OLYMPIA — An attorney representing three death row prisoners argued Thursday that Washington state Department of Corrections lacks authority to establish execution policies under current law, and she asked the state Supreme Court to send the issue to the Legislature.
Attorney Sherilyn Peterson said state statutes only specify that the superintendent of the prison can supervise the death, but she argued there is no delegation of authority to the department, nor any guidelines or safeguards.
Peterson told the high court that the state’s death penalty statute needs to be “sent back to the Legislature for overhaul.”
The statute in question says that the execution will be supervised by the superintendent of the penitentiary and “shall be inflicted by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until the defendant is dead.”
Justice Jim Johnson interrupted Peterson to read the statute aloud and ask, “What’s unclear about that?”
Peterson responded that since the statute doesn’t specifically name the Department of Corrections or the head of the agency, that neither are allowed to establish execution policy.
While there is specificity in the statute on the use of substances to carry out an execution, there isn’t “any guidance for how the Department of Corrections will carry that out.”
Assistant Attorney General John Samson, representing the department, said that execution policies are an executive policy to be made by the agency, not the Legislature.
He said that the statute doesn’t have to be specific, and that it’s a delegation of duties “describing generally what must be done.”
The court heard the arguments as part of a challenge to the constitutionality of the state’s execution policies and procedures. The inmates’ attorneys also question whether lethal injection in the state violates federal laws because a doctor doesn’t obtain or administer the drugs.
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.
At question, in part, is the recent change in the state’s execution policy.
Earlier this month, the state revealed that it changed its method of execution from a three-drug cocktail to a one-drug system. The new protocol that took effect March 8 makes Washington the second state in the nation, after Ohio, to use the one-drug method.
Ohio has executed four men under the new method since December.
The state’s attorneys argue that the inmates’ lawsuit became moot once the state moved to the new policy, noting that even the inmates’ attorneys had sought for the state to change to the one-drug protocol.
Peterson said while the switch was a “positive thing,” she argued there were several shortcomings in the state’s lethal injection procedure that still haven’t been addressed, including what she says is inadequate training and rehearsals for the execution team.
She focused 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 last year, worried their identities could be exposed through the court’s examination of their qualifications and experience. A substitute team has not been assembled.
“The courts must assess the adequacy of the team under the one-drug protocol,” she said.
But Samson countered that what the inmates are asking the court to do is “substitute its judgment for the department’s judgment.”
Samson said that department policy calls for those on the execution team to have sufficient experience to avoid inflicting unnecessary pain, and for them to undergo practice sessions.
Before deciding to switch to the one-drug method, Washington, like roughly three dozen states, had performed lethal injections by administering successive doses of three separate drugs. The chemicals are intended to render a condemned prisoner unconscious, then paralyze the body, and, finally, stop the heart.
Only sodium thiopental, followed by a saline flush, is used in the one-drug policy. Under the new policy changes in Washington state, the three-drug injection method will be allowed for inmates who request it.
Washington death-row inmates may opt for hanging instead of lethal injection. The last hanging was of Charles Campbell in May 1994. The state’s last execution was the lethal injection death of James Elledge in 2001.
Last March, the state Supreme Court stayed the execution of Brown just hours before he was set to die. Attorney General Rob McKenna filed for a lift of that stay after a Thurston County Superior Court judge ruled last July that the state’s lethal injection procedures were constitutional.
The stay will remain in place while the appeal process continues. The justices did not indicate when they would rule.
Stenson also has separate challenges to his criminal conviction which are still ongoing.
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The case is Brown, Gentry and Stenson v. Eldon Vail. Docket No. 83474-1.
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Washington state Attorney General: http://www.atg.wa.gov/
Supreme Court of Washington: www.courts.wa.gov
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