CALIFORNIA’S USE OF A LETHAL INJECTION CHEMICAL BLOCKS PUBLIC’S FIRST AMENDMENT RIGHT TO KNOW

Brief Filed Days Before Donald Beardslee’s Scheduled Execution by Lethal Injection
For Immediate Release: January 11, 2005

SAN FRANCISCO - The public and the press have the First Amendment right to meaningfully witness and gather accurate information about California’s execution procedure, said the ACLU of Northern California and Death Penalty Focus in an amicus brief filed in the civil case challenging California’s method of lethal injection (Beardslee v. Woodford). Donald Beardslee is scheduled to be executed on Wednesday, January 19, 2005 at 12:01 am.

Beardslee’s attorney, Stephen S. Lubliner, filed a motion last month asking for a temporary restraining order to halt the scheduled execution because one of the drugs used during lethal injection paralyzes the condemned man and would leave him unable to signal if he were in pain. The motion was denied on January 7 and an appeal is now before the Ninth Circuit Court of Appeal.

In their amicus brief, Death Penalty Focus and the ACLU-NC are focusing on the use of a paralytic drug “Pavulon,” which can mask a prisoner’s expression of pain by inhibiting all voluntary muscle movement. Most states have banned Pavulon in the euthanization of animals because it prevents the individual performing the euthanasia from knowing whether the animal was properly anesthetized.

“Our concern is that the drug Pavulon acts as a “chemical curtain,” to prevent those witnessing the execution from knowing whether the condemned inmate is suffering excruciating pain,” Alan Schlosser, Legal Director of the ACLU of Northern California said. “It would interfere with the public’s right to know and could conceal cruel or unusual punishment by the state, which is forbidden by the Constitution.”

The use of a drug like Pavulon implicates the First Amendment right recognized by the Ninth Circuit Court of Appeal in an earlier case, California First Amendment Coalition v. Woodford, in which the Court held that the media and the public have a First Amendment right to witness an entire execution from the moment the condemned inmate enters the execution chamber until his life is extinguished.

Since 1996, when the first lethal injection procedure was used in California, the state has administered three chemicals to execute condemned inmates. They are sodium pentothal, a fast-acting barbiturate; second, pancuronium bromide (“Pavulon”), a chemical paralytic agent; and third, potassium chloride, a compound that causes cardiac arrest.

“ The First Amendment precludes the state from sanitizing the execution process by administering a drug that appears to have no purpose other than to prevent the public and the press from seeing whether the use of lethal injection causes pain,” Schlosser added.