By Bob Allen
A death-row prisoner whose March 2 execution was postponed due to problems with the drugs to be used for her lethal injection has filed a federal lawsuit claiming violation of her constitutional right against punishments that are “cruel and unusual.”
Lawyers for Kelly Renee Gissendaner say her botched execution left her in 13 hours of anxiety and fear while corrections officials “fidgeted” about whether they could pull it off before her death warrant expired.
Because of secrecy clouding Georgia’s death penalty protocol, lawyers said, the truth may never be known about what went wrong with the drugs to cause a cloudy appearance that prompted concern they might not be effective.
Gissendaner’s case attracted widespread religious support in part because of her involvement in a prison seminary studies program sponsored by a consortium including Cooperative Baptist Fellowship-affiliated McAfee School of Theology at Mercer University. Hundreds of clergy lobbied on her behalf through petitions and social media campaigns before her last-minute reprieve.
According to the lawsuit, corrections officials picked up Gissendaner at the visitation room of Lee Arrendale Prison in Alto, Ga., at about 11:30 a.m. on Monday, March 2. They searched her, shackled her and drove her more than 100 miles to the Georgia Diagnostic and Classification Prison in Jackson, Ga.
They marched her past the gurney on which she was to be executed to the “death cell” of the prison’s execution chamber, where she would wait until she was scheduled to die at 7 p.m.
Gissendaner’s lawyers received a first phone call shortly after 10 p.m. that her execution would not proceed that night because the drugs were “cloudy.” The state’s attorney reportedly said obtaining new drugs and having them tested would take “a day or two,” but did not say whether her execution would proceed within the 36 hours remaining in the warrant period.
After Gissendaner’s lawyers told her she would not die that evening, a second call came telling them “not to go anywhere,” because officials were unsure they had tested the right batch of drugs and were now considering going forward with her execution after all.
Only after 13 hours of “immense mental anxiety,” the suit claimed, officials finally told Gissendaner at 11 a.m. on March 3 they had decided her execution would not proceed before her warrant window closed.
The lawyers said Gissendaner “endured hours of unconstitutional torment and uncertainty — to which she had not been sentenced” while prison officials “dithered about whether they could execute her.”
“Defendants have already violated Ms. Gissendaner’s Eighth Amendment rights by subjecting her to prolonged fear and uncertainty as to whether she would be subjected to a torturous death,” the lawsuit said. “She has no remedy for that violation.”
Without intervention by the court, it claimed, “there is a substantial risk” the state will again violate her rights. “The next time, however, she likely will not survive it.”
Gissendaner’s lawyers also asked the court to ensure a meaningful investigation into the state’s execution drugs. Given evidence that either the drug’s provider didn’t know what they were doing or they were mishandled by prison officials, lawyers said, “a self-investigation with opaque results is unacceptable.”
“While the events of that night raise many questions, Defendants have decided that they and they alone will determine which questions are asked,” the lawsuit alleged, “an approach which guarantees that the most urgent questions will go unanswered.”
A Georgia law passed in 2013 classifies the identity of those who make and supply lethal injection drugs a “state secret.” Without court intervention, Gissendaner’s lawyers said, officials could “be permitted to rubber-stamp their own demonstrably defective processes and again resume executions behind a veil of secrecy.”
The Alliance of Baptists included Gissendaner in the March 18 issue of an e-newsletter sent out titled “Prayers with the people.”
“We pray for our country, that we can imagine new ways to live in justice, and seek better ways of restoration for those who are victims of violence,” the entry says. “May we garner the moral courage to be prophets for the abolition of violence in all forms and for all people.”