WASHINGTON — Prosecutor Matt Whitworth persuaded a jury to sentence Lisa Montgomery to death, but he isn't expecting the Kansas woman to die anytime soon.
Whitworth, an assistant U.S. attorney in Kansas City, Mo., said that Montgomery, 39, should to be put to death for strangling a pregnant woman and then using a kitchen knife to cut the baby from her womb.
On Oct. 30, however, the U.S. Supreme Court blocked the execution of a Mississippi murderer until it concludes a review next year of whether lethal injections constitute cruel and unusual punishment. And even before that, many states — including Texas and Missouri, two of the leaders in state-sanctioned killings — had imposed de facto moratoriums.
"It'll be many years before it's all wrapped up," Whitworth said.
After 1,099 executions since 1976, when the death penalty was reinstated, there's been an unusual lull in the nation's death chambers. There've been only 42 executions so far this year, the fewest since 1994.
In Texas, which has led the nation with 405 executions since 1976, the execution chambers have ground to a halt.
In Harris County, Texas, which includes Houston and accounts for 100 executions since 1976, Assistant District Attorney Roe Wilson said the uncertainty caused by the high court's review caused her to switch gears. Last week, she asked a court to withdraw the Feb. 26 execution that had been planned for Derrick Sonnier, who raped and murdered a woman and then stabbed her 2-year-old son to death in 1991.
"We're just not going to go forward with execution dates, although we're still trying cases as death penalty cases," Wilson said.
With executions all but on hold across the country, death-penalty opponents see an opening. The American Bar Association is promoting a nationwide moratorium on capital punishment. And despite the long odds against success, opponents want Congress to ban executions.
"We should take advantage of this apparent pause in executions to consider the severe injustices within the system as a whole," said Sen. Russ Feingold, D-Wis., who's introduced a Federal Death Penalty Abolition Act.
The controversy over lethal injections comes as polls find more Americans questioning the use of the death penalty, particularly over concern about wrongful convictions. Experts say that's giving more ammunition to death-penalty opponents.
"Right now, certainly the abolitionists are gaining some steam," said Daniel Medwed, a law professor at the University of Utah. "The lay of the land is that essentially everyone is waiting for the Supreme Court. A lot of states are just waiting and seeing how that process unfolds. They don't have to do that, but they're being very pragmatic."
Thirty-seven states allow the death penalty. Lethal injections have been used in 85 percent of the executions since 1976. The remaining prisoners were put to death by electrocution (14 percent) and gas chamber (1 percent), while three prisoners were hanged and two were killed by firing squads.
The Supreme Court review, prompted by a Kentucky death-penalty case, is taking aim at what most people have long believed is the best way to execute prisoners. The lethal injections numb the prisoner's face and make it impossible to show pain. As a result, they're easier for observers to watch.
Lethal injections involve three chemicals: sodium thiopental to induce unconsciousness, pancuronium bromide to cause muscle paralysis and potassium chloride to stop the heart.
Opponents of the death penalty say that if inadequate levels of sodium thiopental are administered, the anesthetic effect can wear off before the heart stops. In a report issued last month, Amnesty International cited the case of Angel Diaz of Florida, who "appeared to be moving 24 minutes after the first injection, grimacing, blinking, licking his lips, blowing and appearing to mouth words." The curtains surrounding his stretcher eventually were closed.
"The numerous recent botched executions have shattered the myth that lethal injection is a gentle process," said Sue Gunawardena-Vaughn, the director of Amnesty International USA's Program to Abolish the Death Penalty. "If lethal injection doesn't call medical ethics into question, what does? Health professionals are charged with saving lives, not ending them."
Medwed predicted that death-penalty opponents would gain more traction if the Supreme Court concludes that lethal injections are cruel and unusual punishment.
"Lethal injections have been in vogue for a long time," Medwed said. "What makes this unusual is that the most popular and prominent method of execution is being attacked. The interesting thing will be to see if the Supreme Court finds it cruel and unusual — what's left? What are states going to do? . . . Some people think, in Utah at least, that the firing squad is the most humane because it's just one bullet to the head — it's quick."
Wilson, the assistant D.A. from Texas who supports the death penalty, said she's eager to have the Supreme Court review lethal injections in an attempt to quell the controversy. But she defended them, saying they provide "the most painless way" to execute condemned prisoners.
"It's basically like having major surgery," she said. "If you've ever had that done, you know that one second you're aware and the next second the operation's over."
In Missouri, Whitworth expects executions to resume after the Supreme Court makes its decision. He said it's just a matter of time before the jury's sentence will be carried out.