The Louisiana Department of Public Safety and Corrections last Friday sued every inmate on death row, in an effort to block any one of them from challenging the state’s lethal injection procedures. Each of the 84 prisoners in the “death house” at Angola State Penitentiary was personally served papers in the suit, said Nick Trenticosta, who has represented numerous clients on Angola’s death row.
Trenticosta, who is also director of the non-profit Center for Equal Justice in New Orleans, knows of no other instance in which a state sued its death row inmates en masse over legal questions relating to their execution. “I’ve been hanging around death penalty cases for 25 years,” Trenticosta said in a phone interview this morning, “and I have never seen anything like this.”
The Corrections Department’s litigation is a countersuit, filed in response to an earlier lawsuit claiming that Louisiana’s lethal injection procedure is in violation of state law. That suit was filed by the Capital Post Conviction Project of Louisiana (CPCPL) on behalf of death row prisoner Nathaniel Code. It stated that Louisiana had not met the requirements of its own Administrative Procedures Act in creating guidelines for execution by lethal injection. The state procedure ought to specify exactly what drugs should be used to kill prisoners, the CPCPL argued, rather than simply calling for the administration of drugs. Without such stipulations, Trenticosta said, “They’re saying if we want to pour boiling oil into your veins, we can do it.”
Just over a month ago, on January 8, a state district court in Baton Rouge dismissed Nathaniel Code’s suit, which would have halted all executions in Louisiana until the Corrections Department brought its procedures in line with state law. Attorneys for the state argued that Louisiana’s three-drug lethal injection protocol was not subject to the Administrative Procedures Act; the judge agreed, and threw out the suit.
All this happened the day after Gerald Bordelon was executed by lethal injection in Angola’s death chamber for the murder of his 12-year-old stepdaughter. The execution on January 7 was the first to take place in Louisiana for eight years, and proceeded after Bordelon chose to waive post-conviction appeals. According to the Associated Press, the hearing on Code’s suit “was purposely scheduled the day after Gerald Bordelon’s execution,” because Bordelon’s attorneys had told the judge “he did not want anything to disrupt his execution.”
Nathaniel Code’s attorneys said they would appeal the judge’s ruling to Louisiana’s First Circuit Court of Appeal. “The law is being violated. It was violated yesterday,” CPCPL director Gary Clements said, referencing Bordelon’s execution.
The state of Louisiana, however, has already initiated offensive maneuvers against further challenges to its methods of execution. Immediately after the ruling in Code’s suit, the Corrections Department filed its countersuit against all death row inmates. The department’s attorney, Wade Shows, told the Baton Rouge Advocate that Louisiana was asking the court “to formally declare—‘once and for all’—that the state’s lethal injection protocol is not subject to the Louisiana Administrative Procedure Act.” Such a ruling, Shows said, “‘means you don’t have to go through the rule-making process….It’s sort of an internal management decision.’”
Similar challenges in other states have yielded mixed results. According to the AP, “Courts around the country have split over whether states should have to follow the administrative procedures in adopting a lethal injection protocol.” Courts in Maryland, Nebraska, California, and Kentucky have ruled that the procedural requirements do apply to the execution method. In these states, executions were suspended while proper procedures were carried out, often including public hearings. Courts in Missouri and Tennessee have ruled that the procedures do not apply. Only Louisiana, however, has dealt with the issue by suing the residents of its own death row.
On a larger scale, execution by lethal injection–which is used in 35 states–has faced several legal challenges in recent years, on the grounds that it violates the Constitutional ban on cruel and unusual punishment. These challenges were propelled in part by several horribly botched execution attempts, in which prisoners were stuck with IV needles numerous times over periods of up to two hours, and in a few cases returned to their cells when attempts failed. Opponents have also argued that the later drugs in the three-drug protocol may cause excruciating pain, which dying prisoners cannot express because the initial drugs have paralyzed them.
In April 2008, the U.S. Supreme Court ruled 7-2 that lethal injection was not unconstitutional; it is the “method of execution believed to be the most humane available,” Chief Justice John Roberts wrote in the majority opinion. “If administered as intended, that procedure will result in a painless death.” The decision put an end to a de facto six-month moratorium on death by lethal injection, but some states have yet to resume their execution schedules.
Louisiana seems determined to have the choice to execute if and when it wants to, without interference from prisoner lawsuits alleging administrative technicalities. This despite the fact that in recent years, the state has shown relatively little zeal for carrying out executions, compared to neighboring Texas. While Angola’s death chamber has been made famous by the films Dead Man Walking and Monster’s Ball, only three executions have been carried out there in the last ten years.
Angola Warden Burl Cain, who oversees all executions in Louisiana, has indicated that it causes him pain to put prisoners to death. But Cain, famously, appears more focused on heavenly justice than on the earthly variety. Cain executed his first prisoner in 1995, and later said, “I felt him go to hell as I held his hand.” He told the Baptist Press, “I decided that night I would never again put someone to death without telling him about his soul and about Jesus.”
If executions were ever to resume in Louisiana at the rates common in the 1980s, heavenly justice might be all that’s available to some of the inmates on death row. According to the New Orleans Times-Picayune, “Since the United States reinstated the death penalty in 1976, Orleans Parish juries have condemned 38 defendants to death. But a recent tally by attorneys for death-row inmates calculated that courts have found errors in 25 of those sentences, or nearly two-thirds. In some cases defendants were retried, resulting in convictions on lesser charges, while in others defendants were released.”