by TChris

In a disappointing decision for opponents of the death penalty, as well as for those who oppose the execution of Kevin Cooper, federal District Court Judge Jeremy Fogel of San Jose, California has ruled that using the drug pancuronium bromide during an execution does not constitute cruel and unusual punishment.

Defense lawyers argue that the chemical may mask the inmate's suffering. It paralyzes the skeletal muscles but does not affect the brain or nerves. A person injected with it is conscious but cannot move or speak. It is possible, defense lawyers say, that an inmate could remain awake as he suffocates.

Judge Vogel accepted a government expert's opinion that an initial injection of sodium pentothal made it unlikely that an inmate would awaken before suffocating.

Deborah W. Denno, a law professor at Fordham University who published a study of the chemicals in lethal injections in 2002, said Judge Fogel's ruling was open to question. "The drug seems to have no other purpose than to keep a person still," Professor Denno said.

Cooper's lawyers point out that several states ban veterinary use of pancuronium bromide. Use of the drug to facilitate executions has been challenged in nine cases recently. Judge Fogel's decision is the first of those challenges to be resolved on its merits.

Cooper is scheduled to die Tuesday. TalkLeft's recent coverage of Cooper's case can be found here. What may be his last interview can be found here. Go here to read a report of new evidence of Cooper's innocence.

Update: Cooper filed an appeal Friday night in the U.S. Court of Appeals for the Ninth Circuit, asking the court to stay his execution and permit the filing of a second petition for a writ of habeas corpus. Cooper's request alleges "that state prosecutors and investigators used false evidence and suppressed other evidence that could be used to prove Cooper is innocent."