T. 4/1/98 at 36-38; T. 10/6/97 at
56-57. If they come in contact with each other, they interact and form a
precipitate (flocculence) that would clog the intravenous line, stop the
flow of drugs, and possibly prevent them from acting as intended. T.
3/31/98 at 39. The protocol, however, has severalmechanisms in place to
avoid this problem. First, the protocol and system call for the
intravenous line to be flushed with saline between the infusion of each
drug. Id. at 39-40. This process is in place to prevent flocculence. Id;
T. 3/31/98 at 82. Second, the system has two intravenous lines, one in
each arm, so if one becomes clogged, the other can be used to deliver
the next dose from the manifold. D/App. at A25. Finally, Dr. Gross's
testimony disputed Dr. Brunner's claim that flocculence causes pain.
According to Dr. Gross, flocculence does not cause any pain because it
can only occur outside the vein in the intravenous line. T. 4/1/98 at
39. If the drugs interact within the veins no flocculence occurs and the
drugs flow freely. Id. Moreover, throughout this stage of the process
the inmate is asleep and insensate from the thiopental sodium. Id. If,
at this juncture, flocculence causes the execution to fail, the inmate
will not suffer any pain; he will simply wake up from his
anesthetizedstate. Id. at 39. See, Francis v. Resweber, supra.
c. The drugs will be introduced intravenously
The defendant is concerned that there is no guarantee
that the executioner will insert the IV catheter properly. D/B at 30.
Although everyone agreed that this is the only real skill involved in
the execution, there was substantial disagreement as to whether someone
could be trained to perform this task correctly. As set forth in Section
b., however, the executioner will be properly trained to establish the
IV line, and will be required to complete this task before introducing
any of the drugs used in the execution.
d. The executioner will flush the line
The protocol calls for the introduction of "Sodium
Chloride 0.9% solution of approximate concentration of 50 mg/ml or 5%"
as part of the process of injecting the thiopental sodium. D/App. at
A25. This saline flush will prevent flocculence. T. 3/31/98 at 40; see,
T. 4/1/98 at 22-23. Although no flushing is needed between pancuronium
bromide and sodium chloride, the plan is to do so anyway. T. 3/31/98 at
40. This concern is meritless.
e. The timing of the defendant's last meal
The defendant has the burden of proving that
Directive 6.15 does not provide an adequate time interval between the
defendant's last meal and is execution. He has failed to do so. Dr.
Brunner testified that to avoid complications from a meal, there should
be a lapse of six to eight hours between the inmate's last meal and the
execution. T. 10/6/97 at 59. Directive 6.15 calls for the inmate to be
fed at the normal time. D/App. at A23. The execution is scheduled for
after 2:00 p.m. Id. at A25. The defendant had ample opportunity to ask
DOC officials about the "normal" mealtime and prove that the interval
between it and the execution was insufficient, but he did not.
Nevertheless, Dr. Blanchette testified that one item he was concerned
about was the "timing of meals." T. 3/31/98 at 69. That he approved
Directive 6.15. indicates that any concern about the "timing" of meals
was properly addressed. Moreover, the drafters of Directive 6.15 were
also concerned about the type of food the prisoner would eat prior to
execution. T. 2/24/98 at 133. Thus, the directive indicates that the
warden will make "reasonable efforts" to serve the last meal of the
inmate's choosing. D/App. at A23. The DOC has fully resolved any
complications that could be caused by the inmate's last meal.
f. The use of medical personnel
This demand that "medical personnel must be used is
vague because it does not clarify what he means by the term. If the
defendant means physicians, then his is a poorly disguised effort to
make execution by lethal injection an impossible tautology. Under his
theory, the court would require doctors to be present at an execution as
a matter of constitutional law. Then the state might find it impossible
to find any executioners because medical practitioners are ethically
constrained from participating in the process. Nevertheless, the
defendant has no constitutional right to have a physician perform his
execution. Hill v. Lockhart, 791 F.Supp. at 1394. On the other hand, if
the defendant claims that nurses, EMTs, or paramedics to be used by DOC
are not medical personnel, then he ignores the fact that nevertheless
these people are trained to establish intravenous lines as part of the
licensing process. On this issue, the defendant has failed to establish
that the DOC will allow "anyone other than trained medical personnel to
administer lethal injections." Woolls v. McCotter, 798 F.2d at 698; see
also Ex Parte Granviel, 561 S.W.2d 503, 508 (Tex. 1978) (approving
constitutionality of Texas' protocol in light of testimony that lethal
injection could be administered by "a medical technician or any person
trained in intravenous injection"); Hill v. Lockhart, supra. Moreover,
the defendant's reliance on the Report of the Royal Commission misuses
that body's findings. The Commission recognizes than many different
people can obtain the skills necessary to access veins and that advances
in anesthesiology will improve the prospect of using this process. The
Commission concluded that finding skilled executioners would not present
an insurmountable problem should lethal injection be adopted in England.
D/App. at A33. As the system and Directive assembled by the state
indicates, that time has come. The defendant is also concerned with
allegedly "botched" executions, a term used by death penalty opponents
anytime there is a glitch in the process that has nothing to do with the
inmate's suffering. As set forth in footnote 18, the trial court gave
these claims little credence. In Breton, however, the trial court also
heard the testimony of David Nunnelee; "a witness to 121 executions in
Texas. Mr. Nunnelee characterized these executions as seemingly
painless, having witnessed no outward signs of physical pain or
torture." D/App. at A4. Mr. Nunnelee confirmed, from firsthand knowledge
that the mishaps listed as "botched" executions were "relatively minor
and had little effect on the parties to the execution." Id. To the
extent there remains a possibility that something could go amiss during
the execution, a reality extant in every human endeavor, "[t]he risk of
accident need not be eliminated from the execution process in order to
survive constitutional review." Campbell v. Wood, 18 F.3d at 687.
g. The American Medical Association's Code of
Ethics
The defendant claims that execution by lethal
injection offends society's standard of decency. His primary source for
this statement is the American Medical Association's Code of Ethics.
Society's standard of decency, however, is measured by its legislative
enactments. State v. Webb, 238 Conn at 404. Connecticut is one 33 states
along with the federal government that have selected lethal injection as
a humane method of execution. Even abolitionists recognize that a
multitude of legislative enactments such as these are the true measure
of society's standard of decency. Gomez v. United States District Court
for Northern District of California, 503 U.S. 653, 112 S.Ct. 1652 (1992)
(Stevens, J., and Blackmun, J. dissenting).
CONCLUSION
"There are powerful reasons for concluding capital
cases as promptly as possible. Delay in the execution of judgments
imposing the death penalty frustrates the public interest in deterrence
and eviscerates the only rational justification for that type of
punishment." Gomez v. Fierro, 519 U.S. 918, 117 S. Ct. 285 (Stevens, J;
Breyer, J., dissenting in remand). Litigation on the issue remanded has
taken over three years and the defendant has failed to produce one iota
of evidence indicating that this Court's decision on the
constitutionality of lethal injection should be any different than that
of any other court that has considered the subject. The remand has
wrought only delay. The time has come to enter a final judgment. The
defendant has been given a chance to prove that the method selected to
execute him should not be used because it is too painful. The process he
complains about is not merely painless; it also affords him the
opportunity to visit with his family until 30 minutes before his
execution. D/App. at A25. He will have access to a religious counselor
who can remain with him until just before the execution and witness the
execution if the defendant so desires. Id. He then will be strapped to a
gurney, feel the pin prick of a needle and shortly thereafter drift off
into a "pleasant" state of unconsciousness from which he will not
awaken. Then there is the death of Dianne Gellenbeck. As this Court
confirmed, her death, just like the death of every victim of present
death row inmates, was especially heinous and cruel. State v. Webb, 238
Conn. at 485-488. She suffered through an extended abduction and was
subjected to an attempted sexual assault. Id. at 486. After the
defendant inflicted excruciating gunshot wounds, she repeatedly cried
for help as she crawled away from him. Id. The defendant callously
returned to the victim and shot her three times from point blank range
with hollow point bullets. Id. Ms. Gellenbeck never had a chance to say
good-bye to her family, to have a counselor at her side, to settle her
accounts, or to learn how her life would finally be terminated and
complain about how cruel it would be. "The death- by- injection. . . .
looks pretty good next to that." Callins v. Collins, 114 S.Ct. at 1128
(Scalia, J., concurring). This Court should affirm the trial court's
finding that lethal injection is a humane and constitutional method of
execution.
Respectfully submitted,
THE STATE OF CONNECTICUT
July 1999
