Execution drug will cause unconstitutional pain, lawsuit says
ATLANTA -- Georgia's lethal injection drug carries a substantial risk of causing unconstitutional suffering for an inmate scheduled to die Tuesday, and execution by firing squad is the only appropriate alternative, his lawyers argue.
J.W. Ledford Jr. was convicted of murder in the January 1992 stabbing death of his neighbor, 73-year-old Dr. Harry Johnston, near his home in Murray County, in northwest Georgia.
Ledford, 45, suffers from chronic nerve pain that has been treated with increasing doses of the drug gabapentin for more than a decade, his lawyers said in a federal lawsuit filed Thursday. They cite experts who say long-term exposure to gabapentin alters brain chemistry in such a way that pentobarbital cannot be relied upon to make him unconscious and devoid of sensation or feeling.
"Accordingly, there is a substantial risk that Mr. Ledford will be aware and in agony as the pentobarbital attacks his respiratory system, depriving his brain, heart, and lungs of oxygen as he drowns in his own saliva," the lawsuit says.
That would violate the prohibition on cruel and unusual punishment enshrined in the Eighth Amendment of the U.S. Constitution, Ledford's lawyers argue. But the U.S. Supreme Court has said that when challenging an execution method on those grounds, an inmate must propose a "known and available" method of execution.
Ledford's lawyers, therefore, suggest that he be executed by firing squad.
There is no alternative method of lethal injection available to the state since the drugs used in executions have become increasingly difficult for states to obtain because manufacturers have prohibited their use for capital punishment, the lawsuit says. But the Supreme Court has held that execution by firing squad is constitutional, and Georgia already has the skilled personnel, weapons and ammunition needed to carry one out, Ledford's lawyers argue.
There are numerous law enforcement officers who currently have the necessary training to pass a proficiency test to qualify for a firing squad, they say.
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They note, however, that the 11th U.S. Circuit Court of Appeals has previously ruled -- including as recently as this week in an Alabama case -- that an inmate can only suggest an alternative execution method that is already authorized by Georgia law, and Georgia law only allows execution by lethal injection.
Three states -- Mississippi, Oklahoma and Utah -- allow for a firing squad as a backup if lethal injection drugs aren't available, said Robert Dunham, executive director of the Death Penalty Information Center, which compiles statistics on capital punishment.
Ledford is effectively prevented from meeting the burden imposed by the Supreme Court of proposing an alternative execution method when challenging the state's execution protocol as unconstitutionally cruel and unusual since state law only allows for lethal injection, his lawyers say.
For that reason, they say they recognize that a dismissal of their lawsuit on those grounds is inevitable and say that a quick dismissal would allow enough time for them to request a hearing before the full 11th Circuit.
The office of state Attorney General Chris Carr had no comment Friday morning on the lawsuit, spokeswoman Katelyn McCreary said in an email.
U.S. District Judge Steve Jones has ordered the state's lawyers to file a response to the lawsuit by 4:30 p.m. Friday.
Ledford's lawyers also have asked the judge to order the state not to discontinue or withhold his medication pending his execution. That could cause him to suffer withdrawal symptoms and would leave him to experience the pain for which the gabapentin was prescribed, they say.
Ledford, who is scheduled for execution at 7 p.m. on May 16, has requested an extensive last meal from jail house staffers. The request includes Filet Mignon wrapped in bacon with Pepper Jack cheese, large French fries, 10 chicken tenders, fried pork chops, a blooming onion, pecan pie with vanilla ice cream, sherbet and a Sprite, according to CBS affiliate WGCL-TV in Atlanta.
Ledford's attorneys also have asked the State Board of Pardons and Paroles to spare his life, citing a rough childhood, substance abuse from an early age and his intellectual disability.
The board, which is the only authority in Georgia with power to commute a death sentence, plans to hold a meeting Monday to hear arguments for or against granting clemency.
Sixty-eight men and women have executed in Georgia since the U.S. Supreme Court reinstated the death penalty in 1976. Fifty-seven men currently face death sentences in the state. Ledford is expected to be the 47th inmate put to death by lethal injection, WGCL-TV reports.