OLYMPIA – A lawsuit that could delay the executions of three men on Washington’s death row alleges that the state Department of Corrections’ method of administering lethal injections violates the state’s constitutional protections against cruel punishment and unnecessary pain.

The three convicted killers named as plaintiffs in the suit – Darold Stenson, Cal Coburn Brown and Jonathan Gentry – will get their day in court Thursday, when the civil trial of their suit starts in Olympia before Thurston County Superior Judge Chris Wickham.

A brief by Stenson’s attorneys filed May 5 finds fault with DOC’s lethal injection protocols – and spells out in chilling detail how the improper administering of the drugs can cause “undue pain and suffering.”

DOC’s three-drug lethal injection protocol prescribes three drugs – three grams of sodium thiopental, 100 mgs of pancuronium bromide and 240 millequivalents of potassium chloride.

According to the brief:

Sodium thiopental is a barbiturate and an ultra-short general anesthetic that, if properly administered, “will render the inmate unconscious.”

Pancuronium bromide, the second drug to be administered during the lethal injection, “paralyzes all voluntary movement.”

“Its administration without proper anesthetic would paralyze the inmate’s diaphragm, causing the inmate to experience a feeling of suffocation, as the inmate would struggle to breathe but would not be able to,” the brief says. Pancuronium bromide masks any outward signs of pain, creating the risk that an inmate will suffer “excruciating pain before death.”

The third drug administered, potassium chloride, stops the heart. “Its injection into a conscious inmate would be extremely painful and would cause an excruciating burning feeling throughout his veins,” the brief reads.

“When DOC employs a method of execution that is vulnerable to multiple errors, any one of which may result in the infliction of agonizing pain, it has a state constitutional obligation to provide adequate, practicable safeguards against those errors,” says a brief filed by lawyers with the Perkins Coie firm in Seattle, which is representing Stenson in the suit.

Stenson’s attorneys also argue that Washington’s lethal injection protocols fail to meet the standards set forth by the U.S. Supreme Court in a case arising from Kentucky.

The Washington Attorney General has argued that DOC’s protocols are “substantially similar” to the Kentucky protocols ruled to be constitutional by the U.S. Supreme Court.

Kentucky’s lethal injection protocols include safeguards that are not included in Washington’s protocols, according to Stenson’s attorneys’ brief. Among the alleged differences:

 • A requirement that Kentucky’s lethal injection team members “must remain certified in their profession and must fulfill any continuing education requirements in their profession.”

 • A requirement that Kentucky’s lethal injection team conduct 10 practice sessions annually, “including during each session a complete walk through of the execution, regardless of whether an execution is scheduled.”

A trial brief filed by the attorney general goes into detail about the DOC’s lethal injection protocols, including the requirement that the superintendent of the Washington State Penitentiary at Walla Walla ensure twice that no stays are in place for a defendant before he or she is executed, “once before the condemned is brought into the execution chamber and once immediately prior to the administration of sodium thiopental.”

According to the AG’s brief, Washington’s lethal injection protocols also require:

 • That the lethal injection team participate in “a minimum of three practice sessions preceding an execution that shall include the siting of intravenous lines.”

 • That a physician be present during an execution. The physician’s function is solely to “pronounce death at the conclusion of the execution process.” The physician does not assist in the siting of intravenous lines and is not present in the execution room when the execution takes place.

The AG’s trial brief says: “The plaintiffs bear the burden of rebutting the presumption of constitutionality by presenting clear, objective evidence that lethal injection is cruel punishment.” The AG also argues that the U.S. Supreme Court has already rejected claims that the three-drug lethal injection combination is unconstitutional.

In Washington, death row offenders have the option of death by lethal injection or by hanging. Washington has executed only two people by lethal injection – James Elledge on Aug. 28, 2001, and Jeremy Sagastegui on Oct. 13, 1998.

“Neither of those men appealed their death sentence or challenged Washington’s lethal injection methods,” says the brief by Stenson’s attorneys.

Washington DOC spokeswoman Maria Peterson said two death row offenders in recent years have been executed by hanging – Wesley Alan Dodd in 1993 and Charles Rodman Campbell in 1994.

Although the lawsuit filed by Stenson’s attorneys seeks only to create a policy for Washington’s lethal injections that does not cause undue pain and suffering to the offender, a lawyer with the Washington attorney general’s office who is representing the DOC in this suit thinks it has a larger goal.

“The state believes the purpose of this action is to prevent the executions from occurring,” said Assistant Attorney General John Samson, who is trying the case with Assistant Attorney General Sara Olson.

Sherilyn Peterson, one of Stenson’s attorneys, said the plaintiffs are not trying to delay the executions but only want “meaningful judicial review” of Washington’s lethal injection procedures.

Peterson noted that after DOC’s lethal injection team resigned in March in response to her client’s suit, the state has made no efforts to reconstitute it.

Peterson said: “The state has no execution team. They all resigned and the state refuses to reconstitute the team until after this case is over.

“The Supreme Court and other courts reviewing the legality of state lethal injection procedures have identified the qualifications and competence of the lethal injection team as key to approving the process. The state’s refusal to show that it is capable of assembling a qualified team is evidence that it cannot. We do not see how there can be any meaningful judicial review until the state reconstitutes its team.”

Olson said that the volunteer members of the lethal injection team resigned because they did not want to lose their anonymity if their names were published as a result of the current death penalty litigation.

No executions are scheduled in Washington, Olson said.

“We are months, if not years, from an execution,” she said.

Olson also said Peterson’s claims that the state is unaware of the qualifications necessary for future lethal injection team members is inaccurate.

Olson said that of the men on death row named in the suit, Gentry has a pending federal habeas corpus hearing, and the other two plaintiffs have exhausted all of the state and federal appeals regarding their convictions and sentences.

There is a stay of execution entered in Clallam County that would prevent Stenson from being executed until additional DNA testing in his case is completed. Peterson said prosecutors in Clallam County now are trying to get that stay lifted.

The Washington Supreme Court has issued a stay of execution for Brown, pending the results of the litigation to be heard at trial in Olympia.

Attorneys and court employees in Thurston County said that no matter how Wickham rules at the end of this week’s trial, the outcome almost certainly will be appealed all the way to the Washington Supreme Court.

Jeremy Pawloski covers public safety for The Olympian. He can be reached at 360-754-5465 or jpawloski@theolympian.com.