ACLU drops lethal injection challenge

CARSON CITY -- A case challenging Nevada's use of lethal injection to execute death row inmates has been voluntarily dropped by the ACLU.

There is no longer a blanket stay of executions in effect in Nevada although none are scheduled.

Lee Rowland, northern coordinator for the ACLU of Nevada, said the decision to drop the case does not mean the group believes the three-drug cocktail used in the state to execute inmates is constitutional.

"It's just that this case is not the way to get at that truth," she said. "What is needed is more facts at the trial court level."

The order voluntarily dismissing the case is dated July 1. The case was filed by the ACLU last fall in part to block the imminent execution of William Castillo.

Rowland said that since Castillo, who was to be executed as a volunteer, has changed his mind and decided to pursue his appeals, there is no longer any urgent need to maintain the stay on the use of lethal injection.

Castillo was only 90 minutes away from being executed at the Nevada State Prison when the Nevada Supreme Court granted a stay to consider Nevada's use of lethal injection. Castillo had given up his appeals and wanted to be executed for the 1995 beating death of Isabelle Berndt, 86, in her Las Vegas home.

But he later changed his mind and now is pursuing an appeal of his conviction and sentence in U.S. District Court. His appeal could potentially include a challenge to the lethal injection process used in Nevada.

Rowland said the Nevada Supreme Court's decision last month rejecting Castillo's request to join in the challenge to the use of lethal injection also helped the group decide to drop the case.

In asking to participate in the case, Castillo wanted the court to move the proceedings to Clark County District Court for an evidentiary hearing to develop a record that it could use to determine the constitutionality of Nevada's lethal injection process.

While acknowledging Castillo's indisputable interest in the case, the court said his request to send the case to district court could not be accommodated.

One of the issues raised by the ACLU in the Nevada case is whether one of the three drugs used in the execution process serves only to mask the reaction of the condemned inmate to the final drug that induces death, thus violating the First Amendment by not allowing the public and media representatives to see the full effect of the process.

The argument is that the second drug, pancuronium bromide, a paralytic drug, is used only to veil the reaction of the inmate as the execution is carried out.

This issue will now have to come to the Nevada Supreme Court in some other proceeding.

The Nevada lethal injection case had remained active despite an April 16 decision by the U.S. Supreme Court upholding the use of the drug cocktail for capital punishment.

The U.S. Supreme Court said in a case out of Kentucky that the drugs used by states for execution is not a violation of the Eighth Amendment of the U.S. Constitution prohibiting cruel and unusual punishment.

The ACLU issue regarding the First Amendment concern was not directly resolved by the U.S. Supreme Court decision.