New Jersy's execution protocol up for comment

The Star-Ledger February 08, 2005
A year after an appeals court temporarily halted the state's ability to execute inmates, finding flaws in the procedure for carrying out lethal injections, death penalty opponents say the problems have not yet been fixed.

The Department of Corrections disputes that, saying it addressed the court's concerns through the revisions it proposed last September to increase public awareness of the process and better respond to last-second stays of execution.

A year after an appeals court temporarily halted the state's ability to execute inmates, finding flaws in the procedure for carrying out lethal injections, death penalty opponents say the problems have not yet been fixed.

The Department of Corrections disputes that, saying it addressed the court's concerns through the revisions it proposed last September to increase public awareness of the process and better respond to last-second stays of execution.

A public hearing is scheduled for this afternoon, after which the corrections department can either put its revised regulations into effect or propose additional changes, which could delay by months the earliest date at which any lethal injection could be carried out.

In the meantime, until valid regulations are published in the New Jersey Register, none of the 11 men on New Jersey's death row can be executed.

New Jersey has not executed an inmate since 1963.

Critics argue that, despite the proposed revisions, any execution would still be shrouded in secrecy and the state has no real plan to resuscitate an inmate if a stay were issued after the injection of lethal drugs had begun.

Matt Schuman, a spokesman for the state Department of Corrections, said, "We feel the regulations are adequate or they would not have been put forth, but we certainly are going to take the public comments in account as well." Testimony at today's hearing, he said, will be taken "quite seriously."

The department has proposed two significant changes to correct the flaws identified by a three-judge state appeals court in a decision issued last Feb. 20. It plans to bring back an emergency medical cart with supplies that could be used to attempt to resuscitate an inmate in the event the execution were stayed after the lethal drugs had begun flowing into his veins.

It also proposes to eliminate a ban on all contact between the news media and the condemned inmate during the 72 hours before execution.

Critics say neither change goes far enough.

"We believe the regulations remain faulty and remain arbitrary and unreasonable," Celeste Fitzgerald, director of New Jerseyans for Alternatives to the Death Penalty, said.

Fitzgerald said news reporters -- and by extension, the public -- attending a lethal injection would get an incomplete and sanitized view of what takes place in the execution chamber.

"It's absolutely critical that the public understands what's happening in the execution chamber -- and that means everything," Fitzgerald said. But under the department's procedures, by the time the witnesses see the condemned inmate, he would already have been strapped to a gurney and the intravenous tubes would have been inserted into his arms.

"That's the place where there's something most likely to go wrong," said Stephen Bright, who teaches a course on the death penalty at Yale Law School. "That's what they don't want people to see."

The department also proposes to keep a blanket prohibition on filming or videotaping an execution.

Kevin Walsh, a lawyer for New Jerseyans for Alternatives to the Death Penalty, said it is not proposing that a film of the execution be aired on television but simply that a videotape be made -- in case, for example, a court must later rule on whether the lethal injection amounted to cruel and unusual punishment.

And although the department now plans to have an emergency medical cart on hand in case of a late stay, John McDonald, president of the Association of Criminal Defense Lawyers of New Jersey, said it has taken no steps to determine if there are "appropriate lethal drugs whose effects might be reversible," as the appeals court suggested.

A protracted dispute over the lethal injection regulations could delay the execution of John Martini, the death row inmate closest to exhausting all appeals. Martini, 74, was sentenced to die in 1991 for kidnapping and murdering Fair Lawn businessman Irving Flax.

Flax's widow, Marilyn, said she is frustrated that her husband's killer has yet to receive the penalty a jury said he deserves.

"I'm hoping the courts will listen to me and other crime victims," Flax said. "It's been hell for me."

The hearing is scheduled for 1 to 3 p.m. at the Office of Administrative Law, 9 Quakerbridge Plaza, Mercerville.

Source: The Star-Ledger