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Three Pennsylvania death row inmates have filed a class action suit to challenge the constitutionality of execution by lethal injection, echoing the claims of a Kentucky man involved in one of the most closely watched cases on this year’s docket at the U.S. Supreme Court. The suit was filed in the U.S. District Court for the Eastern District of Pennsylvania by attorney David Rudovsky of Kairys Rudovsky Messing & Feinberg, along with a team of partners from Morgan Lewis & Bockius � Elizabeth H. Fay, Joseph B.G. Fay, Clare D’Agostino and Kenneth M. Kulak. The suit, filed on behalf of more than 200 inmates on death row, was assigned to U.S. District Judge John R. Padova because he handled habeas corpus petitions from two of the lead plaintiffs. According to the suit, the Pennsylvania death penalty statute calls for administering an “ultrashort-acting barbiturate” and “chemical paralytic agents,” but does not specify the particular drugs or dosages to be used. The statute also includes no requirements for the training or licensure of those who carry out executions, the suit says. But documents from the Pennsylvania Department of Corrections (DOC) show that the drugs are sodium thiopental, pancuronium bromide and potassium chloride, the suit says. Although the Pennsylvania statute calls for “continuous” administration of the barbiturate, the suit alleges that, in practice, DOC guidelines call for injecting two syringes of sodium thiopental prior to administering the second drug. “If the sodium thiopental � is not effective, plaintiffs will be exposed to excruciating pain in the remainder of the process,” the suit alleges. The suit alleges that neither the statute nor the DOC guidelines explain how prison officials decide the proper dosage of the first drug “to ensure that individuals being executed receive anesthesia for the duration of their executions.” DOC guidelines call for lethal injection teams to be staffed by paramedics, nurses or other health care professionals, the suit says, but the training for mixing sodium thiopental “is neither common nor required for most paramedics and nurses.” The suit also says paramedics and nurses don’t have the expertise required to assess whether an adequate quantity of anesthetic is being used. As a result, the suit alleges, “there is a risk that plaintiffs will be conscious during their executions and will suffer unnecessary pain.” Since the second drug is a paralytic agent, the suit says, the prisoner would be unable to communicate their suffering. The final drug, potassium chloride, “causes excruciating pain as it burns intensely on its passage through veins toward the heart, causing cardiac arrest.” If the anesthesia has worn off or was not properly administered, the suit says, the inmates “will experience tremendous burning in their veins and painful heart attacks.” Rudovsky said in an interview that the Kentucky case before the U.S. Supreme Court is likely to decide only the standard to be used by lower courts when evaluating claims that lethal injection is cruel and unusual punishment. Although the justices could reach the merits and decide either that the current three-drug protocol should be banned or that it passes constitutional muster, Rudovsky said he believes the more likely outcome of the case will be an opinion that offers guidance on the level of proof the inmates must show, such as “unnecessary pain” or “substantial pain.” When asked if the case will be stayed pending the outcome of the Supreme Court case, Rudovsky said he intends to argue that discovery should begin immediately in the Pennsylvania case because there are numerous issues that can be investigated now and that do not hinge on the outcome of the high court’s case. The lead plaintiffs in the suit are Frank Chester, Zachary Wilson and Donald Hardcastle.

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