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Lethal Injection Dispute Features a New Player

(CN) - A death-row inmate may intervene in a suit against the three-drug method of execution, even though one of the drugs is no longer available, the D.C. Circuit ruled.

The typical three drugs used in lethal injection are sodium thiopental to induce unconsciousness, panacuronium bromide to cause respiratory arrest, and potassium chloride to stop the heart.

Hospira's decision to stop making sodium thiopental because of its use in capital punishment, however, cost the U.S. its supply of the drug in 2011.

This scarcity came under scrutiny this month when Ohio executed Dennis McGuire using a new drug cocktail that had never been tried before in the U.S.

Despite concerns about the untried method, a court declined to halt the execution. McGuire took more than 20 minutes to die, during which he appeared to gasp and struggle for breath.

A challenge to the federal lethal injection protocol has been pending in Washington, D.C., since 2005. The executions of the three inmate-plaintiffs have been stayed, however, pending the resolution of their Eighth Amendment claims that the three-drug cocktail amounts to cruel and unusual punishment.

Jeffrey Paul, a federal prisoner on death row, moved to intervene on Oct. 6, 2009 - one day after he exhausted his post-conviction appeals. He was convicted in 1997 of robbing and murdering a retired National Park employee on federal land.

A federal judge denied his request as untimely, but the D.C. Circuit reversed the ruling Friday.

Given the extremely slow pace at which this litigation has proceeded, Paul's motion to intervene is not untimely, because it would not prejudice any of the original plaintiffs for him to join the case.

"In focusing on the amount of time that had elapsed between the filing of the lawsuit and Paul's motion to intervene, the district court overlooked what the relevant caselaw says is the most important consideration: the fact that granting Paul intervention was highly unlikely to disadvantage the existing parties," Judge Thomas Griffith wrote for the three-judge panel.

Other inmates were permitted to intervene in 2007, and nothing in the case has meaningfully changed since then, the court ruled. Like these earlier intervenors, Paul stipulated that he would not seek to revisit any of the issues already decided by the court.

The government also argued that the unavailability of sodium thiopental removes the reason for the lawsuit because no one can be executed using the three-drug cocktail the suit challenges.

"But the government's argument overlooks the fact that not all of the claims in this lawsuit are tied to that cocktail," Griffith found. "The inmates' due process challenge, which attacks a refusal to disclose the procedures that will be used to execute them, is an independent claim that remains live regardless of whether the government can use the particular combination of drugs it has used in the past."

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